Rajesh vs Anil and Others

V.M. Deshpande, J—Rule. Rule is made returnable forthwith. Learned Adv. Mr. Rugved Dhore waives service for respondent No. 1, and learned APP Mr. V.A. Thakre, for respondent No. 2. Heard learned counsel for the rival parties. By consent of rival parties, this Criminal Application is taken up for final hearing and disposed of by this Judgment and Order.

The present Applicant is currently a Resident Collector of Washim. At the relevant time, he was a Sub-Divisional Officer [Revenue] at Karanja.

Respondent No. 1 - Anil Bhagwan Kamble on 8th April, 2009 filed a private complaint against the present applicant and Somnath Bhau Shete, who, at the relevant time, was the Chief Officer of Municipal Council, Chikhli. The complaint was lodged for the offences punishable under Sections 323, 504 and 506 of Indian Penal Code and Section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The learned Trial Magistrate on 22nd May, 2009 issued process against the applicant and Somnath Shete for the offence punishable under Section 323 read with Section 34 of Indian Penal Code, and under Section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The said order of issuance of process was questioned by the applicant and Somnath Shete by filing a Criminal Revision bearing No. 89 of 2009 before the Sessions Judge at Buldana. The learned Sessions Judge, Buldana, vide Judgment dated 26th July, 2011, allowed the Revision filed on behalf of the Applicant and Somnath Shete and thereby quashed the process against the applicant for the offence punishable under Section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, he refused to quash the process in respect of offence under Section 323, Indian Penal Code.

The said order was not questioned further by anyone.

On 11th January, 2012, the applicant moved an application that he be discharged, since the complaint filed against him is time barred. The said application was rejected by the learned Judicial Magistrate First Class, Chikhali, on 15th October, 2013. The correctness of the said order was challenged by the Applicant by filing Criminal Revision No. 92 of 2013 before Sessions Judge, Buldana. However, the learned Sessions Judge dismissed the said Revision.

Therefore, the applicant is before this Court by filing the present application under Section 482, Criminal Procedure Code, for quashing the proceedings bearing Summary Criminal Case No. 1191 of 2011 pending on the file of learned Judicial Magistrate First Class, Chikhali.

The complaint is available at Annex.A in the compilation. It shows that the date and time of the occurrence is 20th November, 2006 at about 3.00 p.m.. The complaint is lodged on 08th April, 2009.

According to the complaint, the applicant was an Election Officer for the general elections of Municipal Council, Chikhali, in the year 2006. The respondent No. 1 - complainant was one of the contestants from Ward No. 7, which was reserved for Scheduled Caste candidates. He fought the election on the ticket of Nationalist Congress Party. The election was held on 19th November, 2006 and on 20th November, 2006, results were declared. In that election, complainant- respondent No. 1 lost the election.

According to the complaint, when he had been to the office of the Applicant, the applicant held collar of the complainant, abused him in the name of caste and also assaulted him.

As observed above, the process issued against the applicant in so far as the offence under the the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, is concerned, the same is already quashed. Thus, the complaint presently against the applicant is under Section 323, Indian Penal Code. Section 323 of Indian Penal Code reads as under:-

"323. Punishment for voluntarily causing hurt.- Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

Hurt is defined in Section 319, Indian Penal Code. It reads thus:-

"319. Hurt.- Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."

From the plain reading of the definition of "hurt", it is clear that the person, who claims hurt, must have bodily pain, disease or infirmity and that has to be caused by the accused. The complaint does not whisper anything about the same. Though the complaint shows that the complainant was assaulted by the applicant, it is not stated in the complaint, neither there is anything available to show that the complainant was either referred by anybody or he himself had been to the doctor/Medical Officer for his medical examination. In that view of the matter, in my view, no case is made out for the offence under Section 323, Indian Penal Code. Further, as per Clause (b) of Sub-section (2) of Section 468, Criminal Procedure Code, the period of limitation shall be one year if the offence is punishable with an imprisonment for a term not exceeding one year.

As per Section 323, Indian Penal Code, the punishment for causing voluntary hurt can be extended to one year. Thus, the limitation for taking cognizance will be one year in so far as the offence punishable under Section 323, Indian Penal Code is concerned.

As observed above, the date of the incident is 20th November, 2006, complaint was filed on 8th April, 2009 and the process was issued on 22nd May, 2009, which is clearly after a period of limitation. Therefore, on this count also, the applicant must succeed. That leads me to pass the following order:-

ORDER

[a] Criminal Application [APL] No. 392 of 2014 is allowed.

[b] The Order passed by the Sessions Judge, Buldana, dated 21st January, 2014 in Criminal Revision No. 92 of 2013 together with the order passed by Judicial Magistrate First Class, Chikhali, dated 15th October, 2013 are quashed and set aside.

[c] Summary Criminal Case No. 1191 of 2011 on the file of Judicial Magistrate First Class, Chikhali, is hereby quashed.

[d] Rule is made absolute with no order as to costs.