Bombay High Court
Hanumant Manohar Jagtap vs The State Of Maharashtra And ... on 6 June, 2022
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
5 CRIMINAL WRIT PETITION NO.1451 OF 2021
HANUMANT MANOHAR JAGTAP
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Mr. R.G. Hange, Advocate for the petitioner
Mr. R.B. Bagul, APP for the respondent No.1
Mr. A.L. Kanade, Advocate for the respondent No.2
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 06th JUNE, 2022
PER COURT :
1 Present writ petition challenges Judgment and order passed in
Criminal Revision Application No.53/2020 by learned Additional Sessions
Judge, Beed on 29.09.2021, by which the challenge to the common order
dated 24.08.2020 passed by the learned Judicial Magistrate First Class, Beed
(Court No.9) in Crime No.18/2020 in respect of report of the Investigating
Officer under Section 169 of the Code of Criminal Procedure and application
of the revisionist filed at Exh.26 was declined by the learned Judicial
Magistrate First Class, Beed and process was issued against the present writ
2 Cri.WP_1451_2021
petitioner/revisionist/original accused. The learned Additional Sessions
Judge, Beed has dismissed the criminal revision filed under Section 397 of
the Code of Criminal Procedure.
2 The facts giving rise to the writ petition are that the present
respondent No.2 is the original informant who lodged First Information
Report vide Crime No.18/2020 for the offence punishable under Section 307,
341, 504, 506 read with Section 34 of the Indian Penal Code against in all
four persons including the present petitioner. First Information Report was
lodged on 15.02.2020. He submitted that when he was coming back to his
village Kutewadi after distribution of milk to Beed around 10.30 a.m. on
14.02.2020 one Pratap Haridas Jagtap gave cut of his motorcycle to the
motorcycle of the informant and, therefore, the informant told Pratap that he
should drive his vehicle properly. But at that time Pratap had assaulted the
informant. They were separated by another motorist and then informant
came back to his house. Thereafter at about 5.30 p.m. on the same day the
informant and his son Pankaj were again returning to their house at
Kutewadi from Beed and when they were near Bhilvasti, at that time, they
were intercepted by motorcycle, on which said Pratap and present revision
petitioner Hanumant were travelling. After the motorcycle of the informant
gets halted he was dragged by the present petitioner and then he was
3 Cri.WP_1451_2021
assaulted by kicks and fist blows after abusing and threatening that he would
be killed. Haridas and Pratap caught hold of Pankaj and then the present
petitioner Hanumant tried to give blow of scythe on the head of Pankaj but
Pankaj ducked the same but received the injury on his right leg. Pratap gave
blow of iron pipe on the head of Pankaj and caused injury. One Mahesh
Kakde and Sanjay Kute from village Jarud and Kutewadi and other persons
separated those persons. Informant took his son to hospital at Beed, where
Pankaj was admitted and then on 15.02.2020 the First Information Report
has been lodged.
3 After the registration of the offence evidence has been collected.
The Investigating Officer filed charge sheet under Section 173 of the Code of
Criminal Procedure. It was against three accused persons i.e. Pratap, Amol
and Haridas, however, as regards the present petitioner is concerned, it was
stated that no case is made out and, therefore, Section 169 of the Code of
Criminal Procedure cannot be invoked and he was not made as an accused in
that case. It appears that a separate application was also filed by the
petitioner on 10.06.2020 before the learned Magistrate stating that he should
be released from the offence under Section 167 of the Code of Criminal
Procedure. A common order has been passed by the learned Magistrate
rejecting the application filed by the present petitioner and it appears that the
4 Cri.WP_1451_2021
report under Section 169 of the Code of Criminal Procedure of the
Investigating Officer was also not considered and ultimately process has been
issued against the present petitioner for the offence punishable under Section
307, 341, 323, 504, 506 read with Section 34 of the Indian Penal Code.
4 As aforesaid, both these orders were challenged in revision and
the revision has been dismissed by the learned Additional Sessions Judge,
Beed and the said order is now under challenge in this writ petition.
5 Heard learned Advocate Mr. R.G. Hange for the revision
petitioner, learned APP Mr. R.B. Bagul for the respondent No.1 and learned
Advocate Mr. A.L. Kanade for the respondent No.2.
6 The learned Advocate appearing for the petitioner has
vehemently submitted that the Investigating Officer himself had come with a
case that there is no evidence against the present petitioner which could be
said to be prompting the Investigating Officer to file charge sheet either
under Section 170 or 172 or 173 of the Code of Criminal Procedure. Though
earlier the present petitioner was arrested and he has undergone PCR,
nothing was required at his instance. Whatever recovery was there, it was at
the instance of co-accused Pratap in respect of discovery of the iron pipe as
well as the scythe. Investigating Officer had made inquiry with the present
5 Cri.WP_1451_2021
petitioner and had come to know that the petitioner was in Zilla Parishad
office at Beed at about 5.30 p.m. on 14.02.2022. Statements of witnesses
Asaram Satwaji Jadhav working as a Senior Assistant in the Construction
Department of Zilla Parishad, Beed; Vijay Mohan Dolas, who runs a cart of
Tea selling in the Shivaji Chowk, Beed; Junior Assistant in the Construction
Department of the Zilla Parishad Mr. Ganpat Sukhdeo Kilpe and one
Shivkumar Rameshwar Chipade would show that around 5.00 to 5.30 p.m.
on 14.02.2020 the petitioner was present in Zilla Parishad office. His CDR as
well as SDR also gives tower location around Zilla Parishad, Beed. When the
petitioner was not present at all at the spot, it can be clearly stated that his
presence at the spot at the relevant time has been falsely stated by the
informant and the witnesses. The Investigating Officer had rightly given the
report under Section 169 of the Code of Criminal Procedure. The learned
Magistrate erred in not considering the material evidence on record and
issuing process against the present petitioner. The learned Revisional Court
also did not consider the facts of the case and wrongly confirmed the order
passed by the learned Magistrate. Both the orders required interference
under Article 227 of the Constitution of India as it would be blatant legal
defect for proceeding against the petitioner when there is absolutely no
evidence against him. The petitioner may take plea of alibi or may not take;
yet, when the record itself shows his presence at the different place, then, his
6 Cri.WP_1451_2021
involvement in the commission of the crime cannot be assumed. It is also
highly impossible that when the blow of scythe tried to be given on the head
would be missed by the accused and then he would received that blow on the
right leg. Even if it is so accepted, the injury certificate shows that Pankaj
received two simple injuries and one is grievous. The grievous injury appears
to be not possible by scythe. Petitioner cannot be asked to face the trial when
the prosecution evidence does not show his presence at the spot.
7 Reliance has been placed on the decision in Ganpati Irappa
Potphale vs. Ananda Uttam Potphale and others [2019(2) Mh.L.J. (Cri.) 173].
In a similar circumstance this Court when no prima facie case was made out
against one of the accused report under Section 169 of the Code of Criminal
Procedure was filed. The material was entirely considered and acceptance of
the said report by the learned Magistrate was upheld by this Court.
8 Learned APP representing the State as well as the learned
Advocate representing the original informant strongly objected the writ
petition and supported the reasons given by both the Courts below. They
submitted that the statements of eye witnesses will have to be considered on
a better footings than the statements of those persons whose statements have
been recorded when a statement has been made by the accused to the
7 Cri.WP_1451_2021
Investigating Officer and also the CDR and SDR cannot be considered at this
stage as they are not supported by the mandatory certificate under Section
65-B of the Indian Evidence Act. It was pointed out that three injuries have
been caused and certainly one is caused by the present petitioner by means of
scythe and taking into consideration the said medical report with the First
Information Report it can be said that prima facie the case is made out for
Section 307 of the Indian Penal Code. Statements of independent witnesses
who have stated that they had seen the present petitioner at the spot and a
specific role has been attributed by those witnesses i.e. Mahesh Kakde and
Sanjay Kute will have to be given preference. No interference is required in
the orders those have been passed by the Courts below.
9 At the outset, it is to be noted that the Magistrate has a power
either to accept or reject a report under Section 169 of the Code of Criminal
Procedure. Section 169 of the Code of Criminal Procedure deals with release
of accused when evidence is deficient. Of course, it should be viewed from
an angle of the Investigating Officer but when a Magistrate considers that
whatever evidence has been collected is sufficient for proceeding, then he
may issue process on the basis of whatever available evidence has been put
before him. Section 169 of the Code of Criminal Procedure provides that - If,
upon an investigation under this Chapter, it appears to the officer in charge
8 Cri.WP_1451_2021
of the police station that there is not sufficient evidence or reasonable ground
of suspicion to justify the forwarding of the accused to a Magistrate, such
officer shall, if such person is in custody, release him on his executing a bond,
with or without sureties, as such officer may direct, to appear, if and when so
required, before a Magistrate empowered to take cognizance of the offence
on a police report, and to try the accused or commit him for trial . Ultimate
satisfaction of the material that has been collected under investigation is with
the Magistrate and not with the Investigating Officer. Section 167 of the
Code of Criminal Procedure deals with the procedure when investigation
cannot be completed in twenty-four hours. It is to be noted that the present
petitioner had filed an application Exh.26 on 10.06.2020. In fact, he was
arrested on 15.02.2020 itself. Therefore, his said application Exh.26 by no
stretch of imagination could have been entertained under Section 167 of the
Code of Criminal Procedure and at the cost of repetition it can be said that
said section deals with the investigation when the investigation cannot be
completed within twenty-four hours. The said 24 hours were already over
when the application has given at Exh.26. Another fact to be noted is that
the charge sheet is filed on 13.05.2020 and in that report was submitted as
against the petitioner under Section 169 of the Code of Criminal Procedure.
There was absolutely no reason or occasion for the petitioner to file
application Exh.26.
9 Cri.WP_1451_2021
10 As aforesaid, acceptance of the report under Section 169 of the
Code of Criminal Procedure is within the discretionary power of any
Magistrate and under the said circumstance the discretion will have to be
exercised judiciously. The entire material on record will have to be
considered by the Magistrate. Here, in this case, what was collected and was
presented before the Magistrate was the spot panchnama, recovery
panchnama, statements of witnesses, medical report etc. Statements of eye
witnesses Mahesh Kakde and Sanjay Kute, whose names were reflected in the
First Information Report itself, have been recorded and they have consistently
stated about the presence of the present petitioner and they have attributed
specific role to him that he had assaulted Pankaj with scythe and also to the
informant by kicks and fist blows. Injured Pankaj is also stating on the same
line. The discovery of iron pipe and scythe is by accused Pratap Jagtap. How
it is admissible as against the present petitioner would be the matter of trial.
The Medico Legal Certificate shows three injuries i.e. simple CLW, CLW and
extradural hemorrhage to injured Pankaj and the situs on which the injuries
were caused were left parietal region, right leg and left temporo parietal.
The probable weapon stated to be heavy sharp object, sharp object and heavy
sharp weapon. The nature of the injury is simple, simple and grievous
respectively. If we consider the Medico Legal Certificate together with the
contents of the First Information Report, statements of the two independent
10 Cri.WP_1451_2021
eye witnesses and the injured, then, the injury on the right leg with sharp
weapon in the nature of contused lacerated wound of 3 x 2 x 1 c.m. which is
said to be the simple injury has been caused by the present petitioner.
11 Now, turning towards the statements, on which the petitioner is
relying, that is, the statements of Asaram, Vijay, Ganpat and Shivkumar
would show that they are saying that the petitioner had taken vehicle of
Asaram at about 5.30 to 5.45 p.m. and the said vehicle was returned around
6.30 p.m. on 14.02.2020. That vehicle was belonging to witness Asaram.
Witness Vijay states that his scooty was taken by petitioner on 14.02.2020
around 11.00 a.m. and he returned it by 5.30 p.m. These two vehicles are
different. The first and the foremost question, that is, coming in the mind of
this Court is, as to what was the reason for the Investigating Officer to record
the statements of these persons. How names of these witnesses came
forward cannot be gathered from the report of the Investigating Officer under
Section 169 of the Code of Criminal Procedure. No doubt, it is the duty of
the Investigating Officer to carry out the investigation independently but that
does not mean that he should make investigation as per the direction of the
accused. It is fair enough to collect the CDR, SDR of the mobile of the
accused persons nowadays and to see whether the location of the mobile
phone of the accused matches with the spot of incident/occurrence. But then
11 Cri.WP_1451_2021
the Investigating Officer says that when he found his location is at Beed and
the petitioner is a contractor, the Investigating Officer made inquiry with the
Government employees of Zilla Parishad, Beed and also private persons. This
appears to be overreach of the Investigating Officer with ulterior motive.
Magistrate was then justified in not considering the statements of those
witnesses at this stage. As regards the plea of alibi is concerned, it is for the
accused to prove by leading cogent evidence and certainly report under
Section 169 of the Code of Criminal Procedure cannot depend upon evidence
so collected from a particular angle and with motive.
12 Even if we consider that those statements as it is; yet, it does not
rule out the possibility of the occurrence, because these witnesses have not
been continuously with the petitioner. What Atmaram and Vijay had stated is
that their vehicles have been taken by the petitioner by saying that he would
return. Vijay says that his vehicle was taken at 11.00 a.m. and was returned
only at 5.30 p.m. and then Asaram says that his vehicle was taken by the
petitioner at 5.30 to 5.45 p.m. and was returned at 6.30 p.m. If at all the
petitioner wanted a vehicle, then, he could have continued with the scooty of
witness Vijay till 6.30 p.m. also and Vijay does not say that in the meantime
he had contacted the petitioner and asked him to return the vehicle
immediately. It appears that since the presence of the petitioner was to be
12 Cri.WP_1451_2021
shown at Zilla Parishad this change of vehicle by the petitioner has been told
by these witnesses. Witness Ganpat Kolpe is not the person who had seen the
petitioner taking the vehicle of Asaram, but then he says that Asaram told
them that he is waiting for vehicle to be brought by the petitioner. Witness
Shivkumar Chipade says that he had seen petitioner around 5.30 to 5.45 p.m.
in Zilla Parishad. When it was orally asked to the learned Advocate for the
petitioner, as to whether there was CCTV installed in Zilla Parishad, he told
that CCTVs are not installed in Zilla Parishad, but those are installed in the
Rashtrawadi Bhavan i.e. the office of a political party, and then he says that
petitioner has collected CCTV footage. It is for the petitioner to prove his
plea of alibi at the time of trial and not now.
13 Taking into consideration the evidence that has been collected
when there are statements against statements regarding the involvement of
the applicant at this stage we will have to give weightage to the statement of
the eye witnesses to the occurrence and not to the statements of those
witnesses on the plea of alibi or behind whose statement there is no reason as
to why their statement has been recorded. Therefore, the learned Magistrate
was justified in rejecting application Exh.26 as well as report under Section
169 of the Code of Criminal Procedure.
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14 As aforesaid, whether to accept the report under Section 169 of
the Code of Criminal Procedure or not depends upon the judicial discretion of
the Magistrate. When the record shows that, that judicial discretion has been
properly utilized, there is no question of interference in the said order under
Section 397 of the Code of Criminal Procedure by the learned Additional
Sessions Judge. Therefore, further, there is no question of exercising powers
under Section 227 of the Constitution of India by this Court. There is no
merit in the present petition. It deserves to be dismissed. Accordingly, it is
dismissed.
( Smt. Vibha Kankanwadi, J. )
agd
