Criminal Application (Appln) Nos.1632 of 2010,Criminal Application (Appln) Nos.1875 of 2010

19th January, 2015.

Petitioner Counsel: Mr. L.A. MOHTA, Mr. N.R. TEKADE Adv. h/f Mr. ANIL MARDIKAR
Respondent Counsel: Mr. V.A. THAKRE, Mr. A.S. KILOR

JUDGMENT

A. B. CHAUDHARI, J. :- Both the applications are taken together for hearing and disposal. The F.I.R. was lodged in respect of incident dated 20th of September, 2010 alleging that at about 2.00 p.m., on that day, some anti-social elements entered the premises of the school namely Shababu Urdu High School, Junior College Patur, Dist.Akola. The unlawful assembly after entering the school, with the help of stone etc. broke the school bus and other vehicles parked in the school premises. It is also stated that unlawful assembly assaulted the teachers and attempted to assault complainant Syed Ishaque Syd.Nabi, Head Master of the said school and tried to set the school ablaze. It is further stated that by the said act unlawful assembly caused total loss to the school around rupees five to seven lakhs. Thereafter, names of the persons constituting unlawful assembly have given in F.I.R. Thereupon, police registered offence vide Crime No.141 of 2010 for offence punishable under Sections 143, 147, 148, 149, 323, 336, 436, 427 and 411 of the Indian Penal Code and under Section 135 of the Bombay Police Act. It is this F.I.R. which is sought to be quashed.

2. Shri L.A.Mohta, learned counsel appearing for the applicant in Criminal Application No.1632 of 2010 has contended that pursuant to the FIR two spot panchanamas were carried out and in the first spot panchanama there was no mention about any trace of fire and what was mentioned in the entire FIR is that unlawful assembly have damaged the property of the school including school bus and other vehicles. He submitted that after 5 days another panchanama was prepared in which what is shown is the remains of half-burnt slipper and black colour on the wall. He submitted that the second spot panchanama also does not show any use of fire by any of the persons alleged and at any rate the same is drawn after five days of the alleged incident which clearly shows that Section 436 of the Indian Penal Code was added later on with a view to make the case triable by the Court of Session. He invited our attention to the order made by this Court on 10th of December, 2010 when Court perused the case diary and prima facie came to the conclusion that interpolation is made so as to incorporate the ingredients of Section 436 of the Indian Penal Code.

3. Mr.Tekade, learned counsel holding for Mr.Anil Mardikar, Senior Counsel for the applicants in Criminal Application No.1875 of 2010 has submitted that the FIR deserves to be quashed since no offence at all is made out against the applicants and therefore, the trial cannot be held. He pointed out the interim order of this Court prohibiting the police from filing the charge sheet. He therefore, submitted that the FIR may be quashed.

4. Per contra, learned Additional Public Prosecutor submitted that the charge-sheet is ready but could no be filed due to interim stay granted by this Court.

5. We have heard the learned counsel for rival parties for quite some time. Perused the entire record. It appears from the FIR that the unlawful assembly had entered the school and damaged property of the school and also assaulted some persons. The first spot panchanama does not show any semblance of evidence of any fire or mischief by fire. The second spot panchanama was drawn on 25th of September, 2010 i.e. after five days in which some traces of burning slipper and black colour on the wall was shown. To our mind, looking to the FIR, the nature of allegations and the observations in the first spot panchanama and taking overall view of the matter, we find that there is no allegations of putting or attempting to put the school on fire, as alleged. We are, therefore, satisfied that no offence under Section 436 of the Indian Penal Code even from bare reading of the FIR and relevant papers is made out. It appears that Section 436 of the Indian Penal Code was later on inserted as is clear from the observation of this court in order dated 10th of December, 2010. We also think that the same was after thought to make offence triable by the Court of Sessions.

Not agreeing with the submissions made by the Shri Mohta, learned counsel for the applicant and on perusal of the FIR and other relevant papers, the offences under the other provisions of Indian Peal Code except under Section 436 of the Indian Penal Code are made out at least for trial. We do not think we would be able to analyse or evaluate the evidence collected by the investigating machinery and make positive finding that the applicants are not at all guilty for other offences. In that view of the matter, following order will subserve the interest of justice.

ORDER.

Criminal Application No.1632 of 2010 is allowed in terms of prayer Clause (i) of the application.

Criminal Application No.1875 of 2010 is partly allowed. The offence under Section 436 of the Indiana Penal Code cited in the FIR as well as in the Charge-sheet stands removed.

Prosecution agency is permitted to file charge-sheet.

The prosecution shall continue with other offences except offence under Section 436 of the Indian Peal Code.

Liberty in favour of applicants to take such other steps as available in law including application for discharge, if so advised.

Ordered accordingly.