1 Criminal Writ Petition No.149/2004 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.149 OF 2004 Nagendra s/o Tukaram Bhikayogolu Age 52 years, Occ. Service, R/o Shikshak Colony, Andur, Tq. Tuljapur, District Osmanabad. ... PETITIONER VERSUS 1. The State of Maharashtra (Through its Secretary, Home Department, Mantralaya, Mumbai – 32.) 2. Superintendent of Police, Osmanabad, District Osmanabad. 3. Raja A. Mane, Age 40 years, Occ. Service, I.O. (A.P.I.), At Naldurga Police Station, presently serving at Ambi Police Station, Tq. Paranda, District Osmanabad. 4. Gorakhnath s/o Keshav Ghodke, Age 30 years, Occ. Agri. 5. Sau. Shamalbai w/o Gorakhnath Ghodke, Age 25 years, Occ. Agri. & Household, Nos.4 & 5 R/o Gunjoti, Tq. Omerga, District Osmanabad. ... RESPONDENTS ..... Shri S.J. Salunke, Advocate holding for Shri V.D. Salunke, Advocate for petitioner Shri B.J. Sonawane, A.P.P. for respondent Nos.1 & 2 Shri B.R. Surwase, Advocate for respondent Nos.4 & 5 ..... 2 Criminal Writ Petition No.149/2004 CORAM : K.U. CHANDIWAL, J. DATED : 15th June, 2011. ORAL JUDGMENT : 1. The complainant/ petitioner Nagendra Tukaram Bhimayagolu seeks to set aside the order dated 19.8.2002, recorded by learned Judicial Magistrate, First Class, Tuljapur on the report submitted under Section 169 of the Criminal Procedure Code, in Crime No.109/2002, registered with Naldurg Police Station, Taluka Tuljapur, District Osmanabad, concerning respondent Nos.4 and 5 on the ground that there is no material to proceed against respondent Nos.4 and 5 in the said Crime No.109/2002. Learned counsel submits that, basically the Magistrate has no power to exercise Section 169 of the Criminal Procedure Code to discharge the accused, which the Magistrate has done. The investigator has not applied his mind as the respondents are the main culprits, as they hatched the plan to eliminate the petitioner. Without giving notice of hearing, the report under Section 169 of the Criminal Procedure Code was submitted in the crime. 2. Mr. Surwase, learned counsel for respondent Nos.4 and 5 submits that, much water has flown after this order dated 19.8.2009 as the original accused Nos.1 and 2 Machindra and Prayagbai were tried in Sessions Case No.12/2003 arising out of 3 Criminal Writ Petition No.149/2004 Crime No.109/1999 and Machindra was convicted while Prayagbai was acquitted. 3. The conviction was tested by the said accused Machindra before this Court and Apex Court, however, it remained intact and he is facing the sentence. 4. The learned counsel for the petitioner submits that the order dated 19.8.2002 was not to his knowledge and he learnt the same subsequently after decision in Sessions Case No.12/2003. 5. These submissions are difficult to digest as conclusion in Session Case No.12/2003 was fulfledged and evidence was adduced. It could not be gathered that the complainant was unaware of discharge of the present respondent Nos.4 and 5 as they were indeed not prosecuted. 6. There was no sufficient evidence to prosecute respondent Nos.4 and 5 in terms and in tune with the F.I.R. lodged by the petitioner. The allegations made could not be countenance and consequently report was furnished by the investigator under Section 169 of the Criminal Procedure Code. 4 Criminal Writ Petition No.149/2004 7. Section 319 of the Criminal Procedure Code provides a mechanism to proceed against other persons appearing to be guilty of offence. During the course or trial or evidence it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence, which he appears to have committed. There was no whisper in the evidence of either the petitioner or the witnesses implicating the respondent Nos.4 and 5 taking recourse to Section 319 of the Criminal Procedure Code. Since the effects were not given to it is explicit, there was no material as against respondent Nos.4 and 5 to be prosecuted or proceeded with. The petitioner did not prosecute the matter before the Sessions Judge as was expected of him and no reasons are assigned for the laxity demonstrated. Taking survey of above facts, I do not see that the order of the learned Judicial Magistrate, First Class, accepting the report under section 169 of the Criminal Procedure Code to the extent of respondent Nos.4 and 5 calls for interference. Writ Petition lacks merits, dismissed. Rule discharged. (K.U. CHANDIWAL, J. )