(1) CRI.APP. 3118.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3118 OF 2010 Babusing S/o Devrao Solunke Age : 52 years, Occu.: Service Serving as Superintendent of District Prison, Beed, R/o : Beed, Tq. and Dist. Beed .. Applicant VERSUS The State of Maharashtra Through Police Station, Shivajinagar, Beed (Copy to be served on Govt. Pleader, High Court of Judicature of Bombay, Bench at Aurangabad) .. Respondent Mr. A.S. Barlota, Advocate h/f. Mr. S.K. Barlota, Advocate for the Applicant Mrs. S.D. Shelke, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 14TH SEPTEMBER, 2010 ORAL ORDER:- 1. The Application is for quashing of the chargesheet no. 9 of 2010 on basis of which a criminal case vide RCC 133 of 2010 is registered and is pending for committal for offence under section 302, 201 r/w. 34 of the Indian Penal Code. (2) CRI.APP. 3118.2010 2. The applicant is a Jail Superintendent at District Prison, Beed. Allegedly, one prisoner by name Namdeo Vaijnath Sable was the inmate of the District Prison in ward no.3. It appears that he was not attending the work assigned to him. He did not sweep the premises outside the ward no.3, likewise the other inmates of the jail. The allegation is that said Namdeo was assaulted in the morning of 17th March, 2009 by the applicant, Subhedar Devre and Circle Jailor Sonawane. They alleged that he was pretending to be ill in order to avoid the work. They assaulted him by means of stick, kicks, and fist blows. They forcibly put him in a nearby water tank with a view to give him a bath. He was not referred for medical examination and treatment. He did not take meals and slept over in the barrack. In the morning of 20th March, 2009 he was referred to the Civil Hospital at Beed. He died in the hospital. 3. The applicant alleges that he has been falsely implicated though, he did not assault deceased Namdeo nor is concerned with the alleged (3) CRI.APP. 3118.2010 offences. It is pertinent to notice that one Pramod Gaikwad named the applicant in his Application under section 164 of the Code of Criminal Procedure which was recorded before the learned Judicial Magistrate (First Class) as one of the assailant. The witness Pramod Gaikwad stated before the learned Magistrate that the applicant was requested to send the said under-trial prisoner by name Namdeo to hospital. However, the applicant and other staff members of the Jail, told them that Namdeo was pretending to be ill. The statement of Pramod Gaikwad shows that said Namdeo was assaulted by the applicant and other staff members of the District Jail by means of shoes, and was thrown out of the ward. 4. At this juncture, veracity of statement of Pramod Gaikwad cannot be examined. The applicant cannot be given clean chit without trial. The extra ordinary jurisdiction under section 482 of the Code of Criminal Procedure cannot be exercised where disputed questions of facts are involved. That apart, one cannot be oblivious of the fact that there (4) CRI.APP. 3118.2010 is no single charge for the alleged offence of culpable homicide but it is also accompanied by charge under section 201 r/w. 34 of the Indian Penal Code. The prosecution alleges that the applicant and other staff members of the Jail can remove the evidence or cause dis-appearance of the evidence with a view to screen real offenders. The applicant is Superintendent of District Jail and, therefore, it can be assumed that he was well aware of the alleged incident and beating by the staff members to said Namdeo. By his act of omission to refer Namdeo to the Civil Hospital and also by his act of omission to take precautionary measure, the tangible evidence perhaps could have been lost. 5. The learned Advocate for the applicant submits that the applicant had moved the higher authorities for providing adequate staff members and for appointment of Medical Officer and, therefore, he had taken due precaution to ensure that the staff members in the District Jail are available. This may be his defence, but cannot be the plank for (5) CRI.APP. 3118.2010 Application under section 482 of the Code of Criminal Procedure. No substance found. Application dismissed. Sd/- [V.R. KINGAONKAR, J.] arp