High Court
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cria-3948.241 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.3948 OF 20241) Sandip S/o Namdeo Khade,2) Kailas S/o Baburao Sonawane,3) Babu S/o Arjun Kekan ...APPLICANTS VERSUS 1) The State of Maharashtra,2) Maruti S/o Dhondiba Ugammugale ...RESPONDENTS ... Mr. Kishor D. Khade Advocate for Applicants. Mr. G.A. Kulkarni, A.P.P. for Respondent No.1. ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 11th MARCH, 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Application has been filed for quashment of theproceedings in Sessions Case No.55 of 2017 pending before thelearned Sessions Court, Beed arising out of the First InformationReport (for short “the FIR”) vide Crime No. 173 of 2016 cria-3948.242registered with Shivaji Shivajinagar Police Station, Beed for theoffence punishable under Sections 307, 323, 504, 506 read withSection 34 of the Indian Penal Code.2.Heard learned Advocate Mr. Khade for the applicants,learned APP Mr. Kulkarni for respondent No.1. It is not necessaryto issue notice to respondent No.2.3.Learned Advocate for the applicants has taken us throughthe contents of the FIR as well as the charge-sheet and hesubmits that the offence under Section 307 of the Indian PenalCode was not made out. Perusal of the FIR would show that theinformant has stated that applicant No.1 had assaulted him withiron rod and it was on the count that the agricultural land hasnot been transferred in his name for which the informant wassupposed to help him. He says that accused Sandip and Kailasalong with one unknown person had assaulted to the informantand one Sarjerao. However, perusal of the injury certificatewould show that simple injuries have been caused. Therefore,there was no question of coming to the conclusion that theaccused persons had intention to kill. Though the charge is alsoframed, yet when cognizance of the offence under Section 307 of cria-3948.243the Indian Penal Code ought not to have been taken, it would beunjust to ask the applicants to face the trial.4.Learned APP strongly opposed the application. Hereiterates that the charge was framed on 20th September 2019and the applicants have come belatedly. The matter is posted forhearing. There is ample evidence against the applicants.5.Here, when inquiry was made with the learned Advocatefor the applicants, he reiterates that the applicants have comebefore this Court to challenge invoking of Section 307 of theIndian Penal Code. Whether the particular section is attracted ornot, would be considered by the Court at three stages, firstlyafter the charge-sheet is filed and when the Judicial MagistrateFirst Class takes cognizance of the offence then the scrutiny willhave to be done by the Magistrate. Herein this case thecognizance of the offence has been taken on 22nd November2016, by the Magistrate, for the offence under Section 307, 323,506 read with Section 34 of the Indian Penal Code. It appearsthat this order was never challenged by the present applicants.Thereafter committal order has been passed under Section 209of the Code of Criminal Procedure by the learned Magistrate on6th April 2017, wherein it is stated that the accused persons have cria-3948.244been charged with the offence under Section 307, 323, 506 readwith Section 34 of the Indian Penal Code and offence underSection 307 of the Indian Penal Code is exclusively triable by theCourt of Sessions, hence after making compliance under Section207 of the Code of Criminal Procedure, the said committal orderhas been passed. Thus, this is the second stage where theMagistrate had considered whether Section 307 of the IndianPenal Code is attracted or not. Thereafter it can be seen thatafter the committal of the case, the learned Additional SessionsJudge, Beed has framed the charge on 20th September 2019.Before framing charge as per Section 226 and 227 of the Code ofCriminal Procedure, the opening of the case should be by theprosecution and then upon consideration of the record anddocuments as well as after hearing the submissions of theaccused and the prosecution, the Sessions Judge should considerwhether there is sufficient ground for proceeding against theaccused and if it is not there, then he shall discharge theaccused by recording the reasons. The stage of Section 226 and227 of the Code of Criminal Procedure is mandatory. Here in thepresent Application no ground has been taken that theconcerned Judge had not heard the applicants before framingcharge. When it was found that the case is exclusively triable by cria-3948.245the Court of Sessions, the charge has been framed and at thecost of repetition, we would say that it includes Section 307 ofthe Indian Penal Code. That was the best opportunity availableto the accused to put forth that the offence is not made outagainst them. 6. Present Application has been filed in 2024, when thecharge itself is framed in 2019. Then the obvious question was,as to why the applicants have approached belatedly, and theanswer that we get is that Section 307 of the Indian Penal Codehas been wrongly invoked. There is absolutely no justification fornot approaching the appropriate Court at the appropriate stageto challenge this fact. Unfortunately the Roznama shows thatafter framing of charge the matter has not progressed. But thatcannot be the ground for the present applicants to invoke thepowers under Section 482 of the Code of Criminal Procedure.7.In Nandkishor Rampal Lohiya and others vs. State ofMaharashtra, 2001 Criminal Law Journal 2742, this Court hasobserved that once charge was framed in warrant case institutedeither on complaint or a police report, the Magistrate has nopower to pass order of discharge. After framing of charge underSection 228 of the Code of Criminal Procedure there was no
Legal Reasoning
cria-3948.246provision for dropping of charge. The accused was required toexhaust his remedy of discharge given to him under Section 227of the Code of Criminal Procedure before stage of framing chargeand not thereafter. Similar view has been taken in Ratilal BhanjiMithani vs. State of Maharashtra, AIR 1979 SC 94. Similarly, nowthough the Application is under Section 482 of the Code ofCriminal Procedure, yet when the accused themselves had notraised the point at the appropriate stage, this cannot be the fitcase where we should exercise our powers under Section 482 ofthe Code of Criminal Procedure. 8.Hence, the Application is rejected.9. Taking into consideration the pendency of the case andfrom the Roznama it appears that the learned trial Judge is notmaking any positive efforts for proceeding the matter further, weexpedite the trial. 10.Learned Registrar (Judicial) to inform the order to thelearned Additional Sessions Judge, Beed.[SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/MAR25