Varad S/O. Gajendra Deshmukh vs The State Of Mah. Thr. Pso, ...
2023 Latest Caselaw 8451 Bom

2023:BHC-NAG:12543-DB
                                                                   901.apl331.2023jud.odt




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

                     CRIMINAL APPLICATION (APL) NO. 331 OF 2023

             Varad s/o Gajendra Deshmukh
             Age: 19 years, Occupation: Student,
             Resident of, Yashwant Colony,
             Fulsawangi Road, Mahagaon,                        ... Applicant
             Tq. Mahagaon, Dist. Yavatmal
             Pin : 441 701 (Maharashtra)
             (Original Accused No.3 in FIR)
                                 Versus
          1. State of Maharashtra,
             Through, the Police Station Officer Mahagaon,
             Tq. Mahagaon, Dist. Yavatmal.
             (Copy for Respondent No.1 to be served on the
             Office of the Public Prosecutor, Bombay High
             Court Bench at Nagpur)

          2. Shaikh Rajik Shaikh Yunus
             Age: 37 years, Occupation: Agriculturist,
             Resident of, Village Wakodi,                    ... Non-applicants
             Tq. Mahagaon, Dist. Yavatmal.
             Pin : 445 205 (Maharashtra)

          Mr. K.S. Narwade, Advocate for applicant.
          Mr. N.R. Rode, APP for non-applicant No.1.
          Mr. A.Z. Mirza, Advocate for non-applicant No.2.

                                    CORAM :          VINAY JOSHI, AND
                                                     VALMIKI SA MENEZES, JJ.

DATE : 21.08.2023.

ORAL JUDGMENT: (PER: Vinay Joshi, J)

Heard. Admit. Heard finally by consent of both the

learned counsel for the parties.

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(2) This is an application seeking to quash FIR in

Crime No.673/2022 registered with Police Station Mahegaon, District

- Yavatmal, for the offence punishable under Sections 143, 147, 149,

323, 504 and 506 of the Indian Penal Code.

(3) Learned counsel for the applicant seeks to quash FIR

stating that no specific role is attributed to applicant - Varad. The

allegations are of general nature and in absence of overt act, the

provisions of Section 143 would not attract. Moreover, it is submitted

that the incident was infact otherwise for which applicant party has

lodged the report on the very day and thus, out of vengeance false

report has been filed.

(4) On the other hand, Mr. Rode, learned APP as well as

learned counsel appearing for the informant put resistance by

submitting that FIR lodged within few hours from the occurrence bears

specific name of applicant. There are eye-witnesses to the incident

whose statements are recorded stating positive act of the applicant. It

is submitted that the informant and his brother Shaikh Sadam

sustained injuries for which medical certificates are produced and thus,

it is not a case for quashing.

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(5) The facts in brief are that one Rajik Shaikh Yunus

lodged report regarding the occurrence. It is his contention that

07.11.2022 around 8:30 p.m. while he was proceeding towards his

agricultural land, co-accused Gajanan accosted and started to abuse in

filthy language. At relevant time, applicant - Varad and few others

from applicant's party came and all of them started to beat the

informant. Informant's brother Shaikh Sadam came to the rescue of

informant, however, all of them abused and beat him and therefore,

the report.

(6) We have gone through the investigation papers. The

police have recorded statements of several witnesses including

informant's brother. Since, the charge-sheet has not been filed, we

have not referred the names of eye-witnesses. The police have

collected injury certificate of both injured.

(7) On perusal of statement of the eye-witnesses, we do

find reference regarding presence of applicant with allegation that he

also joined others in beating the informant and his brother. The

investigation paper also contains injury certificate of the informant

stating the history of assault with injuries of simple nature. Injury

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certificate of Shaikh Sadam is also on record. It requires to be noted

that alleged incident took place on 07.11.2022 around 8:30 p.m.

whilst they have been medically examined within three hours from the

occurrence having injuries all over the body.

(8) The applicant's learned counsel by placing reliance

on the decision of the Supreme Court in the case of Pandurang

Chandrakant Mhatre and Ors. Vs. State of Maharashtra (2009) 10 SCC

773 would submit that unless there is an over act on the part of

applicant, the provisions of Section 143 may not be invoked. As a

matter of fact, mere membership of an unlawful assembly coupled

with the common object would attract the offence. Sharing of

common object is an heart of this Section. In said decision, we do not

find any observations which could support the applicant's contention.

(9) To the next, applicant's learned counsel relied on

the decision of this Court in case of Vishal and Ors. Vs. State of

Maharashtra and anr. 2020 SCC OnLine Bom 2543 to impress the said

submission. In said case, on the basis of facts, this Court concluded

that the allegations were vague about presence of family members.

The said decision is distinguishable on facts as herein apart from mere

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presence the informant and witnesses stated that the applicant also

joined in the assault. True, none of them have described a specific role

of the applicant, however, there are allegations about his presence and

participation in the assault. Certainly, it is a matter of trial to be

ascertained on the basis of evidence, whether the applicant had

actually participated. Then by relying on the decision of Supreme

Court in the case of Dhariwal Tobacco Products Limited and Ors. Vs.

State of Maharashtra and anr. (2009) 2 SCC 370, it is submitted that

if conviction is not possible then the prosecution needs to be quashed.

There can be no dispute about said proposition of law. Basically, the

matter would govern on the facts of each case.

(10) Reverting to the factual aspect FIR was lodged

within four hours from the occurrence stating specific name of

applicant, though general it is stated that applicant also participated in

the assault. Therefore, certainly, it is not a case to say that even if the

contents of FIR are accepted, they does not make out a prima facie

case. At this juncture, we did not find material to hold that the

allegations are false and fabricated. We also took a note that after

registration of existing FIR the other party has lodged the report and

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thus, it is a matter of appreciation. While exercising inherent

jurisdiction, we have a limited scope to see whether prima facie case is

made out. It is not permissible like a trial to decide the worth of the

statements of the eye-witnesses unless exceptional circumstances are

made out. On the canvass of direct material, we cannot undertake an

exercise to martial the evidence to the entirety like a mini trial. Since,

the FIR as well as police paper makes out a prima facie case, we are

not inclined to exercise our inherent jurisdiction to stifle the

prosecution at its embryo stage. In view of that, there is no merit in

the application, hence, rejected.

                              [VALMIKI SA MENEZES, J.]                    [VINAY JOSHI, J.]


                     Prity




Signed by: Mrs. Prity Gabhane                                                           PAGE 6 OF 6
Designation: PA To Honourable Judge
Date: 23/08/2023 18:19:46