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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 294 OF 2017

Devendra Rabhajirao Kawade,
Age:69 Years, Occupation- Retd.
Resident of H.No.6760, Kawade
Wada, Nalegaon, District Ahmednagar. … Petitioner

VERSUS

1. The State of Maharashtra

2. Shital Sanjay Walkar,
Age:24 Years, Occupation- Household Work,
Resident of Burudgaon Road, Ahmednagar. … Respondents
—-
Mr. S.V. Sudrik, h/f. S.S. Jadhavar., Advocate for the Petitioner.
Mr. V.M. Kagne, APP for Respondent-State.
—-

CORAM : MANGESH S. PATIL, J.
DATE OF RESERVING THE JUDGMENT : 03.08.2018
DATE OF PRONOUNCING THE JUDGMENT : 05.09.2018

JUDGMENT :

Heard. Rule. The Rule is made returnable forthwith. The

learned A.P.P. waives service for the respondent no.1. Respondent no.2 is

served. With the consent of both the sides the matter is taken up for

final hearing.

2. The petitioner who is arraigned as accused no.2 in Crime

No. I-93 of 2015 registered with Kotwali Police Station, Ahmednagar for

the offence punishable under Sections 307, 376, 420, 323, 504, 506 read

with Section 34 of the Indian Penal Code applied for discharge under

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Section 227 of the Criminal Procedure Code by filing application

(Exhibit-11) in Sessions Case No.351 of 2015 arising from that crime.

After hearing, by the impugned order the learned Additional Sessions

Judge rejected the application. Hence this writ petition.

3. Shortly stated, the allegations in the F.I.R. lodged by the

respondent no.2 as can be made out from the charge-sheet are to the

effect that the accused no.1 who happens to be the nephew of the

petitioner promised her to marry and deceived her to have sexual

relations with him. He maintained such relations and as a result she

became pregnant. However, he forcibly administered her pills as a result

she suffered abortion. He then started neglecting her. When he started

looking for a girl to marry she filed a complaint with Women’s Grievance

Committee. It was then alleged that the petitioner thereafter intervened

and promised that he would bring about the marriage between the two.

However in spite of lapse of four months when nothing happened she

went to the house of the petitioner on 13.04.2015 to inquire with him.

However he abused and threatened her and also beaten her. He also

declared that he wanted the accused no.1 to marry his niece and asked

her to leave. When she refused he forcibly administered her pills. But

somehow she went to a shelter home and from there she was taken to a

hospital. Her statement was recorded by the Special Judicial Magistrate

while under going treatment on 15.04.2015. It was treated as F.I.R. and

the offence was registered.

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4. The learned advocate for the petitioner submitted that

accepting the allegations in the F.I.R. at their face value and going by the

papers collected by the Investigating Officer and filed along with the

charge-sheet as also some documents of impeccable character relied

upon by the petitioner clearly demonstrate that he is being falsely

implicated. There was no sufficient ground for proceeding against him.

The information collected from Anandrishiji Hospital by the petitioner

which was from the doctor concerned clearly shows that the respondent

no.2 had given the history of having consumed the pills herself. There is

a history about such an attempt by her at earlier point of time. The

documents annexed to the charge-sheet further reveal that the petitioner

had gone to Junnar on the relevant date i.e. 13.04.2015 for attending the

last rites of his sister and was also required to be admitted in Tuljai

Bhavani hospital between 12.04.2015 to 14.04.2015. All these police

papers clearly substantiate the version of the petitioner that he was not

present in his house at all when the alleged incident is stated to have

taken place in his house. All these material facts and circumstances have

been ignored by the learned Additional Sessions Judge. The impugned

order is illegal.

5. The learned advocate for the petitioner would further point

out that the subsequent text messages sent by the respondent no.2 and

her relative to the accused no.1 also demonstrate as to how the

respondent no.2 has lodged he F.I.R. as a revenge and an attempt is being

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made to extort money. He would also point out the affidavit of mason

Sandip Dattatraya Kolge who has stated about absence of the petitioner

in the house between 12.04.2015 and 14.04.2015 while he was doing

flooring in the house. Therefore, even such a record of impeccable

character should have been looked into by the learned Additional

Sessions Judge. She having failed to do so, the impugned order has

resulted in miscarriage of justice and the petitioner may be discharged.

6. The learned A.P.P. strongly opposed the petition. He

submitted that at this juncture subjective satisfaction of existence of

sufficient material to frame charge was enough for the learned

Additional Sessions Judge to refuse to discharge the petitioner. Though

the documents of impeccable character can be looked into, since the

documents are being relied upon by the petitioner to substantiate his

plea of alibi, those cannot be looked into at the stage of framing of the

charge. Going by the allegations in the F.I.R. and the statements of

witnesses there was sufficient material to reveal complicity of the

petitioner in commission of the crime. It cannot be said that there were

no sufficient grounds to proceed against him. The petition may be

rejected.

7. It is apparent that the petitioner has been banking upon

some of the documents collected by the Investigating Officer purportedly

showing that he was taking treatment in Tulja Bhavani Hospital at

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Junnar between 12.04.2015 and 14.04.2015 and also relying upon the

affidavit of mason to substantiate his plea of alibi. It is true that

documents of impeccable character even if those are produced by the

accused can be gone into while considering the request of discharge

under Section 227 of the Code of Criminal Procedure. However, since

the petitioner is seeking to take a plea of alibi which is purely based on

facts, the veracity or otherwise of the above mentioned record either

collected by the Investigating Officer or produced by the petitioner

independently can only be gone into and commented upon at a full-

fledged trial extending sufficient opportunity for both the sides to

establish these circumstances by cogent and reliable material. Drawing

any inference either way at this juncture would certainly cause a serious

prejudice to either of the parties and that cannot be allowed to happen.

Precisely for this reason, in my considered view, this Court should not

comment upon the quality of material or can scan it threadbare to arrive

at a conclusion either way as regards such a plea of alibi.

8. True it is that copies of some text messages purportedly sent

by the respondent no..2 or her relative to the accused no.1 would have

apparently some bearing on the veracity or otherwise of prosecution

version. But again, it is a matter of proof of the fact as to whether such

texts were really sent by her on her behalf, which fact can only be

established by leading evidence. Therefore at this juncture, no inference

can be drawn as is submitted by the learned advocate for the petitioner

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about false implication.

9. As is rightly submitted by the learned A.P.P., there are specific

and precise allegations against the petitioner about he having initially

promised to bring about a marriage between the accused no.1 and the

prosecutrix which if established would clearly constitute an ingredient

for the offence of cheating since the prosecutrix is alleged to have relied

upon such a promise made by him after she had lodged a complaint with

the Women’s Grievance Committee.

10. The respondent no.2 had further alleged about he having

threatened and assaulted her and also forcibly administered her pills

which would prima facie constitute some of the other offences with

which the petitioner is being charged. At this juncture, such a material

would be more than sufficient to conclude existence of sufficient grounds

to proceed. The learned Additional Sessions Judge based on the material

annexed to the charge-sheet has reached a plausible conclusion which

cannot be interfered with in the writ jurisdiction. There is no apparent

illegality, perversity or arbitrariness.

11. The Writ Petition is dismissed.

12. The Rule is discharged.

[MANGESH S. PATIL, J.]

KAKADE

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