Sanjay S/O. Arun Ghase And Others vs State Of Maharashtra Thr. Police ...
2021 Latest Caselaw 14317 Bom

                                1                             1-appp-1687-2018.odt

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

        CRIMINAL APPLICATION (APPP) NO. 1687 OF 2018
                             IN
     CRIMINAL APPLICATION (APL) NO. 789 OF 2017 (DECIDED)

APPLICANT                           Smt. Jija Eknathrao Ghurde,
                                    Aged about 51 years, Occ. - Household,
                                    R/o - Gram Sevak Colony, Sirso,
                                    Murtizapur, Dist. Akola

                                          VS.

                                1. State of Maharashtra through its Police
                                   Station Officer, Murtizapur (City), Dist.
                                   Akola
                                2. Sanjay s/o Arun Ghase,
                                   Aged about 38 years, Occ - Service,
                                   Assistant Teacher Z.P. Primary School,
                                   Bhili, Panchayat - Samiti Telhara,
                                   R/o - Shikshak Colony, Behind Bhuibhar
                                   Gas Company, Akot, Tq. Akot, Dist. Akola
                                3. Gajanan s/o Ramkrushna Kalbande,
                                   Aged about 49 years, Occ - Service
RESPONDENTS/                       Assistant Teacher Z.P. Primary School,
NON-                               Bhili, Panchayat Samiti Telhara, R/o Akot
APPLICANTS                         Naka, Akot, Tq. Akot Dist. Akola
                                4. Subhash s/o Ramdas Dhokane
                                   Aged about 47 years, Occ. Service,
                                   Assistant Teacher Z.P. Primary School,
                                   Bhili, Panchayat Samiti, Telhara
                                   R/o - Adegaon (bk), Tq. Telhara, Dist.
                                   Akola
                                5. Amol s/o Ganesh Rakhonde,
                                   Aged about 32 years, Occ - Service,
                                   Assistant Teacher Z.P. Primary School,
                                   Bhili, Panchayat - Samiti Telhara,
                                   R/o Adegaon (bk), Tq. Telhara, Dist. Akola
                                6. Ravindra s/o Pundlik Solanke,
                                   Aged about 31 years, Occ Service,
                                   Assistant Teacher, Z.P. Primary School,
                                   Bhili, Panchayat Samiti Telhara,
                                   R/o Aasara Colony, Akot, Tq. Akot, Dist.
                                   Akola


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                                    7. Prakash s/o Waman Dhokane,
                                       Aged about 56 years, Occ. - Service,
                                       Assistant Teacher, Z.P. Primary School,
                                       Bhili, Panchayat Samiti Telhara,
                                       R/o Hiwarkhed, Tq. Telhara, Dist. Akola


Mr. R.L. Khapre, Senior Advocate for the applicant
Mr. V.A. Thakre, APP for the non-applicant No.1 / State
Mr. R.R. Vyas, Advocate for the non-applicants No.2 to 7


                                        CORAM:   V.M.DESHPANDE, &
                                                 AMIT B.BORKAR, JJ.

DATE : 04/10/2021

ORAL JUDGMENT : (Per : V.M.DESHPANDE, J.)

RULE. Rule is made returnable forthwith. Heard finally by

consent of the parties.

2. Heard Mr. R.L. Khapre, learned Senior Advocate for the

applicant in this application, Shri V.A. Thakre, learned Additional Public

Prosecutor for the non-applicant / State and Mr. R.R. Vyas, learned

Advocate for the non-applicants No.2 to 7 in this application.

3. This application is filed for recalling of judgment and order

of the Court in Criminal Application (APL) No. 789/2017 dated

04/04/2018 by praying that this Court should exercise its inherent

powers under Section 482 of the Code of Criminal Procedure.

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4. By judgment dated 04/04/2018, the Co-ordinate Bench of

this Court allowed Criminal Application (APL) No. 789/2017 filed on

behalf of the present non-applicants No.2 to 7 and thereby quashed the

First Information Report bearing No. 239/2017 registered with Police

Station Murtizapur (City), District Akola for offence under Section 306

read with Section 34 of the Indian Penal Code.

5. Few facts will be necessary for deciding this application.

Present applicant is the widow of Eknathrao Ghurde, who committed

suicide by hanging himself under bridge. The applicant herein lodged a

report that deceased was abated by the acts on the part of the non-

applicants No.2 to 7 herein. In the First Information Report she did

state that a suicide note was left behind by the deceased. After the

crime was registered against the non-applicants No.2 to 7 they

approached before this Court, challenging the registration of First

Information Report against them. They approached before this Court by

invoking the inherent jurisdiction of this Court under Section 482 of the

Code of Criminal Procedure. The proceedings initiated by them were

registered as Criminal Application (APL) No. 789/2017. It would be

useful to reproduce herein-under the prayer clauses made by the non-

applicants No.2 to 7 in the application and those are reproduced below :

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          i.      Call for the record of FIR No. 239/2017 dated

19/07/2017 registered with non-applicant No.1, Murtizapur City, Police Station, for commission of offences punishable under section 306, 34 of Indian Penal Code. ii. Upon perusal of same, quash and set aside FIR No. 239/2017 dated 19/07/2017 registered with non- applicant No.1, Murtizapur City, Police Station, for commission of offenes punishable under section 306, 34 of Indian Penal Code, on such terms and conditions and in the interest of justice.

iii. During pendency of instant application, stay the investigation of FIR No. 239/2017 dated 19/07/2017 registered with non-applicant No.1, Murtizapur City, Police Station, for commission of offences punishable under section 306, 34 of Indian Penal Code.

iv. Grand ad-interim relief in terms of prayer clause

(iii) above.

v. Grand any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case.

vi. Allow the instant application.

6. Though one of the prayers was made by them to stay the

investigation of FIR No.239/2017 it appears that the stay to the ongoing

investigation was not granted by this Court at any point of time.

7. In view of the notices issued the present applicant appeared

and she was represented by her Advocate Shri P.S. Patil. From the

record it appears that the reply on behalf of the present applicant was

not filed. However, the learned Additional Public Prosecutor for and on

behalf of the Investigating Officer has filed a detailed reply opposing the

reliefs prayed by the non-applicants No.2 to 7 for quashing of the FIR.

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8. From record it appears that Criminal Application (APL) No.

789/2017 was taken up for hearing on 04/04/2018 by the co-ordinate

Bench of this Court. On the same day, the non-applicants herein were

represented by their Advocate. The State was also represented by the

learned Additional Public Prosecutor. However, it appears that the

applicant herein remained to be represented inasmuch as her Advocate

Shri P.S. Patil was absent. On 04/04/2018, after hearing the Advocate

for the applicant as well the learned APP, the application filed on behalf

of the non-applicants No.2 to 7 herein was allowed and the FIR

registered against them by the Police Station Officer Murtizapur for

offence under Section 306 read with Section 34 of the Indian Penal

Code was quashed and set aside.

9. The present application for recalling of the judgment dated

04/04/2018 was filed on 05/10/2018. In the application, the reasons

are submitted as to why Adv. Mr. P.S. Patil could not remain present

before the Court on 04/04/2018. Not only that it was pointed out in the

application that the non-applicants No.2 to 7 herein obtained the order

by not disclosing the fact to this Court that during pendency of the

application filed by them, the Investigating Officer has already filed

charge-sheet.

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10.             Notices were issued on this application.        While issuing

notice, it was observed b y the Court that it would be open for the non-

applicants No.2 to 7 to contest about the maintainability of this

application also.

11. In pursuance to the notice, the non-applicants No.2 to 7

appeared before this Court and they have filed their reply also. The

reply is dated 16/08/2021 though it is affirmed by one of the non-

applicants, the reply is signed by all the non-applicants.

12. Perusal of the reply shows that the Investigating Officer

final report was filed on 23/01/2018 in the Court of learned

jurisdictional Magistrate i.e. the learned Judicial Magistrate First Class,

Murtizapur. The reply also states that in view of the presentation of the

final report, on 07/02/2018, the learned jurisdictional Magistrate

issued summons to the present non-applicants No.2 to 7 for their

appearance before the said Court. Reply also discloses that in

obedience of the summons the non-applicants No.2 to 7 appeared in the

Court of learned Judicial Magistrate First Class and collected the

charge-sheet on 27/02/2018. Not only that on the very same day, it is

stated in the reply that the learned Magistrate committed the case to the

Court of Sessions. Obviously the offence punishable under Section 306

of the IPC is exclusively triable by the Court of Sessions and therefore,

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the learned Magistrate has passed the order of committal. The reply also

states that after the committal the case was registered on the file of

learned Additional Sessions Judge as Sessions Trial No.29/2018.

13. In view of this admitted position is that final report was

filed in the Court of learned Judicial Magistrate First Class and also the

fact that the charge-sheets were collected by the present non-applicants

No.2 to 7 and the case was already committed to the Court of Sessions,

that all occurred much prior to the judgment dated 04/04/2018, passed

by this Court.

14. Filing of the charge-sheet, collection of the copies of the

same by the non-applicants No.2 to 7 on 27/02/2018, not only

postulates, but, it attributes positive knowledge to the non-applicants

No.2 to 7 that the Investigating Officer on culmination of investigation

which he carried in respect of FIR No.239/2017 found that he has

collected sufficient evidence as appeared during the course of

investigation against the present non-applicants No.2 to 7 and

therefore, he submitted the charge-sheet.

15. The fact remains that the factum of filing of charge-sheet

and collection of the copies for and on behalf of the non-applicants No.2

to 7 was not communicated to this Court. The learned Senior Advocate

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Shri R.L. Khapre, is not finding any fault to the submissions made on

behalf of Shri. R.R.Vays, learned Advocate representing non-applicants

No.2 to 7 that the said fact was not disclosed to him by the non-

applicants No.2 to 7. We also have no reason not to accept the

statement made by Shri R.R. Vyas that the non-applicants No.2 to 7 did

not communicate the fact of filing of the charge-sheet to him.

16. The relief which this Court grants while exercising its

inherent jurisdiction under Section 482 of the Code of Criminal

Procedure is a discretionary relief. Of course, the discretion has to be

exercised by this Court on the sound judicial principles. It is a cardinal

rule of law that a litigant who approaches to the Court and seeking

equitable relief from the Court should approach the Court with clean

hands. It is expected from the litigants who wish that the Court should

exercise discretion in their favour should not suppress material facts

from the Court. It is different thing that on placing of material and facts

before the Court, this Court may exercise or may not exercise its

discretion. But surely it is not expected from the litigant to suppress

material facts, which may result into exercising the discretionary relief

from this Court in absence of facts though are in existence but are not

brought on record.

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17. The entire copy of the charge-sheet is placed along with

this application by the original complainant. Perusal of the said charge-

sheet would show and which is not at all disputed by the non-applicants

No.2 to 7 herein that on 06/09/2017, the Investigating Officer has

already sent the suicide note along with the admitted hand writing of

the deceased to the hand writing expert of the State Crime Investigation

Department and has sought the opinion of the hand writing expert. It is

also not in dispute that as on today the report is awaited.

18. Had the fact of filing of charge-sheet was within the

knowledge of Shri R.R. Vyas, we are sure that he would have stated the

said aspect to the Court.

19. It would have been altogether different consideration for

the Co-ordinate Bench on 04/04/2018, had the factum of filing of

charge-sheet was brought to their notice. Their Lordships could have

directed the present non-applicants No.2 to 7 herein either to amend

the application for challenging the charge-sheet or the Court could have

asked the applicant herein to withdraw the application and to file a

fresh application under Section 482 of the Code of Criminal Procedure

for the same.

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20. We are aware of the provisions of Section 362 of the Code

of Criminal Procedure, however, that bar in our view cannot come in

the way in the present case because of the non-disclosure and

suppression of vital facts of filing of charge-sheet, committal of the case

to the Court of Sessions and still the non-applicants No.2 to 7 proceeded

for praying relief for quashing of FIR. In our view, this suppression is

clearly attributed to the non-applicants No.2 to 7 alone and had the said

fact was not brought within the knowledge of their counsel, the counsel

cannot held responsible for the same.

21. The Court has to give opportunity not only to the accused

but also the complainant to place the case before the Court. In this case,

even State is also not to be blamed. In view of the contents of the reply

filed while opposing the application for qaushment of the FIR.

22. Primarily therefore, in view of the suppression of material

facts from the Co-ordinate Bench of this Court, which affected

jurisdiction of this Court, we are of the view that not only the present

application for recalling the order is maintainable, but, the power under

Section 362 of the Code of Criminal Procedure will also not be hurdle

for the applicant / original complainant in the given set of facts.

Resultantly, we pass the following order :

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i.         The judgment dated 04/04/2018 in Criminal Application (APL)

No. 789 of 2017, quashing the First Information Report No. 239/2017,

registered with Murtizapur (City) Police Station, District Akola for

offence punishable under Section 306 read with 34 of the Indian Penal

Code is hereby recalled.

ii. Criminal Application (APL) No. 789 of 2017 is restored to the file

for decision on its own merits.

23. Application is allowed.

Rule is made absolute in above terms.

                        JUDGE                                   JUDGE




MP Deshpande