High Court · 2025

Legal Reasoning

appln-4134-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.4134 OF 2024Shrinivas s/o Bhagwan RathodAge: 25 years Occu.: At present NIL,Selected candidate for the appointmentof Police Constable Sindhudurgfrom VJ-A (DTA) category,R/o. Udanaik Tanda, Tq. Kandhar,District Nanded. .. ApplicantVersus1.The State of Maharashtra,Through Police Inspector,Police Station Kandhar,Tq. Kandhar, District Nanded.2.Ramrao Venkati Pawar,Age:50 years, Occu.: Agri.,R/o. Udanaik Tanda, Tq. Kandhar,District Nanded... Respondents…Mr. V. D. Salunke, Advocate for the applicant.Mr. N. R. Dayama, APP for respondent No.1/State.Mr. N. S. Shah, Advocate h/f Mr. S. V. Natu, Advocate for respondent No.2.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON : 20 FEBRUARY 2025 PRONOUNCED ON : 28 MARCH 2025ORDER (Per Smt. Vibha Kankanwadi, J.) :-.Present application has been filed under section 482 of the Codeof Criminal Procedure for quashing the Charge-sheet No.44 of 2020 i.e.the proceedings in R.C.C. No.47 of 2020 pending before the learned[1] appln-4134-2024.odtJudicial Magistrate First Class, Kandhar, District Nanded arising out ofthe FIR vide Crime No.138 of 2019 registered with Kandhar PoliceStation, District Nanded for the offences punishable under Sections 143,147, 148, 149, 325, 323, 504, 506 of Indian Penal Code.2.Heard learned Advocate Mr. V. D. Salunke for the applicant,learned APP Mr. N. R. Dayama for respondent No.1/State and learnedAdvocate Mr. N. S. Shah holding for learned Advocate Mr. S. V. Natu forrespondent No.2.3.It has been vehemently submitted on behalf of the applicant, whois arrayed as accused No.5 in the FIR, that the present applicant hasbeen unnecessarily involved in the matter. He belongs to Lamancommunity recognized as VJNT and he is belonging to DTA category.He is the only educated person in the family and after completing hisB.A., he was preparing for the exams for appointment as PoliceConstable. Respondent No.2, his brothers and cousins hadunnecessarily been to the house of applicant. Respondent No.2 is thehusband of sister of applicant’s mother. Thereafter, the altercationshappened and the mother of the applicant was severely beaten. Shelodged FIR vide Crime No.137 of 2019 for the offence punishable underSections 143, 147, 148, 149, 324, 323 and 506 of Indian Penal Code.Charge-sheet has also been filed after completion of the investigation.[2] appln-4134-2024.odtNow, respondent No.2 has roped all the family members of applicant’smother. The present FIR is the counterblast. The delay in lodging theFIR has not been explained at all. No overt act is attributed to thepresent applicant and therefore, it would be abuse of process of law toask him to face the trial. 4.Per contra, learned APP as well as learned Advocate forrespondent No.2 strongly opposed the application and submitted that thepresent applicant was the member of unlawful assembly, who had comewith a common object. There was a court proceeding in respect of thematrimonial dispute of the brother of respondent No.2, but the informantwas abused, assaulted with the help of sticks. The witnesses have alsostated the presence of the applicant. Learned Advocate for respondentNo.2 has relied on the decision in Bhe Ram Vs. State of Haryana,[(1980) 1 SCC 201], wherein it has been held that when there is offenceunder Section 149 of Indian Penal Code, it is not necessary that anyspecific act should be attributed to each accused. It is sufficient if it isproved that all the members of unlawful assembly shared the commonobject of the said assembly. Similar view was taken in Krishnappa andothers Vs. State of Karnataka by Babaleshwara Police Station,[(2012) 11 SCC 237], wherein it has been observed :-“20.It is now well settled law that the provisions ofSection 149 Indian Penal Code will be attracted whenever[3] appln-4134-2024.odtany offence committed by any member of an unlawfulassembly in prosecution of the common object of thatassembly, or when the members of that assembly knew thatoffence is likely to be committed in prosecution of that object,so that every person, who, at the time of committing of thatoffence is a member, will be also vicariously held liable andguilty of that offence. Section 149 Indian Penal Code createsa constructive or vicarious liability of the members of theunlawful assembly for the unlawful acts committed pursuantto the common object by any other member of that assembly.This principle ropes in every member of the assembly to beguilty of an offence where that offence is committed by anymember of that assembly in prosecution of common object ofthat assembly, or such members or assembly knew thatoffence is likely to be committed in prosecution of that object.21.The factum of causing injury or not causing injurywould not be relevant, where accused is sought to be ropedin with the aid of Section 149 Indian Penal Code. Therelevant question to be examined by the court is whether theaccused was a member of an unlawful assembly and notwhether he actually took active part in the crime or not.”He further relied on the decision in Sushilabai w/o VaijinathPawar Vs. State of Maharashtra and others, [2023 (1) Mh.L.J. (Cri.)700] to which [Smt. Vibha Kankanwadi, J.] was party and taking intoconsideration the fact that the petitioner had approached after aconsiderable delay, while invoking powers of the High Court underSection 482 of the Code of Criminal Procedure, it is observed that “aparty cannot approach the High Court under Section 482 of the Code of[4] appln-4134-2024.odtCriminal Procedure at his whim and caprice merely because no period oflimitation in filing the petition under the aforesaid provision is provided. Apetition under Section 482 of the Code of Criminal Procedure must befiled within a reasonable time and it should not be vitiated by inordinatedelay and latches on the part of the petitioner.” Here, in this case, thecharge-sheet was filed on 08.06.2020. The case history/roznama fromthe website has been produced, which shows that from 21.05.2022, thematter was pending for Bailable Warrant and thereafter, as the accusedhad not remained present, order of Non Bailable Warrant has beenpassed and the matter is pending for Non Bailable Warrant since28.11.2024. Thereafter on 29.08.2024, the matter was taken on boardand an application for cancellation of warrant was filed on behalf ofpresent applicant and others. Therefore, the applicant was not evenappearing before the Trial Court regularly, yet he want the discretionaryrelief. Hence, this is not a fit case for exercise of powers under Section482 of the Code of Criminal Procedure. 5.Perusal of the FIR and the statements of witnesses including theinjured would show that they have stated about the presence of thepresent applicant. Even the applicant stated that there is a cross FIRfiled by his mother. Now, whether this FIR is counterblast can be decidedby the Trial Court only. Existence of cross FIR’s prima facie show thatthe incident had happened. At the same time, perusal of both the FIRs[5] appln-4134-2024.odtwould show that the place where the incident had taken place in therespective FIR’s is different. The spot panchanama does not show thatthe house of the present applicant is to the forecorners of the boundaryof the house of respondent No.2, but the spot there is shown on thepublic road. Therefore, who was the aggressor would be a point involvedin cross FIRs/cross cases, which cannot be considered in this matter. 6.When the presence of the applicant has been stated by theinformant and the witnesses and it is stated that all the accused hadcommon object and the applicant being member of unlawful assemblywas present there, then certainly the ratio laid down in Bhe Ram(Supra) and Krishnappa and others (Supra) is also required to beconsidered by the Trial Court. Certainly, a point to that effect has beenmade out by the respondents. 7.Interesting point to be noted is that the applicant had theknowledge about filing of the FIR against him, because he was arrestedon 25.06.2019 and thereafter, it is stated that he has been released onbail. After filing of charge-sheet on 08.06.2020 as per E-Court ServiceCase Status, he has not approached this Court within reasonable time.Now, when he has been selected in the recruitment with SindhudurgPolice, he has filed the present application. There is no explanationgiven for approaching the Court belatedly and, therefore, we are[6] appln-4134-2024.odtreiterating the observations from Sushilabai Vaijinath Pawar (Supra).We do not find this this to be a fit case where we should exercise ourpowers under Section 482 of the Code of Criminal Procedure. There aredisputed questions of fact. Application stands rejected. [ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[7]