Dismissed

Sahebrao S/O. Kisanrao Kharat v. the State of Maharashtra and Anr.

Bombay HC27 Feb 2018WP/1603/2017

Case brief

AI extract

What is this about?

The petitioner challenged the orders of the Sessions Judge and Judicial Magistrate taking cognizance in a criminal case initiated by a private complaint. The High Court found no error in the lower courts' discretion to ignore the non-acceptance of the police B report and proceeds on the private complaint. The writ was dismissed.

What did the court decide?

Rule discharged and petition dismissed with no costs.

Sahebrao S/O. Kisanrao Kharat Vs the State of… — Criminal Trial and Appeal | Bombay HC (2018)

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922wp1603.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.1603 OF 2017

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Sahebrao s/o Kisanrao Kharat...Petitioner
Age 61 yers, Occu: Rtd. Navy
Officer, R/o Plot No. 83
Sundar Nagar, Padegaon,
Aurangabad

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VERSUS

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1. The State of Maharashtra, Through Police Station, Badnapur, Tq. Badnapur, Dist. Jalna.

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2. Wamanrao s/o Chokaji Kharat ... Respondents Age 79 years, Occu:Pensioner R/o Pradnya Nagar, Laxmi

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Colony, Chawani, Aurangabad.

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Mr. S.R. Shirsath h/for Mr. S. N. Pagare, Advocate
for the petitioner,

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Mr. G. O. Wattamwar, APP for the State.

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Mr. V. B. Salve, Advocate for respondent No.2.

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CORAM: K. L. WADANE, J.

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 DATE:27th February, 2018

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JUDGMENT:

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1. Rule. Rule made returnable forthwith. With the
consent of the parties, the petition is taken up for
final hearing.

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2. Heard Mr. S.R. Shirsath the learned counsel

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for the petitioner, Mr. G. O. Wattamwar, learned APP

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922wp1603.odt for the State and Mr. V. B. Salve, learned counsel for respondent No.2.

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3. The petitioner has challenged judgment and
order dated 27th October, 2017 passed in Cri. Revision
Application No. 43/2017 by the learned Sessions Judge,
Jalna and also seeking to quash and set aside the
order dated 23rd June, 2014 passed by the learned
Judicial Magistrate, F.C. Badnapur below Exh.6 in
Misc. Application No. 22/2011 which is now registered
as RCC No. 46/2015, directing to issue process
against the petitioner.

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4. Learned counsel for the petitioner points out
that the mutation entries taken in the name of present
respondent No.2 were set aside by way of allowing
Mutation Entry No.294 and therefore, there was no
mutation entry in the name of respondent No.2. The
learned counsel further submits that after death of
father of the petitioner, another mutation entry
bearing No.1259 was taken by the revenue authority.
But this material aspect has not been mentioned by the
respondent No.2 original complainant in the complaint.

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5. According to the learned counsel for the

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2/5

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922wp1603.odt petitioner, the dispute between the parties is of civil in nature and revenue authority has rightly recorded the name of the present petitioner to the disputed landed property.

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6. As against this, it is argued by the learned
counsel for the respondent that initially, the matter
was referred under section 156 for investigation and
the Investigating Officersubmitted"B"summary report.
However, the learned Judicial Magistrate F.C. has not
accepted the said report. The original complainant
respondent no.2 has filed protest application, upon
which, the complainant was called for verification and
his verified statement was recorded on 21.03.2014.
The learned counsel appearing for the respondent
submits that the learned Magistrate is not debarred
from taking cognizance even after filing of report
by the police in the nature of "B" summary. The
learned counsel further argued that the report
submitted by the police authority has not been
accepted by the learned Judicial Magistrate F.C. and
relying upon the verified statement of the
complainant, process is issued against the petitioner.

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7. The learned counsel for the petitioner has relied

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3/5

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922wp1603.odt

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upon the observations Allahabad High Court in the case
of Ashok & ors.Vs. State of U.P. and ors, reported in
1994 CRI.L.J.2132, wherein it is observed that the
Magistrate has power to take cognizance under section
190(1)(b) on the police report, irrespective of the
opinion of the Investigating Officer that prima facie

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no case is made out, if on perusal of the police
papers and statements of witnesses recorded under
section 161 Cr.P.C., he is satisfied that there is
sufficient material to make out a prima facie case
against the accused but straightway he cannot take
cognizance on the basis of the protest petition duly
supported by the affidavit of the witness, without
following the procedure prescribed under Chapter XV
for a complaint case.

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8. In the present matter, it is not a case of the
petitioner that the learned Judicial Magistrate, F.C.
has taken cognizance without following due procedure.
On the contrary, it is seen from the record that the
learned Magistrate has not accepted the "B" Summary
report submitted by the Investigating Officer and
therefore, he passed and order on 14.02.2013 and
thereby called upon the original complainant for

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4/5

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922wp1603.odt

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verification and after the verified statement of the
complainant being recorded on 21.03.2014, process has
been issued against the petitioner. Therefore, even
considering the observations of the case cited above
on behalf of the petitioner, it is crystal clear that
even if contrary report of police against complainant,

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the complainant can independently make out case to

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issue process and accordingly, in the present case,
the complainant has successfully established that
there s sufficient ground to proceed against the
petitioner.

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9. I have gone through the order passed by the

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learned Judicial Magistrate F.C. as well as the
learned Sessions Judge, I do not find any reason to

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interfere with the orders in exercise of extra
ordinary jurisdiction under Articles 226 and 227 of
the Constitution. There is no substance in the
criminalwrit petition petition,therefore it isliable
to be dismissed and accordingly it is dismissed.

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10. Rule discharged. No costs.

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JPC

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Sahebrao S/O. Kisanrao Kharat v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Sahebrao S/O. Kisanrao Kharat v. the State of Maharashtra and Anr.

Case brief

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What did the court decide?

What the court decided

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