17.cr appln 3794-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3794 OF 2010 Shekhar Shrikant Sawant .. Applicant Vs The State of Maharashtra & Ors .. Respondents Mr. Rishi Bhuta for the Applicant Ms. M.M. Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 3rd SEPTEMBER, 2010. P.C.: 1. Heard learned advocate for the applicant and learned APP for the State. 2. The applicant is facing prosecution in Sessions Case No. 56 of 2010 which pertains to C.R. No. 456 of 2008 of Andheri Police Station. The said FIR has been registered under Sections 394 and 397 of IPC. The applicant is seeking quashing of order dated 31st July, 2010 passed by the learned Sessions Judge in Sessions Case No. 56 of 2010 wherein the learned Sessions Judge directed that the charge be framed under Section 394 and 397 of IPC against the applicant. 3. The brief facts of the case as disclosed as disclosed in FIR is that the complainant is a police constable. He was 1 17.cr appln 3794-10.doc working in the traffic department. On 23.09.2008, the motor car of the applicant bearing No. MH-06/AN 1902 was towed and brought to the police chowky. The applicant went to the police chowky and enquired in what offence, the vehicle had been seized. The offence was informed to the applicant. However, the applicant did not agree that the said offence took place. Thereafter, he sat in the car and tried to drive away. At that time, one person by name Deepu Nirmal who had been kept near the police chowky to keep a watch on the vehicles tried to stop the applicant, however, the applicant gave dash to him with the vehicle and drove away. Deepu received injuries in the incident. Thereafter, FIR came to be registered against the applicant under Sections 394 & 397 of IPC. 4. Learned advocate for the applicant submitted that at the most an offence under Section 197 of the Motor Vehicle Act 1988 can be said to be made out and offence under Sections 394 and 397 cannot be said to be made out against the applicant, hence, it is a fit case to quash the order dated 31st July, 2010 passed by the learned Sessions Judge. He submitted that Section 397 of IPC is not at all attracted in the present case as no weapon was used by the applicant. He further submitted that no serious or grievous injuries were caused to Deepu and only some minor injuries were caused to Deepu, hence Section 397 is not 2 17.cr appln 3794-10.doc attracted. In order to better appreciate the controversy, it would be necessary to reproduce Section 397 of IPC. Section 397 of IPC reads as follows: "Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less that seven years." (Emphasis supplied.) On going through the definition of Section 397, it is seen that for an offence under Section 397, it is not necessary that any injury has to be caused to any person. Even an attempt to cause death or grievous hurt to any person in the course of committing robbery would attract this Section. Deadly weapon referred to in Section 397 cannot be limited only to a knife, chopper, sword, fire arms but in my opinion, it also include a motor car which is used to cause grievous hurt to any person or with which attempt is made to cause death or grievous hurt. 5. Learned advocate for the applicant submitted that the necessary ingredients to attract Section 397 is that the weapon ought to have been used at the time of robbery and in the present case, it cannot be said that the applicant was committing robbery. He submitted that the 3 17.cr appln 3794-10.doc vehicle bearing no. MH-06/AN 1902 admittedly belongs to the applicant, in such case, he cannot be prosecuted for robbing his own vehicle. No doubt, the vehicle belongs to the applicant, however, at the relevant time, it was in the custody of the police. In such case, if the applicant took away his own vehicle or tried to take away his vehicle which was in the custody of police, it would, in my opinion, amount to an offence under Section 394 of IPC. Looking to the averments in FIR and the other material on record no case is made out for interference in the order dated 31st July, 2010 passed by the learned Sessions Judge. Hence, the application is rejected. 6. It is made clear that these observations are prima facie observations and learned Sessions Judge shall not be influenced by any observations in this order while deciding the case. [SMT. V.K. TAHILRAMANI, J.] 4 17.cr appln 3794-10.doc 5