1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.1017 OF 2009 1. Motiram s/o Poshetti Nagalwad age 37 yrs. occup.agriculture r/of Somthana,at post Ganipur Tq. Umri, District Nanded. .. Petitioner. versus 1. State of Maharashtra, through Police Station, Umri, Taluka Umri, District Nanded. 2. Ganesh s/o Sambhaji Kadam, age 36 years, occup. agril, r/of Sellgaon, Taluka Umri, District Latur. .. Respondents -------------------------------------------- Shri G.R. Syed, Advocate for the Petitioner. Shri B.V. Wagh, A.P.P. for the Respondent. --------------------------------------------- Coram : P. R. Borkar, J. Date : February 23, 2010 P. C. 01. Heard learned Advocates for the parties. Rule. By consent, rule made returnable forthwith and the writ petition is heard finally at admission stage. 02. By this writ petition, petitioner-original accused seeks quashment of criminal proceedings i.e. S.C.C. No. 316 of 2008 pending against him in the court of the learned J.M.F.C. Bhokar, District Nanded. 2 03. Briefly stated, present petitioner is prosecuted in above criminal case for committing offences punishable under Sections 279, 337 and 338 of I.P.C. One Ganesh Kadam lodged complaint on 13.4.2008 with Police Station, Umri, informing that his son Pravin, who was aged 9 years, was playing near Umri- Nanded road. At that time, present petitioner came driving motorcycle No. MH-26 P 2372 and gave dash to Pravin as a result of which, Pravin sustained fracture of his leg and other injuries. On the basis of said complaint, crime was registered, matter was investigated and finally charge sheet is filed against present petitioner which is registered as S.C.C. No. 316 of 2008. The petitioner seeks quashment of the said criminal proceedings. 04. Shri G.R. Syed, learned counsel for the petitioner submitted, relying upon one letter given for one Dr.Ruturaj Jadhav of Yashoda Hospital, Doctors' Lane, Nanded to Police Inspector, Vazirabad Police Station, Nanded, informing that on 30.3.2008 one boy named Pravin Ganesh Kadam, aged 9 years, r/of Sellgaon Taluka Umri, was being taken on motorcycle on 30.3.2008 at about 3.00 p.m. when he fell from the motorcycle and sustained injuries. Accordingly, relatives of Pravin were informed. The said letter which, according to petitioner's Advocate, is a part of the charge-sheet, clearly indicates that no offence was committed by the petitioner and yet a false complaint is filed against him. It is submitted that the petitioner is not owner of the said motorcycle. However, it would be a question of fact whether the 3 injuries to Pravin were due to accidental fall from the motorcycle or because of the dash of the motor cycle. 5. Learned A.P.P. Shri B.V.Wagh, submitted that in this case, the Investigating Officer has examined one Ramji Vithal Hunjal, as an eye witness to the incident, who stated that it was the petitioner who was driving motorcycle at the relevant time and gave dash to Pravin. 6. Both sides have relied upon certain authorities. Learned Advocate Shri G.R.Syed for petitioner first relied upon the case of State of Haryana vs. Ch. Bhajan Lal AIR 1992 S.C.604, and more particularly on paragraphs 54 and 108. He submitted that as per Section 157 (1)(b) of the Code of Criminal Procedure, Investigating Officer has to satisfy himself that there are sufficient grounds for entering into investigation. The learned Counsel also submitted that the present case falls in categories (5) and (7) listed in paragraph 108 in Bhajan Lal's case for the purpose of exercise of powers either to prevent abuse of the process of any court or otherwise to secure the ends of justice. Category (5) is to the effect that the proceedings can be quashed where allegations in the complaint or the F.I.R. are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. In present case, possibility of dash by motorcycle or injury caused to Pravin is not so absurd or inherently improbable so as to attract said clause 4 (5). So far as clause (7) of para. 108 of Bhajan Lal's case is concerned, the same is to the effect that the criminal proceeding can be quashed in a situation where such proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In the present matter, no such case is made out. However, if the case is falsely filed to harass the petitioner, such thing will have to be proved in the course of evidence and then law gives sufficient powers to the criminal court conducting the trial to give relief under Section 250 of Cr.P.C. 07. Next case relied upon by learned Advocate for the Petitioner is Parminder Kaur vs. State of U.P. 2010 All MR (Cri.) 332 (S.C.). In that case, it was noticed that the alleged alteration in the date was not likely to benefit any one and it was innocuous not giving rise to any of the offences. In the facts and circumstances of that case, the prosecution was quashed. 08. Another case relied upon by learned Advocate for petitioner, is Anirudha vs. State of Maharashtra 2010 ALL MR. (Cri.) 22. In the said case, court came to the conclusion that even if the allegations in the F.I.R., taken at their face value and accepted in entirety did not make out any prima facie case offence against the accused and therefore further investigation in the matter would be abuse of process of court. There was no material showing that the 5 complaint and the primary evidence was making out any case against the accused and, therefore, the complaint was quashed. 09. On the other hand, the learned A.P.P. Shri B.V. Wagh, relying upon the case of State of Bihar vs P.P. Sharma AIR 1999 S.C. 1260 wherein it is observed that annexures and affidavits filed with the writ petition should not have been treated by High Court as evidence and based thereon proceedings should not have been quashed. 10. In the present case, it is a question of evidence and appreciation of evidence as to whether the letter issued on behalf of Yashoda Hospital, Nanded on 30.3.2008 discloses the correct facts, or whether the complaint, though lodged belatedly, depicts true position. There is evidence of an eye witness and also of other persons and, therefore, in my opinion, the trial must proceed further. Ultimately, it is for the learned Magistrate to decide after appreciation of evidence, as to what is the truth. 11. In the circumstances, this writ petition has no merits and the same, therefore, stands dismissed. pnd/criwp1017.09 (P.R.BORKAR, J.)