Pramod Laxman Rai & Ors. vs State Of Maharashtra & Anr.

(PER : NANDESH S. DESHPANDE, J.)

Heard. Admit. Heard finally with the consent of learned Counsel for both the parties.

The applicants have approached this Court by filing present application under Section 482 of the Criminal Procedure Code, challenging the First Information Report dated 09/06/2021, bearing Crime No.0092/2021, for the offences for under Sections 448, 506, read with Section 34 of the Indian Penal Code at Police Station Lohara, Yavatmal, and subsequent charge-sheet No.132/2021, dated 19/11/2021, for the offences for under Sections 448, 427, 454 and 506, read with Section 34 of the Indian Penal Code. Initially, the First Information Report was also under Section 3 of the Maharashtra Prevention of Defacement of Property Act 1995, however, the said Section was dropped, and Section 427 and 454 of the Indian Penal Code were added.

As per the First Information Report lodged by the non-applicant No. 2, on 09/06/2021, the present non-applicant No.2 lodged a First Information Report alleging that the applicants herein have committed the offences as stated supra. As per the said First Information Report, the applicants, on 09/06/2021 at about 2:00 p.m., without any authority or right in that regard, demolished the wall of a shop owned by the non-applicant No. 2. When the daughter of the non-applicant No. 2 confronted the applicants and asked them for a reason for doing so, the applicants abused her and threatened her for life. Thus, the applicants caused a loss of about Rs.10,000/- to the non-applicant No. 2, which resulted in lodging of the said First Information Report in question. The said First Information Report is challenged in the present application.

We have heard the learned Counsel for the applicants, as also, learned Additional Public Procedure for non-applicant No.1/State and learned Counsel for the non applicant No.2.

Shri S.S. Deshpande, learned Counsel for the applicants, submits that the First Information Report in question and the consequent charge-sheet are nothing but an abuse of process of the law, and no prima facie case, much less as stated in the First Information Report, can be made out against the applicants after a meaningful reading of the same. He submits that the applicants are in possession of the shop in question, and therefore, there is no question of committing any offence of trespass as alleged in the First Information Report. He invites our attention to the copy of the notice sent by the applicants dated 09/06/2021 and reply to the same by the non applicant No. 2 on 14/06/2021. Thus, the learned Counsel for the applicants submits that there is nothing on record to show that the applicants have committed trespass as alleged in the First Information Report. He, therefore, prays for questioning of the same and the consequences.

The learned Additional Public Prosecutor, while opposing the application, states that the Investigating Agency, during the course of investigation, has conducted a spot panchanama and taken photographs of the place of incidence seized the hammer and chisel, and recorded the statements of eyewitnesses. The said eye witnesses have narrated particular role of the applicants, and therefore, in his submission, prima facie material is against the applicants. He, therefore, prays for dismissal of the application.

Learned Counsel for the non-applicant No.2, while supporting the learned Additional Public Prosecutor, also states that there is a tribal case, and therefore, the application is liable to be rejected.

In the backdrop of these facts, we have perused the material on record. The grounds on which the First Information Report is challenged are that the applicants are already in possession of the premises in question, and therefore, there is no question of committing any trespass, much less an offence punishable under Sections 442, 448 of the Indian Penal Code. It is a matter of record that the applicant No.1 and the non-applicant No.2 are real brothers, and there are cross First Information Reports against each other. The statement of the witnesses recorded by the Investigating Agency, and more particularly one Neha Abhilesh Jaiswal, clearly spells out the role of the applicants in demolishing the wall of the shop in question. Furthermore, the statement of Rahul Vinod Rai and Punit Dipakrao Shivankar, who happen to be independent witnesses, also supports the claim of the non-applicant No.2. In that view of the matter, we are of the opinion that there is a prima facie material against the present applicants, and the veracity of the statements can be tested only at a full fledged trial. In our opinion, therefore, this would not be a fit case to exercise powers under Section 482 of the Code of Criminal Procedure, which in our view cannot be exercised to stifle a legitimate prosecution. In that view of the matter, the following order is passed.

The application is rejected.