Bombay High Court
Mohd. Javed S/O Abdul Wahab And ... vs State Of Mah. Thr. Dgp Buldhana ... on 4 August, 2021
Bench: Manish Pitale
1 apl 7-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Criminal Application (APL) No. 7 of 2021
Mohd. Javed S/o Abdul Waheb and Another
Vs.
State of Maharashtra, Through DGP Buldhana and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S.O. Ahmed, Advocate for the applicants
Ms. Shamsi Haider, APP for the respondent No.1
Respondent No.2 in person
CORAM : MANISH PITALE, J.
DATED : AUGUST 04, 2021
The present Application is filed by the
original accused No.1 to 3, being aggrieved by
concurrent orders passed by the Court of Judicial
Magistrate First Class, Buldhana and Court of Sessions
Judge at Buldhana, whereby an application filed by the
respondent No.2 (original accused No.4) for grant of
tender of pardon under Section 306 of the Code of
Criminal Procedure (Cr.P.C.), stood allowed.
2. Mr. S.O. Ahmad, learned counsel appearing
for the applicant strenuously urged that this Court
needs to appreciate the background facts of the present
case, before considering the correctness or otherwise of
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the orders impugned in this Application. It was
brought to the notice of this Court that the applicant
No.1 and the respondent No.2 got married on 18 th
June, 2014. Matrimonial discord occurred between the
two, as a consequence of which, the respondent No.2
caused as many as four First Information Reports
(FIRs), to be registered against the applicant and his
family members. Details of the four FIRs dated 29 th
July 2015, 1st August 2016, 2nd December 2019 and
17th July 2020, were brought to the notice of this
Court. It was further informed that in so far as the first
two FIRs are concerned, the parties have entered into
settlement, as a consequence of which on 5th May
2018, the applicant No.1 was even acquitted by an
order of the Sessions Court.
3. It is submitted that due to the aforesaid
7matrimonial discord between the applicant No.1 and
the respondent No.2, when an FIR dated 18 th July 2018
was registered for offences under Sections 468, 471
and 420 of the Indian Penal Code, which culminated in
filing of chargesheet on 12th October 2018, against the
applicants No.1 and 2 and the respondents No.2 and 3
for offences under Sections 420, 467, 468, 471, 170
and 171 read with 34 of the Indian Penal Code, the
respondent No.2 herein (original accused No.4) in the
said proceeding filed an application dated 13th August
2019 under Section 306 of the Cr.P.C. for grant of
tender of pardon. It is submitted that due to the
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animosity that the respondent No.2 developed against
the applicant No.1 and his family members, she filed
the said application only in order to wreak vengeance
on them. In the first instance on 27th August 2019, the
Court of Judicial Magistrate First Class, Buldhana,
allowed the application filed by the respondent No.2.
The applicants filed a Revision Application before the
Sessions Court at Buldhana, which was partly allowed
by judgment and order dated 7 th November 2019. The
Sessions Court held that since there was non-
compliance of sub-Section 3(b) and 4(1)(a) of Section
306 of Cr.P.C., the order of the Magistrate deserved to
be set aside. Accordingly, the said order was set aside
and the matter was remanded to the Magistrate. On
19th December 2019, the Magistrate again allowed the
application under Section 306 of Cr.P.C. Aggrieved by
the same, the applicants again approached the Sessions
Court. By impugned judgment and order dated 6th
October 2020, the Sessions Court dismissed the
Revision Application and confirmed the order passed
by the Magistrate. While passing the impugned order,
the Sessions Court specifically recorded in paragraph
13, that the requirements of Sub-section 3(b) and sub-
Section 4(1)(a) of Section 306 of Cr.P.C. were duly
complied with, in the present case.
4. The learned counsel appearing for the
applicant placed reliance on the judgment of the
Hon'ble Supreme Court in the case of Central Bureau
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of Investigation Vs. Ashok Kumar Aggarwal and
Another (2013) 15 SCC 222, to contend that the
impugned orders were liable to be set aside.
5. Ms. Shamsi Haider, learned A.P.P. appeared
on behalf of the respondent - State. The respondent
No.2 has appeared in person. They supported the
impugned orders passed by the Magistrate and
Sessions Court.
6. A perusal of the aforesaid judgment passed
by the Hon'ble Supreme Court in the case of Central
Bureau of Investigation Vs. Ashok Kumar Aggarwal
(supra) would show that the said judgment does not
concern the question regarding compliance of Section
306 of Cr.P.C. The emphasis in the said judgment is on
the quality of evidence of an accomplice, who has been
granted tender of pardon under Section 306 of Cr.P.C.
The Hon'ble Supreme Court has made reference to
Sections 114 and 133 of the Cr.P.C. to observe that
although an accomplice is a competent witness, under
illustration (b) of Section 114 of the Evidence Act, the
testimony of an accomplice is unworthy of credit unless
it is corroborated in material particulars. But, the ratio
of the said judgment would not enure to the benefit of
the applicants herein.
7. The principal contention raised on behalf of
the applicants before this Court is that due to
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matrimonial discord and consequent bad blood
between the respondent No.2 on one hand and
applicant No.1 and his family members on other, the
said respondent moved application under Section 306
of Cr.P.C. and the same is actuated with malice.
Secondly, it is submitted that the requirements of
Section 306 of Cr.P.C. have not been satisfied.
8. Insofar as the principal contention is
concerned, the application moved by the respondent
No.2 under Section 306 of the Cr.P.C. cannot be
rejected only on the ground that she has initiated
criminal proceedings against the applicant No.1 and his
family members due to matrimonial discord between
the two. Merely because there are criminal proceedings
pending against the applicant No.1 and his family
members at the behest of respondent, it cannot be said
that the application filed under Section 306 of Cr.P.C.
for grant of tender of pardon in the present case could
not have been considered on its own merits.
9. Insofar as non-compliance of requirements
of Section 306 of Cr.P.C. is concerned, the Sessions
Court in the impugned order has specifically recorded
in paragraph 13 as follows :
"13. The trial Court again considered
the application (Exh.70). The learned
Magistrate has taken into consideration the
say of prosecution/A.P.P. After grant of
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pardon as per sub-section 3(b), in his
handwriting made the endorsement that
the applicant accepted tender of pardon
and ready to disclose true facts. So, there
is a compliance under sub-section 3(b).
After grant of tender of pardon, the
accused was examined as a witness in the
Court of Magistrate taking cognizance of
the offence on 14-01-2020. In that
statement, the applicant/accused has
deposed on oath true facts which were
within her knowledge. Beside the facts
relating to the offence, the accused stated
some personal facts about her marriage
with accused Jawed; but that itself is no
ground to hold that the applicant/accused
is having grudge; and to falsely implicate
the accused Jawed she accepted tender of
pardon. As per the provisions under
Section 306 of Cr.P.C., all the procedural
aspects have been complied by the trial
Court. There is no perversity in the
impugned order dated 19 December, 2019;
there is no any merit in respect of
statement dated 14-01-2020 is not a true
and voluntary disclosure of the facts and
circumstances within the knowledge of
witness relating to the offence. What
would be the evidential value of the facts
and circumstances stated by applicant in
that statement, is not a matter of
consideration at this stage; it is a matter of
trial. Therefore, I am of the view that there
is no substance in the revision. My finding
to the point is in negative. Thus, the
revision is liable to be dismissed. Hence,
the order."
10. The learned counsel appearing for the
applicants could not demonstrate before this Court that
the said findings rendered on facts could be said to be
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erroneous. Thus, the requirements of Section 306 of
Cr.P.C. having been satisfied. This Court sees no reason
to interfere in the concurrent orders passed by the
Magistrate and Sessions Court. Therefore, the present
application deserves to be dismissed.
11. Insofar as the quality of evidence and
reliability thereof, that could be presented by the
respondent No.2 during the course of trial, the
provisions of the Evidence Act would certainly be taken
into consideration by the concerned Court, as also the
position of law as clarified in the aforementioned
judgment of the Hon'ble Supreme Court in the case of
Central Bureau of Investigation Vs. Ashok Kumar
Aggarwal (supra).
12. At this stage, the learned counsel appearing
for the applicants vehemently submitted that the
application of the respondent No.2 under Section 306
of Cr.P.C. being allowed is a factor that has become an
impediment for the applicants to seek bail from the
competent Court.
13. Needless to say, the concerned Courts
considering the bail applications moved by the
applicants herein, would decide the same on their own
merits.
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14. In view of the above, the present application
is dismissed.
JUDGE
MP Deshpande
