Keshav Narhar Wani & Ors vs Motilal Ragho Sutar
2016 Latest Caselaw 6532 Bom

                                      1               cri appln 1138.2015.odt

         8IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD




                                                                          
                 CRIMINAL APPLICATION NO. 1138 OF 2005




                                                  
         1.      Keshav Narher Wani,
                 age 75 yrs, Occ. Agriculturist




                                                 
         2.      Govind Keshav Wani,
                 age 45 yrs, Occ. Agriculturist

         3.      Gopal Keshav Wani,




                                     
                 age 35 yrs, Occ. Agriculturist

         4.
                             
                 Nandu Dattu Wani,
                 age 35 yrs, Occ. Agriculturist
                            
         5.      Punju Eknath Wani,
                 age 35 yrs, Occ. Agriculturist

         6.      Nana Harchand Wagh,
      


                 age 35 years, Occ. Agriculturist
   



         7.      Dilip Nago Kutumble,
                 age 40 yrs, Occ. Agriculturist

         8.      Vikram Mahadu Mahajan,





                 age 45 yrs, Occ. Agriculturist       ...Petitioners...

                 VERSUS

         1.      Motilal Ragho Sutar,





                 age 52 yrs, Occ. Carpenter and welding work,
                 R/o Bahal, Tq. Chalisgaon,
                 District Jalgaon.

         2.     The State of Maharashtra.         ...Respondents...
                                       
                                     ...
                   Advocate for Applicant : Mr  L V Sangit
              Advocate for Respondent 1 : Mr  R S Shinde h/f N L 
                                 Choudhari  



    ::: Uploaded on - 21/11/2016                  ::: Downloaded on - 22/11/2016 00:37:58 :::
                                            2                cri appln 1138.2015.odt

                        APP for Respondent 2 : Mr A R Kale  
                                        ...




                                                                                
                              ...




                                                       
                   CORAM : V.K. JADHAV, J.

Dated: November 18, 2016 ...

ORAL JUDGMENT :-

1. Being aggrieved by the order dated 21.3.2005

passed by the Judicial Magistrate First Class,

Chalisgaon, District Jalgaon in RCC No.14/2005 thereby

issuing process against the applicant for the offence

punishable u/s 379, 448, 427 323, 504, 506 read with

section 34 of the IPC, the original accused persons

approached to this Court by filing present criminal

application.

2. Brief facts, giving rise to the present application

are as follows :-

Respondent no.1 has approached to the

Magistrate, Chalisgaon, District Jalgaon and filed a

complaint against the applicants for having committed

offence as aforesaid. Learned Judicial Magistrate First

Class, Chalisgaon after going through the complaint and

verification statement sent the matter to concerned

3 cri appln 1138.2015.odt

police station for proper investigation as provided under

section 156 (3) of Cr.P.C. Accordingly, the concerned

police station has submitted two reports firstly on

10.2.2005 vide Exh.5 and 25.2.2005 vide Exh.7 and

submitted before the court that no such incident had

taken place as alleged in the complaint. Thereupon,

respondent no.1 original complainant has filed an

application Exh.6 contending therein that the

concerned police station has submitted a false report

and that, as per the allegations made in the complaint

process may be issued against the applicants original

accused. Learned Magistrate, Chalisgaon by order dated

21.3.2005 allowed said application and accordingly

issued process as aforesaid against the applicant

accused by order dated 21.3.2005 impugned in the

present criminal application.

3. Learned counsel for the applicants submits that,

petitioner no.1 is owner of land gat no.57/2 situated

within the limits of Grampanchat, Bahal and land is

adjacent to the Gavthan land of Grampanchayat. Since

the land owned and possessed by petitioner no.1 is

4 cri appln 1138.2015.odt

adjacent to the Gavthan land many persons though

erected their small shops for business purpose in the

Gavthan area, some of them also made encroachment

on the land owned and possessed by petitioner no.1.

Even petitioner no.1 has measured the land gat no.57/2

and found that respondent no.1 complainant has

encroached to some extent upon his land.

Consequently, petitioner no.1 has submitted an

application before the Grampanchayat for removal of

said encroachment for the reason that village

Grampanchayat, Bahal was recovering rent from the

said persons occupying Gavthan area for their small

business. Village Grampanchayat in its meeting dated

28.6.2004 discussed on the application submitted by

the petitioner no.1 and further directed the petitioner

that village Grampanchayat has no objection if

petitioner removed said encroachment on his own.

Learned counsel submits that, accordingly the

petitioner no.1 has approached the Sub Divisional

Officer, Pachora requesting therein removal of the

encroachment. Sub Divisional Officer, Pachora has

conducted inquiry through the Tahsildar, Chalisgaon

5 cri appln 1138.2015.odt

and directed the petitioner no.1 that since land on

which the encroachment has been made is privately

owned by him, petitioner no.1 may remove said

encroachment on his own expenses as directed to him

by the village Grampanchayat by maintaining law and

order situation in the village. Sub Divisional Officer,

Pachora has passed said order on 11.1.2005.

Accordingly, the petitioner has approached the

concerned police station and sought police protection for

removal of the said encroachment and also deposited

the fees of Rs.863/- as directed by the said police

station. Learned counsel submits that, accordingly

petitioner no.1 has removed encroachment in the

presence of the police staff by maintaining the law and

order situation in the village and thus, police submitted

report to the Magistrate in response to the order passed

by the Magistrate directing investigation into the matter

that no such incident had taken place as alleged in the

complaint. Learned counsel submits that, petitioner

no.1 alongwith other applicants had taken recourse to

all the legal remedies available to him for removal of the

encroachment and even though on his own expenses

6 cri appln 1138.2015.odt

under the police protection removed the encroachment,

respondent no. 1 has filed false complaint by making

wild allegations. Learned counsel submits that

Magistrate has not accepted the report submitted by the

police and further decided to inquire into the allegations

himself made in the complaint. However, respondent

no.1 has not examined himself before the court nor

Magistrate has directed respondent no.1 to examine

himself and to examine his witness before the court to

consider the allegations made in the complaint to the

effect whether a prima facie case is made out for

issuance of the process as alleged in the complaint.

Learned counsel submits that, for no reason Magistrate

has ignored report submitted by the police and issued

process against the applicants.

4. Learned counsel for respondent no.1 original

complainant submits that at the time of passing an

order of issuance of process, presence of the accused

persons is not solicited. Consequently, probable defence

of the accused cannot be considered. Learned counsel

submits that there are allegations made in the

7 cri appln 1138.2015.odt

complaint and respondent no.1-complainant was given a

short notice of removal of encroachment by the police

on the date of incident itself, respondent no.1 went to

consult his lawyer. Thus behind his back incident had

taken place and therefore he approached the court by

filing a private complaint. Learned counsel submits

that, considering the verification statement of

respondent no.1 original complainant, learned Judicial

Magistrate First Class, Chalisgaon has rightly issued

process against the applicant. No interference is

required. Criminal application is thus liable to be

dismissed.

5. On perusal of the record, it appears that,

concerned police station has brought to the notice of the

court by filing a report that no such incident has taken

place as alleged in the complaint still then, Magistrate

has ignored said report and allowed the application filed

by respondent no.1 original complainant Exh.6. It is a

part of record and same is also not disputed that the

applicant no.1 had initially approached the concerned

Grampanchayat for removal of the encroachment by

8 cri appln 1138.2015.odt

filing an application and since village Grampanchayat

had directed him to remove the encroachment on his

own approached Sub Divisional Officer of the division

seeking help for removal of the encroachment made on

his property by respondent no.1 original complainant.

Even though, Sub Divisional Officer has conducted

inquiry through Tahsildar, Sub Divisional Officer has

directed the petitioner no.1 to remove encroachment on

his own under his own expenses by maintaining law and

order situation. It is also a part of record that, petitioner

no.1 has thereafter approached the concerned police

station and deposited charges for availing police

protection. It is thus clear that, applicant no.1 has

taken recourse to all legal remedies available to him. It

is clearly mentioned in the police report that police staff

was present between 11 a.m. to 8 p.m. in the village and

no such incident as alleged in the complaint had taken

place. There was an apprehension in the mind of the

applicant no.1 that respondent no.1 original

complainant may file complaint against him for removal

of encroachment and therefore he has taken all care by

approaching village Grampanchayat and Sub Divisional

9 cri appln 1138.2015.odt

Office and finally concerned police station.

6. Respondent no.1 original complainant has filed an

application Exh.6 after police submitted negative report

in the court requesting therein to issue process against

applicants accused. However, the learned Magistrate by

ignoring said report decided to conduct inquiry by

himself into the allegations made in the complaint.

Even, the learned Magistrate had called upon the

learned APP to submit the say and the learned APP

before the Trial court submitted that State has no

objection if the chance is given to the complainant for

adducing the evidence. Even then, respondent no.1-

original complainant has not examined himself nor

examined any witnesses. Learned Magistrate while

conducting inquiry into the allegations of the complaint

has not directed respondent no.1-complainant to adduce

evidence in support of the allegations.

7. In view of the aforesaid admitted facts and said

approach of the Magistrate, I find that, order of issuance

of process only on the basis of application Exh.6 is

10 cri appln 1138.2015.odt

improper, incorrect and illegal.

8. On the basis of admitted record as discussed in

the foregoing paragraph no purpose would be served in

remanding the matter directing the Magistrate to record

the statement of the complainant and his witnesses, if

any. In view of the above, I proceed to pass the following

order. Hence, following order.

ORDER

1. Criminal application is hereby allowed in terms of prayer clause 'A'.

2. Rule is made absolute in above terms.

3. Criminal application accordingly

disposed off.

( V.K. JADHAV, J. )

...

aaa/-