Bombay High Court
Arvind S/O. Bharat Rathod vs The State Of Maharashtra Through Pso Ps ... on 10 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10331-DB
Judgment 929 apl 257.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 257/2024
Arvind s/o Bharat Rathod,
Aged about 28 yrs.,
R/o. Dattamanjri, Tah. Mahur,
Dist. Nanded.
... APPLICANT
VERSUS
1. State of Maharashtra,
through Police Station Officer,
Police Station, Mahagaon,
Dist. Yavatmal.
2. XYZ,
In Crime No. 698/22,
thr. P.S.O., P.S. Mahagaon,
Dist. Yavatmal.
... NON-APPLICANTS
---------------------------------
Mr. R.M. Daga, Advocate for applicant.
Mr. A. Badar, APP for non-applicant No.1/State.
----------------------------------
CORAM : VINAY JOSHI AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE : 10.09.2024.
Judgment 929 apl 257.24
2
ORAL JUDGMENT (PER: VINAY JOSHI, J.) :
Heard.
2. Admit.
3. By this application, the applicant Arvind s/o Bharat Rathod
(accused No.3) is seeking to quash the prosecution namely Special
Case No. 34/2023 arising out of Crime No. 698/2022 registered with
Police Station Mahagaon, Dist. Yavatmal for the offence punishable
under Sections 363, 366, 366(A), 376(2)(n), 109 read with Section
34 of the Indian Penal Code, Sections 4, 6, 8, 12 of the Protection of
Children for the Sexual Offences Act. In particular, the applicant has
been arraigned for commission of offence punishable under Sections
363, 109 read with Section 34 of the Indian Penal Code.
4. At the instance of report lodged by the father of victim girl
aged 17 years, crime has been registered. It is informant's case that on
16.11.2022 around 06.00 a.m, the victim left her house, but did not
return. The informant made inquiry in the village, on which he learnt
Judgment 929 apl 257.24
that co-accused Nitin Chavhan is also missing and therefore, he
lodged report. Initially, the Police Registered the crime against
co-accused Nitin for the offence punishable under Sections 363 of the
Indian Penal Code. During the course of investigation, the role of
several persons was revealed, on which further sections have been
added as well as various persons have been arraigned as an accused. So
far as the applicant Arvind is concerned, it is alleged that the applicant
has abetted main accused Nitin in kidnapping a minor from lawful
guardianship. In this regard, we have gone through the statement of
victim girl. It is her contention that at the relevant time at the instance
of Nitin, she went out of the house. Co-accused Nitin expressed his
love, desire to marry, and asked her to run away from her house.
Co-accused Nitin was accompanied with another co-accused Nilesh.
At the relevant time, both Nitin and Nilesh made victim to sit on
motorcycle and took her at Karanjkhed Phata. The victim stated that
applicant Arvind was already at that place. As per victim's contention
one black colour four wheeler came there, by which victim and main
accused Nitin left the place then victim stated further story regarding
Judgment 929 apl 257.24
her stay with Nitin at different places and finally she came back on
28.12.2022.
5. The statement of informant discloses that role assigned to
applicant is that when the couple has changed the means of
transportation, at that place applicant Arvind was present. While
resisting the application, the learned APP took us through the
statement of victim recorded by the learned Magistrate in terms of
Section 164 of the Code of Criminal Procedure ("Code"). This time,
victim stated that at said place the applicant was waiting with car.
Concededly, the role assigned to the applicant is of abettor to the
offence of kidnapping a minor.
6. The learned counsel appearing for applicant would submit
that the First Information Report and material collected during the
course of investigation fails short even to constitute an offence of
abetment or the act done in furtherance of common intention.
Obviously, the victim's statement is material, as admittedly besides her
statement, there is nothing against the applicant Arvind. We have
Judgment 929 apl 257.24
revisited her statement, wherein she never stated that either the
applicant brought four wheeler to facilitate the couple to escape or
assisted them in any manner. Rather she stated that when the couple
went to Karanjkhed Phata, the applicant Arvind was already present
on the spot. She stated that thereafter one four wheeler came,
obviously meaning thereby someone else has brought the vehicle, in
which couple fled away. True, in the statement under Section 164 of
the Code, the victim stated differently, however that does not have
foundation in the victim's earlier statement. Even if it is accepted that
when the main accused along with victim have changed mode of
transportation, the applicant was present, it will not constitute any
offence. Mere presence of accused cannot be construed that he has
abetted the couple to go away. Unless there is mental element coupled
with positive act, the offence cannot be made out. The allegation
about the sexual assault are against main accused Nitin. Moreover, the
allegation of taking away minor from the lawful guardianship is
against Nitin and co-accused Nilesh. However, mere reference that
the applicant Arvind was found on the spot would not lead to draw
Judgment 929 apl 257.24
inference against him.
7. Considering the material collected during the course of
investigation, we do not see any prima facie case to put the applicant
on trial. The case is covered by criteria Nos. 1 and 3 of the guidelines
led by the Supreme Court in case of State of Haryana Vs. Bhajan Lal ,
AIR 1992 SC. In the circumstances, continuation of trial amounts to
abuse of the process of the Court.
8. In view of above, application is allowed. We hereby quash
and set aside the prosecution namely Special Case No. 34/2023
arising out of Crime No. 698/2022 against applicant Arvind s/o.
Bharath Rathod registered with Police Station Mahagaon, Dist.
Yavatmal for the offence punishable under Sections 363, 366, 366(A),
376(2)(n), 109 read with Section 34 of the Indian Penal Code.
Sections 4, 6, 8, 12 of the Protection of Children for the Sexual
Offences Act.
Judgment 929 apl 257.24
9. Application stands disposed of in above terms.
(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 13/09/2024 17:34:15
