Final Order 1

Order Details: Order
Pdf Text: IN THE COURT OF ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
22nd COURT, ANDHERI, MUMBAI.
COMMON ORDER BELOW EXH18 & 30 IN C.C. NO.427/SW/2018
1. Accused No.1 Rahul Chavan & accused No.2 Ritesh Sinha
moved Exh30 claiming discharge u/s. 245(2) of Cr.P.C., while accused
No.3 Vijay Bhaskar, accused No.4 Pratap Singh Ranannaware, accused
No.5 Jayshree Ranannaware & accused No.6 Harninder Pal Singh
moved discharge application which is at Exh18. Both the applications
are collectively taken for adjudication. The accused in general claims
that the complaint is false and from the face of record, does not attract
provisions of I.P.C. for which this court issued process against them.
They further claimed that before issuing process, this court has not
followed provisions of section 200 of Cr.P.C., as mandated by law. To
substantiate their claim they relied upon latest judgment of Salman
Khan Vs State of Maharashtra in Criminal Application No. 387/2022
passed on 30.03.2023.
2. In the outset, it is submitted orally and in writing on behalf
of accused that the verification which needs to be taken by the
Magistrate on oath, in open Court and shall be signed by the Magistrate
as well as by the accused, this solemn act has not been performed, as
mandated under the provision and therefore on this count itself, the
issue process needs to be recalled.
3. Secondly, it is argued that the complainant at para No.4 of
the complaint states that when he made complaint to the Dy. Registrar
Cooperative Societies against them regarding illegal collection of
money for Ganpati Festival which was duly received by them prior to
14.09.2018. They got enraged and at the time of Aarati of Ganpati on
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14.09.2018 around 7.30 p.m., the accused Nos. 5 & 6 abused and
manhandled Prabha Poojari, while accused No.1 threatened and abused
as well as manhandled Anita Kandalkar and Rashmi Poojari. It is
further stated in the complaint that around 20.30 hrs. accused No.1
abused and threatened as well as gave fist blow and slapped informant
while accused Nos.2 & 3 also assaulted, whereas accused Nos. 4, 5 & 6
manhandled him.
4. It is specifically submitted that the alleged incident
occurred when the accused received notice through Dy. Registrar
Cooperative Societies, prior to the date of incident i.e. 14.09.2018.
They have drawn attention of this Court on the document filed by the
complainant himself i.e. ExhB which is the notice addressed to the
Chairman and Secretary of the Society i.e. accused Nos. 1 & 2 dated
12.09.2018 and the same was received by the Wadala Post office
bearers on 18.09.2019 and received at MIDC, Andheri Post Office on
19.09.2018 which clearly suggests that the receipt of the notice to the
accused reached to them much later. This clearly demonstrates that the
cause of action as stated in the complaint was a notice and the receipt
of notice was cause for brewing unrest amongst the office bearers and
that resulted into alleged assault, abuse and threatening. When the
notice itself was not within the knowledge of accused person, how come
the accused got enraged and vent their ire as alleged in the complaint.
5. Accused No.4, who is lawyer by profession. He argued that
the only allegation against him, if it is taken as it is from the face of the
record his manhandling, it is alleged that he has manhandled
informant, manhandling does not constitute any offence under IPC
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Order below Exh18 & 30 continued
much less under the section for which process is issued and therefore
the complaint in respect to him is baseless and without substance. He
claims discharge for himself and his wife accused No.5 Jayshree, who is
doctor by profession, running a private clinic. He further argued that
there is no ingredients of section 504 & 506 against them, still process
was issued by this Court under the above sections with the aid of
section 34 of IPC. The complaint hardly discloses the meeting of minds
of accused to commit the alleged offence.
6. Ld. Advocate for complainant argued that this is not the
stage to decide discharge application, as this Court issued process by
applying its mind and there is enough material on record to put accused
on trial without discharging them at the pretrial stage by invoking
section 245(2) of Cr.P.C. He opposed the application.
7. During pendency of this discharge application, the
complainant moved Exh36, prayer for dropping proceeding against
accused Nos. 3, 4 & 5 contending that they have settled the matter out
of Court which is pending subjudice before this Court.
8. Heard both sides. Gone through the material on record.
The first limb of argument is regarding issue process against accused,
without following mandate of Section 200 of Cr.P.C. is concerned, it is a
settled principle of law that once process is issued by the trial court it
cannot go behind and recall the process. Even any irregularity
committed while issuing process cannot be undone by the same court.
So, there is no point in considering the argument advanced at limb
No.1. However, the allegation in the complaint, visavis the document
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is concerned, it can be scrutinized and thoughtful consideration can be
given to the argument advanced by the parties concerned. While
considering the argument advanced, it is necessary to reproduce the
relevant portion of complaint at para Nos. 3, 4 & 5:
“3. That in response to said complaint dated 4.9.2018 –
That Dy.Registrar Coop.Societies K/E ward, Mumbai had
issued notice to Chairman/Secretary of society. It is marked
as ExhB.
4. That when the accused have received the notice they
got annoyed and nursed the grudge against me. That on
14.09.2018 at 7.30 p.m. there was Ganpati Festival for 1½
days and myself and other members were present at that
time of Aarti that time accused No.5 abused me and accused
No.6 joined hands with accused No.5 and they started
abusing us in filthy languages. That they manhandled to
Prabha Pujari and accused no.1 stated to me that TUMCHA
HAT KAPNAR and manhandled to Anita Kandalkar and
abused her as well as to Mrs. Rashmi Poojari and
manhandled her. The accused have not taken permission
from police or from the authorities nor passed the
Resolution.
5. I say that on 14.9.2018 at about 20.30 hours accused
no.1 abused me MADARCHOD SOCIETY KE KHILAF
COMPLAINT KARTI HAI TERE KO MAR DALEGA, assaulted
me by means of fist blows and slaps. On seeing assault on
me the accused Nos. 2 and 3 also assaulted me and accused
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Order below Exh18 & 30 continued
nos. 4, 5 and 6 manhandled me. That I was rescued by
persons present there. I have reported the matter to
M.I.D.C. P.stn. Mumbai but my complaint is recorded as
N.C. No.3325/2018 dated 15.9.18 u/s. 323, 504, 506
I.P.C. it is marked as Exh 'C coly and written complaint to
M.I.D.C. P.stn dt.14.9.18.”
9. The present complaint was brought before the Court, after
approaching local police station and the informant has also lodged a
written complaint which is placed at Exh'C', but unfortunately the
concerned police had issued N.C. The complainant aggrieved by this,
approached this court. While considering the complaint as well as the
report lodged to police station, there is a material discrepancy in the
incident quoted in the complaint. The complaint which is filed before
this Court speaks about two incidents, first took at 7.30 p.m. and the
second one took at 20.30 hrs. on the same day, while the report to
police does not say so. Apart this, the complaint is totally silent on the
actual place of incident. Furthermore, there is no specific allegation
against accused Nos. 4 & 5, as it is rightly submitted that manhandling
does not invoke any of the provision of IPC. As regard to the other
accused are concerned, it is stated that the accused had threatened the
informant with dire consequences. Mere threat is no offence, unless the
informant pleads the fact that by the criminal intimidation he got
alarmed. There is no pleading of getting alarmed with the alleged
criminal intimidation issued by the accused. Further, it is alleged that
accused abused complainant and others in filthy language, but there is
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no mention of the alleged expletives. The entire incident quoted in the
complaint seems to be vague, which allegedly arose on the receipt of
notice issued by the Dy. Registrar Cooperative Society, but by the
documents of complainant himself it is quite clear that no such notice
was within the knowledge of accuse on the day of alleged incident. So,
the question of getting enraged to commit the alleged incident totally
mired in suspicion. Further, there is no mention of place of incident.
Even the time of incident is contrary to the N.C. issued by the police.
Even it is the case of complainant that the incident took place just
because of receipt of notice issued by the Dy. Registrar on his
complaint, to the accused, which is exfacie false from the face of record.
Thus, the averment in the complaint is totally vague and short of
inspiring confidence, rendering it groundless. Hence, both the
applications Exh13 & 18 stand allowed. All the accused stand
discharged u/s. 245(2) of the Cr.P.C. Their bail bonds stand cancelled.
Application Exh36 stands filed and case stands disposed off.
Date: 21.08.2023
(J. W. Gaikwad)
Addl. Chief Metropolitan Magistrate,
22nd Court, Andheri, Mumbai.
csj
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