Bombay High Court
Kisan Keshavrao Mudgalwar vs State Of Mah & Ors on 17 November, 2016
Bench: V.K. Jadhav
1
911 CRI. APPLICATION 787 OF 2005.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPLICATION NO. 787 OF 2005
(1) Kisan s/o Keshavrao Mudgalwar,
Age : 52 years, occupation business,
R/o : at Amalner, Post - Kaigaon,
Tq. : Gangapur, Dist. Aurangabad.
(2) Sanjay s/o Kisan Mudgalwar,
Age : 30 yeas, occu. driver,
R/o : As above.
(3) Tatu s/o Kisan Mudgalwar,
Age : 23 yeas, occu. business,
R/o : As above.
(4) Kantabai w/o Kisanrao Mudgalwar,
Age : 48 yeas, occu. household and
agriculture, R/o : As above. ... APPLICANTS
V E R S U S
(1) The State of Maharashtra.
[ Copy to be served on A.G.P. of
the Hon'ble High Court,
Bench at Aurangabad ]
(2) Narayan s/o Penttanna Puram,
Age : 65 years, occu. agril,
R/o : at Amalner, Post - Kaigaon,
Tq. : Gangapur, Dist: Aurangabad.
(ORI. COMPLAINANT). ... RESPONDENTS
...
Mr. K. M. Nagarkar, Advocate for the Applicant.
Mr. S. P. Tiwari, APP for Respondent No.1.
Ms. Asha Rasal, Advocate for Respondent No.2.
...
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911 CRI. APPLICATION 787 OF 2005.odt
CORAM : V. K. JADHAV, J.
DATE : 17th November, 2016.
ORAL JUDGMENT:
. By this criminal application, the Applicants seek quashing
of the order of issuance of process dated 17th March, 2005, passed by
the learned Joint Judicial Magistrate First Class, Gangapur,
Aurangabad in S.C.C. No.331 of 2005.
2 Brief facts giving rise to the present criminal application
are as follows:
Respondent No.2 - original Complainant has filed a
private complaint against the Applicants bearing S.C.C. No.331 of
2005 for having committed offence punishable under Sections 447
and 427 read with 34 of the Indian Penal Code. The learned
Magistrate after recording the verification statement of the
Complainant and on perusal of the complaint and after hearing the
arguments of the Complainant's counsel, issued process against the
Applicants - original Accused for the offence punishable under
Sections 447 and 427 read with 34 of the Indian Penal Code. Hence,
this criminal application.
911 CRI. APPLICATION 787 OF 2005.odt
3 The learned counsel for Applicants submits that
Respondent No.2 - original Complainant has suppressed the material
facts in respect of the decree passed in R.C.S. No.185 of 1996, which
now attained the finality. Applicant No.4 had instituted said suit
bearing R.C.S. No.185 of 1996 against Respondent No.2 - original
Complainant and others for decree of partition and separate
possession and the learned Civil Judge Junior Division, Gangapur
decreed the said suit with costs. The learned Judge has perpetually
restrained the defendants from causing obstruction to the Plaintiff's
(Applicant No.4 herein) possession over the suit House No.426, 427
till the partition is effected. Respondent No.2 - original Complainant
fought the litigation upto the High Court and finally lost it. Thus, the
judgment and decree passed in said R.C.S. No.185 of 1996 has
attained finality. The learned counsel submits that by suppressing
these material facts, Respondent No.2 - Complainant has filed private
complaint before the Judicial Magistrate First Class, Gangapur,
alleging therein that present Applicant No.4 alongwith her husband
and two sons, illegally demolished the house situated in aforesaid
land No.426, 427, which is subject matter of the said suit.
911 CRI. APPLICATION 787 OF 2005.odt
4 The learned counsel further submits that even in respect
of one incident occurred on 6th/7th June, 2004, Applicant No.4 -
Kantabai has filed a complaint before the Judicial Magistrate First
Class, Gangapur bearing M.A. No.237 of 2004 against present
Respondent No.2 and four others for having committed offence
punishable under Sections 379, 291, 504, 506 and 442 read with 34
of the Indian Penal Code. The learned counsel submits that in order
to counterblast the said complaint with some malafide intention,
Respondent No.2 - original Complainant by suppressing the material
facts filed the aforesaid complaint before the Court and the learned
Magistrate has mechanically issued the process.
5 The learned counsel for Respondent No.2 - original
Complainant submits that the Applicants had an alternate remedy to
challenge the order of issuance of process before the Sessions Court
and thus, this criminal application is not maintainable. The learned
counsel submits that at the time of issuance of process, there is no
question of giving opportunity of hearing to accused persons and
thus, the proposed defence of the accused cannot be considered at
the time of issuance of process. The learned counsel submits that
911 CRI. APPLICATION 787 OF 2005.odt
there are specific allegations in the complaint that the Applicant /
Accused entered into the filed where House No.426, 427 are situated
and illegally demolished the same. The learned counsel submits that
the Magistrate has rightly issued the process by considering the
verification statement and the allegations made in the complaint. No
interference is required.
On careful perusal of the decree passed in R.C.S. No.185
of 1996, it appears that Defendant Nos.1, 2, 4 and 5 therein including
present Respondent No.2 came to be perpetually restrained from
causing obstruction to the Plaintiff's (Applicant No.4 herein)
possession over the suit House No.426, 427 till the partition is
effected. Being aggrieved by the same, present Respondent No.2
alongwith other defendants preferred Regular Civil Appeal No.224 of
1998 and the learned Additional District judge, Aurangabad, vide its
judgment and decree dated 28th June, 2002 partly allowed the appeal
with certain modification in respect of landed property and house
property with regard to the share of Applicant No.4 herein and
confirmed rest of the judgment and decree passed by the Trial Court.
Even though said judgment and decree passed by the Civil Court has
911 CRI. APPLICATION 787 OF 2005.odt
attained finality, by suppressing the material facts, Respondent No.2
has approached the Court by filing private complaint, which is
numbered as S.C.C. No.331 of 2005 by making allegations that
Applicant No.4 alongwith her husband and two sons demolished
House No.426, 427 by making criminal trespass. It further appears
from the record that present Applicant No.4 has filed a private
complaint before the Judicial Magistrate First Class, Gangapur,
Aurangabad against Respondent No.2 herein and four others by
giving reference to the judgment and decree passed in her favour in
R.C.S. No.185 of 1996. Even though the judgment and decree in the
aforesaid suit was in force, it has brought to the notice of the Court by
way of filing of the complaint that present Respondent No.2 alongwith
some other persons tried to disturb the possession of present
Applicant No.4 over the house property and even forcibly taken away
tin-sheet and other property. It, thus, appears that to counterblast the
said complaint by suppressing the material facts of civil litigation,
Respondent No.2 has filed a complaint before the Magistrate at
Aurangabad. In view of this, the order of issuance of process passed
by the Magistrate is liable to be quashed and set aside and further the
complaint bearing S.C.C. No.331 of 2005 is liable to be dismissed.
911 CRI. APPLICATION 787 OF 2005.odt
Hence, the following order:
O R D E R
I. The criminal application is hereby allowed.
II. Order dated 17th March, 2005, passed by the Joint Judicial
Magistrate First Class, Gangapur, Aurangabad in S.C.C.
No.331 of 2005, is hereby quashed and set aside.
III. Complaint bearing S.C.C. No.331 of 2005, is hereby
dismissed.
IV. Rule is made absolute in aforesaid terms.
V. Criminal application is accordingly disposed of.
[ V. K. JADHAV, J. ]
ndm
