1 wp-2659-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITON NO. 2659 of 2009 1. Bhimsha Lingappa Dhangar ) Age 55 yrs, Occu: Labourer. ) 2) Ram BhimashaDhangar ) Age 35 yrs, Occu: Agri. ) 3) Malu Bhimsha Dhangar ) Age 22 yrs, Occu: Agri. ) 4) Rajendra @ Raju Bhimsha Dhangar ) Age : 24 yrs, Occu: Agri. ) 5) Malkappa Bhmsha Dhangar ) Age 50 years, Occu: Agri. ) 6) Shankar Ramchandra Chavan ) Age 35 yrs, Occu: Tailor. ) 7) Dhannu Ramchandra Chavan ) Age 40 yrs, Occu: Agri. ) 8) Sanjay Dhannu Chavan ) Age 24 hrs, Occu: Education. ) 9) Vijay Dhannu Chavan ) Age 22 yrs, Occu: Education. ) 10) Janabai Dhannu Chavan ) Age 35 yrs, Occu: Household & ) Service. ) 11) Binibai Shankar Chavan ) Age 30 yrs, Occu: Household. ) 2 wp-2659-09.sxw 12) Shivaji Harishchandra Chavan, ) Age 35 yrs, Occu: Labourer. ) 13) Prakash Harishchandra Chavan, ) Age 30 yrs, Occu: labourer. ) 14) Kamalabai Rvappa Chavan ) Age 35 yrs, Occu: Labourer. ) 15) Raju Revappa Chavan ) Age 23 yrs, Occu: Laborer. ) 16) Anusayabai Shivaji Chavan, ) Age 30 yrs, Occu: Hosehold. ) All R/o. Bhamale Tanda, Musti, ) Tal - South Solapur, Dist. Solaur. ).. Petitioners (org. accused Nos. 1 t 11 & 13 to 17). Versus 1. Gopichand Bhangu Chavan ) Age 65 yrs, Occu: Agri. ) R/o Bhamale Tanda, at Musti, ) Tal South Solaur, Dist. Solapur. ) 2. The State of Maharashtra. ).. Respondents (No.1 orig. complainant) Shri Jaydeep D. Mane, Advocate, for the petitioners. Shri Shrisnail Sakhare, Advocate, for the respondent No.1. Ms. M.H.Mhatre, APP, for the respondent No.2 - State. CORAM:J.H.BHATIA,J. DATE : 15th July, 2010. JUDGMENT: 3 wp-2659-09.sxw 1. Rule. Rule made returnable forthwith. heard the learned Counsel for the parties. 2. It appears that there were long standing disputes between the complainant Gopichand Chavan, who is respondent No.1 before this Court and his family on one hand and the petitioners on the other. The petitioners are also related to the respondent No.1. In the morning of 18.6.2002, the petitioners had allegedly assaulted and caused injuries to respondent No.1 and his family members. About that incident, on the same day, respondent No.1 lodged a report at the Sadar Bazar Police Station, Solapur, wherein Crime No.35/2002 under Sections 147,148,149,324, 448, 427 IPC was registered against 7 persons. The petitioner No.4 - Rajendra had also lodged a report at the Police Station about the same incident and Crime No.36/2002 under Sections 147,148,149, 324, 323 and 448 IPC was registered against respondent No.1 and others. On 29.7.2002, the respondent No.1 filed a private complaint in the Court of J.M.F.C. Akkalkot against 20 persons, including 3 police constables, who had allegedly failed in discharging their duties. The complaint was under Sections 145,146, 147, 149, 323, 324, 326, 307, 392, 394, 395, 504, 506 Part II read with Sec. 34 IPC. The learned Magistrate recorded verification statement of the complainant and then directed the police to investigate the case under Section 156(3). The police after 4 wp-2659-09.sxw investigation submitted a report in negative, particularly in respect of the serious offence of robbery, dacoity and attempt to murder punishable under sec. 307. The police had already filed charge-sheets in the counter-cases based on the reports lodged with the police. 3. After the report was submitted, the learned Magistrate found that the offence under Sections 307 and 395 are triable by Court of Sessions and therefore, the Magistrate could not have directed investigation by the police and he was bound to hold enquiry himself under Sec. 202 Cr.P.C. In view of this legal position, the learned Magistrate directed the complainant/respondent No.1 to lead evidence before the Court before the process could be issued. In view of that order, the complainant/respondent No.1 - Gopichand examined himself and one witness, namely Mohan. After recording their statements, the learned Judicial Magistrate, Akkalkot, passed the impugned order to issue process under Sections 143, 148,307, 324 and 506 Part II read with sec. 149 IPC against the accused Nos. 1 to 17. He did not find any material against the 3 constables, who were accused Nos. 18 to 20 and he dismissed the complaint against those persons. The learned Magistrate did not find any material to issue process for the offence punishable under Sections 392, 394, 395 and 504 IPC. The said order to issue process has been challenged in the present petition by the accused persons. 5 wp-2659-09.sxw 4. The learned Counsel for the petitioners contended that the FIR lodged by the respondent No.1 on the day of incident itself as well as his complaint do not make out the case for issuing process under Sec. 307. The impugned order also shows that the respondent No.1 had not stated that any attempt was made to cause death, however, the witness Mohan had deposed that a deadly blow with an axe was inflicted on the complainant. The learned Magistrate noted that as per the statement of that witness, the axe blow on the head of the complainant was given but he saved himself and sustained injuries on the knee. The learned Magistrate also noted that 4 persons had suffered injuries and those injuries were simple hurts. None of them had suffered any grievous hurt. It also shows that no injury was caused on the head or any other vital part of the body. The learned Counsel contended that in view of this material, process could not have been issued under Section 307 IPC. 5. After careful perusal of the FIR and the complaint as well as the observations made by the learned Magistrate in the impugned order, it appears that the complainant had nowhere stated that any of the accused had attempted to cause his death or had attempted to cause the injury on his head by giving blow 6 wp-2659-09.sxw with the axe. For the first time, the witness Mohan made such a statement during the enquiry under Section 202. The statements appear to have been recorded sometime in the year 2007 i.e. about 5 years after the incident. That statement of Mohan does not find any support from the contents of the FIR, complaint and even the statement of complainant himself. In view of this, the learned Counsel for the respondent also could not support the issuance of process under sec. 307 IPC. In view of this material on record, I find that the learned Magistrate committed error in issuing process under Sec. 307 IPC. The issuance of process under Sec. 307 would make a vital difference. About the same incident, police have already filed charge-sheets against both the parties and those counter cases are pending and are triable by Judicial Magistrate, First Class. If the process is issued under Section 307, case is triable by Court of Sessions. It appears that it was only an attempt to implicate the accused persons in more serious offences so that they may be required to face trial before the Sessions Court. In view of the facts and circumstances, I find that the process issued by the learned Magistrate to the extent of Section 307 IPC needs to be quashed. I do not see any reason to interfere as far as the issuance of process for the remaining offences is concerned. 6. As on the basis of the FIR lodged by the complainant/respondent No. 1, police have o filed charge-sheet and he has also filed a complaint, in view of 7 wp-2659-09.sxw the provisions of Section 210(2) C.P.C. both the cases are required to be heard together. 7. For the aforesaid reasons, the petition is partly allowed and the impugned order to the extent of issuance of process under Sec. 307 IPC is hereby quashed. The learned Magistrate shall hear the complaint case as well as the charge-sheet filed by the police on the basis of the FIR lodged by the respondent Gopichand together in view of the provisions of Sec. 210(2) Cr. P.C. along with the counter case based on the FIR lodged by Rajendra Bhimsha Dhangar. Rule made absolute accordingly. (J.H.BHATIA,J.)