Shivnath S/O Gulabchand Rathi And ... vs The State Of Maharashtra & Ors
2016 Latest Caselaw 5021 Bom

                                      1              CRI WP 657.2011.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                        
                CRIMINAL WRIT PETITION NO. 657 OF 2011




                                                
                 Manmohansinh Karamsingh Oberai
                 age 65 yrs, Occ. Social worker,
                 R/o Osmanpura, Aurangabad




                                               
                 Tq. & Dist. Aurangabad.         ...Petitioner.

                 Versus

         1.      The State of Maharashtra




                                     
                 through Secretary,
                 Home Department,
                             
                 Mantralaya, Mumbai-32.
                 (Copy to be served on the Public
                 Prosecutor High Court of Judicature
                            
                 of Bombay Bench at Aurangabad)

         2.      The Commissioner of Police,
                 Aurangabad,
      

                 Tq. & Dist Aurangabad.
   



         3.      The Police Inspector,
                 Police Station, City Chowk,
                 Aurangabad.





         4.      Mr Kudabakash Alarkha Tadvi,
                 Ex-Tahsildar/Assistant Returning Officer,
                 193, Aurangabad (west) Assembly Election 
                 Constituency, At present Special 
                 Land Acquisition Officer, Collector Office, 





                 Osmanabad.

         5.      Election Commission of India,
                 Nivarchan Bhavan, New Delhi.  ...Respondents..
                                     ...
                                   WITH
                     CRIMINAL APPLICATION NO.4806 
                                    IN 
                 CRIMINAL WRIT PETITION NO.657 OF 2011




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                                          2                CRI WP 657.2011.odt

                                  ...
              Advocate for Applicants : Mr C V Thombre  




                                                                             
                 APP for Respondents : Mr A R Kale 
                                  ...




                                                     
                     CORAM : V.K. JADHAV, J.

Dated: August 29, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the common order passed by

the 21st Judicial Magistrate First Class, and Jt. Civil

Judge (J.D.), Aurangabad below Exh.19 and 22 in

S.C.C.No.7494 of 2004, the original accused No.2 has

preferred this Criminal Writ Petition.

2. Brief facts, giving rise to the present writ petition,

are as follows :-

On 24.8.2005 the Maharashtra State Assembly

Election Programme was declared and Code of Conduct

was also announced during the period on 24.8.2004

and onwards. The actual election process was to be

commenced from 15.9.2004 to 28.9.2004. Even on

15.9.2004 respondent No.2 by exercising powers under

Section 37(1) and 37(3) of The Bombay Police Act, 1951

issued the order of prohibition as mentioned in clause A

to F. Furthermore, on 10.9.2004 order under section

3 CRI WP 657.2011.odt

144 of Code of Criminal Procedure also came to be

passed by respondent No.2. On 20.9.2004 when the

election date was scheduled for filling of the nomination

forms some political leaders came in the office of the

Election Officer for submission of their nominations. At

that time, followers of those political leaders gave

slogans in the office of the Election Officer though

aforesaid order under section 37 (1) and 37 (3) of

Bombay Police Act, 1951 as mentioned in Class A to F

and order under Section 144 of the Code of Criminal

Procedure were in force. On the basis of the complaint

lodged by the Tahsildar, Sillod Crime No.131/2004 for

the offence punishable under section 143, 188 of the

Indian Penal Code and Section 135 of the Bombay Police

Act came to be registered at Police Station City,

Aurangabad. After due investigation, police submitted

charge sheet.

3. The learned Special Assistant Public Prosecutor,

thereafter, filed an application Exh.19 under section 321

of the Code of Criminal Procedure for withdrawal of the

prosecution. It has contended in the said application

4 CRI WP 657.2011.odt

that the Special Assistant Public Prosecutor is

withdrawing the said case in compliance with the orders

of the Police Commissioner, Aurangabad and Assistant

Director and Public Prosecutor, Aurangabad. Since the

learned Judge of the Trial Court has observed that there

is no application of mind independently for withdrawal

of the prosecution, the Special Assistant Public

Prosecutor again submitted an application at Exh.22,

however, the learned Judge of the Trial Court by its

impugned order dated 28.6.2011 passed below Exh.19

and 22 rejected the application. Hence, this writ

petition.

4. The learned counsel for the petitioner submits

that, the allegations have been made in the complaint

that large number of followers gathered near the office of

the Returning Officer while their leaders were

submitting nomination forms and gave slogans in the

form that "they should lead and public will follow them."

On the basis of these allegations, Crime came to be

registered. Learned counsel submits that, the Special

Assistant Public Prosecutor after applying his mind

5 CRI WP 657.2011.odt

submitted an application Exh.22 and pointed out to the

Court that, the offence is not so severe and there was no

damage to the public property, as such. Learned

counsel submits that even then the Court below has

erroneously rejected the application.

5. I have also heard the learned APP for the State.

6. Though, the learned Special Assistant Public

Prosecutor has submitted an application for withdrawal of the prosecution on the basis of a communication

received by him from the Police Commissioner, Aurangabad and Assistant Director and Public

Prosecutor, Aurangabad, it appears from the contents of the application that, he has brought to the notice of the

Trial Court by pointing out that the offence is not so severe and there was no damage to the public property

in this case.

7. It is well settled that, the sole consideration for the

Public Prosecutor when he decided to withdraw from the

prosecution is a larger factor of the administration of

public justice. The interest of public justice should be

the paramount consideration.

6 CRI WP 657.2011.odt

8. In the case in hand, large number of followers

gathered at the office of the Returning Officer when

their leaders were submitting nomination forms. There

are no other allegations made in the complaint. Even in

the charge sheet role ascribed to the indefinite persons

consisting of a large mob only to the extent that the said

mob at the time of incident despite the prohibitory

orders passed by the authorities, gave slogans in

support of their leaders. Except this nothing revealed

during the course of the investigation. Thus, in my

considered opinion, there is sufficient compliance of the

requirement of the provisions of Section 321 of the Code

of Criminal Procedure. The learned Magistrate ought to

have allowed the application Exh.19/22 and grant

permission to Special Assistant Public Prosecutor for

withdrawal from the prosecution. Hence, following

order is passed.

O R D E R

I. Criminal Writ Petition is hereby allowed.

II. The order dated 28.6.2011 passed by the 21st Jt. Civil Judge J.D Aurangabad below Exh.19 in SCC No.7974/2004 is hereby

7 CRI WP 657.2011.odt

quashed and set aside as against the petitioner.

III. Application Exh.19 to the extent of the present petitioner is hereby allowed.

IV. The petitioner/original accused no.2 is hereby discharged.

V. Criminal Writ Petition is accordingly disposed of. Rule is made absolute in above

terms.

VI. In view of disposal of Criminal Writ Petition No.657/2011, Criminal application

No.4806/2015 also stands disposed of.

( V.K. JADHAV, J. )

...

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