Asaram Patilba Gorde And Others vs The State Of Maharashtra And ...
2022 Latest Caselaw 8822 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                931 CRIMINAL APPLICATION NO.682 OF 2021


           1        Asaram Patilba Gorde,
                    Age 66 yrs., Occ. Agri.,

           2        Jayram Asaram Gorde,
                    Age 32 yrs., Occ. Agri.

           3        Sonu Mohan Gorde,
                    Age 24 yrs., Occ. Agri.,

           4        Ganesh Namdeo Gorde,
                    Age 25 yrs., Occ. Agri.,

           5        Pradeep Pundlik Gorde,
                    Age 28 yrs., Occ. Agri.,

           6        Namdeo Patilba Gorde,
                    Age 45 yrs., Occ. Agri.,

           7        Vishnu Janardhan Gorde,
                    Age 36 yrs., Occ. Agri.,

           8        Vinayak Sarjerao Joshi (Yadmal),
                    Age 45 yrs., Occ. Agri.,

           9        Mohan Patilba Gorde,
                    Age 50 yrs., Occ. Agri.,

           10       Parmeshwar Mohanrao Gorde,
                    Age 29 yrs., Occ. Agri.,

           11       Suresh Damodhar Gorde,
                    Age 38 yrs., Occ. Agri.,

           12       Shriram Asaram Gorde,
                    Age 34 yrs., Occ. Agri.,




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           13       Neelabai @ Leelabai Asaram Gorde,
                    Age 60 yrs., Occ. Agri.,

           14       Rani Shriram Gorde,
                    Age 25 yrs., Occ. Agri.,

           15       Shila Sainath Gorde,
                    Age 42 yrs., Occ. Agri.,

                    All are r/o Rajapur, Post Ektuni,
                    Tq. Paithan, Dist. Aurangabad.

                                                             ... Applicants

                                  ... Versus ...

           1        The State of Maharashtra,
                    Through Police Station, Pachod,
                    Dist. Aurangabad (Rural).

           2        Bhagwat Sudhakar Muthal,
                    Age 30 yrs., Occ. Service,
                    R/o Sub Divisional Police Office,
                    Paithan, Tq. Paithan, Dist. Aurangabad.

           3        The Superintendent of Police (Rural),
                    Aurangabad, Dist. Aurangabad.


                                                             ... Respondents
                                        ...
                Mr. S.B. Ghatol Patil, Advocate for applicants
                Mr. A.M. Phule, APP for respondent Nos.1 to 3
                                        ...

                                 CORAM :       SMT. VIBHA KANKANWADI AND
                                               RAJESH S. PATIL, JJ.

                                 DATE :        06th SEPTEMBER, 2022





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JUDGMENT :              (PER : SMT. VIBHA KANKANWADI, J.)




1              Rule. Rule made returnable forthwith. Heard learned Advocates

for the parties finally, by consent.


2              The applicants, by invoking the inherent powers of this Court

under Section 482 of the Code of Criminal Procedure, 1973, seek quashment

of the First Information Report vide Crime No.207/2020 dated 19.06.2020

registered with Pachod Police Station, Dist. Aurangabad and proceedings i.e.

Regular Criminal Case No.300/2021 pending before learned Judicial

Magistrate First Class, Paithan, for the offence punishable under Sections

109, 188, 143, 144, 145, 147, 148, 149, 154, 225(b), 269, 270, 332, 353,

506 of the Indian Penal Code, 1860, under Sections 4 and 5 of the

Maharashtra Prevention of Gambling Act, 1887, under Section 51(b) of the

Disaster Management Act, 2005, under Sections 2 and 3 of the Epidemic

Disease Act, 1897 and under Section 135 of the Maharashtra Police Act,

1951.

3 Heard learned Advocate Mr. S.B. Ghatol Patil for applicants and

learned APP Mr. A.M. Phule for respondent Nos.1 to 3.

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4              After hearing both sides when this Court showed disinclination

to grant any relief to applicant No.1, the learned Advocate for applicants, on

instructions, seeks withdrawal of the application as against him and there is

no hurdle in granting the same.

5 In view of the withdrawal of the application as against applicant

No.1, the application was considered for the reliefs claimed by applicant

Nos.2 to 15. The prosecution story in the nutshell is that - during the lock-

down period certain persons in the field of one Rahul Bankar, in the shed

were found gaming around 18.00 hours on 18.06.2020. About 8 to 10

persons fled away from the spot when they noticed police have come,

however, it is the prosecution story that one person was caught hold of and

he was applicant No.7 Vishnu Gorde. After entering the shed, the police

nabbed seven persons, who had not put mask on their face. The police

authorities found playing cards, amount and mobile phones. After asking

those seven persons about their names and while doing further activity

applicant No.1 started asking as to whether the raiding party is really police

and they should show their identity card. According to the prosecution,

thereby he had obstructed the Government servant from discharging his duty.

Another person by name Rahul Bankar then started saying that they should

be left and the point on which he was asking execuse was that he is the

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husband of Deputy Sarpanch of village Adul. 15 - 20 ladies and gents were

called by the other accused persons and those persons who had come there

were holding sticks, sickle, axe etc. It is then stated that the applicant No.1

and other persons formed unlawful assembly. Accused Vishnu Gorde and

other seven persons told the police that they should be allowed to have safe

escape.

6 Now, the investigation is complete and the statements of

witnesses recorded under Section 161 of the Code of Criminal Procedure

would show that almost all of them are the police persons on duty. Some of

them had reached the spot after the help was asked. It is also stated that

Police Sub Inspector Mr. Muthal had received simple injury in the said

incident. If we consider the statements of witnesses what could be gathered

is that initially the police party was consisting of five police persons including

PSI Mr. Muthal and the sixth was the driver of the police jeep. They state

that seven persons were taken in custody at the first place and accused

Vishnu Gorde was also caught hold from a distance. It is said that the other

police persons came on telephonic call. In the meantime, it is said that all

those eight persons by over powering the police had fled away from the spot

and the statements are silent about how the ladies had fled away from the

spot. The second batch of police consisted of eight police persons. Thus,

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inspite of such number of police persons not a single accused has been caught

hold at the spot. This raises doubt over the prosecution story. Even if we

consider the statement of witnesses as it is, no specific role has been

attributed to the present applicant Nos.2 to 15. They were admittedly not

involved in gambling activity. Though it is stated that certain persons

amongst them were holding sticks, axe and sickle, those weapons are not

used at all. Who exactly caused injury to PSI Mr. Muthal is also not stated by

him. Accused No.1 was thereafter arrested from Rajapur village and after

making inquiry with him the names of 14 accused persons i.e. present

applicants have been revealed. At the cost of repetition, it can be said that it

is surprising to note that in spite of so much of police force the accused

persons are stated to have managed to escape from a constructed shed. The

photograph of the constructed shed would show two doors. If at all such raid

was to be conducted, the police could have locked one door and after they

went inside, the other door could have also been locked either from the

inside or could have been managed by keeping one of the police persons at

the door. Therefore, this story of all the accused persons fleeing away from

the spot appears to be improbable. If we consider the charge sheet, then, it is

filed against 40 accused. Presence of those 40 accused persons is not at all

stated in the statement under Section 161 of the Code of criminal Procedure

by the police persons. It has been stated in the charge sheet that accused

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Nos.1 and 2 were running the said gambling place. Accused Nos.2 to 8 were

found at the spot. Accused Nos.23 to 40 are stated to have been found

gaming and they had fled away. There is no explanation in respect of the role

of accused Nos.1 and 9 to 22 had formed unlawful assembly and obstructed

the police staff from carrying out their duty. However, while alleging so

specific act of each of the applicant has not been stated. It would be a futile

exercise to ask the applicant Nos.2 to 15 to face the trial.

7 It will not be out of place to mention here that one Leelabai

Asaram Gorde i.e. wife of applicant No.1 has filed various complaints against

Assistant Superintendent of Police Mr. Bhamre and other police persons

stating that false First Information Report has been lodged. We may not go

into those allegations, but the fact that is mentioned in the same is that

though there were lady accused persons, no arrangements were made for the

lady police constable to accompany the informant and other police staff. This

is certainly objectionable. The case is therefore made out to quash the First

Information Report as well as entire proceedings against applicant Nos.2 to

15. Accordingly, following order is passed.

                                     ORDER


1              Application stands disposed of as withdrawn as against applicant




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No.1.


2                Application stands allowed in respect of applicant Nos.2 to 15.


3                The First Information Report vide Crime No.207/2020 dated

19.06.2020 registered with Pachod Police Station, Dist. Aurangabad, for the

offence punishable under Sections 109, 188, 143, 144, 145, 147, 148, 149,

154, 225(b), 269, 270, 332, 353, 506 of the Indian Penal Code, 1860, under

Sections 4 and 5 of the Maharashtra Prevention of Gambling Act, 1887,

under Section 51(b) of the Disaster Management Act, 2005, under Sections 2

and 3 of the Epidemic Disease Act, 1897 and under Section 135 of the

Maharashtra Police Act, 1951; and the entire proceedings of Regular Criminal

Case No.300/2021 pending before learned Judicial Magistrate First Class,

Paithan, Dist. Aurangabad stand quashed and set aside as against applicant

Nos.2 to 15.

4                Rule made absolute in above terms.




( Rajesh S. Patil, J. )                         ( Smt. Vibha Kankanwadi, J. )




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