High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD19 CRIMINAL APPLICATION NO.4072 OF 2022Jaswantsingh Hajurasingh Shahu,Age 56 yrs., Occ. Service,R/o Gurudwara Gate No.3,Nanded, Tq. & Dist. Nanded. … Applicant… Versus …1The State of MaharashtraThrough In-charge,Itwara Police Station, Nanded,Tq. & Dist. Nanded. 2Inderjitsingh Charansingh Dafedar,Age 38 yrs., Occ. Business,R/o Gurudwara Gate No.2,Nanded, Tq. & Dist. Nanded. … Respondents...Mr. M.K. Bhosale, Advocate h/f Mr. M.A. Granthi, Advocate for applicantMr. A.M. Phule, APP for respondent No.1Mr. R.J. Nirmal, Advocate h/f Mr. S.S. Gangakhedkar, Advocate forrespondent No.2...WITHCRIMINAL APPLICATION NO.2115 OF 20241Indrajitsingh Charansingh Dafedar,Age 38 yrs., Occ. Business,R/o Gurudwara Gate No.2,
Legal Reasoning
219_Cri.Appln_4072_2022+1Vazirabad, Nanded, Tq. & Dist. Nanded. 2Harmindarsingh Charansing Dafedar,Age 39 yrs., Occ. Business,R/o Gurudwara Gate No.2,Vazirabad, Nanded, Tq. & Dist. Nanded. 3Sarbjitsingh Charansing Dafedar,Age 41 yrs., Occ. Business,R/o Gurudwara Gate No.2,Vazirabad, Nanded, Tq. & Dist. Nanded. 4Inderjeetsingh Daljitsingh Sotha,Age 40 yrs., Occ. Business,R/o Flat No.303, B Wing, Sankalp Vihar,Plot No.35/A, Near IDBI Bank,Sector – 21, Khargar, Raigad. … Applicants… Versus …1The State of MaharashtraThrough Police Inspector,Itwara Police Station, Nanded,Tq. & Dist. Nanded. 2Jaydipsingh Jaswantsingh Sahu,Age 28 yrs., Occ. Education,R/o Gurudwara Gate No.3,Nanded, Tq. & Dist. Nanded. … Respondents...Mr. R.J. Nirmal, Advocate h/f Mr. S.S. Gangakhedkar, Advocate for applicantsMr. A.M. Phule, APP for respondent No.1Mr. M.K. Bhosale, Advocate for respondent No.2... 319_Cri.Appln_4072_2022+1CORAM :SMT. VIBHA KANKANWADI &ROHIT W. JOSHI, JJ.DATE:02nd JANUARY, 2025ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Both the matters are in fact cross cases. Criminal ApplicationNo.4072 of 2022 has been filed for quashing the proceedings in Charge SheetNo.34/2023 pending before learned Judicial Magistrate First Class, Nandedarising out of First Information Report vide Crime No.291/2022 dated22.10.2022 registered with Itwara Police Station, Nanded, for the offencepunishable under Sections 294, 323, 506 read with Section 34 of the IndianPenal Code, 1860 and under Section 3 punishable under Section 25 of theIndian Arms Act, 1959; whereas Criminal Application No.2115 of 2024 isfiled for quashing the proceedings in Summary Criminal Case No.543/2023pending before learned Judicial Magistrate First Class, Nanded arising out ofFirst Information Report vide Crime No.290/2022 registered with same PoliceStation on the same day for the offence punishable under Sections 294, 323,506 read with Section 34 of the Indian Penal Code, 1860. 2Heard learned Advocate for applicants, learned APP forrespondent No.1 and learned Advocate for respondent No.2, in both matters.In order to cut short, it can be said that they have argued in support of their 419_Cri.Appln_4072_2022+1respective contentions. 3At the outset, it can be said that when there are cross cases,certainly some incident has taken place and then it would be a disputedquestion of fact, as to which incident is genuine, however, taking intoconsideration the contents of the First Information Report and the statementsof witnesses it can be certainly seen, as to whether the said material issufficient to attract the offences under which the First Information Reportshave been lodged. In both the matters it is stated in the First InformationReport that all the accused came together and gave obscene abuses. First andthe foremost fact is that Crime No.291/2022 has been filed against twopersons, whereas Crime No.290/2022 is filed against three named accusedand one unknown person. It could not have been possible that all theaccused would have abused the other party in chorus. Offence under Section294 of the Indian Penal Code has been invoked in both the cases. We wouldlike to rely on the decision in Pawan Kumar vs. State of Haryana and another[1996 (4) SCC 17], wherein it has been held that - “In order to secure a conviction, the provisions of Section 294 of theIndian Penal Code require two particulars to be proved by theprosecution viz. (i) the offender has done any obscene act in anypublic place or has sung, recited or uttered any obscene song or wordin or near any public place; and (ii) has so caused annoyance toothers. If the act is not obscene, or is not done in any public place, or 519_Cri.Appln_4072_2022+1the song recited or uttered is not obscene, or is not sung, recited oruttered in or near any public place, or that it causes no annoyance toothers, no offence is committed.”The place of incident is stated to be ‘Youth Khalsa Hotel,Bhagatsingh Road, Nanded’. Statement of the hotel owner has been recordedin Crime No.291/2022 viz. Jagjitsingh Dhariwal. He has stated that both theparties had come and were occupying different tables in A/C section of thehotel. According to him, the place where the other party was sitting was notvisible to the other party. When waiter Sumit came running around 10.00p.m., he informed that the quarrel is going on and, therefore, the owner wentto the A/C room where he found that verbal exchanges and the abuses, soalso scuffle, nobody was holding any weapon, one Jaydipsingh Shahu camebut the hotel employees did not allow him to stay, but he was also givingabuses in filthy language. The hotel owner says that he as well as oneGurmitsingh separated the quarreling party and made them to go out of thehotel. Statement of waiter Sumit is also on the same line. Thus, it is to benoted from those statements that there were abuses those were given may bein filthy language may even be considered as obscene, but it has not causedany annoyance to others. Therefore, Section 294 of the Indian Penal Code isnot at all attracted in both the cases. We are aware that statements sorecorded under Section 161 of the Code of Criminal Procedure in one case 619_Cri.Appln_4072_2022+1may not be per se considered in another case, but in that case it is to benoted that in respect of Crime No.290/2022 either from the First InformationReport or from the contents of the statements of witnesses under Section 161of the Code of Criminal Procedure it will not be revealed even prima faciethat annoyance was caused to the public in general because of the acts of theaccused. The basic ingredient of the offence is not made out and, therefore,it would be unjust to ask the applicants in both the cases to face the trial forthe offence punishable under Section 294 of the Indian Penal Code. Theingredients of the offence under Sections 323, 506 read with Section 34 ofthe Indian Penal Code are certainly made out in both the cases. Further, asregards offence under Crime No.291/2022 is concerned, though the FirstInformation Report was also registered for the offence under Section 3punishable under Section 25 of the Arms Act; yet, the charge sheet is notfiled under the said Section. It appears that it has been dropped by the policeitself and, therefore, there is no question of setting aside the First InformationReport in that Section. The applications deserve to be partly allowed.Hence, following order. ORDERi)Both Criminal Applications stand partly allowed. 719_Cri.Appln_4072_2022+1ii)Proceedings in Charge Sheet No.34/2023 pending before learnedJudicial Magistrate First Class, Nanded arising out of First Information Reportvide Crime No.291/2022 dated 22.10.2022 registered with Itwara PoliceStation, Nanded stands quashed and set aside as against applicantJaswantsingh Hajurasingh Shahu, to the extent of offence punishable underSection 294 of the Indian Penal Code only. iii)Proceedings in Summary Criminal Case No.543/2023 pendingbefore learned Judicial Magistrate First Class, Nanded arising out of FirstInformation Report vide Crime No.290/2022 dated 22.10.2022 registeredwith Itwara Police Station, Nanded stands quashed and set aside as againstapplicants viz. 1) Indrajitsingh Charansingh Dafedar, 2) HarmindarsinghCharansing Dafedar, 3) Sarbjitsingh Charansing Dafedar and 4)Inderjeetsingh Daljitsingh Sotha, to the extent of offence punishable underSection 294 of the Indian Penal Code only. iv)It is clarified that the relief of quashing aforesaid both theproceedings and First Information Reports for other offences stands rejected.v)The concerned Court to take further steps as against applicants.( ROHIT W. JOSHI, J. )( SMT. VIBHA KANKANWADI, J. )agd