2000 ALL MR (Cri) 1558
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.D. UPASANI, J.

Maruti Shamrao Toraskar & Ors. Vs. Smt. Rohini Ravindra Potdar & Anr.

Criminal Application No. 2273 of 1994

18th July, 2000

Petitioner Counsel: Mr. A.P.MUNDARGI with Mr. S.V.MARWADI
Respondent Counsel: Mr. S.V.SADAVARTE
Other Counsel: Mr. D.N.SALVI

Criminal P.C. (1973), S.204 - Issue of process - Sufficiency of material - Court has only to consider whether there is a strong prima facie case or not and nothing else.

At the stage of issuance of process, the Court has to consider whether there is a strong prima facie case against the accused or not and nothing else. The material on record in this case is not something which can be pushed under the carpet or can be ignored. All the arguments submitted by the applicant are the possible defences of the accused which can be considered only at the time of trial and not at this stage of issuance of process. Here is a young widow whose husband has died in mysterious circumstances. She has got strong suspicion against the petitioners. She has expressed it in no uncertain terms. There is other material also at this prima facie stage to support her case. The petitioners have succeeded to forestall the entire proceedings and have succeeded to avoid trial for a period of almost 6 years, after obtaining interim order in their favour on 22nd September, 1994. But now, they will have to face trial.

JUDGMENT

JUDGMENT :- This Criminal Application is filed by the petitioners/original accused being aggrieved by the order dated 26th May, 1994 passed by the Judicial Magistrate, First Class, Radhanagari, issuing process against all the petitioners/original accused under Section 302 read with Section 34 of the Indian Penal Code in Criminal Case No.44 of 1994.

2. The case of the prosecution can be briefly narrated as follows :

The complainant-Rohini Ravindra Potdar is a young widow of 22 years, whose husband Ravindra Bhaskar Potdar, who was working as goldsmith at village Mangoli, Taluka Radhanagari, District Kolhapur, was found dead in a canal which was in between the two villages Mangoli and Kapileshwar. It is the suspicion, and a very strong suspicion, of the complainant, who is the wife of the said gold-smith Ravindra Bhaskar Potdar that the petitioners are involved and are responsible for the death of the said Ravindra Potdar. The circumstances in which the said Ravindra was found dead in the canal are described by his brother Balkrishna Potdar in his complaint dated 22nd February 1994 and the complaint filed by the wife on 6th May, 1994.

3. The complainant has stated that all the petitioners/original accused are residents of Kapileshwar and they are goondas and are of crooked nature. About one year ago, father of accused No.1 - Maruti Shamrao Toraskar had given a Mangalsutra of gold for repairing, but the complainant's husband Ravindra Potdar was not able to repair the same in time, because of some difficulties at home. It was, therefore, necessary to take the said Mangalsutra to Kolhapur for repairing.

4. The complainant has further stated that on 14th February, 1994, accused Nos. 1 to 4, namely, Maruti Shamrao Toraskar Sadashiv D. Musale, Nagesh Tukaram Musale and Subhash Sadashiv Patil came to the complainant's home and threatened the complainant, her husband and her mother-in-law that if the gold-smith Ravindra would not return their ornaments within 8 days, they would not see worst persons than them. At that time, the said Ravindra Potdar (since deceased) said that he would return their ornaments till Monday evening. On 21st February, 1994, at 7 a.m., Ravindra Potdar took the said gold Mangalsutra to Kolhapur. On the same day at evening at about 5 p.m. when the complainant Rohini, her brother-in-law/Balkrishna, her mother-in-law, one Dnyanu Bhau Patil and Bapu Balu Jadhav from village Mangoli were waiting for Ravindra in his house, at that time, the petitioners/accused Nos. 1 to 4 came their and enquired about Ravindra, on which the complainant and her mother-in-law informed them that Ravindra had gone to Kolhapur for repairing the Mangalsutra and he would return the same to them. Accused No.1 Maruti Toraskar said that "he (Ravindra) would not be kept alive" (®ÉÆbäSªÉɱÉÉ ÊVÉ'ÉÆiÉ 'ä'ÉiÉ xÉɽÒ). At that time, people who were sitting at the house of the complainant, requested the accused persons not to do so and said that they would get their ornaments. The accused persons, however, asked them to keep quiet and while moving, they were abusing Ravindra and were also threatening them and also the complainant. The complainant further stated that on 21st February, 1994, Ravindra left Kolhapur by one bus for Kapileshwar at 6 p.m. He got down at Kapileshwar and gave his bag to Balasaheb Ganpati Patil, who was a resident of Mangoli and told him that he would return the articles to Maruti Toraskar/petitioner/accused No.1 and would return home by middle lane (¨ÉvɱªÉÉ 'ÉÉ]äxÉä) and requested him to reach his bag at his residence. The complainant has stated in the said complaint that she was sure that her husband had gone to Kapileshwar and after giving the ornament to accused no.1, he might have started for Mangoli by the middle lane (¨ÉvɱªÉÉ 'ÉÉ]äxÉä). The complainant further stated that her husband Ravindra did not return till about 11 p.m., so the complainant and other people at home started worrying. They started search, but they were unable to find him. Ravindra did not come home throughout night. Therefore, at 6 a.m. when the complainant's brother-in-law Balkrishna Bhaskar Potdar went in search of his brother by the middle lane between Mangoli and Kapileshwar, it was at that time, that he noticed that Ravindra's body was thrown near stream after killing.

5. The complainant stated that in between 21st and 22nd February, 1994 morning, on the same day at about 10 a.m. to 10.30 a.m. all the petitioners had come to the house of the complainant and they were asking the complainant and her brother-in-law, the where about of the deceased and asked her whether he had returned or not upon which the complainant replied that he had not returned home.

6. The complainant has averred further in the said complaint that, Balkrishna found the body of his brother Ravindra lying near the stream. He noticed that there were injuries on his neck and head. His nose was pinched, his left cheek was pinched and bone was broken. Police were informed about the same and they took the dead body in their possession and sent it to Solankur for post-mortem. The complainant lodged a complaint against these accused/petitioners for the offence of killing her husband. Police took the accused persons in their custody for interrogation, but released them without registering any offence or a case against them because of political pressure. This is the allegation of the complainant. She has also expressed fear for her life from these accused persons. According to the complainant, the police got the post-mortem report, but they did not take any action against the petitioners. She has, therefore, expressed anguish that there is a serious injustice caused to her and she has suffered an irreparable loss. She has, therefore, requested that the petitioners/accused Nos. 1 to 4 in this case in conspiracy with each other threatened her husband-Ravindra and on 21st February, 1994, by pressing his neck and causing him injuries, the accused murdered him. Therefore, offence under Section 302, 504, 506 read with Section 34 of the Indian Penal Code has been committed by them and they be punished in accordance with law.

7. It appears that Police in fact did not take any action against the petitioners, though they recorded the statements of the complainant, her brother-in-law/Balkrishna, mother-in-law, Anant Potdar-uncle of Ravindra. It is pertinent to note here that though Police recorded statements of some other irrelevant persons, they did not choose to record the statements of Dnyanu Bhau Patil and Bapu Balu Jadhav, who were present at the house of the complainant on 21st February, 1994 and when the petitioners came to the complainant's house inquiring about Ravindra. It is also pertinent to note that this was second visit of the accused to the complainant's house. The first visit was on 14th February, 1994 when all the petitioners came to the complainants' place and threatened Ravindra. Thereafter, second visit was on 21st February, 1994 at about 5 p.m. At that time, the complainant, her brother-in-law Balkrishna, mother-in-law and these two persons, namely Dnyanu Bhau Patil and Bapu Balu Jadhav were waiting for Ravindra as he had not returned home. It was at this time that accused No.1 Maruti Toraskar said that Ravindra would be killed (®ÉÆbäSªÉɱÉÉ ÊVÉ'ÉÆiÉ 'ä'ÉiÉ xÉɽÒ). It was this time, according to the complainant, that these people told the petitioners not to do so and it was at this time, according to the complainant's story, that the petitioners, while going away were abusing Ravindra in filthy language and also were threatening to assault the complainant.

8. The third visit of the petitioners, according to the story of the complainant, was on 22nd February, 1994 at about 10 a.m. to 10.30 a.m. At this time also, as per the complainant's story, they were asking whether Ravindra had come home or not.

9. The complainant's case is that since Police did not take action against the petitioners, despite of all this, she filed complaint in the Court of the Judicial Magistrate, First Class, Radhanagari against the petitioners under Section 302 read with Section 34 of the Indian Penal Code and prayed that action be taken against them in accordance with law. The Judicial Magistrate, First Class, Radhanagari, examined Dnyanu Bhau Patil, who was present at the house of the complainant on 21st February, 1994 at 5 p.m. and who had witnessed what had happened at that time. He deposed about that in his deposition recorded by the Judicial Magistrate. Bapu Balu Jadhav was also examined by the Judicial Magistrate, First Class, who also narrated the incident that took place at the complainant's house on the evening of 21st February, 1994. Thereafter the Judicial Magistrate, First Class, Radhanagari, was satisfied that there was sufficient ground to take cognizance of the offence and hence issued process under Section 302 read with Section 34 of the Indian Penal Code against all the petitioners. Being aggrieved by the same, the petitioners approached this Court praying that the said process issued under Section 302 read with Section 34 be quashed and set aside.

10. It was the contention of Mr.Mundargi, appearing for the petitioners that if one peruses the material on record, there is nothing which will show the complicity of the petitioners in the alleged offence even at the prima facie stage and, therefore, the learned Judicial Magistrate, First Class was wrong in issuing process against them. He has sought to argue that at the initial stage the complainant did not involve them when her statement was recorded, but that subsequently she took the names of the petitioners only to falsely involve them and that was an after thought. His contention is that the death of Ravindra was because of alkali cynide, which was a material always found with gold-smith and even post-mortem report shows that his death was because of consumption of alkaline cynide. It was also contended by him that some amount of ethyl alcohol was found in his blood and it is erroneous to implicate the petitioners when there is sufficient material on record. Mr. Mundargi also submitted that when there is no material at all before the court against the accused persons, process issued under Section 302 of the Indian Penal Code also can be quashed and that this court is not powerless to do so. There is no quarrel with this proposition, though it must be stated that such a power has to be exercised with utmost caution and in a very rare case. The question in the present case at hand is, considering the facts and circumstances of the case, whether this Court should do it.

11. Mr. Salvi, the learned A.P.P. appearing for the State has opposed the quashing of the process. He has submitted that the material on record is certainly enough for the Court to come to the conclusion that there is a prima facie case against the accused.

12. I have heard both the Advocates at length and I have also gone through the entire record and proceedings, including affidavit of the Police, dated 14th March, 1995 submitted by the Assistant Police Inspector attached to Radhanagari Police Station, and the report dated 11th April, 1997 submitted by the Divisional Police Inspector, Gadhinglaj. If one goes through the affidavit and the report, it would be apparent that Police have only tried to refute the allegations of the complainant that no action was taken by the police under political pressure. Their enthusiasm to do away with this allegation is revealed in both these affidavits. In fact, in the affidavit of Arvind Gulabrao Mane, Assistant Police Inspector, attached to Radhanagari Police Station dated 14th March, 1995 in para 7 it is stated as to how the complainant had failed to mention certain facts e.g. though she was aware of the fact that the said Maruti Toraskar was insisting that deceased Ravindra should give new Mangalsutra, she failed to mention about the said fact in her statement recorded on 22nd February, 1994 and how for the first time she has attributed motive to the accused and has expressed suspicion that the petitioners had killed her husband in her supplementary statement recorded on 8th March, 1994. There is no explanation forthcoming as to why police kept quiet though the statements of witnesses were recorded and why her application to the Superintendent of Police also went unheeded and the Respondent was constrained to file complaint in the court of the Judicial Magistrate, First Class, Radhanagari on 6th May, 1994.

13. At the stage of issuance of process, the Court has to consider whether there is a strong prima facie case against the accused or not and nothing else. The material on record in this case is not something which can be pushed under the carpet or can be ignored. All the arguments submitted by Mr.Mundargi are the possible defences of the accused which can be considered only at the time of trial and not at this stage of issuance of process. Here is a young widow whose husband has died in mysterious circumstances. She has got strong suspicion against the petitioners. She has expressed it in no uncertain terms. There is other material also at this prima facie stage to support her case. The petitioners have succeeded to forestall the entire proceedings and have succeeded to avoid trial for a period of almost 6 years, after obtaining interim order in their favour on 22nd September, 1994. But now, they will have to face trial. Hence the following order :

Criminal Writ Petition No. 2273 of 1994 is dismissed. Rule discharged. Interim order dated 22nd September, 1994 is hereby vacated. The accused/petitioners to remain present in the lower court on 16th August, 2000. The learned Magistrate to proceed with the case in accordance with law.

Petition dismissed.