- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH BENCH BENCH AT AURANGABAD AT AURANGABAD AT AURANGABAD CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.670 OF 2008 WRIT PETITION NO.670 OF 2008 WRIT PETITION NO.670 OF 2008 Com.Rajan s/o Ramchandra Kshirsagar .. Petitioner Versus 1. The State of Maharashtra & Ors. .. Respondents Mr.S.T.Shelke, Advocate for petitioner Mr.N.B.Khandare, P.P. for respondent Nos.1 to 3 ..... ..... ..... CORAM CORAM CORAM : P.V. HARDAS AND : P.V. HARDAS AND : P.V. HARDAS AND P.R. P.R. P.R. BORKAR, JJ BORKAR, JJ BORKAR, JJ DATE DATE DATE : 10th December 2008 : 10th December 2008 : 10th December 2008 P.C. P.C. P.C. (Per P.R.Borkar, J.) (Per P.R.Borkar, J.) (Per P.R.Borkar, J.) 1. The petitioner who was one of the injured persons has filed this petition praying that investigation of Crime No.250/2007 dated 26.11.2007 registered with Nawa Mondha Police Station, Parbhani be handed over to Crime Investigation Department for investigation. 2. The petitioner is a trade union of ‘Mathadi Hamals’ registered as Parbhani Zilla Majdoor Union (Lal Bawta). The respondent No.4 is an industrialist. He is running unit styled as ‘Ganesh Agro Industries in M.I.D.C. area, Parbhani’. It is a ginning and pressing factory. The factory was inuagurated on 15.11.2007. It is say of the petitioner that Mathadi Act scheme is applicable and, therefore, the respondent - 2 - No.4 ought to have engaged only Mathadi Hamals and he could not have engaged other persons and in spite of that the respondent No.4 engaged one Faizullah Khan Pathan and his gang. The petitioner made representation regarding the same to respondent No.4 and also to the Police and the Collector, copies of which are at Exhs."A", "B" and "C". It is case of the petitioner that on 26.11.2007, the petitioner and other office bearers of his union had gone to factory premises of respondent No.4 for discussion with Faizullah Khan Pathan and his gang. In fact, they had gone for discussion and settlement of dispute. Faizullah Khan Pathan and others received the petitioner and others and after they came in, the gate of the factory was closed and thereafter chilly powder was flung in the eyes of petitioner and others on the instigation of respondent No.4 and they were beaten up with iron bars and sticks. A complaint was lodged against respondent No.4 and others. The copy of F.I.R. is at Exh."D". 3. It is case of the petitioner that even though the name of respondent No.4 was included in the F.I.R. and there is evidence about it, Police have not sent charge-sheet against respondent No.4. The charge-sheet against other accused persons, for committing offence punishable under Sections 307, 323, 324, 143, 147, 148, 149, 342 and 504 of the Indian Penal Code has been - 3 - submitted by the Police. It is also stated that respondent no.4 was not arrested. No report under Section 169 of the Cr.P.C. has been filed against him. In fact, the application for anticipatory bail was rejected holding that there is prima facie case against him and under the circumstances it is prayed that the investigation of the crime may be entrusted to the C.I.D. 4. The respondent Nos.5 and 6 have filed the affidavit-in-reply and they have stated that there was rivalry between two groups of hamals, one under the leadership of petitioner and the other headed by Faizullah Khan Pathan. Latter’s trade union is named Bhartiya Kamgar Sena. Respondent No.4 Omprakash Daga had engaged hamals of Bhartiya Kamgar Sena. It was say of the petitioner that Omprakash Daga was bound to employ services of their trade union. It is further stated that on 26.11.2007, petitioner and other members of his union had gone to the factory of respondent No.4 and they were assaulted. During investigation, it was revealed that respondent No.4 was not present, though he was named in the F.I.R. It was found that there was overwhelming material in the form of statements of witnesses to show that respondent No.4 was attending a ‘Chhatna’ (engagement) ceremony of one Maheshwari Omprakash Mangilal at Kalyannagar which is at a distance of three kms. from the ginning mill. The - 4 - said fact was established by said Omprakash and other witnesses. There is also video recording of the said ceremony. Moreover, when an information received by Police, Police personnel reached the factory. Thereafter respondent No.4 arrived at factory. Statement of Police Constable Suresh Chavan and Police Head Constable Rajesh Babar had been recorded to that effect. So, in the investigation it was revealed that respondent No.4 was not present at the place of incident and under these circumstances, the charge-sheet is not sent against respondent No.4. The learned Public Prosecutor Shri Khandare submitted that since respondent No.4 was not arrested, no report under Section 169 of the Cr.P.C. was filed. 5. We have heard Shri S.T.Shelke, learned Counsel for the petitioner and Shri N.B.Khandare, learned Public Prosecutor for the State at length. The respondent Nos.4 and 5 have also produced copies of case diaries and the earliest case diary is (of A.S.I.) N.V.Lakal dated 26.11.2007. It is stated there that at 11.40 a.m., when they were present in the police station, the respondent No.4 informed on his mobile that there were quarrels between two groups of hamals at his factory and the Police personnel should be sent to the factory immediately. He informed that he was also coming from Kalyannagar to his factory. While they were reaching the spot, the petitioner also - 5 - informed A.S.I. Lakal on mobile phone that they were attacked by Faizullah Khan Pathan and others. After A.S.I. Lakal and other Police personnel reached the place, the assailants had already ran away from the place of incident and after some time respondent No.4 entered the factory premises. It appears from the perusal of material placed before this Court that there was dispute between two unions of hamals and respondent No.4 had engaged the hamals of union of Faizullah Khan Pathan. Considering the circumstances stated in affidavit-in-reply and station diary, we are of the opinion that the the Police personnel are not at fault in not joining respondent No.4 as accused as the Police are not expected to send charge-sheet against respondent No.4 when they were not satisfied that respondent No.4 had instigated the other accused persons as mentioned in the complaint. So considering these aspects, we do not find it proper to interfere. In the result, writ petition is dismissed. The petitioner is at liberty to resort to alternate remedies available to him in law. ( P.R.BORKAR, J.) P.R.BORKAR, J.) P.R.BORKAR, J.) ( P.V.HARDAS, J.) P.V.HARDAS, J.) P.V.HARDAS, J.) (vvr/criwp670-08)