Bombay High Court
Sanjay S/O Madhav Barve And 8 Oths vs State Of Mah. Thr. P.S.O. Sakoli on 6 December, 2017
Bench: R.P. Mohite-Dere
0612WPs538&545.10-Judgment 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 538 OF 2010
PETITIONERS :- 1. Shri Prakash S/o Madhukar Vankar, Aged
about 23 years, Occ. Service, R/o Dahi Bazar
Road, Bangaladesh, Nagpur.
2. Shri Vinesh S/o Haribhau Kokate, Aged
about 37 years, Occ. Service, R/o Bajaj
Nagar, Nagpur.
...VERSUS...
RESPONDENT :- State of Maharashtra, Through Police
Station, Sakoli, Tah. Sakoli, Distt. Bhandara.
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Mr.A.S.Mardikar, sr.counsel assisted with Mr.Abhijeet Sambaray,
counsel for the petitioners.
Mr.A.M.Joshi, A.P.P. for the respondent.
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AND
CRIMINAL WRIT PETITION NO. 545 OF 2010
PETITIONERS :- 1. Shri Sanjay S/o Madhav Barve, Aged about
45 years, Occ. Service, R/o Raghuji Nagar,
Nagpur.
2. Shri Shankar S/o Ganpatrao Latare, Aged
about 25 years, Occ. Education, R/o Shivaji
Road, Mahal Road, Nagpur.
3. Shri Vishal S/o Arunrao Markendey, Aged
about 29 years, Occ. Education, R/o. Plot
No.140, Gurudeo Nagar, Nagpur.
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0612WPs538&545.10-Judgment 2/12
4. Shri Ashwin S/o Nagraj Bhardwaj, Aged
about 23 years, Occ. Education, R/o.
Ravindra Apartment, R.P.T.S. Road,
Surendra Nagar, Nagpur.
5. Shri Narayan S/o Bhojraj Avgan, Aged about
23 years, Occ. Service, R/o. Dhangarpura,
Hingna, Nagpur.
6. Kanchan Bharatrao Ingale, Aged about 23
years, Occu. Service, R/o. Parvatinagar,
Nagpur.
7. Shri Ram S/o. Umakant Patrikar, Aged about
24 years, Occ. Service, R/o. Pipla Road,
Nagpur.
8. Shri Rajesh S/o Praladh Raipure, Aged about
35 years, Occ. Service, R/o. Gayatri Nagar,
Nagpur.
9. Shri Vitthal S/o. Ramdas Shendre, Aged
about 33 years, Occ. Service, R/o. Shibaji
Nagar, Nagpur.
...VERSUS...
RESPONDENT :- State of Maharashtra, Through Police
Station, Sakoli, Tah. Sakoli, Distt. Bhandara.
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Mr.A.S.Mardikar, sr.counsel assisted with Mr.Abhijeet Sambaray,
counsel for the petitioners.
Mr.A.M.Joshi, A.P.P. for the respondent.
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CORAM : REVATI MOHITE DERE, J.
DATED : 06.12.2017
0612WPs538&545.10-Judgment 3/12
O R A L J U D G M E N T
Since the issue involved in these petitions is identical, they
are heard together and finally decided by this common judgment.
2. Heard learned senior counsel for the petitioners as well as
learned A.P.P. for the respondent-State.
3. By these petitions, the petitioners have impugned the
order dated 01/09/2008 passed by the learned Judicial Magistrate First
Class, Sakoli below application (Exhibit-31), by which their application
seeking discharge was rejected; as well as the judgment and order dated
22/03/2010 passed by the learned Sessions Judge, Bhandara dismissing
their Criminal Revision No.83 of 2008, thereby confirming the order
dated 01/09/2008.
4. Learned senior counsel for the petitioners submitted, that
the impugned orders passed by the learned Magistrate as well as the
learned Sessions Judge were contrary to law and as such, prayed for
quashing and setting aside of the said orders. He submitted, that none
of the petitioners have been named, either in the F.I.R. lodged by the
complainant nor by the witnesses. He further submitted, that none of
the witnesses or the complainant have given the description of the
accused allegedly present at the spot, in their statements or in the F.I.R.
0612WPs538&545.10-Judgment 4/12
He further submitted, that neither have any specific allegations been
made against the petitioners nor any specific role is assigned to them.
Learned senior counsel submitted, that in the absence of an
identification parade, there was no material on record to show the
complicity of the petitioners in the alleged offences. According to the
learned senior counsel, considering the aforesaid, the petitioners are
entitled to be discharged under section 239 of Criminal Procedure Code.
Leaned senior counsel further submitted, that in none of the injury
certificates, the age of injury is mentioned and in fact, in one of the
certificates, the age of injury is stated as ½ to 1 hour. He submitted,
that the incident had taken place at around 12.20 A.M. and the injured
were examined at around 4.40 A.M. and, therefore, the injury certificate
does not support the prosecution case and is rendered suspect. Learned
senior counsel relied on the judgments reported in AIR 1972 SC 102;
Rameshwar Singh Vs. State of J. and K., 2013 ALL MR (Cri) 25;
Devendra Kumar Zialal Sukhchand Jaiswal & Ors. Vs. The State of
Maharashtra, 2008 (1) AIR Bom. R 785; Mahendra Nanjibhai Mehta
& Anr. Vs. State of Maharashtra & Anr. and 1996 (3) CRIMES 305;
Basheer Vs. State of Tamil Nadu in support of his submission.
5. Learned A.P.P. for the respondent-State opposed the
petitions. He submitted, that no interference was warranted in the
0612WPs538&545.10-Judgment 5/12
impugned orders in writ jurisdiction. He submitted, that both the lower
Courts have rightly rejected the petitioners' application seeking
discharge, after examining the material on record and as such, no
interference is warranted in writ jurisdiction. He submitted, that a
perusal of the statement of the complainant as well as several witnesses
would show, that there were about 17 to 18 accused persons, who had
participated in the assault which took place on forest officials/guards
and as such, the same shows their involvement in the commission of the
offence. He submitted, that the witnesses as well as the first informant
were assaulted in the said incident and, that the injury certificates
corroborate the said fact. He further submitted, that all the petitioners
were arrested on the very same day and were enlarged on bail by the
Investigating Officer, thus showing the presence of the petitioners at the
spot of the incident. He further submitted, that merely because
identification parade was not conducted, would not be a ground for
discharging the petitioners from the said case, inasmuch as, the
petitioners have been charged for the offences punishable under
sections 143, 147, 148, 353, 332, 294, 506 and 186 of I.P.C. He
submitted, that the petitioners could well be identified by the witnesses
during trial. According to the learned A.P.P., the judgments relied upon
by the learned senior counsel were clearly distinguishable and would
not apply to the facts of this case.
0612WPs538&545.10-Judgment 6/12
6. Perused the papers as well as the impugned orders. The
incident took place on 20/02/2005, when the petitioners and others
had gone to the Nagzira Wildlife Sanctuary for a picnic with their
families including children. On 20/02/2005 at 00.30 hours the
petitioners and their families reached the cottages, situated in the
Nagzira Wildlife Sanctuary. According to the prosecution, the
petitioners and others after consuming liquor, started singing and
shouting loudly, thereby creating nuisance in the forest area. It is
alleged, that pursuant thereto, the employees of the Forest Department
tried to explain to the petitioners, and asked them to restrain
themselves from such behaviour, as a result of which, the petitioners/
accused persons started abusing the forest officers/guards in filthy
language. According to the prosecution, all the petitioners and 2 others
namely Sudhir Alone and Anil Nair violated the discipline of the
sanctuary. The said incident was reported by the forest officials/guards
to their Senior Officer, pursuant to which, on the very same day i.e. on
20/02/2005 at about 10.30 A.M., Manohar Bhajipale, a forest guard
asked the accused persons to wait till the Divisional Forest Officer came,
in view of the incident that had taken place in the night. It is alleged,
that the accused persons abused Manohar Bhajiapale in filthy language.
It is further alleged, that when the Divisional Forest Officer Shri
0612WPs538&545.10-Judgment 7/12
Bhovate came on the spot, the forest officers/guards narrated the
incident, that had taken place in the night, at which time, the accused
persons held Bhajipale's collar and dragged him and when the forest
guards and other officers tried to rescue Bhajipale, all the accused
persons are alleged to have assaulted the forest officers/guards.
According to the prosecution, all the accused persons threatened and
abused the forest officials/guards in filthy language. As the petitioners/
accused persons assaulted and used criminal force against the public
servants and prevented them from discharging their official duties, the
offences were registered as against the petitioners and others. All the
petitioners, including 2 others namely Sudhir Alone and Anil Nair were
produced before the Police and were released on bail by the
Investigating Officer on the very same day, as the offences alleged were
bailable. During investigation, the Police recorded the statements of
several witnesses i.e. forest officials/ guards. 2 sticks and one shirt were
found at the spot, where the incident took place, pursuant to which, the
said articles were seized under a panchnama. During investigation,
injury certificates of the injured witnesses were collected and after
investigation, charge-sheet was filed as against the petitioners and 2
others. Admittedly, in the F.I.R. only the names of 2 accused persons
has been mentioned i.e. Sudhir Alone and Anil Nair alongwith 17
others. Although, it is disclosed in the F.I.R., that there were 17 others,
0612WPs538&545.10-Judgment 8/12
who assaulted and abused, admittedly the said persons have not been
named in the F.I.R.. As the petitioners were not named in the F.I.R. or
in the statements of eye witnesses, the petitioners filed an application
(Exhibit-31) seeking their discharge from the said case before the
learned J.M.F.C., Sakoli. The said application was rejected by the
learned Magistrate vide order dated 01/09/2008. Being aggrieved by
the said order, refusing to discharge the petitioners, the petitioners
preferred a revision application before the learned Sessions Judge,
Bhandara, bearing Criminal Revision No.83 of 2008. After hearing the
parties, the learned Sessions Judge vide judgment and order dated
22/03/2010 was pleased to reject the said revision application.
7. The incident in question had taken place in the Nagzira
Wildlife Sanctuary on 20/02/2005. According to the complainant, the
petitioners/accused were creating ruckus in the Sanctuary, post
midnight, after consuming alcohol and were singing loudly and when
they were deterred, the petitioners/accused abused the forest officers/
guards. It is further alleged, that on the same date in the morning, at
10.30 a.m. when the accused were called and questioned, the
petitioners and 2 others assaulted the forest officers/guards and abused
them in filthy language. The F.I.R. has been lodged promptly by one
Keshav Shende on the very same day of the incident. The injured
0612WPs538&545.10-Judgment 9/12
witnesses were also examined at the Cottage Hospital, Sakoli, on the
very same day at around 4.30 P.M. There are more than 12 eye
witnesses in the said case and all the said witnesses are forest officials/
guards. The injury certificates of 5 injured show, that the said 5 persons
have received injuries in the said incident. Although, learned senior
counsel for the petitioners contended, that in one of the injury
certificates, the age of injury is mentioned as ½ to 1 hour, when in fact,
the incident had taken place at 10.30 a.m. and the injured were
examined at 4.30 p.m. and, that in other injury certificates, the age of
injuries is not mentioned, the same will be considered, during trial and
cannot be a ground for discharge. The only persons, who have been
named in the F.I.R. and by some witnesses are Sudhir Alone and Anil
Nair. It is pertinent to note here, that the complainant as well as the
witnesses have specifically in their statements stated, that about 17
persons were present and, that the said persons assaulted and abused
them. No doubt, identification parade ought to have been held, as the
accused persons were not known, however, the fact remains, that all the
petitioners were arrested on the very same day and enlarged on bail by
the Investigating Officer. Prima facie the presence of the petitioners/
accused persons is established on the said date. It is pertinent to note,
that some of the witnesses have specifically stated, that one unknown
person held Bhajipale's collar and, that others started assaulting the
0612WPs538&545.10-Judgment 10/12
forest officer/guards. It is also pertinent to note, that the accused
persons, who assaulted the forest officers/guards, prevented the forest
officials/guards from discharging their official duties.
8. Under section 239 of Cr.P.C., an accused person can be
discharged, if the charges against him are groundless. The said opinion
i.e. the charge against the accused is groundless, must be arrived at,
after considering the police report and the documents sent under
section 173 of Cr.P.C. and after such examination of the documents and
after giving the prosecution and the accused an opportunity of being
heard. It is not necessary for any Court to assess in detail the evidence
or weight attached to it and come to the conclusion, whether the
prosecution would ultimately be able to prove the charges. What is
required to be seen and considered are only the documents i.e. the
Police report and the documents and after examination of the same,
whether the Court can come to the conclusion that the charge against
the accused is groundless and, that no offence is made out against the
accused.
9. In the present case, the facts reveal, that 17 to 18 persons
had gone to the Nagzira Wildlife Sanctuary for a picnic; that in the
night after consuming alcohol, they were singing loudly, that when they
were reprimanded by the forest officers/guards, the accused persons
0612WPs538&545.10-Judgment 11/12
abused the forest officers/guards; and that in the morning at about
10.30 A.M. when the petitioners/accused persons were questioned
about their behaviour in the night, they abused the forest officers/
guards in filthy language and even assaulted them. The statements of
the complainant and the witnesses clearly show, that there were 17 to
18 persons, who abused and assaulted them. Merely because the
petitioners have not been named in the F.I.R. or in the statements of
witnesses, nor any specific description given nor any identification
parade held, cannot be a ground to discharge the petitioners from the
said case. Admittedly, the petitioners were arrested on the very same
day and were enlarged on bail by the Investigating Officer. No doubt
identification parade ought to have been held, but merely because
identification parade was not held cannot be a ground for discharging
the petitioners from the said case. The petitioners can always be
identified by the witnesses during trial. The judgments relied upon by
the learned senior counsel for the petitioners are clearly distinguishable
and will not apply to the present case. It is pertinent to note, that the
petitioners have been charged by the prosecution for the offences
punishable under sections 143, 147, 148, 353, 332, 294, 506 and 186
of I.P.C. and prima facie, the presence of the petitioners at the spot of
incident is established.
0612WPs538&545.10-Judgment 12/12
10. Considering the aforesaid, no error or infirmity can be
found in the impugned order dated 01/09/2008 passed by the learned
Judicial Magistrate First Class, Sakoli below application (Exhibit-31) as
well as in the order dated 22/03/2010 passed by the learned Sessions
Judge, Bhandara in Criminal Revision No.83 of 2008, warranting
interference in writ jurisdiction. Accordingly, the petitions are
dismissed.
Rule stands discharged in both the petitions.
11. It is made clear that the observations are prima facie for
the purpose of considering the aforesaid petitions. The learned
Magistrate shall conduct the trial on its own merits, in accordance with
law and shall not be influenced by the earlier order. The petitions are
disposed of.
12. All the parties to act upon the authenticate copy of this
judgment.
JUDGE
KHUNTE
