Mukesh Gopal Bagadiya vs State Of Mha. Thr. Pso Old Citytq. ...
2022 Latest Caselaw 1883 Bom

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

       CRIMINAL APPLICATION (APL) NO.1206 OF 2021



1.         Mukesh Gopal Bagadiya,
           Aged 45 years, Occu- Business,
           R/o - Gaurakshan Road,
           Tq. Akola, District : Akola            .... APPLICANT


                             // VERSUS //



1.         The State of Maharashtra          ...NON-APPLICANTS
           Through P.S.O. Old City.
           Tq. & District : Akola


2.         Amol Mahadeo Wankhade,
           Shiv Sena Vasahat,
           Veer Ekta Chowk,
           Old City, Akola

___________________________________________________________
Shri Sagar Katkar, Advocate for the applicant.
Shri T. A. Mirza, A.P.P. for the non-applicant No.1/State.
___________________________________________________________________



CORAM : A. S. CHANDURKAR AND G. A. SANAP, JJ.

DATE : 24.02.2022.

ORAL JUDGMENT: (Per: G.A. Sanap, J.)

1. In this application made under Section 482 of the Code of Criminal Procedure, the applicant has prayed for quashing the First Information Report in Crime No.488/2021 25 apl 1206.21.odt

dated 09.05.2021 registered at Old City Police Station, Akola District Akola and the consequent charge-sheet filed for the offences punishable under Sections 323, 324, 504 read with Section 34 of the Indian Penal Code and under Section 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 hereinafter referred to as (Atrocities Act), 1989.

2. The prosecution has been initiated on the report of non-applicant No.2. In short it is the case of the prosecution that on 09.05.2021 at about 8 am the non-applicant No.2 went to the Oil Shop of the applicant to purchase the edible oil. The non- applicant No.2 made the inquiry with the applicant about the rate of the oil per kg. The non-applicant No.2 did not carry the Can to bring the edible oil. He, demanded a Can from the applicant. The applicant expressed his inability to make the Can available. However, the applicant told the non-applicant No.2 to leave his shop in arrogant manner. He abused him and pushed him out of the shop. It is stated that at that time the coolies working in the shop namely Krushna Tel Bhandar. Sheikh Arbaz Sheikh Mansoor, Sheikh and Sheikh Shahjad Sheikh Mansoor came near to the non-applicant No.2. They instructed the non-applicant No.2 to leave the said place. They gave kick and fists blows to the non- applicant No.2 therefore, non-applicant made phone call to his brother and called him at the shop. When his brother came Sheikh Abraz and Sheikh Shahjad came there with iron rod. They beat him and his brother with iron rod. They sustained bleeding injuries. On the basis of this report, the crime as above came to be registered.

25 apl 1206.21.odt

3. In this application, it is the case of the applicant that he has not committed any crime. Similarly, the prima-facie perusal of the contents of the F.I.R. clearly indicates that no offence has been made out against the applicant. The charge- sheet came to be filed. It is stated that the offences alleged to have been committed by the applicant with the remaining two accused have not at all been made out. If the allegations are considered at their face value, it would indicate that it was a routine matter in the course of business of the applicant. The incident which routinely occurs in day to day life cannot be painted as a criminal offence. It is stated that no purpose would be served by keeping this prosecution pending against the applicant. He has been roped in the crime because of the fact that remaining two accused were working as a coolies at his shop.

4. The reply has been filed on behalf of the non-applicant No.1. In the reply, it is stated that the evidence collected during the investigation and compiled in charge-sheet clearly indicate commission of the crime as mentioned in the First Information Report. The applicant was the initiator of the incident. The applicant shared the common intention with remaining two accused and therefore, applicant has no right to apply for quashing of the proceedings. Similarly, no case has been made out to quash the proceedings.

5. The non-applicant No.2 though served has failed to appear before the Court. We have heard learned Advocate for the applicant and learned APP for the non-applicant No.1. We have gone through the record, proceedings and copy of the charge- sheet.

25 apl 1206.21.odt

6. It is seen on perusal of the material on record that no specific abuse has been mentioned in the report. Similarly there is no reference of specific abuses either in the statement of the non-applicant No.2 or his brother. Perusal of his report and the statements of the informant and his brother would show that no specific allegations have been set out in the report, as well as in the statement to attribute the commission of any offence by him. It is seen on perusal of his report, as well as statements that in the course of business transaction the altercation took place between them. Even if, it is assumed that the applicant had refused to make the Can available and for that matter asked the non-applicant No.2 to leave the shop, by any stretch of imagination it could be said to be a criminal offence. It is not the case of the prosecution that applicant either abused the non- applicant and his brother in filthy language. Specific abuses have not been mentioned either in the report or in the statements. It is further pertinent to note that neither the applicant nor the remaining two accused abused the non-applicant No.2 and his brother in the name of their caste. It is further pertinent to note that it is not the case of prosecution that while dealing with non-applicant no.2 in his shop the applicant and remaining two accused knew the caste of non-applicant No.2 and his brother. The report is lacking specific abuses as well as abuses in the name of caste. Therefore, prima-facie perusal of the report would indicate that no offence has been made out against the applicant under the Atrocities Act, 1989.

7. In the charge-sheet Section 34 of the Indian Penal Code has been applied. It is sought to be contended that the 25 apl 1206.21.odt

merciless beating to the non-applicant No.2 by the remaining two accused was in furtherance of their common intention. In order to appreciate this contention, we have minutely perused the report lodged by the non-applicant No.2 and his statement, as well as statement of his brother. The perusal of the same would show that neither the applicant instigated the remaining two accused for indulging in the incident, nor he actually caused hurt to the non-applicant No.2 and his brother. It is seen on perusal of the report and statements that incident of beating actually occurred at some distance from the place where applicant was sitting. No specific allegations have been attributed to the applicant vis-a-vis the offences which are alleged to have been committed in this case.

8. It is seen that the cause for the incident was too trivial. The applicant expressed his inability to make the Can available. When he refused to make the Can available the altercation took place between applicant and non-applicant No.2. Non-applicant No.2 has specifically mentioned the said altercation in his report, as well as in his statement. Prima-facie analysis of the statement made on point of initial altercation between the applicant and non-applicant No.2 would show that based on the same, no offence would get attracted in this case.

9. In our view, therefore, the prosecution against the applicant if allowed to continue would be the abuse of process of law. The discretion is with this Court under Section 482 of the Criminal Procedure Code to take care of such a situation. In our view this is a fit case to exercise discretion and quash the First 25 apl 1206.21.odt

Information Report and the criminal case filed against the applicant. On perusal of the record and its prima-facie analysis we conclude that no offences have been made out against the applicant. Even by taking the aid of Section 34 in the given factual situation, we are of the opinion that the prosecution cannot be allowed to continue against the applicant. As far as the remaining two accused are concerned, this observation would be of no consequence. They are not before this Court. The observations whatever we have made in this order are limited to the case of the prosecution against the applicant.

10. In view of this, we are inclined to grant the application. Hence the following order:-

ORDER

i) The application is allowed.

ii) The First Information Report in Crime No.488/2021 dated 09.05.2021 and the consequent charge-sheet filed for the offences punishable under Sections 323, 324, 504 read with Section 34 of the Indian Penal Code and under Section 3(2)(va) of the Scheduled Castes and Scheduled Tribes in the Special Court under the Prevention of Atrocities Act, 1989 at Akola is quashed and set aside to the extent of the applicant Mukesh Gopal Bagadiya.

                         JUDGE                                        JUDGE
manisha
                                       25 apl 1206.21.odt





Signed By:MANISHA ALOK
SHEWALE


Signing Date:25.02.2022 16:42