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Kondiba Maruti Khandagale Vs. Shivajirao Vishwanath Ajbe and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 613 of 1980
Judge
Reported in1982(2)BomCR120
ActsIndian Penal Code (IPC), 1860 - Sections 323, 504 and 506; Protection of Civil Rights Act, 1955 - Sections 7 and 7(1); Code of Criminal Procedure (CrPC) , 1973 - Sections 250
AppellantKondiba Maruti Khandagale
RespondentShivajirao Vishwanath Ajbe and anr.
Appellant AdvocateA.V. Savant, Adv.
Respondent AdvocateNarendra Chapalgaonkar, Adv. for respondent No. 1; A.S. Bobde, Advocate General and ;S.S. Choudhari, G.P.
DispositionPetition allowed
Excerpt:
- - it is also not in dispute that at the gram panchayat elections held few days before the alleged incident, panel of raosaheb was elected as the members of the gram panchayat and the penal set up by the accused was defeated......for the state was fair enough to say that the show cause notice under section 250 criminal procedure code is not justified.7. mr. chapalgaonkar, learned advocate for the accused, contends that at any rate the show cause notice is not unsustainable because the complainant filed a palpably false case against the accused. in the first instance, no such positive finding is recorded by the magistrate. on the appreciation of evidence indicated in the judgment, no such finding can be inferred. sum and substance of the reasoning of the learned magistrate is that the evidence of the complainant being of the witnesses belonging to a party which is opposed to the party of the accused, the same cannot be taken into consideration. this cannot amount to a finding of the evidence being patently.....
Judgment:

V.S. Deshpande, J.

1. This is a revision application filed by the original complainant. In this complaint, the petitioner claimed to be a Mahar and as such a member of the Schedule Caste. According to him, he was passing by the road said of Maruti Temple. Accused called him and referred to him as Dhedgya and asked him whether he could be able to become Upa-Sarpancha of the Gram Panchayat. It is alleged that the accused further abused him and gave him kick and first blows and felled him down. The incident is claimed to have taken place at about 8.30 p.m. in village Shiral in Taluka Ashti and the complainant is alleged to have been lodged at the Police Station of Ashti at 11 p.m. The complainant also claimed that before he went to the Police Station, he had contacted the Police Patil of the village and informed him about the incident. The accused was, therefore, chargesheeted for offences under sections 323, 504 and 506 of the Indian Penal Code read with section 7(1)(d) of the Protection of Civil Rights Act, 1955.

2. At the trial, the complainant examined himself and also examined three more witnesses. The accused examined the Police Patil of the village to destroy the complainant's case that before lodging the complaint in the Police Station, he had contacted the Police Patil and informed him of the incident.

3. The learned Magistrate disbelieved the evidence of the complainant and his witnesses and acquitted the accused of the offences with which he was charged. He further though that the complaint was lodged due to the party spirit and it was lodged at the instigation of one Raosaheb, who was the leader of one faction in the village, while the other faction was being led by the accused. He, therefore, issued notice to the complainant under section 250 of the Code of Criminal Procedure, 1973, as to why he should not be required to pay compensation of Rs. 100/- to the accused. The complainant challenges this order of learned Magistrate dated 31-7-1980 in this revision application.

4. The State has not filed any appeal against the acquittal. The learned Magistrate has given several reasons as to why he found the evidence of the complainant unbelievable. Admittedly, the landlord of the complainant is the leader of the one faction in the village while the accused is the leader of the other faction. It is also not in dispute that at the Gram Panchayat elections held few days before the alleged incident, panel of Raosaheb was elected as the members of the Gram Panchayat and the penal set up by the accused was defeated. It is also not disputed that on the date of the incident, there was a proposal to elect the complainant as Upa-Sarpancha. The incident is alleged to have taken place near the Maruti Temple. It is in fact alleged that accused was sitting alone near the temple, when he called the complainant and referred to him as Dhedgya and inquiring of him as to how he could be elected as Up-Sarpancha. The trial Magistrate found the story to be improbable, firstly because the alleged incident is alleged to have happened on the Laxmi Pujan day during the Diwali festival and probability of the accused sitting alone near the temple at that time was remote to his mind. Secondly, he found some discrepancies with regard to where the accused was sitting and in what manner the incident took place and thirdly and more importantly he found that the witnesses all belong to the party of Raosaheb to which party the complainant belongs and as such the evidence was not free from suspicion. In fact, one of the witnesses was found to have been convicted for offence under section 409 of the Indian Penal Code, though he had the audacity to State on oath in the Court that he was acquitted by the Sessions Court, while in fact he was acquitted of the offence under section 420 of the Indian Penal Code and his conviction under section 409 of the Indian Penal Code was confirmed. In these circumstances, the Magistrate found that it was not possible for him to place any reliance on the evidence of the complainant and his witnesses and no exception can be taken to such finding by exercising revisional jurisdiction of this Court under section 401 of the Code of Criminal Procedure.

5. Mr. Savant, learned Advocate appearing for the complainant-petitioner, however, says that the show cause notice under section 250 of the Code of Criminal Procedure, at any rate, is unsustainable. He says that before the Magistrate decides to issue of notice under section 250 of the Code of Criminal Procedure, finding that there was no reasonable ground for making the accusations against the accused is required to be recorded. In this case, no such finding is recorded. He, therefore, contends that the notice is liable to be quashed.

6. I find much substance in this contention. The complaint can be, divided into two parts. One part relates to the abuses and assault covering the offences under sections 323, 504 and 506 of the Indian Penal Code. The other part covers the offence dealt with under section 7 of the Protection of Civil Rights Act. The learned Magistrate held that the complainant is not a Mahar and still he posed to be a Mahar and dragged the accused to the Court for the alleged offence under section 7 of the Protection of Civil Rights Act. In the event of this finding being correct, the notice under section 250 of the said Act can be said to be justified. The finding of the Magistrate that the complainant belongs to Nao Buddha community, and not Mahar community, however, is not sustainable on the evidence on record. The complainant has asserted that he belongs to Mahar community. It is true that he has deposed in his evidence that he takes part in Buddha Jayanti which is celebrated in the locality in which he resides, but in the very next breath and even in cross-examination he says that he still continues to belong to Mahar community. Therefore, the only admission that can be said to have been made by the complainant is that he takes part in the celebration of Buddha Jayanti. This admission, in my opinion, cannot justify any finding that the complainant ceased to be a Mahar. The learned Advocate General appearing for the State was fair enough to say that the show cause notice under section 250 Criminal Procedure Code is not justified.

7. Mr. Chapalgaonkar, learned Advocate for the accused, contends that at any rate the show cause notice is not unsustainable because the complainant filed a palpably false case against the accused. In the first instance, no such positive finding is recorded by the Magistrate. On the appreciation of evidence indicated in the judgment, no such finding can be inferred. Sum and substance of the reasoning of the learned Magistrate is that the evidence of the complainant being of the witnesses belonging to a party which is opposed to the party of the accused, the same cannot be taken into consideration. This cannot amount to a finding of the evidence being patently false or baseless. The order of the Magistrate directing the issuance of notice under section 250 of the Code of Criminal Procedure appears to be unsustainable. To this extent, the revision is to be allowed and order as to notice under section 250 Criminal Procedure Code is liable to be quashed.

8. Accordingly, I allow the revision to that extent. The finding with regard to the acquittal of the accused is not interfered with. The notice ordered to be issued by the Magistrate under section 250 of the Code of Criminal Procedure, however, is liable to be quashed and I, accordingly quash the same.


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