JAVED WAHED SHAIKH Vs. MAHADEO S/O VISHWAMBHAR SHINDE

JUDGEMENT

(1.) Rule. By consent, Rule made returnable forthwith. By consent, heard finally. The petitioner is the original complainant, and shall hereinafter be referred to as such, for convenience and clarity. He filed a complaint against the respondent Nos. 1, 2 and 3 herein, alleging commission of offences punishable under Section 201 of the Indian Penal Code (IPC), Section 203 of IPC, Section 323 of IPC, Section 504 of IPC read with Section 34 of IPC in the Court of Judicial Magistrate, First Class, Tuljapur. The learned Magistrate, after considering the averments in the complaint and on examining the complainant, issued process against the respondent Nos. 1, 2 and 3 herein (hereinafter referred to as the accused) requiring them to appear and answer to the charge of the said offences. This order was passed by the learned Magistrate on 01.02.2009. By the same order, the Magistrate erroneously committed 'the complaint' to the Court of Sessions without waiting for appearance of the accused, and without furnishing a copy of the complaint and the statements recorded before issuance of process, etc, as per the requirement of Section 208 of the Code of Criminal Procedure (Code). When the case was committed to the Court of Sessions, the Court of Sessions remanded the matter back for compliance with the relevant provisions in the Code regarding the appearance of accused, etc. After remand, the learned Magistrate complied with the relevant provisions and again committed the case to the Court of Sessions. The Court of Sessions, by its order dated 16.06.2009, held that the case was not exclusively triable by the Court of Sessions and sent it back to the learned Magistrate for proceeding therewith in accordance with law. This order was challenged by the original complainant by filing a Writ Petition before this Court, which was allowed and the order dated 16.06.2009 was quashed. This Court directed the matter to be remanded back to the Additional Sessions Judge for deciding that, 'whether the complaint is triable by the Court of Sessions or not'. When the matter, thus, was remanded back to the Court of Sessions, the Additional Sessions Judge, by an elaborate order dated 16.11.2011 observed that the offence punishable under Section 201 of IPC was, prima facie, not made out. He thereafter observed that the other offences viz: those punishable under Section 203 of IPC, Section 323 of IPC and Section 506 of IPC read with section 34 of IPC were not exclusively triable by the Court of Sessions. Holding so, he remanded the matter back to the Court of learned Magistrate for trial.

(2.) I have heard the learned counsel for the parties, at length. With their assistance, I have got clarified all the factual aspects of the matter.

(3.) As aforesaid, process had been issued with respect to the offences punishable under Section 201 of IPC, Section 203 of IPC, Section 323 of IPC, Section 506 of IPC read with Section 34 of IPC. The offence punishable under Section 201 of IPC was alleged to be in relation to the offence of murder. In other words, the allegation was of causing of disappearance of evidence of commission of a capital offence by the accused persons. The dispute arose, as to whether, the case, as it was, i.e.: including the offence punishable under Section 201 of IPC was exclusively triable by the Court of Sessions, or not. This is what this Court had asked the Sessions Court to decide, when it had remanded the matter back to the Court of Sessions. The Sessions Court while deciding this issue, however, observed that prima facie, no case of offence punishable under Section 201 of IPC made out at all. It is in this view of the matter, that he concluded that the case was not exclusively triable by the Court of Sessions.