Criminal Writ Petition No.1291 of 1990,Criminal Writ Petition No.791 of 1990,Criminal Application No.1756 of 1990

20th February, 1997

Petitioner Counsel: Mr. S. G. PAGE, G. R. REGE
Respondent Counsel: Mr. N. V. PRADHAN
Other Counsel: Mrs. J. S. PAWAR

JUDGMENT

JUDGMENT :- In both these petitions, the original accused have challenged the order of issue of process passed by J.M.F.C. Khalapur on 4/5/1990 U/s. 307 and 120-B read with 34 of the IPC in complaint case filed by Respondent No.1 -Shri. Laxman Malhari Sabale.

2. The petitioner Kalyan Kelkar in Cr.W.P. No.1291/90 was the Chief Officer of the Khopoli Municipal Council at the relevant time and the Petitioners 1 to 5 from Cr.W.P. No.791/90 were also the employee of the Khopoli Municipal Council (K.M.C.) The Petitioner No.6 from Cr.W.P. No.791/90 was an officer working with the Indian Organic Chemical Co. Ltd. Khopoli, and was the Counciller of the K.M.C. at the relevant time.

3. The incident which was the basis of the complaint case of Laxman Sabale was dt.6/1/89. There are two versions regarding this incident, one as narrated by Laxman Sabale and the other narrated by the Petitioner Kalyan Kelkar in his FIR lodged with the Khopoli Police Station. On this FIR lodged by the Kalyan Kelkar, Laxman Sable and others were chargesheeted by the Khopoli Police for the offence of murder of one Yashwant Patil. As per the development that took place subsequent to the filing of these petitions Laxman Sabale and the others were tried by the learned Sessions Judge Raigad Alibaug in Sessions Case No.100/90 and as per the judgment delivered on 6th February, 1997, Laxman Sabale was convicted for the offence U/s. 304 Part I and was sentenced to suffer R.I. for 10 years etc.

4. As per the complaint of Laxman Sabale, the incident dt.6/1/1989 took place as alleged by him in his complaint and not as alleged by Kalyan Kelkar in his FIR. It is necessary to summarise both these versions. In his complaint, Laxman Sabale alleged that Khopoli Municipal Council had given him a contract to construct hospital dispensary. There was some delay in the said construction on account of non-availability of iron and cement. The contractor therefore asked for enhanced rate, which was done by the Council, but, the original accused No.7 Sakharam More, out of bias, got the order stayed from the Collector Raigad. The contractor Ram Malhari Sable who was doing the contractorship in the name of Laxman Sable as a constituted attorney, preferred an appeal to the Government and the same was allowed. However, the officers of the Khopoli Municipal Council including all the petitioners referred to above, avoided to make the payment as per the enhanced rate and started harassing the contractor.

5. On 6/1/89, as per the story of Laxman Sable, he got message at about 10.00 p.m. from accused Kalyan Kelkar to come to see at his residence. The complainant Laxman Sable alongwith his son went to the house of Kelkar at about 10 p.m. The complainant, got down from the jeep and his son Tukaram was sitting in the jeep. The complainant went to the house of Kelkar and he found that all the accused including the Kelkar and the deceased Yashwant Patil were in hall. The complainant also found that on a wooden tepoy a revolver was kept. He asked the accused whether the revolver was kept there for killing him, and threw the revolver in the kitchen. The deceased Yashwant Patil, accused Kelkar and the accused Nos. 3 and 4 as per the complaint, rushed at the complainant. They abused him and attacked him. Accused No.8 was instigating the other accused to kill Sable. During that scuffle, Accused No.1 -Kalyan Kelkar went to the kitchen, brought revolver and fired shot which penetrated the coat which the complainant was wearing. At that time, the complainant's son Tukaram came and the second bullet that was fired by Kelkar hit Tukaram on his stomach and he fell down. Third bullet that was fired hit deceased Yashwant Patil.

6. According to the complainant, thereafter accused Kelkar took revolver with him and ran away. The complainant removed his bleeding son to the Municipal Hospital and then personally went to lodge the complaint to the police station. However, the police constable present, refused to take down his complaint and made the complainant to stay in the police station. After some time, PSI Ghuge came to the police station, but he also did not record the complaint of the complainant, but to the contrary, abused, threatened and terrorised him and kept him in the locker, and thereafter concocted false case against the complainant regarding the murder of Yashwant Patil and obtained signatures and thumb impression of the complainant on the blank papers.

7. On the other hand, as per the FIR lodged by Kelkar, complainant with his son came to the house of Kelkar. At that time, deceased Patil was already there. So also Deepak Jadhav, Ashok Patil, who were subordinates of Yashwant Patil had come to the house of Kelkar. Some hot exchange of words took place between Laxman Sable and Patil. At the time of arguments, the learned counsel for the petitioner had tendered the copy of the FIR lodged by Kalyan, but, it appears that the same was not tendered in the proceedings. Therefore, that copy of the FIR is not in the proceedings, and I am constrained to rely upon the affidavit filed by Kalyan Kelkar in reply wherein he has stated that Laxman Sable with his son Tukaram, Yashwant, one Raju Sable and Satish Mishra entered his house with sticks forcibly and unauthorisedly and therefore, the incident as alleged in Kalyan Kelkar's FIR took place, and on the basis of that FIR, Sessions Case No. 100/1990 was started against the accused and he was convicted.

8. However, it is clear that FIR of Kalyan Kelkar and the story of the Respondent Laxman Sable are totally different in respect of one and the same incident. In this regard, it was argued by Mr. Page and Ms. Parulekar that the case of the complainant was concocted one as a counter blast to the murder case that was initiated by the police against him for killing Yashwant Patil. According to them, there were no grounds for the Magistrate to issue process against the accused on the complaint of Laxman Sable. Thirdly, there was delay of 4, 5 months in lodging the complaint which was not explained by the complainant Sable, that the complaint was drafted and prepared by complainant Sable after he received chargesheet against him in the murder case, that in the FIR i.e. lodged by Laxman Sable regarding this incident, a total different and contradictory story is given by Laxman Sable. However, the FIR of Laxman Sable and the complaint filed by him, are poles apart from each other and in the FIR no role is attributed to any of the present accused/petitioners. It was also argued that the complaint case of Laxman Sable and the committal proceedings against the Laxman Sable regarding the murder of Yashwant Patil were before the same Magistrate, and on the same day, the Magistrate committed the case against the Laxman Sable to the Court of Sessions, and without application of mind, ordered issue of process against the present accused on the complaint lodged by Laxman Sable. They also argued that since the case against the Laxman Sable has resulted in his conviction, it has automatically negated the story of the complainant Laxman Sable as given by him in the complaint to the Magistrate. For all these reasons, the learned counsel for the Petitioners claimed that the order of issue of process was liable to be quashed.

9. On the other hand, the learned counsel for the Laxman Sable supported by the learned APP contended that the conviction of Laxman Sable in the other case cannot have any effect on his complaint, because as an accused in Sessions Case No. 100/1990, Laxman Sable had a right to raise as many as defences as he like, but his complaint case was based on totally different facts.

10. I will now deal with submissions made by both the counsel for the petitioners. Firstly according to them, the story given by Laxman Sable in his FIR, the copy of which is filed at Page No. 39 of Petition No. 791/90, is totally different from his complaint and for this reason, the complaint was liable to be dismissed. However, according to Laxman Sable police did not take down his complaint or FIR and to the contrary, he was detained and kept in lock-up and his thumb impressions and signatures were obtained on the blank papers. I would not like to give any finding, at this stage, on this aspect as to whether signatures and thumb impressions of Laxman Sable were obtained by the police on blank papers. However, in order to ascertain and verify the contention of both the parties, I.O. was called with the original FIR register from the Khopoli Police Station. The same was produced and it was found that Page Nos. 1 and 5 were missing. The duplicate book of the FIR Register in which all the FIRs are recorded in carbon copies was not produced and the officer who was present, made a statement that the duplicate book was not available with the Police station. When the attention of the learned APP was drawn to the missing papers, she also could not give any explanation.

11. In my opinion, these missing pages of the original FIR Book and the inability of the police to produce the duplicate FIR Book, give support to the contention of the Laxman Sable that the police did not record his FIR at all, and the FIR i.e. now produced and relied upon by the petitioners as having been lodged by the Laxman Sable, is not the FIR lodged by Laxman Sable.

12. Once it is accepted atleast at this prima-facie stage that the FIR or the complaint given by Laxman Sable was not recorded by the police, then, the submissions of the learned counsel for the petitioners that there is material and basic difference between the so-called FIR of Laxman Sable and his story in the complaint, has to be discarded. If there is no FIR of Laxman Sable, then, his story as given in the complaint, cannot be contradicted with the so-called FIR relied upon by the petitioners. Consequently, it cannot be said that because of material contradictions, the complaint should be rejected.

13. The second contention of the petitioners counsel was that Laxman Sable prepared and drafted his complaint on the basis of the chargesheet served upon him by the police in Sessions Case No. 100/90, and that there was inordinate delay of four months in filing of the complaint. However, Laxman Sable in his affidavit has given explanation for the delay and has stated that he was in police custody for 15 days and when the bail was granted to him in the end of January, condition was imposed on him that he should not enter the jurisdiction of Khopoli area for the period of six months. He has also stated that his son Tukaram who was seriously injured by the bullet that was fired, was hospitalised and was operated upon and the bullet was removed from the right side of his hip thigh. This explanation regarding the delay given by Laxman Sable in his affidavit, has not been refused on oath by the Petitioners and nothing to contradict this explanation has been produced by them. As such, it cannot be said that there was delay on the part of Laxman Sable in filing of the complaint or that the delay was motivated.

14. The contention of the learned counsel for the petitioners that the Laxman Sable drafted his complaint on the basis of the chargesheet of Sessions Case No. 100/90 does not carry much weight and it does not in itself, create suspicion about the contents of the complaint. Further, it was argued by the learned counsel for the Petitioner that the Magistrate committed error in passing two conflicting orders on the same date i.e. 4/5/90, the date of committing the case against Laxman Sable U/s. 302 to the Court of Sessions, and ordering issue of process against the petitioners in the complaint filed by Laxman Sable. Admittedly, when both these orders were passed by the J.M.F.C. Khalapur on 4/5/90, the learned Magistrate had before him two proceedings, namely, the committal proceedings on the basis of chargesheet filed by the police against the Laxman Sable, and the complaint case filed by Laxman Sable against the Petitioners. At that time, it was not expected of the Magistrate to decide which of the two cases were true or false. He had only to satisfy himself regarding the prima-facie existence of cases and therefore he was justified in passing two orders referred to above on the same date.

15. It was also argued by the learned counsel for the petitioners that the order of issue of process is passed by the learned Magistrate without application of mind. I do not find any merit in this argument. The record of the case shows that after recording verification statement of Laxman Sable, the learned Magistrate postponed the issue of process and directed Laxman Sable to adduce evidence. Thereafter Laxman Sable examined as many as five witnesses including himself and his son and the Doctor who had examined Tukaram regarding the bullet injury. In his order of issue of process, the learned Magistrate considered the evidence of all these five witnesses and thereafter came to the conclusion that it was a fit case to order issue of process. It cannot therefore be said that the said order was the result of non-application of mind by the learned Magistrate. If Laxman Sable had succeeded in making out the prima-facie case against the petitioners on the basis of his evidence and that of his witnesses including the Doctor, then, the learned Magistrate was perfectly justified in ordering issue of process.

16. It was argued by the learned counsel for the petitioners in Petition No. 791/90 that so far as those petitioners were concerned, their names were not at all there in the FIR lodged by Sable. However, for the reasons given above, this argument cannot be accepted. When prima-facie case of Laxman Sable regarding refusal of police authorities to take down his complaint is accepted, no reliance can be placed atleast at this stage to the FIR which is produced by the police as the FIR given by Laxman Sable.

17. Lastly the most important aspect of the case is that the Tukaram-son of Laxman Sable had suffered bullet injury and the Doctor has clearly given his opinion that the injury was very serious and if he had not treated Tukaram in time, the injury would have proved fatal. Secondly, the coat which was worn by Laxman Sable had a hole on account of a bullet fired from the revolver. These two important circumstances are strong enough to support the case and the contention of the complainant Laxman Sable in his complaint. In this regard, nothing was urged before me by the learned counsel for the petitioner as to how Tukaram-son of Laxman Sable suffered bullet injury, nor it was argued that this injury was suffered by Tukaram on account of firing of the bullet by Laxman Sable himself.

18. From all these circumstances, it is clear that the order of the learned Magistrate issuing the process against the petitioners is perfectly justified and there are no infirmities in the same. The conviction of the Laxman Sable cannot in itself challenge the complaint filed by Laxman Sable. I therefore pass the following order.

ORDER

Both the petitions are dismissed. Stay is vacated. The Petitioners to appear before the concerned Magistrate on 18th March, 1997.

Petitions dismissed.