Bombay High Court
Sachin S/O. Nagorao Annapurve vs The State Of Maharashtra on 19 January, 2018
Bench: Prasanna B. Varale
1 Cri.Appln 4270-2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4270 OF 2017
Sachin Nagorao Annapurve,
Age .. years, Occupation Service,
R/o 74-B, Zambad Estate, Shreya Nagar,
Aurangabad Tq. Dist. Aurangabad. .. Applicant
VS.
The State of Maharashtra. .. Respondent
----
Ms. N. R. Suryawanshi, Advocate for the applicant.
Mr. K. S. Patil, Additional Public Prosecutor for
respondent/ State.
----
CORAM : PRASANNA B. VARALE &
SMT. VIBHA KANKANWADI. JJ.
DATE : 19-01-2018
ORAL JUDGMENT ( Per Smt. Vibha Kankanwadi. J.)
1. Present application has been filed by original accused for
quashing First Information Report (FIR) and the entire proceedings in
STC No. 828 of 2012 against him, by invoking powers of this Court under
Sec. 482 of Code of Criminal Procedure.
2. Petitioner has come with a case that one Devanand
Trimbakrao Patil is serving in Zilla Parishad, Jalna. He has filed FIR with
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Jalna Police Station on 01-12-2011 stating that present petitioner and
other 9 persons were absent when the training program was undertaken
between 20-11-2011 to 27-11-2011 at Zilla Parishad, Jalna. The said
training program was in respect of general elections scheduled to be held.
It has been alleged that the present petitioner and other accused persons
have failed to discharge their official duty, as they remained absent
without taking prior permission. Therefore, the FIR was lodged invoking
offence punishable under Sec. 31 of Maharashtra Municipal Council
(Nagar Panchayat & Industrial Township) Act, 1965 and Sec. 134 of
Representation of Peoples' Act, 1951. Offence vide Cr. No. 3068 of 2011
came to be registered on the basis of said FIR.
3. After completion of the investigation, charge sheet has been
filed. Applicant had filed an application for his discharge at Exh.52. The
said application came to be rejected by learned Chief Judicial Magistrate,
Jalna on 22-12-2016. Petitioner had challenged the said order in Writ
Petition No. 407 of 2017 before this Court; but the said petition has been
withdrawn by petitioner on 23-3-2017.
4. Petitioner has contended that Block Development Officer had
conducted inquiry against him and had opined that petitioner had not
remained absent without reasonable cause. Accordingly a letter was
issued by him to the informant on 02-12-2011. It was revealed that
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petitioner was on medical leave from 01-11-2011. Notice was not served
on the petitioner. There was reasonable ground for the accused to remain
absent. Hence, the FIR filed against him is not justified. He has therefore,
prayed for the quashing up of the FIR.
5. Application has been objected on behalf of respondent on the
ground that the application filed by petitioner for discharge has been
dismissed. Petitioner had remained absent at the time of training and it
was deliberate. Petitioner has not done his official duty and therefore, the
FIR has been rightly lodged.
6. Heard learned Advocate appearing for petitioner and learned
APP for the Respondent.
7. It is to be noted from the papers before us that investigation
has been completed and charge sheet has been filed in the Court. When
material has been collected, then we will have to assess the same at this
prima facie stage. The allegations in the FIR are that the present
petitioner failed to make himself available for the training organized
before the elections, though he was directed. It has been considered as
dereliction of his duty. In order to constitute an offence, we must consider
the intention behind the act or omission. Here also it is necessary to see
whether present petitioner remained absent, intentionally. The
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communication that was exchanged between the offices of the petitioner
and Election Officer are required to be considered. It appears that
petitioner was on medical leave since 01-11-2011 to 30-11-2011. The
date on which he was supposed to remain present for training was 20-11-
2011. Petitioner was not served with the intimation requiring him to
remain present for the training prior to 20-11-2011 by his office. This can
be clear seen from the letter dated 23-22-2011 given by Block
Development Officer Class-1, Panchayat Samiti, Jalana. He had clearly
stated that no action should be initiated against the petitioner as he was
on medical leave. In spite of that, it appears that, without making any
further inquiry, FIR was lodged on 01-12-2011. Another letter was issued
by same authority on 02-12-2011. No doubt, before this letter reached
Election Officer, already the offence was registered. However, we can see
that the BDO was consistent in saying that petitioner was on medical
leave and therefore, office had not served him the notice asking him to
remain present for the training. Therefore, the absence of petitioner was
not intentional. His such absence will not amount to offence, as
contemplated in Sec. 31 of Municipal Council, Nagar Panchayat &
Industrial Township Act, 1965 as well as Sec. 134 of Representation of
People Act, 1951. It would be unjust to ask the petitioner to face the trial
under the said circumstances. Hence, the FIR as against petitioner
deserves to be quashed, so also the further proceedings before JMFC,
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against him. We therefore proceed to pass following order:
ORDER
1) Criminal Application is hereby allowed.
2) First Information Report in Crime No. 3068/ 2011
registered with Jalna Police Station, Dist. Jalna against the
Petitioner for the offence Sec. 31 of Municipal Council,
Nagar Panchayat & Industrial Township Act, 1965 as well as
Sec. 134 of Representation of People Act, 1951 is hereby
quashed and set aside.
3) Consequently, the further proceedings in STC No. 828
of 2012 pending before Judicial Magistrate First Class, Jalna
is also quashed and set aside as against Petitioner only.
[SMT. VIBHA KANKANWADI] [PRASANNA B. VARALE]
JUDGE JUDGE
vjg/-.
