1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1744 of 2010 Charandas Fakruji Pathade and 2 others ..VERSUS.. Moreshwar Ziblaji Watile and another Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. M. P. Kariya, Advocate for the applicants Mr. M. I. Dhatra, Advocate for Respondent no.1 Mr. M.J.Khan, A.P.P. for respondent no.2/State. CORAM : Prasanna B. Varale, J. DATED : 24 th March , 2011 . 1. Heard Mr. M.P.Kariya, learned Advocate for the applicants, Mr. M.I.Dhatrak, learned Advocate for respondent no.1 and Mr. M.J.Khan, learned APP for the State. 2. By the present application under Section 482 of Criminal Procedure Code, the applicants are seeking quashment of Criminal Complaint Case No. 843/2004, pending before the learned Judicial Magistrate, First Class, Ghatanji. 3. The brief facts giving rise to the present application are that an application was moved by the present respondent no.1 before the Tahsildar, Ghatanji, Dist. Yavatmal making grievance of right of way passing through the fields of respondent no.1 and applicant nos.1 and 2. The Tahsildar, Ghatanji by his order dated 04/8/2004 directed the applicants to clear the way. Being aggrieved by the said order, an appeal was preferred before the Sub-Divisional Officer, at Kelapur (Pandharkawada) and by order dated 17/12/2004, the S.D.O. 2 remanded the matter back to the Tahsildar, Ghatanji. Subsequently, respondent no.1 filed a complaint in the Court of J.M.F.C, Ghatanji complaining therein that the applicants by using force have obstructed the way and assaulted him with weapons like Axe and stick and as such complaint case for the offence under Sections 341 and 506 of Indian Penal Code came to be registered against the applicants. 4. Mr. Karia, learned Advocate for the applicants has submitted that the order passed by the Tahsildar, Ghatanji, dated 04/8/2004 was challenged by the applicants by filing an appeal before the S.D.O., at Kelapur (Pandharkawada) and the S.D.O. by his order dated 27/12/2004 allowed the appeal and set aside the order passed by the Tahsildar, Ghatanji and further directed the Tahsildar to initiate the enquiry. The learned Advocate by inviting my attention to the order passed by the SDO, Kelapur, submitted that the SDO has observed that the Tahsildar has neither called the report from the Taluka Inspector of Land Records nor verified the actual position about existence of Government road in the fields. The learned Advocate has further submitted that in view of the order of the S.D.O., the Government road was not in existence and as such there was no question of obstructing the way. He further submitted that as the road was going through the fields of the applicants, they were under the bona fide belief that the road is in their field, which is in their possession and as such the offence under Section 341 of I.P.C., as alleged against them, is not at all attracted. 5. To support his submission, the learned Advocate for the applicants has invited my attention to the provisions of Section 339 of Indian penal Code, which reads as under : 3 "339. Wrongful restraint - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person." 6. The bone of the contention of the learned Advocate for the applicant was that as petitioners were under the bona fide belief that it is private way over their land, the applicants had lawful right to obstruct and for their such an act, no offence under Section 341 of I.P.C. is made out by the complainant/respondent no.1. To support his contention, the learned Advocate for the applicant has relied upon the judgment of the Supreme Court in the case of Ms. Vijay Kumari Magee .vs. Smt. S. M. Rao and others, reported in 1996 Cri.L.J. 1371 so also the judgment of this Court in the case of Nandan Vasant Pilgaonkar .vs. Narendra Y. Thaly, reported in 2002 All M.R. (Cri.) 656 and submitted that this is a fit case for exercising the inherent powers under Section 482 of Cr.P.C. for quashing the proceedings against the applicants. 7. Per contra, Mr. M.I.Dhatrak, learned Advocate for respondent no.1 has strongly opposed the submissions of learned Advocate for the applicants. He submitted that the complaint was lodged by respondent no.1 in the year 2004. The process was issued by the learned Magistrate and the order of issuance of process was challenged by the present applicants by filing Criminal Revision No. 19/2005 before the learned Additional Sessions Judge, Pandhakarwada. The learned A.S.J., Pandharkawada by observing that the order passed by the learned Magistrate is on perusal of the complaint and the relevant documents and it is a legal, proper and 4 correct order, dismissed the revision by order dated 16/10/2006. The learned Advocate for respondent no.1 has further submitted that the order passed by learned ASJ, Pandharkawda was not challenged by the applicants and that order attained finality. The applicants now after lapse of more than 6 years, seeking quashment of the complaint case of year 2004. There is nothing on record to explain such an inordinate long delay. On the contrary, the applicants have stated that they have filed the instant application as the complainant/respondent no.1 did not proceed with the matter and therefore, they could not file the instant application on earlier point of time. The learned Advocate has further submitted that such averments cannot be termed as an explanation for inordinate delay in filing the application by the applicants. According to him, the applicants by filing frivolous applications and pursis are prolonging the proceedings before the trial court, even though those applications are rejected by the trial court. The complaint case is at the stage of evidence before charge and the applicants are adopting the delaying tactics to prolong the proceedings. The learned Advocate for respondent no.1 has placed on record a copy of 'roznama' to support his submission. He, therefore, prayed for rejection of the application. 8. It is not in dispute that the complaint is of the year 2004 and there is no explanation for such an inordinate delay to approach this Court after 6 years. Perusal of the complaint reveals that the complaint is not only in respect of causing obstruction to the way, but it also reveals the incident dated 28/6/2004, in which the applicant nos.1 and 2, who were armed with the weapon like Axe and Stick, made assault on the complainant along with accused no.3, the threats of life were given by the applicants/accused. The witnesses who were present on the spot and saw the incident, ran away from the spot 5 apprehending danger to their life. The complaint further discloses that subsequent to the order passed by the Tahsildar, Ghatanji, dated 17/8/2004, the accused persons caused obstruction to the way and when the complainant raised grievance about it, the accused gave threats of life to them. The complaint further reveals that the complainant had initially lodged written report to the Police Station, Ghatanji on 13/9/2004 and inspite of the report, when the police authorities paid no hid to the report and as there was no option left with the complainant, he presented the complaint before the learned J.M.F.C., Ghatanji. The record further shows that the order passed by the learned A.S.J., Pandharkawada, dated 16/10/2006 has not been challenged by the applicants any further. In the present application, the prayer is only in respect of quashing the complaint and there is no prayer in respect of the order passed by the learned ASJ., Pandharkawada, dated 16/10/2006 dismissing the revision application. In view of these facts, I find considerable merit in the submissions of learned Advocate for respondent no.1 that there is inordinate and unexplained delay and as such the application is not tenable. 9. Though, Mr. Karia, learned Advocate for the applicants has placed reliance on the Apex Court judgment in Ms. Vijay Kumari's case (supra), in my opinion, the said judgment would not be applicable to the present case. 10. In this case, apart from the offence under Section 341 of I.P.C., the complaint was lodged for the offence under Section 506 of I.P.C. It is not in dispute that when the complaint was lodged, the order of Tahsildar was in force whereby the Tahsildar has observed that the road in question is Government Road and the Tahsildar 6 permitted the use of way and as such I find no force in the submission of learned Advocate for the applicants that the applicants were under bona fide belief that the road was in their field and they had right to obstruct. 11. Insofar as the other judgment of this Court in Nandan Pilgaonkar's case (supra), there cannot be any dispute on the proposition that the inherent powers of High Court under Section 482 of Cr.P.C. are extremely wide, but in my opinion, the facts of the present case are not of such nature where the powers under Section 482 of Cr.P.C. can be exercised. 12. Needless to say that the law cannot help those, who sleep over their rights. In the present case, the applicants have approached this Court after six long years for quashment of the complaint of the year 2004 and furthermore, no grounds are coming forward for such an inordinate delay. 13. On considering the material and the submissions of learned Advocate for the respective parties, I am of the opinion that no case is made out by the applicants to exercise the inherent powers of this Court under Section 482 of Cr.P.C. 14. In the result, the application is rejected. JUDGE Diwale