1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Criminal Writ Petition No. 530/2009 Subhash Chintaman Raut, aged 45 years, Occ. Cultivator, r/o Bondurni (Shiwar), Tq. Hinganghat, Dist. Wardha. .. PETITIONER .. Versus .. State of Maharashtra, thr. P.S.O., Wadner, Tq. Hinganghat, Dist. Wardha. .. RESPONDENT --------------------------------------------------------------------------------- Mr. R. N. Khare, Advocate for petitioner. Mr. D. M. Kale, A.P.P. for respondent. --------------------------------------------------------------------------------- CORAM:- R. Y. GANOO, J. DATED :- 8 th October, 2009 J U D G M E N T 1. Rule. Rule made returnable forthwith. By consent, taken up for hearing. 2. On the strength of First Information Report dated 26.04.2006 filed by ASI Ganesh Kale attached with Wadner Police Station, investigation was carried out and charge-sheet is filed under Section 328 of the Indian Penal Code and Section 65(f), 65 (g) and 66 (1)(b) of the Bombay Prohibition Act. At the time of filing of the charge- sheet present petitioner was absconding and orders were 2 passed by 4th Judicial Magistrate First Class, Hinganghat that warrant should be issued against him. 3. Learned Advocate Mr. Khare appearing on behalf of the petitioner, upon instructions, made statement that the petitioner has surrendered before Wadner Police Station, Dist. Wardha. Though no surrender certificate is issued, statement made by learned Advocate Khare across the bar is accepted. 4. Learned Advocate Mr. Khare took me through the charge-sheet and submitted that perusal of the charge-sheet clearly indicates that no prima facie case is made out for charge under Section 328 of the Indian Penal Code. He wants this Court to quash the First Information Report at least with reference to charge under Section 328 of the Indian Penal Code. 5. Learned A.P.P. Mr. Kale opposed the submissions of the petitioner and contended that since case is yet to be committed to the Court of Sessions, 3 keeping in view the sections applied by Police while filing the charge-sheet, it would be appropriate that direction is given to the learned Judicial Magistrate First Class to consider the entire charge-sheet and arrive at a conclusion whether prima facie case is made out in regard to offence/offences and that whether such offences or any one of them is exclusively triable by the Court of Sessions. He further submitted that depending upon the answer given by the learned Judicial Magistrate First Class, the learned Judicial Magistrate First Class can pass appropriate orders. 6. After having considered the entire matter, I am inclined to accept the submissions advanced by learned A.P.P. Mr. Kale. In my view, it would not be appropriate for this Court to express views on limited question whether prima facie case is made out for a particular charge. In my view, it would be appropriate that the learned Judicial Magistrate First Class, Hinganghat is directed to consider the entire charge- sheet, ascertain as to whether the prima facie case is 4 made out in regard to a particular offence or more than one offence and if he comes to the conclusion that a particular offence is triable by Court of Sessions, he will have to pass an appropriate order. If the learned Judicial Magistrate comes to the conclusion that a case is made out for offence/offences not exclusively triable by Court of Sessions, he shall proceed in the case as per law. 7. In view of above, following order is passed so as to dispose of this writ petition. (a) Leaned 4th Judicial Magistrate First Class Hinganghat is hereby directed to consider the charge sheet bearing No. 9/2008 filed in connection with the First Information Report No. 45/2006 dated 26.04.2006 with Police Station Wadner, dist. Wardha, appreciate the facts and circumstances set out in the charge-sheet and the Learned Judicial Magistrate First Class shall record a finding as to whether any prima facie case is made out on the basis of charge-sheet in respect of a particular offence or offences. 5 (b) The learned Judicial Magistrate First Class shall also look into the nature of allegations and ascertain whether any offence is exclusively triable by the Court of Sessions. Needless to mention that if he comes to a conclusion that a particular offence is exclusively triable by the Court of Sessions, he will have to commit the case to the Court of Sessions. If he comes to a conclusion that the charge-sheet does not disclose a prima facie case of an offence, which is exclusively triable by the Court of Sessions, he shall proceed with the case, in accordance with the provisions of law. (c) In arriving at the aforesaid decision, the learned Judicial Magistrate First Class shall hear the learned Prosecutor as well as learned Advocate for the petitioner. He shall, of course, pass a speaking order and then proceed further. (d) No views are expressed on merits of the matter. At this stage, learned Advocate Mr. Khare seeks liberty to file bail application on behalf of the applicant as the applicant has surrendered before Police. 6 The applicant may apply for bail before the appropriate Court. Said bail application be considered on merits. Authenticated copy of this order be made available to the learned Advocate for the petitioner to present it before the learned Judicial Magistrate First Class, Hinganghat to proceed further in the matter. JUDGE kahale