Bhaurao S/O. Sahebrao Chavan vs The State Of Maharashtra And Anr
2021 Latest Caselaw 4804 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


               CRIMINAL WRIT PETITION NO.1322 OF 2018

                Bhaurao s/o Sahebrao Chavan,
                Age 22 years, Occupation Labour,
                R/o Godawari Tanda Tq. Gangakhed
                District Parbhani.                             ...Petitioner
                                                               (Accused)
                VERSUS

        1)      The State of Maharashtra,
                Through Police Station,
                Gangakhed Dist. Parbhani.

        2)      Dadarao s/o Parasram Pawar,
                Age 55 years, Occupation Service,
                R/o Devakatwadi Tanda,
                Tq. Gangakhed Dist. Parbhani.                  ...Respondents
                                                  (Respdt.No.1 -orig.complainant)


                                      .....
                Advocate for Petitioner               : Mr. S. J. Salunke
                APP for Respondent No.1-State         : Mr. A. M. Phule.
                Advocate for Respondent No.2          : Mr. V. C. Patil.
                                      .....

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    17-03-2021.

JUDGMENT :

1. Rule. Rule made returnable forthwith. By consent of both the

parties, the matter is taken up for final hearing.

2. Heard learned Advocate Mr. S. J. Salunke for petitioner, learned

Additional Public Prosecutor for respondent No.1 State, and learned

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Advocate Mr. V. C. Patil for respondent No.2.

3. It has been vehemently submitted on behalf of the writ

petitioner, who is the original accused, that he is already prosecuted

by virtue of First Information Report Crime No.11 of 2013 dated 17-

01-2013, for the offences punishable under Section 279, 304-A of

Indian Penal Code and Section 181 (3) of the Motor Vehicles Act. In

that case, the prosecution had come with a case that the present

petitioner drove his tractor bearing No.MH-22/H-5982 with trolleys

in rash and negligent manner and caused death of Balu @

Shrikrushna Dadarao Pawar. The First Information Report in that

case was filed by one Ram Parasram Pawar. Entire investigation

was over and charge-sheet was also filed by the police. However,

thereafter one Dadarao Parasram Pawar i.e. present respondent

No.2 filed private complaint bearing Miscellaneous Criminal

Application No.56 of 2014 making allegations against the present

petitioner and four more accused persons stating that they have

committed murder of said Balu and in order to screen themselves,

they have caused the evidence disappear. He has blown the facts

out of proportion and submitted that in fact the petitioner and co-

accused have committed offence punishable under Section 302, 201,

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203, 195, 109, 120-B read with 34 of Indian Penal Code. The

learned Magistrate had then taken the verification and process came

to be issued against all the accused persons for the offence

punishable under Section 302, 201, 203, 109, 120-B read with 34 of

the Indian Penal Code by order dated 22-04-2015. Accused No.2 to

5 had then filed Criminal Revision No.20 of 2015 challenging the said

order under Section 397 of Code of Criminal Procedure before

learned Additional Sessions Judge, Gangakhed, who allowed the

revision on 02-03-2016 by setting aside the order dated 22-04-2015

passed by learned Judicial Magistrate First Class, Gangakhed, and

the complaint was dismissed against the accused No.2 to 5. Present

Writ Petitioner had filed separate Revision i.e. Criminal Revision

No.06 of 2018. Learned Additional Sessions Judge by Judgment and

order dated 06-07-2018 partly allowed his revision and the order of

issuing process under Section 120-B read with 34 of Indian Penal

Code came to be set aside, however the other part of the order

against the present petitioner was maintained. Hence, this writ

petition.

4. Further it will not be out of place to mention here that the

present respondent No.2 - original complainant approached this

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Court in Criminal Writ Petition No.560 of 2016 challenging the order

of Revisional Court in Criminal Revision Application No.20 of 2015

which was filed by original accused No.2 to 5 and this Court by order

dated 28-04-2016 dismissed the said writ petition.

5. It has been submitted on behalf of the writ petitioner that if we

peruse the charge-sheet filed under Section 279, 304-A of Indian

Penal Code then there are statements of witnesses. Further the

copy of the spot panchanama and post mortem report would show

that it was accidental death. The informant in the same case i.e.

Ram Parasram Pawar had stated that he had received the phone call

about death of Balu and then he went to the spot. Ram Pawar is the

paternal uncle of the deceased. He has stated that he saw the dead

body of his nephew and found that his stomach was crushed as a

result of running over of tractor over him. In that case itself the

statement of present respondent No.2 was recorded on 17-01-2013

and at that time he had given statement that his son died due to

running over of the tractor from his body. Now he is coming with a

different story that it was murder and there was previous enmity

and dispute between deceased and the petitioner. The course that

was taken by the learned Magistrate of taking cognizance of the

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second complaint was wrong. When already police had taken

cognizance of the earlier complaint/ First Information Report, then

the second complaint was not maintainable at all. This aspect ought

to have been considered by the Revisional Court under Section 397

of Code of Criminal Procedure. The said order deserves to be set

aside.

6. Per contra, the learned Additional Public Prosecutor as well as

learned Advocate for respondent No.2 supported the reasons given

by learned Magistrate and the Revisional Court. Learned Magistrate

has given very much detailed order stating as to how the matter

appears to be not investigated properly by the police. The post

mortem report gives probable cause of death as, "haemorrhage and

shock due to polytrauma - unnatural death." The complainant had

given reasons as to why earlier First Information Report has been

considered hurriedly by police, and thereafter, how the Magistrate

has held inquiry under Section 202 of Code of Criminal Procedure,

and on the basis of material that is produced before the Magistrate,

he has taken cognizance and passed order of issuing process.

Therefore, there is no necessity to interfere in the said decisions.

7. At the outset, it is to be noted that the case under Section

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279, 304-A of Indian Penal Code arising from Crime No.11 of 2013 is

still pending and in the meantime the private complaint came to be

lodged i.e. Miscellaneous Criminal Application No.56 of 2014. They

both relate to the death of Balu Pawar who was the son of present

respondent No.2. The death had occurred wherein tractor bearing

No.MH-22/ H-5982 was involved. In the normal course there could

not have been a second complaint. The law on this point well

crystallized by Hon'ble Supreme Court in Pramatha Nath Talukdar v.

Saroj Ranjan Sarkar, reported in AIR 1962 Supreme Court 876,

relying upon Vadilal Panachal v. Dattatraya Dulaji Ghadigaonkar

and another, reported in AIR 1960 Supreme Court 1113, was that,

"An order of dismissal under Section 203 of Code of Criminal Procedure is no bar to the entertainment of a second complaint, on the same facts but it will be entertained only in exceptional circumstances, e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced."

However, in this case the first proceedings are still pending and,

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therefore, naturally the above said legal aspect is not applicable to

the facts of the case. Further it can also be seen from the complaint

i.e. Miscellaneous Application No.56 of 2014 wherein it is specifically

stated that after the offence was registered, immediately he had

taken objection. According to him his brother Ram Parasram Pawar

had given oral complaint of murder but police have intentionally

recorded First Information Report of accidental case which is a false

offence that was registered. His brother Ram Pawar is illiterate and

his thumb mark has been obtained. The photocopy of the said First

Information Report shows that said Ram Pawar had impressed his

thumb mark on the said First Information Report. Further, it is

stated in the private complaint by present respondent No.2 that

immediately he had given written complaint on 20-01-2013 to Police

Station, Gangakhed, but no offence was registered against the

petitioner under the relevant provisions. It was then told to him that

already the First Information Report has been registered, and

therefore, there is no question of lodging of First Information Report

under Section 302 of Indian Penal Code. He then made complaint to

Superintendent of Police as well as Hon'ble the Home Minister,

however no action was taken on the same. He then had approached

Judicial Magistrate First Class, Gangakhed with private complaint

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No.37 of 2013 on 01-04-2013. His prayer of sending the matter for

investigation under Section 156 (3) of Code of Criminal Procedure

was rejected. However, in the same order, directions were given to

the police to make thorough investigation. He had then challenged

the said order before Additional Sessions Judge, Gangakhed by filing

Criminal Revision Application No.12 of 2013, which came to be

dismissed. He also states that now the investigation is over and

charge-sheet is filed for the offence under Section 279, 304-A of

Indian Penal Code. He has then also stated that the directions which

were given by the learned Judicial Magistrate First Class to consider

the case and have thorough investigation, has not been followed by

police. He, therefore, again made written complaints to various

authorities and did not receive any kind of reply, therefore he

constrained to file the private complaint. Thus, it can be seen that

the complainant is giving fresh facts though the incident is same and

since beginning he is making an endeavour to point out that the

illiteracy of his brother has been misused, and a false case has been

got registered in his name, therefore definitely the second complaint

was maintainable.

8. The evidence which was on record which had come in the

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inquiry under Section 202 of Code of Criminal Procedure has been

considered by both the authorities below in detail. Since it relates to

the facts, it may not be considered in the revision here. Both the

authorities have found that there is sufficient material adduced by

the complainant in private complaint to proceed for the offence

punishable under Section 302, 201, 203, 109 of Indian Penal Code

against the present petitioner. If the complainant is coming with a

case that intentionally the police have investigated the matter mala

fide, then definitely the complainant has a right to agitate his

grievances and, therefore, there was no bar in entertaining the

complaint filed by respondent No.2 by the learned Magistrate. No

case is made out to interfere with the well reasoned orders and no

legal impediment has been pointed out to discard the second

complaint. No reasonable ground has been shown for invoking the

constitutional powers of this Court under Article 227 of the

Constitution of India, therefore, the writ petition stands dismissed.

Rule is discharged.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-