1 wp no. 2612 of 2010 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL WRIT PETITION NO. 2612 OF 2010 Karan Tensing Taware and Others ... Petitioners Versus The State of Maharashtra ... Respondent Mr. Vishal Kanade i/by Mr. Abhijit Desai for petitioners. Mr. S.A. Shaikh, A.P.P. for State. Mr. Milind Deshmukh for respondent no. 2. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : DECEMBER 03, 2010 P.C. 1) Admit. Rule made returnable forthwith. 2) This writ petition challenges the order dated 28th July, 2010 passed by the Sessions Court on the application at Exh. 31 filed by accused no. 5 in Sessions Case No. 82 of 2008. The application filed by accused no. 5 was for grant of pardon. The impugned order allowed the application and granted pardon to accused no. 5 on the condition that he will make full and true disclosure of the offence. Petitioner nos. 1 to 4 are the original accused nos. 1 to 4 and 2 wp no. 2612 of 2010 petitioner no. 5 is the original accused no. 6. The offence came to be registered against all the accused persons under section 141, 147, 149, 333, 332, 353, 341, 342, 323, 504 and 506 of Indian Penal Code vide C,R, no. 8 of 2008 alleging that on 27th January, 2001 the complainant was working as Assistant Police Inspector attached to Baramati Taluka Police Station. On the day of incident, the complainant was on duty at Sangvi Kambleshwar Public road and Baramati Phallari road in front of Vijay Dhaba. along with Police Naik V.L. Chavan. At about 6.00 p.m. a motor cycle bearing no. MH 52 C 533 came from Kambleshwar road. There were three persons sitting on the motorcycle. Police Naik gave signal to them to stop the motorcycle. The motor cycle came at fast speed and stopped near the complainant. When the complainant demanded to see the driving licence and also demanded to know as to why there were three persons sitting on the motor cycle, the rider challenged him by saying that he did not have the licence and that he could do whatever he wanted to do. Thereafter rider again told him that he will show him licence and spoke to somebody on his mobile phone at Virat Dhaba informing the person that they are detained by the police. After some time, a car bearing no. MH 12 Y 3513 came being driven by accused No. 5. There were two other accused persons in 3 wp no. 2612 of 2010 the car. All the three asked the complainant as to why he was demanding licence. Then the person accompanying accused no. 5 caught hold of the Police Naik Chavan and gave him fist and kick blows. The complainant went to his rescue. He was also assaulted by fist and kick blows. Thereafter accused persons took away the officers in the car to Virat Dhaba. In the meantime, somebody informed the police station and police came to the rescue of the two officers. At that time four accused persons including accused no. 5 ran way. The complainant brought accused nos. 2 and 6 to Baramati Taluka Police station to file a complaint. It appears that on 29th February, 2008 accused no. 5 had made a statement under section 166 of Cr.P.C. before the learned Judicial Magistrate, First Class stating that he was going to help prosecution. When the matter was committed to the Sessions Court, the statement was not forwarded to the Sessions Court along with the case papers. With the result, it was not available to the Sessions Court while framing charge on 9th February, 2009 against all the accused persons under section 143, 147, 148, 341, 342 and 343 read with section 34 of Indian Penal Code and offence under Section 3 (1), 181 and 182 of the Motor Vehicles Act. All the accused persons pleaded not guilty to the charge and claimed to be tried. About an year thereafter, i.e. on 26th July, 4 wp no. 2612 of 2010 2010, an application was filed on behalf of accused no. 5 contending therein that he had made statement under section 164 of Cr.P.C. before the Court of Judicial Magistrate, First Class on 23th February 2008 at Exh. 27. The applicant stated that the contents of the statement were correct. He further stated that framing of charge against him in the sessions case was on account of inadvertence. Hence, he should be discharged and be made an accomplice. This application was allowed by the Sessions Court which is under challenge in the petition. 3) Mr. Kanade the learned counsel for the petitioner submits that the application at Exh. 31 filed on behalf of accused no. 5 was not maintainable. He submits that the two prayers sought therein are completely independent prayers and could not have been sought by one application. The first prayer in the application was for discharging accused no. 5 and the second was for treating him as an accomplice. He submits that discharge can be granted only where the applicant is completely unconnected with the facts alleged in the complaint whereas he can be an accomplice only when he has participated in the crime or directly or indirectly concerned with the offence. 5 wp no. 2612 of 2010 4) It is obvious from the application at Exh. 31 that the word discharge used therein as also the prayer for discharge is nothing but an an error of the draftsman of the application. The application specifically refers to the statement of accused no. 5 recorded by Judicial Magistrate, First Class on 23rd February, 2008 under section 164 of Cr.P.C. Despite of the statement, sessions court had framed charge against accused no. 5. Apparently neither the learned A.P.P. nor the learned Advocate appearing for accused no. 5 pointed out the statement of accused no. 5 at Exh. 22 recorded by the learned J.M.F.C. It is pertinent to note that there is a common advocate for all the other accused persons except accused no. 5. Accused no. 5 is represented by a different advocate. Had the advocate for accused no. 5 and learned A.P.P. for the State been diligent and attentive to the matter, they would have pointed out the statement of accused no. 5 recorded by the court and no charge would have been framed against him. It is stated in the application that the charge framed against accused no. 5 was by way of inadvertence. The correct prayer in the application would have been for recalling of the order of framing of charge against accused no. 5 and requesting for order to grant him pardon as an accomplice. The impugned order considers application of accused no. 5 for grant of 6 wp no. 2612 of 2010 pardon as an accomplice and allows the same. No infirmity is found in the order except for one fact that the learned Sessions Judge ought to have referred to the request in the application seeking discharge and prayer for discharge and dealt with the same in the order. Since it is obvious that the contents of the application at Exh. 31 was really a request for grant of pardon as an accomplice and also recalling of the order of framing charge. I am not inclined to interfere with the order passed. The learned Judge has also rightly put a condition upon accused no. 5 that he should make full and true disclosure to the offence. Hence, petition is dismissed. (SMT. R.P. SONDURBALDOTA,J.)