(1) CRI. WP. 897.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 897 OF 2008 1] Piraji S/o Maroti Kautkar, Age : 30 years, Occu.: Labour 2] Balaji S/o Piraji Jarpatwar, Age : 31 years, Occu.: Labour 3] Madhav S/o Gyanoba Yemalwad, Age : 25 years, Occu.: Agri., 4] Devidas S/o Mohan Yelewar, Age : 29 years, Occu.: Agri. 5] Laxman S/o Dattrao Sawant, Age : 26 years, Occu.: Agri. 6] Shyam S/o Muttelu Yemalwad, Age: 30 years, Occu.: Labour 7] Laxman S/o Vitthal Jengewad, Age: 28 years, Occu.: Agri. 8] Hanumant S/o Muttelu Yemalwad, Age : 25 years, Occu.: Labour All above R/o. Village Golegaon, Tq. Umri, District Nanded .. Petitioners VERSUS 1] The State of Maharashtra, through Police Station, Umri, Tq. Umri, Dist. Nanded [Copy to be served on Office of P.P. at the High Court of Bombay, Bench at Aurangabad] 2] Shripat S/o Shesherao Dhage, Age: 39 years, Occu.: Service R/o. Police Station, Mukhed, Tq. Mukhed, Dist. Nanded .. Respondents (2) CRI. WP. 897.2008 Mr. M.V. Ghatge, Advocate for the appellants Mr. V.R. Korde, APP for the Respondents-State ... CORAM : A.V. NIRGUDE, J. DATED : 17TH MARCH, 2010 ORAL ORDER:- 1] Heard. This Writ Petition is filed praying for quashing of Criminal case R.C.C. no. 102 of 2008 pending before the learned Judicial Magistrate First Class, Bhokar in connection to crime no. 48 of 2008 registered with Umri Police Station, Dist. Nanded where offence punishable under section 395, 353, 332, 427 of the Indian Penal Code, were alleged against the petitioners and others. Besides the 8 petitioners here, I am told, there are at least 12-15 more accused in this case. The incident that took place prior to the registration of the offence is described in the complaint lodged by a Police Constable. The complainant stated that on 16.6.2008, he was working as Bodyguard in plain clothes of one Shri Subhash Sabne, M.L.A. of Mukhed constituency. The complainant stated that he had a carbine gun with him. On that day, Shri Sabne went to village Golegaon for attending funeral of one Balasaheb Patil Golegaonkar. The dead body of Balasaheb was kept in front of his house at village Golegaon, for (3) CRI. WP. 897.2008 obeisance and various peoples had gathered to attend his funeral. In the mob, suddenly, some persons started accusing the Police Personnel that they had come to kill them. The members of the mob then attacked the complainant. In the melee the complainant lost control over his carbine gun and he sustained number of injuries on his person. Fearing for life, the complainant started running away but soon, some Policemen came to his rescue in a Police jeep but the pursuing mob attacked even the other Policemen and pelted stones at them. One of the stones broke the windshield of the Police jeep. However, the Policemen overpowered some of the members of the mob who were indulged in rioting etc. Thereafter, the complainant could find out his gun in the nearby shrubs but he could not find the magazine of the gun containing cartridges. In view of this complaint, the Police registered offence as mentioned under section 353, 332, 427, 395 of the Indian Penal Code. 2] The learned Advocate appearing for the petitioners contended that offence under section 427 is not made out as against the present petitioners. He said the statements of the witnesses recorded by the Police under section 161 of the Code of Criminal Procedure reveal that the stone which broke the windshield of the Police jeep was not pelted by the petitioners but by another accused. He further (4) CRI. WP. 897.2008 asserted that offence under section 395 of the Indian Penal Code, can not be seen against the petitioners-accused. According to him, the petitioners and the members of the mob did not intend to cause wrongful loss to the complainant. He suggested that the facts show that the members of the mob were interested in disarming the complainant Police Constable and were not intending to take away his weapon and thereby, causing wrongful loss to him. Both these submissions are devoid of merit. Offence under section 427 is charged against the petitioners and others because all of them were seen pelting stones which caused loss to the Police vehicle. At this stage, contents of the charge sheet cannot be scrutinised to record a finding that offence under section 427 of the Indian Penal Code is not made out against the petitioners. This would be done at final stage. The argument of the learned Advocate appearing for the petitioners, as regards the offence under section 395 of the Indian Penal Code is almost absurd. He admitted that though, the weapon was found on the spot immediately after the incident, the lost magazine of the gun with the bullets was recovered subsequently from the custody of one of the accused and such recovery was witnessed by the panchanama under section 27 of the Indian Evidence Act. Although the petitioners and others are not charged under section 142, 147, 149 of the Indian Penal Code, but the facts clearly (5) CRI. WP. 897.2008 suggest that the offence of rioting had taken place and the members of the unlawful assembly had a common object. At the time of framing of charge, the petitioners and others could be charged with these offences also. 3] In view of this, the Criminal Writ Petition deserves to be dismissed. The Criminal Writ Petition stands dismissed. The observations made above shall not influence the learned Judge of the trial Court even at the time of framing of charge. Sd/- [A.V. NIRGUDE, J.] arp/