1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL WRIT PETITION NO. 170 OF 2002 1 Khadeer Khan Wahed Khan, age 35 years, occ. T.V.repairer, r/o Main Road, Hadgaon, District Nanded, 2 Basheer Khan s/o Wahed Khan, age 50 years, occ. Nil, as above, 3 Shabbir Khan s/o Wahed Khan, age 40 years, occ. Driver, r/o as above, 4 Jammu Khan s/o Basheer Khan, age 20 years, occ. Education, r/o Old Bus Stand, Hadgaon, District Nanded, 5 Papa Khan s/o Basheer Khan, age 22 years, occ. Education, r/o as above, 6 Naseer Khan s/o Wahed Khan, age 32 years, occ. Driver, r/o Main Road, Hadgaon, District Nanded, 7 Badak Biryani Hotelwala @ Feroz s/o Jabbar, age 19 yrs., occ. Business, r/o Old Bus Stand, Hadgaon, Dist. Nanded. ...Petitioners Original accused VERSUS 2 1 State of Maharashtra, 2 Gopal Namdeorao Shelke, age 34 years, occ. Auto driver, r/o Mouja Dorli, Tq. Hadgaon, District Nanded, ...Respondents No.2 original complainant ..... Shri S.S.Bora, advocate holding for Shri S.C.Bora, advocate for the petitioners ShriK.J.Ghute Patil, APP for respondent no.1 ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 5th February, 2010. ORAL JUDGMENT : (Per Hardas, J.) 1 This is a petition under Article 226 of the Constitution of India, by which the petitioners pray for quashing and setting aside the first information report dated 22.3.2002, on the basis of which an offence vide Crime No. 38 of 2002 came to be registered against the petitioners under Sections 307, 147, 148,149, 323 and 504 of the Indian Penal Code and under Section 3 (1) (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 3 2 The principal ground, on which the petitioners seek for quashing of the afore said first information report is that the present respondent no.2 is being prosecuted for an offence punishable under Sections 147, 148, 149, 307 and 323 of the Indian Penal Code. According to the petitioners, subsequently respondent no.2 lodged a report on 22.3.2002 in respect of an incident alleged to have been occurred on 8.11.2001. According to the petitioners, on the basis of the afore said complaint, an offence has been registered against the petitioners. The petitioners, therefore, pray for quashing of the said report. 3 Mr. Bajaj, learned counsel for the petitioners has placed reliance on the judgment of the Supreme Court in M.N.Ojha and others vs Alok Kumar Srivastav and anr., 2009 (9) SCC 682 to urge before us that the report lodged by respondent no.2 has obviously been lodged with the sole purpose of wrecking vengeance against the petitioners, as the petitioners were instrumental in the arrest of respondent no.2. It is stated that on account of delay simpliciter, the afore said report lodged by respondent no.2 is liable to be quashed and set aside. 4 Learned A.P.P. Shri K.J.Ghute Patil for the respondent, by relying upon the averments in the affidavit in reply has urged 4 before us that the offence has been registered against the petitioners on the basis of the report of respondent no.2 dated 8.11.2001. 5 Respondent no.2 has also filed affidavit in reply and in the affidavit in reply, respondent no.2 has annexed the copy of the report submitted by him on 8.11.2001. Thus, prima facie, it does not appear that the report of the incident came to be filed by respondent no.2 after about 4½ to 5 months, as record indicates that the report had been lodged immediately on the same day. 6 Whether the report is a counter blast or is a measure to scuttle prosecution instituted against respondent no.2 is not a matter which can be decided at this stage. Prima facie, it does not appear to us that the report lodged by respondent no.2 against the petitioners is a counter blast or a counter measure to counter the report submitted by the petitioners. The record discloses that respondent no.2 had lodged a report on 8.11.2001 itself and not after a period of 4½ to 5 months. 7 No stay has been granted by this court to the investigation or the trial, if any commenced by the Trial Court. This court had by an interim order directed that the petitioners 5 shall not be arrested. The learned counsel for the petitioners is not in a position to state before us whether pursuant to the report of respondent no.2, a charge sheet has been filed against the petitioners and whether the petitioners are being prosecuted. Even otherwise, we do not find that the petitioners have been successful in demonstrating before us that the report submitted by respondent no.2 is actuated on account of mala fide intention of respondent no.2. We, therefore, do not notice any merit in the petition and the petition is, therefore, dismissed. Rule stands discharged. No costs. (SHRIHARI P. DAVARE, J.) (P.V.HARDAS, J.)