Maruti S/O Vitthal Solanke And Ors vs The State Of Maharashtra & Anr
2016 Latest Caselaw 3474 Bom

                                            1




                                                                             
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                         BENCH AT AURANGABAD




                                                     
                     CRIMINAL WRIT PETITION NO.558 OF 2016
                                     WITH
                     CRIMINAL APPLICATION NO.5448 OF 2015




                                                    
    1. Maruti S/o Vitthal Solanke,
        Age-73 years, Occu-Agriculture,

    2. Lokadu S/o Sambha Gonewad,




                                           
        Age-75 years, Occu-Agriculture,
                              
    3. Prabhakar S/o Ganpati Kotgire,
        Age-47 years, Occu-Agriculture and Up-
        Sarpanch,
                             
    4. Baburao S/o Nivrutti Shinde,
        Age-67 years, Occu-Agriculture,
      
        Applicant Nos. 1 to 4 - All R/o Malkautha,
      

        Tq.Mudkhed, Dist.Nanded
   



    5. Devidas S/o Pandurang Rathod,
        Age-45 years, Occu-Service as Gramsevak,
        R/o Baban Nagar, Nanded                                  PETITIONERS
    VERSUS 





    1. The State of Maharashtra,
        Through the Police Station, Mudkhed,
        Tq.Mudkhed, Dist. Nanded,

    2. Sau.Mangalbai @ Minabai W/o Kantrao 
        Gunjkar, Age-38 years,





        Occu-Household, R/o Mulava, Tq.Umarkhed,
        Dist.Yeotmal.                                            RESPONDENTS 

Mr.S.C.Yeramwar, Advocate for the petitioners. Mr.N.T.Bhagat, APP for respondent No.1. Mr.S.B.Ghatol Patil, Advocate for respondent No.2.

( CORAM : RAVINDRA V. GHUGE, J.) DATE : 29/06/2016

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ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. The petitioners are aggrieved by the judgment and order dated

09/04/2014 delivered by the learned Sessions Judge, Nanded by

which the Cri.Rev.Appl.No.76/2013 filed by respondent No.2 has

been partly allowed. Consequentially, the order of the learned

Magistrate dated 12/04/2013 rejecting the application of respondent

No.2 u/s 156(3) of the Cr.P.C. has been set aside and the matter is

remanded back for a rehearing.

3. I have considered the submissions of the learned Advocates for

the respective sides.

4. The petitioners have strenuously submitted that respondent

No.2, who is the widow of her first husband Ramesh Maruti Solanke,

who passed away on 20/05/1997, was remarried to Kantrao Narayan

Gunjkar, residing at Ganpati Ward, Mulawa (Salag) Tal.Umarkhed,

Dist.Yeotmal. This aspect was brought to the notice of the Gramsevak

/ Sarpanch of Gram Panchayat, Malkautha, Tal.Mudkhed by the

khs/JUNE 2016/558-d

father of deceased Ramesh Maruti. Based on the said

communication, a public notice was published by the Sarpanch and

Gram Sevak on 01/08/2012 as to whether there are any legal heirs to

the deceased Ramesh Maruti. Since there was no response, the

Gram Panchayat passed a resolution concluding that the plot owned

by Ramesh Maruti would stand transferred to his father Maruti

Vitthal.

5. Learned Advocate for the petitioners submits that the fact of

respondent No.2 getting remarried was suppressed by her. She has

not stated this fact in her Criminal Misc. Appl.No.13/2013 and

thereby projected a picture that she resides at Malkautha,

Tal.Mudkhed. Even after remarriage, she indicated to the Trial Court

that she was living in her marital home after the demise of her

husband.

6. By the impugned order of the learned Sessions Court dated

09/04/2014 has remitted the proceedings to the learned Magistrate

for a rehearing on the count as to whether the Village Development

Officer and the Up-Sarpanch would fall within the ambit of Public

Servants and whether proper sanction for prosecution u/s 197 of the

Cr.P.C. would be a pre-requisite or not.

khs/JUNE 2016/558-d

7. I have considered the submissions of the learned Advocates

and I find that the learned Sessions judge has rightly remitted the

matter to the learned Magistrate for a rehearing. Issue of

suppression of material facts and whether such suppression would

affect the rights of the parties and whether the said suppression by

respondent No.2 would be covered by the view taken by the Hon'ble

Supreme Court in the matter of Kishore Samrite Vs. State of UP and

others, (2013) 2 SCC 398 would also be gone into by the Trial Court

only to find out as to whether respondent No.2 has approached the

Trial Court with tainted hands.

8. In the light of the above, I am disposing of this petition and

issuing the following directions to the Trial Court, besides the

directions issued by the learned Sessions Judge, Nanded in the

impugned order dated 09/04/2014 :-

[a] The petitioners would be at liberty to place before the Trial Court such material as they may deem proper to indicate the

purported suppression of facts by the original complainant. [b] Considering the further order dated 06/02/2015 passed by the learned Magistrate directing the Incharge of Mudkhed Police Station to register the crime against all 5 accused and investigate the matter, the petitioners would be at liberty to place the material even before the Investigating Officer. [c] The Trial Court shall consider whether there is any

khs/JUNE 2016/558-d

suppression of facts by the complainant, whether such suppression affects the rights of the parties and whether it

would have an impact on the proceedings initiated by the original complainant ?

[d] All contentions of the parties are kept open.

9. Rule is therefore discharged.

10.

of.

Pending criminal application, does not survive and is disposed

( RAVINDRA V. GHUGE, J.)

khs/JUNE 2016/558-d