Bombay High Court

Subhash S/O. Shamlal Pongade And ... vs State Of Maharashtra Thr. Police ... on 28 September, 2017

Bench: V.M. Deshpande

Judgment

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                                       1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

        CRIMINAL APPLICATION (APL) NO.642 OF 2017

1. Subhash s/o Shamlal Pongade,
Aged about 26 years, Occupation Labour,
R/o Fulchur, Tahsil & District Gondia.

2. Tushar s/o Vijay Bhendarkar,
Aged 32 years, Occupation Labour,
R/o Gaushala Ward, Gondia,
Tahsil & District Gondia.

3. Amol s/o Shankar Chamt,
Aged 23 years, Occupation Labour,
R/o Matatoli, Gondia,
Tahsil & District Gondia.

4. Ajay s/o Devrao Narnaware,
Aged 24 years, Occupation Labour,
R/o Fulchur, Gondia,
Tahsil & District Gondia.

5. Nishant s/o Shantaram Sonwane,
Aged 29 years, Occupation Labour,
R/o Shastri Ward, Gondia,
Tahsil & District Gondia.

                                ::   VERSUS   ::

State of Maharashtra,


                                                                         .....2/-


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 Judgment

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                                         2

through its Police Station Officer,
Gondia Rural Police Station, 
District : Gondia.                                         ...... Non-applicant..

================================================================
           Shri N.R. Tekade, Counsel for the applicants.
           Shri R.S. Nayak, Addl.P.P. for the non-applicant/State.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : SEPTEMBER 28, 2017.

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard

finally by consent of learned counsel Shri N.R. Tekade for the

applicants and learned Additional Public Prosecutor Shri R.S.

Nayak for the State.

2. The applicants are challenging judgment and

order passed by learned Sessions Judge, Gondia dated

11.9.2017 in Criminal Revision No.25 of 2017. By the said

judgment, learned Sessions Judge dismissed the revision filed

on behalf of the present applicants and directed the

.....3/-

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applicants to surrender before police on 14.9.2017.

3. This Court on 14.9.2017 issued notice to the non-

applicant/State and in the meanwhile direction to surrender,

as given by learned Judge of the Court below, was stayed by

this Court.

4. I have heard learned counsel Shri N.R. Tekade for

the applicants and learned Additional Public Prosecutor Shri

R.S. Nayak for the State, in extenso.

5. One Vithoba Londu Lilhare on 25.12.2016 filed a

report with Gondia Police Station (Rural). On the basis of the

said report, Crime No.424 of 2016 was registered for the

offence punishable under Section 326 read with Section 34 of

the Indian Penal Code against applicant No.1 Subhash s/o

Shamlal Pongade and applicant No.2 Tushar s/o Vijay

Bhendarkar.

.....4/-

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6. From the first information report, it is clear that

first informant is not an eyewitness to the incident and his

report was based on the statement made to him by his son

Prakash, the injured.

7. In the first information report it was stated that

applicant Nos.1, 2 and their associates assaulted on Prakash

by means of wooden stick and iron rod. In the first

information report it is further stated that in altercation

between Prakash and accused persons, Prakash lost his Nokia

made cellphone and Rs.17,000/-.

8. Applicant Nos.1 to 3 were arrested on 25.12.2016.

During investigation, role of applicant Nos.4 and 5 was also

revealed for assault and, therefore, they were also arrested on

27.12.2016.

9. On 28.12.2016, an application for grant of bail was

filed in the Court of learned 3 rd Judicial Magistrate First Class

.....5/-

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at Gondia by applicant Nos.1 to 3. Learned Magistrate on the

very same day granted bail in their favour. Consequently,

upon following regular procedure, applicant Nos.1 to 3 were

released from jail.

10. A similar application was moved by applicant

Nos.4 and 5 on 30.12.2016 and learned Magistrate granted the

said application also and applicant Nos.4 and 5 were released

on bail.

11. From the investigation papers, it appears that

statement of injured Prakash was recorded by the

investigating officer on 31.12.2016. In his statement he made

assertion that after he being assaulted by the applicants, they

snatched away Rs.17,000/- from him and also a Nokia made

cellphone. After recording of his statement, the investigating

officer thought it fit to add Section 397 of the Indian Penal

Code in the crime, in addition to offence punishable under

.....6/-

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Section 326 of the Indian Penal Code.

12. After adding the said provision, on 6.1.2017 the

investigating officer filed an application under Sub section (5)

of Section 437 of the Criminal Procedure Code, 1973 before

learned 3rd Judicial Magistrate First Class at Gondia. By

moving the said application, it was claimed by the

investigating officer that since on 5.1.2016 Section 397 is

added for the purposes of recovery of articles and for

identification of the accused persons, the bail granted in

favour of the applicants, on 28.12.2016 and on 30.12.2016, be

cancelled and permission to arrest them be granted.

13. It appears that after filing of the said application,

on 6.1.2017 learned Magistrate at Gondia, on very same day,

passed a cryptic order as "allowed as prayer."

14. Being aggrieved by the said order, the present

applicants filed a criminal revision bearing Criminal Revision

.....7/-

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No.3 of 2017 before learned Sessions Judge at Gondia.

Learned Sessions Judge at Gondia allowed the said revision

principally on the ground that no opportunity of hearing or

notice was given to the present present applicants before

their bail was cancelled by the cryptic order. Learned

Sessions Judge, therefore, by the said judgment, remanded

the matter to the Court of learned Magistrate with a direction

to learned Magistrate to decide the application filed on behalf

of the investigating officer afresh after giving a sufficient

opportunity to the applicants to reply the application filed on

behalf of the investigating officer suitably.

15. Consequently, the applicants submitted their

replies before learned Magistrate to the application filed on

behalf of the investigating officer and opposed the said

application.

16. Learned Magistrate, vide order dated 12.5.2017,

.....8/-

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allowed the application filed on behalf of the investigating

officer and directed that applicant Nos.1 to 5 be taken into

custody.

17. Immediately, the present applicants filed a

criminal revision bearing Criminal Revision No.25 of 2017

challenging the said order of learned Magistrate.

18. On 15.5.2017, learned Sessions Judge found that

though learned Magistrate has directed that applicant Nos.1

to 5 be taken into custody, they are not taken into custody.

Therefore, without going into the merits of the matter, since

the applicants were before the Court, they were taken into

custody and they were released on temporary bail.

19. On 11.9.2017, learned Sessions Judge at Gondia

ultimately dismissed the revision filed on behalf of the

present applicants. While dismissing the criminal revision,

filed on behalf of the present applicants, in paragraph No.15

.....9/-

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of order, learned Sessions Judge observed that though the

custody of the applicants was claimed by the investigating

officer for test identification parade, material on record

indicates that test identification parade is already conducted

and, therefore that ground is not available for the

prosecution. However, according to learned Sessions Judge,

custodial interrogation of the applicants is necessary for the

purposes of recovery of the amount and the cellphone.

20. Learned counsel Shri N.R. Tekade of the

applicants submits that the applicants are innocent and they

are falsely implicated. He submits that the custody of the

applicants is not necessary. He relies on the judgment of this

Court in the case of Uttamkumar s/o Chandrakant Wagh and

anr ..vs.. The State of Maharashtra, reported at 2012 ALL MR

(Cri) 3468 and prays that the revision be allowed.

21. Per contra, learned Additional Public Prosecutor

.....10/-

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Shri R.S. Nayak for the State submits that order passed by the

Revisional Court be uphold since the investigating officer

wishes to recover the amount and the mobile cellphone. He,

therefore, prays for dismissal of the revision.

22. This Court is not expected to deal with the

submissions filed on behalf of the present applicants about

their false implication or otherwise, since it is a matter of

Trial. The question is about handing over of custody of the

present applicants, till filing of the charge-sheet.

23. As observed in the earlier part of this judgment,

all the applicants were released on bail for the offence

punishable under Section 326 read with Section 34 of the

Indian Penal Code on 28.12.2016 and on 30.12.2016

respectively. Though their bail was cancelled by learned

Magistrate due to interim bail granted by learned Sessions

Judge, during the pendency of the revision the applicants

.....11/-

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were not taken into custody. Further, after the revision was

disposed of, the direction to the applicants, that they should

surrender, was also stayed by this Court. Thus, from

28.12.2016 and 30.12.2016 till today, the applicants were not

taken in custody. From their release on bail till today, it is

not the case of the prosecution that at any point of time they

have misused the liberty granted to them or any condition

that was imposed upon them for availing the bail is not

followed by them.

24. The cause for filing the application on behalf of

the investigating officer, under Sub section (5) of Section 437

of the Criminal Procedure Code, 1973 before learned Judicial

Magistrate First Class at Gondia, was for adding of Section

397 of the Indian Penal Code. The offence punishable under

Section 397 of the Indian Penal Code was added on 5.1.2016 in

view of statement of injured Prakash which was recorded by

.....12/-

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the investigating officer on 31.12.2016.

25. As per the first information report, first informant

Vithoba, father of Prakash, reported to the police officer that

injured Prakash informed him that at the time of assault on

him by the applicants he lost his cellphone and Rs.17,000/-.

Thus, at the time when Prakash narrated the incident to his

father Vithoba, which was culminated into the first

information report, it was not stated that any of the

applicants has snatched away cash amount or mobile phone.

26. Be that as it may, Section 397 of the Indian Penal

Code is added on the basis of statement of Prakash on

31.12.2016. Learned Additional Public Prosecutor Shri R.S.

Nayak for the non-applicant/State has made available to this

Court the statement of Prakash on the basis of which Section

397 of the Indian Penal Code is added. Since the question of

custody is involved, it would be appropriate on the part of this

.....13/-

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Court to refer in the present judgment the relevant portion

from the statement of Prakash which reads as under:

"eyk ykB;k dkB;kus o yks[ kaM h jkWM us ekjihB ds ys - R;keq Gs

eh t[keh >kyks rs O gk ek÷;k iWU VP;k f[k'kkr vlys ys

Msdksjs'kups feGkys ys iSls #-15][email protected]& o ek÷;k toG

vlys ys [kpkZps #-2][email protected]& vls ,dq . k #-17][email protected]& o ek>k

uksf d;k da i uhpk eksc kbZ y gk R;kau hp dk<qu usys

vlkos"...........................

From the aforesaid statement, it is even Prakash

himself is not sure that amount or Nokia phone was taken

away by the applicants. Apart, he is totally silent in his

statement that any of the applicants robbed him in respect of

the cash and the mobile phone.

27. As observed above in the earlier part of this

judgment, custody is claimed by the investigating officer for

the purposes of holding test identification parade and for

recovery of the amount and the mobile phone. Learned

.....14/-

Judgment

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