Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) 415 OF 2012
Smt. Shobha Ramesh Bawane,
aged about 45 yrs., Occp. Household work,
r/o Fukta, Tah. Hinganghat,
Distt. Wardha. :: APPLICANT
.. Versus ..
1. State of Maharashtra,
through P.S.O., Wadner,
Tah. Hinganghat, Distt. Wardha,
2. Arvind s/o Pandurangji Warghane,
aged about 46 yrs., Occp. Cultivator,
r/o Fukta, Tah. Hinganghat,
Distt. Wardha.
3. Rakesh @ Banti s/o Ramesh Deotale
aged about 33 yrs., Occp. Cultivator,
r/o Mandheli, Tah. Warora,
Distt. Chandrapur. :: NONAPPLICANTS
...................................................................................................................................
Shri R. M. Patwardhan, Advocate for the applicant.
Shri M. M. Ekrer, A.P.P. for nonapplicant No.1.
Shri A. D. Ramteke, Advocate for nonapplicants No. 2 & 3.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 02 MARCH, 2015.
O R A L J U D G M E N T O R A L J U D G M E N T
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1. Heard.
2. Admit. Heard finally by consent.
3. It is seen from the impugned order dated 10/02/2012
discharging respondents No. 2 and 3 from the case that the learned
Additional Sessions Judge appreciated the evidence and meticulously
examined the statement of witnesses, which is not permissible while
considering the application filed for discharge of the case under
Section 227 of the Criminal Procedure Code. What is required to be
seen as to whether or not there are sufficient grounds for proceeding
further in the matter and even if there is some strong suspicion with
some material primafacie showing involvement of the
applicant/accused in the alleged crime, it would be sufficient for
proceeding further in the matter. The law in this regard is well settled
and a useful reference can be made by relying upon the cases of (i)
Amit Kapoor Vs. Ramesh Chander & another – (2012) 9 SCC 460 and
(ii) Onkar Nath Mishra & others Vs. State (NCT of Delhi) & another
(2008) 2 SCC 561.
4. The law settled by the Hon'ble Apex Court in the afore
stated cases has been completely ignored by the learned Additional
Sessions Judge. The statement dated 06/5/2010 of Avinash Kamble,
an eye witness to the incident, recorded under Section 161 Cri. P. C. is
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quite significant. If this witness has changed his stand subsequently, it
would not mean that what he has stated at the earliest first available
opportunity can be said to be false at this stage. It would be
something, which can be considered on merits of the case at the
conclusion of the trial. In fact, the statement recorded at the first
available opportunity is very important and this fact ought not to have
been ignored by the learned Additional Sessions Judge while deciding
the application seeking discharge. In such a situation, I find that the
learned Additional Sessions Judge has acted arbitrarily in exercising
his discretion and went against the well settled principles of law.
There being available sufficient material giving rise to strong suspicion
of commission of the alleged offence by both the accused, the trial of
the case must proceed against them.
5. Accordingly, the impugned order is hereby quashed and set
aside.
The trial of the case against the applicant shall proceed in
accordance with law and necessary charge be framed.
The application is allowed in these terms.
JUDGE
wwl
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apl415.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) 415 OF 2012
Smt. Shobha Ramesh Bawane,
aged about 45 yrs., Occp. Household work,
r/o Fukta, Tah. Hinganghat,
Distt. Wardha. :: APPLICANT
.. Versus ..
1. State of Maharashtra,
through P.S.O., Wadner,
Tah. Hinganghat, Distt. Wardha,
2. Arvind s/o Pandurangji Warghane,
aged about 46 yrs., Occp. Cultivator,
r/o Fukta, Tah. Hinganghat,
Distt. Wardha.
3. Rakesh @ Banti s/o Ramesh Deotale
aged about 33 yrs., Occp. Cultivator,
r/o Mandheli, Tah. Warora,
Distt. Chandrapur. :: NONAPPLICANTS
...................................................................................................................................
Shri R. M. Patwardhan, Advocate for the applicant.
Shri M. M. Ekrer, A.P.P. for nonapplicant No.1.
Shri A. D. Ramteke, Advocate for nonapplicants No. 2 & 3.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATED : 02 MARCH, 2015.
O R A L J U D G M E N T O R A L J U D G M E N T
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1. Heard.
2. Admit. Heard finally by consent.
3. It is seen from the impugned order dated 10/02/2012
discharging respondents No. 2 and 3 from the case that the learned
Additional Sessions Judge appreciated the evidence and meticulously
examined the statement of witnesses, which is not permissible while
considering the application filed for discharge of the case under
Section 227 of the Criminal Procedure Code. What is required to be
seen as to whether or not there are sufficient grounds for proceeding
further in the matter and even if there is some strong suspicion with
some material primafacie showing involvement of the
applicant/accused in the alleged crime, it would be sufficient for
proceeding further in the matter. The law in this regard is well settled
and a useful reference can be made by relying upon the cases of (i)
Amit Kapoor Vs. Ramesh Chander & another – (2012) 9 SCC 460 and
(ii) Onkar Nath Mishra & others Vs. State (NCT of Delhi) & another
(2008) 2 SCC 561.
4. The law settled by the Hon'ble Apex Court in the afore
stated cases has been completely ignored by the learned Additional
Sessions Judge. The statement dated 06/5/2010 of Avinash Kamble,
an eye witness to the incident, recorded under Section 161 Cri. P. C. is
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apl415.12.odt
quite significant. If this witness has changed his stand subsequently, it
would not mean that what he has stated at the earliest first available
opportunity can be said to be false at this stage. It would be
something, which can be considered on merits of the case at the
conclusion of the trial. In fact, the statement recorded at the first
available opportunity is very important and this fact ought not to have
been ignored by the learned Additional Sessions Judge while deciding
the application seeking discharge. In such a situation, I find that the
learned Additional Sessions Judge has acted arbitrarily in exercising
his discretion and went against the well settled principles of law.
There being available sufficient material giving rise to strong suspicion
of commission of the alleged offence by both the accused, the trial of
the case must proceed against them.
5. Accordingly, the impugned order is hereby quashed and set
aside.
The trial of the case against the applicant shall proceed in
accordance with law and necessary charge be framed.
The application is allowed in these terms.
JUDGE
wwl
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