Gopalrao Ambadasreao Borikar vs The State Of Maharashtra
2016 Latest Caselaw 7391 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                        
                       CRIMINAL WRIT PETITION NO. 1609 OF 2015



     Gopalrao Ambadasrao Borikar,




                                                       
     Age. 80 years, Occ. Retired Dy. Collector,
     R/o. Shiviji Nagar, P.O. & Dist. Parbhani,
     431401.                                                      ...Petitioner

              Versus




                                          
     The State of Maharashtra ig                                  ...Respondent

                                           ....
     Mr. G.A. Borikar, the petitioner in person
     Mr. S.W. Munde, A.P.P. for the respondent-State.
                            
                                           .....

                                                   CORAM : V. K. JADHAV, J.

DATED : 16th DECEMBER, 2016

ORAL JUDGMENT:-

1. Rule. Rule returnable forthwith. By consent of parties, heard

finally at admission stage.

2. Being aggrieved by the order dated 24.01.2012, passed by

learned 6th Judicial Magistrate, First Class, Parbhani below Exh.11 in

S.C.C. No. 1403 of 2009, and the judgment and order dated

8.6.2015, passed by learned Sessions Judge, Parbhani in Criminal

Revision No. 19 of 2012, confirming thereby the order passed by the

learned Magistrate, as stated above, original accused has

approached this Court by filing present criminal writ petition.

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3. Brief facts, giving rise to the present criminal writ petition, are

as follows:-

a) On the basis of complaint lodged by one Sartajsingh Chahel, in

charge Chief Officer of Municipal Council, Parbhani, dated

22.05.2008, crime No. 113 of 2008, came to be registered at New

Mondha police station, Parbhani against the petitioner accused. It

has alleged in the complaint that on that day, the complainant

alongwith his team had been to the area, known as Shivaji Nagar,

situated at Parbhani-Basmat Road, for removal of encroachment. It

has further alleged in the said complainant that during the process of

removal of encroachment, at about 2.30 p.m. to 3.00 p.m. the

present petitioner accused assaulted the complainant and his team,

who are public servants, in performance of their official duty, and

thus, the petitioner committed the offences punishable under

Sections 353 and 323 of I.P.C. It has also alleged in the complaint

that during the said process, the petitioner accused has pelted

stones, manhandled the staff and further slept in the blade of J.C.B.

machine to prevent them from doing their official duties of removal of

encroachment.

b) After due investigation, the concerned police has submitted

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charge sheet before the Magistrate vide R.C.C. No. 312 of 2008. On

receipt of said charge sheet, the learned Magistrate, though it is

numbered as Summary Criminal Case No. 1403 of 2009, by passing

order below Exh.1, treated the said case as Regular Criminal Case.

In response to the summons issued by the court, the petitioner

accused appeared in the matter. The petitioner accused had filed an

application Exh.11 seeking discharge on the ground that he had

instituted a suit bearing R.C.S. No. 90 of 1985 against the Municipal

Council, Parbhani and the Maharashtra State Electricity Board for

grant of decree of perpetual injunction in respect of plot No. 165

situated at Shivaji Nagar, Parbhani, which is owned and possessed

by him. It has also contended in the said application that the said

suit was decreed and the appeal against the said judgment also

came to be dismissed by the first appellate court. Even this Court

has also confirmed the said decree in the second appeal.

c) The learned 6th Judicial Magistrate, First Class, Parbhani, by

order dated 24.01.2012, rejected the application Exh.11 and learned

Sessions Judge, Parbhani by its impugned judgment and order dated

8.6.2015, in criminal revision No. 19 of 2012, confirmed the said

order. Hence, this criminal writ petition.

4. The petitioner, Mr. Borikar, who is appearing in person,

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submits that in response to the summons issued by the court, he

caused his appearance before the learned Magistrate in the

aforesaid S.C.C. No. 1403 of 2009 on 6.5.2011 and on the same

day, the learned Magistrate has passed order below Exh.1, and

thereby converted the said case into warrant trial and further on the

same day itself, framed charge against the petitioner accused. Even

on that day, the witness summons were issued and the case is

posted to 15.6.2011 for recording of evidence. On 15.6.2011, the

petitioner had submitted an application Exh.11 for discharge. The

petitioner submits that his application for discharge came to be

rejected mainly on the ground that once the charge is framed, the

application seeking discharge is not maintainable. The party in

person submits that on the day of appearance, he got copy of charge

sheet and on that day itself, it was not possible for him to file

application for discharge. After going through the entire charge

sheet, he found that the allegations made in the complaint are

contrary to the decree passed by the Civil Court and no case, at all,

is made out against him. Thus, he had filed an application Exh.11

seeking discharge. The party in person submits that his application

seeking discharge, therefore, is maintainable and the learned

Magistrate as well as learned Sessions Judge, have erroneously

rejected application Exh.11, alone on the ground that his application

seeking discharge is not maintainable once the charge is framed.

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5. The petitioner-party in person submits that in the year 1985, he

had instituted a Regular Civil Suit No. 90 of 1985, for decree of

perpetual injunction against Municipal Council, Parbhani and others.

The petitioner approached the court with a plea that he is in

possession of suit property, plot No. 165, together with open space,

surrounded by wire fencing since 5.4.1967 and his possession is

continuous, open and peaceful. It has also brought to the notice of

the Civil Court that the defendant Municipal Council, Parbhani

wanted to construct east-west drain from southern side through the

court-yard of the petitioner's house, which is surrounded by wire

fencing. The defendant Municipal Council in the said suit has denied

all the allegations. The learned IIIrd Joint Civil Judge, Junior

Division, Parbhani, by judgment and decree dated 2.7.2003 has

recorded a finding to issue No. 1-b in affirmative and thereby held

that the plaintiff (present petitioner) proved that he owned and

possessed the court-yard, (as alleged in the complaint). The learned

Civil Judge, Junior Division, thereby restrained the defendant

Municipal Council, Parbhani permanently from constructing a drain

through the court-yard of the petitioner and is thus restrained from

connecting the eastern and western ends of existing drain though the

petitioner's court-yard. The petitioner submits that the said judgment

and decree is confirmed up to this Court.

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6. In the backdrop of these facts, the complainant, who happened

to be the in charge of Chief Officer, Parbhani Municipal Council,

without serving any personal notice on the petitioner-accused, had

tried to remove the encroachment and even though the petitioner

original accused had shown him the decree passed by the Civil

Court, which is confirmed up to this Court, started removing the wire

fencing around the court-yard. The petitioner submits that there are

allegations in the complaint about pelting of stones and manhandling

the complainant and his staff. The petitioner submits that, at present,

he is 80 years old and it is not possible for him to assault or to use

criminal force against staff members of the Municipal Council. The

petitioner had simply tried to protect his property and also tried his

level best to stop the process of removal of encroachment peacefully

by showing the authorities the documents in respect of his lawful

possession over the said portion of plot, where the process of

removal of encroachment was being carried out. The petitioner

submits that there was no intention at all to deter or prevent the

public servants from discharging their official duties and as such,

ingredients of Section 353 of I.P.C. are not attracted in this case.

The petitioner submits that he neither caused hurt nor attempted to

cause harm to anybody and thus charge under Section 323 of I.P.C.

does not stand.

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7. The learned A.P.P. appearing for the respondent State

submits that the petitioner has submitted certain documents

alongwith his application Exh.11, seeking discharge under the

provisions of Section 239 of Cr.P.C. In the light of provisions of

section 239 of Cr.P.C., the Magistrate is required to consider the

police report, the documents sent with it under Section 173 of Cr.P.C.

and on making such examination, if any, of the accused as the

Magistrate thinks necessary and after giving the prosecution and the

accused an opportunity of being heard, the Magistrate considers the

charge against the accused to be groundless, he shall discharge the

accused, and record his reasons for so doing. The learned A.P.P.

submits that thus the documents produced by the petitioner accused

alongwith his application Exh.11, seeking discharge cannot be

considered at all. Both the courts below have rightly placed their

reliance on the judgment of the Supreme Court in the case of Ratilal

Bhanji Mithani Vs. State of Maharashtra and others, reported in

AIR 1979 SC 94, wherein the Supreme Court has observed that

once the charge is framed by the Magistrate, the Magistrate cannot

cancel it or discharge the accused and the order of discharge passed

after framing of charge is illegal.

8. The learned A.P.P. for the respondent State submits that the

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Municipal Council, Parbhani has undertaken to remove the

encroachments on Parbhani-Wasmat road and the complainant

alongwith his team was discharging his official duty at the time of

incident. Learned A.P.P. submits that there is prima facie evidence in

the charge sheet to point out the involvement of the petitioner

accused in the crime. Both the courts below therefore, have rightly

rejected application Exh.11. No interference is required. There is no

substance in the writ petition.

9. It is a part of record that on the date of appearance of the

accused i.e. on 6.5.2011 itself, learned Magistrate, by passing an

order below Exh.1 directed that the case be tried as warrant trial and

accordingly below Exh.9 framed charge against the petitioner

accused. After recording a plea of not guilty, learned Magistrate even

has issued summons to the witnesses and accordingly posted the

case to 15.6.2011, for recording evidence of prosecution witnesses.

On 15.6.2011, the petitioner accused has filed an application Exh.11

seeking discharge. On the date of appearance, the petitioner

accused received a copy of charge sheet. It is thus, not proper, legal

and correct to expect from the petitioner accused to file an

application for discharge without going through the contents of

charge sheet and the documents submitted alongwith the same. On

the day of appearance itself, if the Magistrate has framed charge,

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then there was no opportunity for the petitioner accused to file an

application seeking discharge, before framing of charge. In the case

of Ratilal Bhanji Mithani Vs. State of Maharashtra and others

(supra), relied upon by learned A.P.P. for the respondent State, the

Supreme Court has observed that the order of discharge in warrant

case can be made only after process has been issued and before the

charge is framed. However, this contingency did not arise while

considering the said case and the Supreme Court has observed that

once the charge is framed, the Magistrate has no power to cancel the

charge and reverse the proceeding to the stage of Section 253 of

Cr.P.C. and discharge the accused. Both the courts below have not

considered this material aspect and rejected application Exh.11

seeking discharge mainly on the basis of ratio laid down by the

Supreme Court in the case of Ratilal Bhanji Mithani Vs. State of

Maharashtra and others (supra).

10. The learned A.P.P. has vehemently submitted that the only

charge sheet and the documents submitted alongwith the charge

sheet can be considered while deciding application seeking

discharge under the provisions of Section 239 of Cr.P.C. In the case

of Rukmini Narvekar v. Vijaya Satardekar and others, reported in

AIR 2009 SC 1013, in para 29 of the judgment, the Supreme Court

has made the following observations:-

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"29. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the Court look into

the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e. where the defence produces some material which convincingly

demonstrates that the whole prosecution case is totally absurd or totally concocted. We agree with Shri Lalit that in some very rare cases the Court is justified in looking into the material produced by

the defence at the time of framing of the charges, if such material

convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted."

11. The Supreme Court ruled that there cannot be an absolute

proposition that under no circumstances can the Court look into the

material produced by the defence at the time of framing of the

charge, though this should be done in very rare cases i.e. where the

defence produces some material which convincingly demonstrates

that the whole prosecution case is totally absurd or totally concocted

and then the court is justified in looking into the material produced by

the defence at the time of framing of charge.

12. In the instant case, on perusal of copy of the judgment and

decree passed by the Civil Court in Regular Civil Suit No. 90 of 1985,

it appears that the petitioner has approached the Civil Court with a

plea that he is owner of plot No. 165/House No. 888, situated at

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Parbani-Wasmat Road in Ward No.15, together with open space

admeasuring 50 ft. East-West and 10 ft. South-North. It is an

admitted position that Parbhani-Wasmat Road is in front of the house

of the petitioner-original accused. The Municipal Council, Parbhani

(defendant in the said suit) has denied the allegations with the

contention that the petitioner (plaintiff in the said suit) has

encroached over the municipal land and he obstructed the drainage

work through the said encroached land. Both the parties had led oral

and documentary evidence in the said suit in support of their rival

contentions. The learned Civil Judge, Junior Division, has recorded

the finding in affirmative on issue No. 1-b, wherein the petitioner

(plaintiff in the said suit) proved that he owned and possessed the

court-yard, as contended in the plaint. By way of issue No. 2-b, the

burden is cast on the petitioner to prove that the defendant Municipal

Council Parbhani wants to construct East-West drain through the

court yard of the petitioner and learned Civil Judge has also recorded

a finding in affirmative on the same. The learned Civil Judge,

Parbhani by its judgment and decree dated 2.7.2003, decreed the

suit as against the defendant No.1 (Municipal Council, Parbhani) and

thereby restrained the Municipal Council Parbhani from constructing

the drain through the court-yard of the plaintiff and further restrained

the Municipal Council, Parbhani from connecting the eastern and

western ends of existing drain through the plaintiff's court yard. It is

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not disputed that the said judgment and decree is confirmed up to

this court.

13. As per the contents of the complaint and evidence collected

during the course of investigation, it appears that the Chief Officer

alongwith his team, had been to the house of the petitioner accused

for removal of wire fencing erected around the court-yard of the

petitioner accused. The same is also evident from the letter given by

the Engineer of Municipal Council, Parbhani to the Police Inspector

of Police Station, New Mondha, Parbhani, wherein it is stated that the

petitioner accused has made encroachment over the open space,

measuring 50 ft. East-West and 10 ft. South-North and the said

encroachment has been removed on the alleged date of incident. In

the light of said judgment and decree, passed by the Civil Court,

which is confirmed up to this Court, the Municipal Council was

permanently restrained from interfering into the possession of the

petitioner accused over the said portion of plot and even open space,

measuring 50x10 ft., as stated above.

14. The petitioner-party in person is present before this court. He

is 80 years of age at present. It has alleged in the complaint and the

statements of witnesses, who are staff members of the Municipal

Council, Parbhani, that this 80 years old guy manhandled the staff

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members of Municipal Council and further pelted stones on the said

staff members. It has specifically contended in the application

Exh.11 that the petitioner accused had tried his level best to show

the documents in respect of decree passed by the Court, which is

confirmed up to this Court, to the complainant, however, the

complainant threw the papers stating that the decree is not binding

upon him and started removing the wire fencing and excavating the

drainage with the help of J.C.B. machine.

ig Even the petitioner

accused on the same day, at about 16.45 hours, had tried to lodge

the complaint in the police station, New Mondha, Parbhani against

the Municipal Council and its staff members, for having committed

criminal trespass on his property, however, the said complaint was

not accepted and on the same day, at about 18.20 hours, the in-

charge Chief Officer of Municipal Council, has filed the present

complaint.

15. On careful perusal of the complaint and investigation papers,

I do not think that the ingredients of Sections 353 and 323 of I.P.C.

stand attracted in this case. The Engineer of Municipal Council,

Parbhani, by letter dated 7.8.2008, had informed the Police Inspector

of Police Station, New Mondha, Parbhani that a public notice was

published in the newspaper about proposed removal of

encroachment. It is thus clear that no personal notice was served on

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the petitioner original accused before removal of alleged

encroachment. In the light of the allegations made in the complaint,

it appears that the petitioner original accused, who is 80 years of

age, had tried to stop the process of removal of encroachment, by

showing the judgment and decree passed by the Civil Court and

even within his powers, had tried his level best to stop the J.C.B.

machine, however, it appears from the contents of complaint and the

evidence collected during the course of investigation that, the

complainant alongwith his team had not only removed the wire

fencing but also connected the drainage, despite the decree of the

civil court restraining the Municipal Council, Parbhani, permanently,

from connecting the drainage from the said portion, of which the

petitioner accused is owner.

16. In the light of above discussion, I do not find any intention on

the part of the petitioner accused to prevent or deter the complainant

and his team from discharging their official duties so as to attract the

penal provisions of Sections 353 and 323 of I.P.C. Both the courts

below have not considered, at all, the decree passed by the Civil

Court and consequences of the said decree. The petitioner accused

has convincingly demonstrated on the basis of these papers that the

prosecution case is totally absurd.

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17. Further, even if it is assumed that the petitioner accused has

pelted one stone and slept in the blade of J.C.B. machine as a matter

of protest, as provided under Section 95 of I.P.C., the act causing

slight harm is not an offence and thus, the law will not take notice of

such trifles.

18. In the light of above discussion, I proceed to pass the

following order:-

ORDER

I. Criminal writ petition is hereby allowed.

II. The order dated 24.01.2012, passed by the learned 6 th

Judicial Magistrate, First Class, Parbhani, below Exh.11 in

S.C.C. No. 1403 of 2009 and the judgment and order dated

08.06.2015, passed by the learned Sessions Judge,

Parbhani, in criminal revision No. 19 of 2012, confirming

thereby the order passed by the Magistrate, are hereby

quashed and set aside.

III. Application Exh.11 in S.C.C. No. 1403 of 2009, is hereby

allowed and the petitioner is discharged from the charges

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under sections 353 and 323 of I.P.C. in S.C.C. No.1403 of

2009.

IV. Rule is made absolute in the above terms.

V. Criminal writ petition is accordingly disposed.

                              ig                       ( V. K. JADHAV, J.)

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