1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.235/1999 Nitin Champatrao Kausadikar, Aged 37 years, Occ. service PSI, Dharmabad Police Station, District Nanded. ...REVISION PETITIONER VERSUS 1. The State of Maharashtra. 2. Sheshrao s/o Shamrao Mogarge, age 45 years, occ. Agri., r/o. village Shend, Tq. Nilanga, District Latur. ...RESPONDENTS ... Mr. A.H.Kapadia, Mr. H.F.pawar, Advocates, for the applicant. Mr.P.M.Shinde, A.P.P., for respondent/State. Mr. V.D.Gunale, Advocate, for respondent no.2. ... CORAM: K.U.CHANDIWAL, J. DATE: 3/8/2009 ... P.C.:- 1. Heard learned Counsel. 2. During an inquiry, the accused in Crime No.22/1989 was nabbed and he was taken to Police 2 Station where, allegedly, custodial inquiry was made. The accused alleged beating. The report of inquiry was submitted to the learned District Judge, Latur, and on receipt of such letter from District Court, Latur, a complaint ( Exh.1) was filed before learned Chief Judicial Magistrate, dt. 11.8.1989. Learned Chief Judicial Magistrate found that, in the night of 8.6.989 and 9.6.1989, Sheshrao was arrested by Police of Police Station Shirur Anantpal in crime No.22/1989, as confirmed even in the remand list. He was taken to magisterial custody. The Judicial Magistrate, First Class, before whom Sheshrao made complaint of ill-treatment, on his personal examination, found patches on both buttocks and some small patches on the back and immediately Sheshrao was sent to Civil Surgeon, Latur, for his medical examination. The certification is at Exh.49. Sheshrao stated that it was the Police Officer Kausadikar who beat him by means of kicks and rubber belt, including other Police officers. 3. Learned Chief Judicial Magistrate did not accept the contention of Sheshrao that the Police Officer Kausadikar gave kick of boot on his mouth or one teeth was damaged which was dislocated within 5/6 months and he got artificial teeth from dental surgeon Ambekar at Latur. Learned Judge recorded the deficiencies as to Sheshrao was produced within 20 hours before the Magistrate. The 3 medical certificate of Dr.Deshmukh was silent about the alleged teeth injury. Consequently, taking recourse to the entire evidence placed before charge, the learned Magistrate, by virtue of provisions under Section 245(1) of Cr.P.C. discharged the Police Officer. This order was assailed by the complainant (accused in Crime No. 22/1989 Sheshrao) before the learned Additional Sessions Judge who, by judgment dt.9.4.1999, found that the order of learned Chief Judicial Magistrate, Latur, of discharging under Section 245(1) of Cr.P.C. is incorrect. 4. The observation of the learned Additional Sessions Judge, in paragraph no.9 of the judgment that, the act alleged against the Police Officer Kausadikar more leans to attract Section 330 and 331 of IPC are basically unwarranted as the dislocation of the teeth was noticed six months subsequent to the alleged incident. The learned Chief Judicial Magistrate did not approve of the same to be the result by assault by Police. The learned Sessions Judge, while sitting in revision, could not have indicated to frame charge for the offence under Sections 330 or 331 of IPC and has erroneously remanded the matter to the learned Chief Judicial Magistrate, Latur. 5. Sections 330 and 331 of IPC are as under: 4 "330. VOLUNTARILY CAUSING HURT TO EXTORT CONFESSION, OR TO COMPEL RESTORATION OF PROPERTY. - Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offense or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to to restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, shall also be liable to fine. 331. VOLUNTARILY CAUSING GRIEVOUS HURT TO EXTORT CONFESSION, OR TO COMPEL RESTORATION OF PROPERTY. - Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer any confession or any information which may lead to the detection of an offense or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security, or to satisfy any claim or demand or to give information which may lead to the restoration of any property or valuable security, shall 5 be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 6. It was not the case of Sheshrao that the Police Officer mercilessly beat him for the purpose of extorting from the sufferer like him any confession or any information leading to detection of an offense. It was not a case that there was voluntarily a grievous hurt for the purpose of extorting from the said accused Sheshrao or from any other person. 7. Sections 319 and 320 of I.P.C. provide the definition of hurt and grievous hurt. The category seventhly in Section 320 of IPC indicates fracture or dislocation of a bone or tooth. Learned Chief Judicial Magistrate found, on analysis of primary evidence that, such dislocation of tooth was six months subsequent to the alleged incident. In the light of this, it was not within the parameters of the learned Sessions Judge to have to traveled to dissect the evidence in flip. 8. During the course of submissions, Mr. V.D.Gunale, representing accused Sheshrao, in Crime No.22/1989, informs by way of affidavit that his client is not interested in prosecuting the grievance against the Police Officer. 6 9. The survey of above facts indicates that the order of the learned Additional Sessions Needs to be quashed and that of the learned Chief Judicial Magistrate needs to be accepted. Hence, Criminal Revision Application No.235/1999 is allowed accordingly. (K.U.CHANDIWAL) JUDGE agp/235-99crra