1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 1617/2010 Smt. Shobhas Ramesh Bawane V/s. State of Maharashtra through P.S.O. P.S. Wadner, Tah. Hinganghat, Distt. Wardha and others ------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ------------------------------------------------------------------------------------------------------------------------------- Mr S. R. Shende, counsel for the petitioner Coram: A.P. Bhangale, J Dated : 17th June 2011 1. By this application under Section 482 of Code of Criminal Procedure, the applicant prayed to quash and set aside the order dated 13/08/2010, passed by the learned 2nd Additional Sessions Judge, Wardha in Sessions Trial No. 123/2010. 2. It is grievance of the applicant that the order in question passed by learned 2nd Additional Sessions Judge, Wardha was without considering the material on record in the form of statement of witnesses made before police. It is submitted that the learned 2nd 2 Additional Sessions Judge, Wardha did not pass reasoned and speaking order but mechanically accepted the police report to the effect that they had discharged accused no. 2 & 3 from the case by filing report under Section 169 of Cr.P.C. It is further contended that the learned Judicial Magistrate First Class, Hinganghat, who committed the case to Sessions Court, Wardha also failed to see that there was material collected during the investigation imputing criminal liability to the accused (respondent no. 2 & 3 herein). Learned advocate for the applicant relied upon the statement of witness by name Avinash Madhukar Kamble recorded by police under Section 161 of Code of Criminal Procedure who on 06/05/2010, imputed role to non applicant no. 2 - Arvind Pandurang Warghane as well as non applicant no. 3 – Rakesh @ Banti Ramesh Deotale stating that they were assaulting by means of sticks to deceased Ramesh Bawane near Babhul Tree in the field of Ganesh Bawane while Ganesh Bawane also seen near them to prevent the assault. Portion of the statement reads thus; R;kosGsl eyk x.ks’kps ‘ksrkrhy ckHkGhps >kMktoG jes’k cko.ksyk caVh nsorGs vkf.k iksfyl ikVhy vjfoan oj?k.ks gs R;kaP;k gkrh vlysYks dkM;kauh ekjrkauk fnlys- The said incident stated by said witness namely Avinash Madhukar Kamble in details on 3 06/05/2010, imputing active role to non-applicant no. 2 & 3 in the incident but on the next day on 07/05/2010; supplementary statement of the same witnesses was recorded by the police in which it is alleged that the witness on the ground that he was frightened disowned his previous statement. Be that as it may, it is submitted that it is not for police to invent truth of the matter on the basis of two different statements made by witness one earlier and another on subsequent day which varies with each other. When by earlier version the role in the crime of non applicant no. 2 & 3 is stated the learned Additional Sessions Judge, Wardha ought to have considered pros and cons of the matter and was expected to pass speaking order. 3. Learned APP do not dispute the submission. Learned advocate for the applicant placed reliance to the ruling in case of Gangadhar Janardan Mhatre V/s. State of Maharashtra and Ors reported in 2005 ALL MR (Cri) 281 (S.C.) and Abdul Razak Abdul Gani Dunge V/s. State of Maharashtra & Ors reported in 2007 ALL MR (Cri) 3084. Both these rulings contemplates an opportunity to be given at the time of consideration of report so that Court can be persuaded to take cognizance of the offence and issue necessary 4 process. Considering the above rulings, it does appear that the order in question passed by the Judicial Magistrate, First Class, Hinganghat and Additional Sessions Judge-II, Wardha suffered from non- application of mind as also no reasoned and speaking order was passed for to release the accused no. 2 & 3 in Sessions Trial No. 123/2010. 4 That being so, the impugned order is quashed and set aside. The non-applicant no. 2 & 3 shall remain present before the learned Trial Judge, in Sessions Trial No. 123/2010 on 15/07/2011 and may prefer an appropriate application for discharge. The respondent-State shall also be at liberty to make an appropriate application in the matter. Learned Additional Sessions Judge, Wardha (Trial Court) shall decide applications made if any according to law and expeditiously by reasoned and speaking order. JUDGE Punde