Bombay High Court
Ajitsingh Babusingh & Anr vs State Of Mah & Anr on 19 September, 2016
Bench: V.K. Jadhav
cran2353.05
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2353 OF 2005
1. Ajitsingh s/o Babusingh
Age 30 years, Occ. Agriculture
and business,
R/o. Gurudwara Road,
Nanded
2. Manjit Kaur w/o Babusingh
Age 53 years, Occ. Household
R/o. As above ...Applicants
versus
1. State of Maharashtra
(Copy to be served on the
Public prosecutor, High Court
Bench at Aurangabad)
2. Lotu Atkare (deceased)
CIDCO, Nanded ...Respondents
...
Advocate for Applicant : Mr Hemantkumar Pawar
APP for Respondent No.1 : Mr A.R. Kale
.....
CORAM : V. K. JADHAV, J.
DATED : 19th SEPTEMBER, 2016
ORAL JUDGMENT :-
1. Being aggrieved by the order dated 21.7.2005 passed below
Exh.17 in Special Case (Atrocity) No. 8 of 2004, by Additional
Sessions Judge, Kandhar, the applicants original accused preferred
this criminal application.
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2. Brief facts, giving rise to the present criminal application are as
follows:-
a) The respondent No.2 complainant, who is no more, lodged a
complaint at police station Sonkhed against the applicants and on the
basis of said complaint, crime No. 55 of 1998 came to be registered
for the offences punishable under Sections 420, 406, 506 of I.P.C.,
Section 7(1) (d) of Protection of Civil Rights Act and under Section
3(1) (x) of Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act 1989 (hereinafter for the sake of brevity referred to as
the "Atrocities Act"). After due investigation, charge sheet came to
be submitted before the J.M.F.C. Loha and the case is registered as
R.C.C. No. 629 of 1999. However, subsequently, the learned C.J.M.
called upon the record and proceedings and said case is accordingly
registered before learned C.J.M. as R.C.C. No. 846 of 1999. The
applicants accused appeared in the said case and filed an
application for discharge. The learned C.J.M. by order dated
1.1.2000 below Exh.9 discharged both the applicants-accused.
b) Being aggrieved by the same, the State had preferred criminal
revision application No. 75 of 2003 before the Sessions Court,
Nanded. The learned 2nd Adhoc Additional Sessions Judge, Nanded
by judgment and order dated 19.8.2003 allowed the application and
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thereby quashed and set aside the order passed by the learned
C.J.M. discharging the applicants accused and further directed the
learned C.J.M. that after receiving record and proceeding back, take
suitable steps in the matter in accordance with law so as to proceed
with the trial expeditiously. In view of said directions, learned C.J.M.
has committed case to the Special Court since the offence,
particularly under the provisions of Atrocities Act, is exclusively
triable by the Special Court. The said case is registered as Special
Case (Atrocity) No. 8 of 2004 and in that case the present applicants
filed an application Exh.17 for discharge. The learned Additional
Sessions Judge, Kandhar by its order dated 21.7.2005, rejected the
said application. Hence, this criminal application.
3. Learned counsel for the applicants submits that 2nd Adhoc
Additional Sessions Judge, Nanded in criminal revision application
No. 75 of 2003 has observed that since the offence is exclusively
triable by the Court of Sessions, the Magistrate has no power to
discharge the accused and further observed that learned C.J.M. has
no jurisdiction to consider whether the offence under the provisions
of Atrocities Act is made out or not. Accordingly, the order of
discharge passed by the learned C.J.M. was quashed and set aside.
In the said criminal revision No. 75 of 2003 and as per the directives
while disposing of the said criminal application, the learned C.J.M.
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has committed/transferred the case to the Special Court. Learned
counsel submits that the Special Court instead of deciding
application Exh.17 for discharge, filed by the present applicants
accused on its own merits, rejected the said application only on the
ground that he is not sitting in appeal to review or revise the order
passed by the 2nd Adhoc Additional Sessions Judge, Nanded in
criminal revision No. 75 of 2003. Learned counsel submits that this
approach of the Special Court is improper, incorrect and illegal and
the matter is thus fit to be remanded for deciding the application
Exh.17 afresh.
4. I have also heard learned A.P.P. for the State.
5. On careful perusal of the order passed by the 2nd Adhoc
Additional Sessions Judge, Nanded in criminal revision No. 75 of
2003, it appears that the order of discharge passed by the learned
C.J.M. came to be quashed and set aside only for the reason that the
Magistrate has no jurisdiction to consider whether the offence under
the provisions of Atrocities Act made out or not and the learned
C.J.M. has no power to discharge the accused when the offence is
exclusively triable by the Court of Sessions. It further appears that
the said criminal revision No. 75 of 2003 was preferred by the State
and after setting aside the order passed by C.J.M. in the said criminal
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revision, present applicants accused have not challenged the said
order. Thus, the order passed by 2nd Adhoc Additional Sessions
Judge, Nanded in Criminal Revision No. 75 of 2003 has attained
finality to the extent that the order of discharge passed by the
Magistrate in favour of the applicants accused is without jurisdiction.
6. It further appears from the impugned order below Exh.17
passed by the Additional Sessions Judge, Kandhar in said Special
Case No. 8 of 2004 that application Exh.17 came to be rejected
mainly on the ground that the order passed by the 2 nd Adhoc
Additional Sessions Judge, Nanded in Criminal revision No. 75 of
2003 cannot be reviewed or revised by the Special Court. The
learned Judge of Special Court has also given unnecessary
weightage to the previous applications filed by the applicants
accused for discharge, which were not pressed by them
subsequently. It further appears from the judgment and order passed
in criminal revision No. 75 of 2003 that the learned Sessions Judge
has not taken into consideration the other grounds for discharge, for
the reason that the learned C.J.M. has no power to discharge the
accused since the offence is exclusively triable by the court of
Sessions/Special Court. Thus, it appears that the learned Judge of
the Special Court has not decided the application Exh.17 on its own
merits. In view of this, there is no other alternate but to remand the
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matter to the Special Court for deciding the application Exh.17 afresh
on its own merits. Hence, I proceed to pass the following order:-
ORDER
I. Criminal application is hereby partly allowed.
II. The order passed below Exh.17 dated 21.7.2005 passed
by the Additional Sessions Judge, Kandhar in Special Case
(Atrocity) No. 8 of 2004 is quashed and aside aside.
III. The matter is remanded to the Special Court with following
direction;-
"The learned Judge of the Special Court shall decide
application Exh.17 afresh on its own merits in accordance
with law".
IV. The applicants accused shall appear before the Special
Court on 19.10.2016.
V. Criminal application is accordingly disposed of. Rule made
absolute in the above terms.
( V. K. JADHAV, J.)
rlj/
