Bombay High Court
Kishor S/O. Murlidhar Sonar vs The State Of Maharashtra And ... on 13 January, 2021
Bench: V.L. Achliya
(1) cra23.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
911 CRIMINAL REVISION APPLICATION NO.23 OF 2019
KISHOR S/O. MURLIDHAR SONAR
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
Mr. N. P. Jamalpurkar Patil, Advocate for the applicant
Mr. A. A. Jagatkar, AGP for the respondent/State
Mr. G. D. Jain, Advocate for respondent No. 3
CORAM : V. L. ACHLIYA, J.
DATE : 13-01-2021
P. C.
. By this revision application, the applicant-original
accused No. 2 has challenged the order dated 02-11-2018, passed
by the learned Additional Sessions Judge, Shahada, Dist. Nandurbar
in Sessions Case No. 59 of 2001. By the impugned order the
learned Additional Sessions Judge has rejected the application
seeking discharge filed under Section 227 of the Code of Criminal
Procedure by the present applicant.
2. In brief, it is the contention of the learned counsel for
the applicant-original accused No.2 that the court below has erred
in rejecting the application seeking discharge filed by the applicant.
It is submitted that respondent No. 3 had filed complaint way back
in the year 2000, alleging therein that Dhruvaraj Murlidhar Sonar-
accused No.1 maintained physical relationship with her by
1 of 6
(2) cra23.19
pretending that he has performed the registered marriage with her.
Later on, it is discovered that her marriage shown to be registered
as performed with Kishor Murlidhar Sonar- the applicant. On the
basis of complaint lodged the offence under Sections 376 (2)(b),
420 read with Section 34 of the IPC came to be registered.
Subsequently, the offence under Section 3(1)(x) of the SC and ST
(Prevention of Atrocities) Act came to be registered against both
the accused.
3. Later on charge-sheet came to be filed against them to
prosecute for said offence. The applicant alongwith co-accused No.
1 filed the petition before the Division Bench of this court seeking
quashment of FIR and consequently chargesheet. The petition came
to be registered as writ petition No. 357 of 2001. The petition was
admitted and stay was granted to the proceeding of Sessions Case
No. 59 of 2001. Later on, the petition was converted as Criminal
Application No. 3590 of 2012 filed under Section 482 of Code of
Criminal Procedure. It was heard and decided vide order dated 02-
07-2018, by the Division Bench of this court. The petition came to
be dismissed. Being aggrieved by order dated 02-07-2018, accused
No. 1 preferred special leave petition (Criminal) No. 6532 of 2018
before the Hon'ble Apex Court. By the judgment and order dated
22-11-2018, the Hon'ble Apex Court allowed the appeal and set
aside the order dated 02-07-2018, passed in Criminal Application
No. 3590 of 2012 passed by the Division Bench of this court and
further quashed and set aside the FIR dated 06-12-2000 filed by
2 of 6
(3) cra23.19
the respondent No. 3/complainant and charge-sheet dated 14-06-
2001, filed against the appellant i.e. accused No. 1 by Mhasawad
Police against the appellant for offences under Sections 376 (2)(b),
420 read with Section 34 of the IPC and Section 3(1)(x) of the SC
ST (Prevention of Atrocities) Act also quashed against the
appellant-accused No.1.
4. Before the order dated 22-11-2018 the accused Nos. 1
and 2 had filed application under Section 227 of the Code of
Criminal Procedure seeking discharge. The application was
presented on 29-09-2018 i.e. prior to decision of Hon'ble Apex
Court. It is specifically pleaded that the applicants are innocent and
falsely implicated in the case. It is contended that the allegations
made in the FIR and the evidence gathered by the prosecution do
not prima-facie attract the offences punishable under Sections 376
(2)(b), 420 read with Section 34 of the IPC and Section 3(1)(x) of
the SC and ST (Prevention of Atrocities) Act. It is also contended
that there are no allegations of physical relationship against the
applicant/accused No. 2 and still the police have filed charge-sheet
seeking prosecution of the petitioner-accused No. 2 under Section
376 (2)(b) of the IPC. However, by the impugned order the learned
Additional Sessions Judge has rejected the application for discharge
filed by the applicant. It is contended that the order has been
passed mechanically. Learned Additional Sessions Judge has
rejected the application by observing that the application has been
filed after 17 years and the proceeding for quashing of FIR has
3 of 6
(4) cra23.19
been dismissed by the Division Bench of this court. It has failed to
take into account the pendency of petition filed and interim stay
order from the year 2001. It is submitted that while exercising the
powers under Section 227 of the Code of Criminal Procedure was
expected that they have assessed and examined the evidence
gathered by the prosecution to prosecute the applicant for
prosecuting him under Sections 376 (2)(b), 420 read with Section
34 of the IPC and Section 3(1)(x) of the SC and ST (Prevention of
Atrocities) Act. No such exercise has been made on the part of
learned Additional Sessions Judge. It is further submitted that the
charge-sheet against the applicant is groundless. In case entire
case of the prosecution presumed to be true and correct, still it
makes out no case to proceed against the applicant. Continuation of
proceeding would be an exercise in futility and there is fit case to
be discharged in the light of order passed by the Hon'ble Apex
Court in the matter of accused No.1.
5. On the other hand, learned counsel for the respondent
No.3 and learned AGP supported the order passed by the learned
Additional Sessions Judge.
6. On due consideration of the submissions advanced in
the light of overall facts of the case, nature of accusation made
against the applicant and the order passed by the Hon'ble Apex
Court in criminal appeal No. 1443 of 2018 to quash the proceeding
against the accused No. 1 and reasons recorded for rejection of
4 of 6
(5) cra23.19
application for discharge, I am of the view that the revision
application raises arguable case to be considered on merit. While
dealing with an application filed under Section 227 of the Code of
Criminal Procedure, the court concern is expected to examine and
assess the evidence relied by the prosecution against accused and
to reach the primna-facie conclusion whether there is sufficient
evcidence to proceed against the accused. It is apparent from the
record that there are no allegations that the petitioner-accused No.
2 had physical relationship with informant. In that view there is no
case to proceed against the applicant for committing the offence
under Section 376 of the IPC. Only allegations made against the
applicant-accused No. 2 is that accused No. 1 had pretended that
he has performed registered marriage with the informant which was
subsequently discovered to be registered showing the name of
present applicant/accused No.2 as her husband. While passing the
order, the learned Additional Sessions Judge has not taken any
pains to evaluate evidence to find out whether same evidence is
sufficient to proceed against the applicant/accused No.2. The
application has been rejected only for the reason same found to
have filed after seventeen years and the Division Bench of this
court has rejected the application filed under Section 482 of the
Code of Criminal Procedure for quashing the FIR by granting stay
operating in the matter from 2001. In that view, the revision
application deserves to be considered. Hence, the following order:-
5 of 6
(6) cra23.19
ORDER
i. Admit.
ii. Issue notice to the respondents, returnable on 08-
04-2021. Mr. G. D. Jain, Advocate waives service of
notice for respondent No. 3. Learned AGP waives
service of notice for the respondent/State.
iii. Call R & P without paper book.
iv. Hearing of the application is expedited.
v. List the application for final hearing on 08-04-
2021.
vi. Pending hearing and disposal of revision petition,
there shall be ad-interim relief in terms of prayer
clause-D.
[ V. L. ACHLIYA, J. ]
VishalK/cra23.19
6 of 6
