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Judgment
A.P. Lavande, J.—Heard the learned Counsel for the parties and the learned Additional Public Prosecutor. Rule. Heard forthwith by consent.
By this application filed u/s 482 of Criminal Procedure Code, the applicant who is accused No. 2 in Criminal Case No. 547/11 pending before J.M.F.C., Umarkhed seeks quashing of criminal proceedings.
Briefly, the case of the applicant is as follows:
The applicant is a hereditary trustee of Public Trust of a temple of deity Shri Aainath Maharaj Sansthan. The respondent no. 2 filed FIR with Police Station Umarkhed bearing No. 137/11 on 9.11.2011 alleging that the applicant and one Ateeque Ahmed Sheikh Anwar, accused no. 1, had wrongfully restrained him from passing through the customary way in question which goes through the Dhura of Survey Nos. 250 & 226. The FIR was registered under Sections 341, 506, 504 read with Section 34 of the Indian Penal Code. It is the further case of the applicant that respondent no. 2 had filed an application u/s 5 of the Mamlatdar Courts Act for grant of customary way through Survey Nos. 250 & 226 before the Tahsildar, Umarkhed which was dismissed on 17.5.2010, against which the respondent no. 2 preferred Revision to Sub-Divisional Officer, Pusad. The Revision was heard and the matter was kept for judgment without giving date for judgment. It is the further case of the applicant that by order dated 31.10.2011 the Sub-Divisional Officer wrongly allowed the Revision and remanded the matter to Tahsildar to decide the matter afresh and in the meantime, permitted the respondent no. 2 to use the said way.
It is specifically the case of the applicant in the application that the said order was not communicated to the applicant till 9.11.2011. Therefore, FIR registered against the applicant is without any basis and patently illegal, inasmuch as the applicant cannot be said to have committed an offence punishable u/s 341 of Indian Penal Code. In so far as offences punishable under Sections 504 & 506 of Indian Penal Code are concerned, the FIR itself discloses that according to the respondent no. 2, the said offences were committed by accused no. 1 Ateeque Ahmed.
Reply has been filed on behalf of respondent no. 2 opposing the application. It has been stated that the order dated 31.10.2011 was within the knowledge of the applicant and the other accused and, therefore, no interference is warranted in exercise of jurisdiction u/s 482 Criminal Procedure Code.
The learned Counsel for the applicant has submitted that the lodging of the FIR by respondent no. 2 and consequential criminal proceedings initiated against the applicant are nothing but an abuse of the process of Court and, therefore, are liable to be quashed and set aside. Reliance has been placed upon judgment of the Apex Court in the case of Asmathunnisa Vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Another, .
Per contra, Mr. V.N. Patre, learned Counsel for the respondent no. 2, reiterated the stand of respondent no. 2 in the reply and submitted that no case has been made out for quashing of criminal proceedings at this stage and the fact as to whether the applicant was aware about the order dated 31.10.2011 is to be decided in the course of trial and as such, no interference is warranted at this stage in exercise of jurisdiction u/s 482 of Criminal Procedure Code. Reliance has been placed upon the judgment of the Apex Court in the case of Sewakram Sobhani Vs. R.K. Karanjia Chief Editor, Weekly Blitz and Others, .
We have carefully considered the rival submissions, perused the record and the judgment relied upon.
In so far as the order dated 31.10.2011 passed by Sub-Divisional Officer, Umarkhed is concerned, it is the case of the applicant that the same was not communicated to the applicant. Admittedly, after the conclusion of arguments, Sub-Divisional Officer reserved the order and did not fix any date for order. Moreover, the applicant has filed an affidavit stating that the order was not communicated to him and there is nothing placed on record to substantiate that the said order was communicated to the applicant. A bare denial in the reply by respondent no. 2 that the applicant was aware of the said order is not sufficient to attribute knowledge of the said order to the applicant. The prosecution has not placed on record any material on record to attribute knowledge of the said order to the applicant. Therefore, in our considered view, offence punishable u/s 341 of Indian Penal Code is not made out against the applicant. In so far as offences punishable under Sections 504 & 506 of Indian Penal Code are concerned, perusal of the FIR itself discloses that according to the respondent no. 2 himself, the said offences were committed by accused no. 1. There is no question of holding the applicant liable with the aid of Section 34 of Indian Penal Code. Therefore, in our considered view, the criminal proceedings initiated against the applicant for the aforesaid offences are nothing but an abuse of process of Court and as such, this is a fit case to invoke inherent powers u/s 482 of Criminal Procedure Code. In the case of Asmathunnisa Vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Another, the Supreme Court has held that the Court would be justified in preventing injustice by invoking inherent powers u/s 482 of Criminal Procedure Code to quash a complaint if no offence is made out against the applicant. The judgment in the case of Sewakram Sobhani Vs. R.K. Karanjia Chief Editor, Weekly Blitz and Others, is in relation to Exception to Section 499 of Indian Penal Code. Obviously, therefore, the ratio of the said judgment is not attracted in the present case.
In view of the above, the Criminal Application is allowed. The criminal proceedings in Criminal Case No. 547/11 pending before J.M.F.C., Umarkhed only against the applicant/accused no. 2 are quashed and set aside. It is made clear that we have not expressed any opinion in so far as tenability of the proceedings against accused No. 1 Ateeque Ahmed Sheikh Anwar, is concerned. Rule is made absolute in the aforesaid terms. No order as to costs.