1 appln.5843-2010 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5843 OF 2010 The State of Maharashtra ..Applicant. Vs. Ramchandra Shivaji Kamble &Tandale & Anr. ..Respondents. ----- Mrs. M.M. Deshmukh, APP for the applicant-State. ---- CORAM: M.L. TAHALIYANI, J. AUGUST 17, 2011. P.C.: 1. Heard Mrs. Deshmukh, learned APP for the respondent-State. 2. The State has filed this application for grant of leave to appeal against the judgment and order dated 13.7.2010 passed by the learned Sessions Judge-4 Shri A.S. Waghwase, at Kolhapur in Criminal Appeal no. 16 of 2007. 2 appln.5843-2010 3. The respondents viz. Ramchandra Kamble and Laxman Kamble were the appellants in the said appeal. They were the original accused in the Summary Criminal Case no.436 of 2006 before the court of J.M.F.C., Kolhapur. The respondents were prosecuted for the offences punishable under Sections 353, 323 and 504 read with Section 34 of IPC by Rajawada Police Staton for allegedly assaulting or using criminal force against the Police Head Constable Shri Narayan Patil while they were being taken to the court from the prison. On conclusion of the trial, the learned J.M.F.C. convicted both the accused for the above offences. They preferred an appeal before the Sessions Court. The learned Sessions Judge by his judgment and order dated 13.7.2010 has allowed the appeal, and both the respondents have been acquitted of the offences they have been convicted for. 4. I have gone through the the orders of the trial court as well as the appellate court. The appellate court has taken the view that there was some incident and there might be a scuffle between the complainant Mr. Narayan Patail, Police Head Constable on the one hand, and respondents on the other hand. There was no intention on the part of the respondents to 3 appln.5843-2010 assault or use criminal force against the complainant with a view to deter or prevent the said Police Head Constable from discharging his duty as a Police Constable. 5. It is not disputed that the complainant Shri Narayan Patil was a Police Head Constable, and as such was a public servant. It also not a disputed fact that he was assigned the duty of escorting the prisoners to the court from the jail. It is not disputed that the respondents, on the day of incident, were being taken to the court. 6. The learned appellate court has upset the order of the trial court mainly on the ground that there was no intention on the part of the respondents to deter or prevent the Police Head Constable from discharging his duty as a public servant. The learned appellate court has taken the view that the respondent had resisted handcuffing. And, therefore, it could not be said that they had any intention of preventing the Police Constable from discharging his duties. 7. In this regard it may be stated as to whether in the circumstances prevailing then, was it was necessary for the Police to 4 appln.5843-2010 handcuff the respondents is one issue, and whether the respondents had assaulted or used criminal force when the complainant was handcuffing the respondents or restraining from movement is an another issue. In my view the issue based on which the learned appellate court has upset the order of the learned J.M.F.C. and has acquitted the respondents needs to be examined. There appears to be a good case for the State to argue the issue in the appeal. Hence, it is a fit case for grant of leave to appeal against the order of acquittal. 8. Leave to appeal is granted. Criminal Application stands disposed off. 9. Appeal be admitted. R. and P. be called. 10. Issue notice to the respondents. (M.L. TAHALIYANI, J.)