STATE OF MAHARASHTRA versus SHANKAR GANAPATI RAHATOL & ORS. on 31 January 2019

[2019] 1 S.C.R. 1029

STATE OF MAHARASHTRA

v.

SHANKAR GANAPATI RAHATOL & ORS.

(Criminal Appeal No. 799 of 2010)

JANUARY 31, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Code of Criminal Procedure, 1973 – s.378(3) – Leave toprefer appeal before High Court – Trial court acquitted accusedagainst the charges u/ss.143, 147, 323 r/w. ss.149, 325 of IPC ands.135 of Bombay Police Act – State’s application u/s.378(3) beforethe High Court was rejected – Revision petition by complainantagainst the acquittal order was also rejected by the High Court –On appeal, held: The reason for rejection of application u/s.378(3)was contrary to the evidence on record – Material on record indicatea prima facie case to prefer appeal against the judgment of the trialcourt – It is a fit case for grant of leave to appeal also in view of thefact that a cross-complaint relating to the same incident is pendingin appeal before the High Court – Impugned order of the HighCourt rejecting application u/s.378(3) set aside – No reason to rejectthe revision petition filed by the complainant – Accordingly, matterremitted to the High Court for fresh consideration, to decide thecriminal revision on its own merit – Penal Code 1860 – ss.143, 147,323 r/w. 149, 325 – Bombay Police Act – s. 135.

Disposing of the appeals, the Court

HELD: 1.1 The reason for rejecting the application for leaveto appeal ran contrary to evidence on record. In any event, havingperused the material on record, prima facie, a case is made outby the State for grant of leave to prefer appeal against thejudgment and order dated 06.05.2005, passed by the trial Court.[Para 5][1032-F]

1.2 There was also a cross complaint by other faction inthe village relating to same date incident on which basis a casewas registered and the accused therein were tried and convictedfor offences under Section 143, 147, 307, 324, 427, 504, 395,325, 337, 452 read with 149, 325 IPC. Appeal preferred against

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Athat judgment is pending before the High Court. As the twogroups in the village filed cross complaints and appeal arisingout of one is pending before the High Court. It is a fit case forgrant of leave. [Para 6][1032-G-H; 1033-A]

1.3 For the aforesaid reason this appeal is allowed andBimpugned order dated 13.06.2008, rejecting leave to appealu/s.378(3) of Cr.P.C., is set aside. Consequently, application filedbefore the High Court stands allowed. The criminal appealpreferred by the State challenging the acquittal in the trial Courtshall be taken on file. [Para 7][1033-B]

CState of Maharashtra v. Sujay Mangesh Poyarekar(2008) 9 SCC 475 : [2008] 13 SCR 750 – referredto.

2.1 This Court is of the view that as the impugned order ofthe High Court in Criminal Application u/s.378(3) of Cr.P.C. has Dalready been set aside in the appeal filed by the State, there is noreason to reject the revision filed by the complainant. [Para11][1033-F]

2.2 Accordingly, the impugned order of the High Court inCriminal revision application is set aside and the matter isEremitted to the High Court for fresh consideration, to decide thecriminal revision on its own merit. [Para 12][1033-F-G]

Case Law Reference

[2008] 13 SCR 750 referred toPara 4

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.F799 of 2010.

From the Judgment and Order dated 13.06.2008 of the HighCourt of Judicature at Bombay in Criminal Application No. 4504 of2006.

GWITH

Criminal Appeal Nos.798, 800 of 2010 and 197 of 2019.

Vinay Navare, Pravin Satale, Rajiv Shankar Dvivedi, Ms. DeepaM Kulkarni, Nishant Ramakantrao Katneshwarkar, Sushil Karanjkar,K.N. Rai, Advs. for the appearing parties.

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The Judgment of the Court was delivered by

R. SUBHASH REDDY, J. 1. The State of Maharashtra haspreferred this appeal aggrieved by the order dated 13.06.2008, passedby the High Court of Judicature at Bombay, in criminal Application No.4504 of 2006.

2. On 01.09.1998 a complaint was lodged by one Shivram, whowas examined as P.W.1 stating that on 29.08.1998 at around 9 O’Clockhe was doing work in Hanuman Water Supply Society, sitting at KalammaMilk Dairy. At that time the loud speaker was switched off. When hecame out of Milk Dairy to know whey loud speaker was switched off,he found Ananda Ganpati Rhatol, Shankar Ganpati Rhatol, YashvantShripati Rhatol, Shivaji Bapu Khot, Rangrao Piraji Angaj, Shankar GanuMetil, Samadhan Shankar Metil, Damodar Tukaram Raut, RameshDamodar Taut, Dattatraya Vasant Rhatol, Baburao Dattatray Rhatol,Baburao Jaysingh Rhatol, Ganpati Krishna Powar, Hanumant KrishanaPowar and other persons approaching towards him and they had attackedand assaulted him. In the said attack, he stated that he was injured andhospitalized. Subsequently, after recovery, he lodged complaint on01.09.1998, based on which FIR No. 1165/1998 was registered. Basedon the complaint lodged, investigation was made and the respondentsherein were charged for offences punishable under Sections 143, 147,323 read with 149, 325 of I.P.C. and 135 of Bombay Police Act. Aftercharge sheet was filed, case was tried by the learned 5th AdditionalSessions Judge, Kolhapur. Vide judgment dated 06.09.2005 all theaccused were acquitted of the charges framed against them.

3. The appellant-State has filed application seeking leave to preferappeal as contemplated under Section 378(3) of Cr.P.C., 1973, whichwas numbered as criminal application No. 4504 of 2006. The aforesaidapplication was rejected by impugned order dated 13.06.2008 and theHigh Court declined leave to appeal. Hence this appeal by the State.

4. We have heard learned counsel for the State as well as thecounsel appearing for the respondents-accused and perused order dated13.06.2008 and other material placed on record. In support of the case,a reliance is placed by counsel for the appellant-State on the judgment inthe case of State of Maharashtra vs. Sujay Mangesh Poyarekar, reportedin (2008) 9 SCC 475. In the aforesaid judgment, the scope of Section A

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A378(3), Cr.P.C. has been considered by this Court. The relevantparagraphs 20 and 21 of the aforesaid judgment reads as under :

“20. In our opinion, however, in deciding the question whetherrequisite leave should or should not be granted, the High Courtmust apply its mind, consider whether a primafacie case has beenBmade out or arguable points have been raised and not whetherthe order of acquittal would or would be set aside.

21. It cannot be laid down as an abstract proposition of law ofuniversal application that each and every petition seeking leave toprefer an appeal against an order of acquittal recorded by a trialCcourt must be allowed by the appellate court and every appealmust be admitted and decided on merits. But minute details ofthe prosecution evidence and refuse leave observing that thejudgment of acquittal recorded by the trial court could not be saidto be “perverse” and, hence, no leave should be granted.”

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5. Further, we have noticed from the impugned order that whilerejecting the application, the High Court has stated that medical evidencedid not indicate any injury on the back or on the thigh of the complainant.However, from the material placed on record, it appears that the said,finding in the order run contrary to the medical evidence on record. Dr.EYashwant who was examined as P.W. 5, in his deposition, categoricallystated that the complainant Shivram had sustained a fracture of left tibiaand there were also lacerated wounds. The medical evidence documentswere exhibited as Exhibits 121 and 131. The reason for rejecting theapplication for leave to appeal run contrary to evidence on record. Inany event, having perused the material on record, we are of the viewFthat, prima facie, a case is made out by the State for grant of leave toprefer appeal against the judgment and order dated 06.05.2005, passedby the 5th Additional Sessions Judge, Kolhapur in Sessions Case No.140 of 2000.

6. We are also informed that there was a cross complaint byGother faction in the village relating to same date incident on which basisa case was registered and the accused therein were tried in SessionsCase No.83/1999. The accused therein were convicted for offencesunder Section 143, 147, 307, 324, 427, 504, 395, 325, 337, 452 read with149, 325 IPC. It is stated that appeal preferred against that judgment is H

pending before the High Court. As it is stated that the two groups in thevillage filed cross complaints and appeal arising out of one is pendingbefore the High Court, we are of the view that it is a fit case for grant ofleave as prayed for by the appellant-State.

7. For the aforesaid reason this appeal is allowed and impugnedorder dated 13.06.2008 is set aside. Consequently, application filed beforethe High Court stands allowed. The criminal appeal preferred by theState challenging the acquittal in Sessions Case No. 140 of 2000 shall betaken on file.

8. In appreciation of the contention raised by the respective parties,we request the High Court to take up the appeal in terms of this order, aswell as Criminal Appeal No. 849 of 2005 simultaneously and decide thesame expeditiously.

CRIMINAL APPEAL NO. 197 OF 2019

(Arising out of SLP(Crl.) No. 3359 OF 2010)

9. Leave granted.

10. The complainant has filed criminal Revision application No.119 of 2006 before the High Court aggrieved by the order of acquittalpassed in Sessions Case No.140 of 2000. The same is rejected on thebasis of the impugned order passed in Criminal Application No. 4504 of2006.

11. We are of the view that as the impugned order in CriminalApplication No. 4504 of 2006 has already been set aside by this Court inthe appeal filed by the State, there is no reason to reject the revision filedby the complainant.

12. Accordingly, the impugned order dated 21.01.2010 in Criminalrevision application No. 119 of 2006 is set aside and the matter is remittedto the High Court for fresh consideration, to decide the criminal revisionon its own merit.

CRIMINAL APPEAL NO. 798 OF 2010

CRIMINAL APPEAL NO. 800 of 2010

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1034SUPREME COURT REPORTS

A13. In view of order passed in the aforesaid appeals, it is statedthat no further orders are required to be passed in these appeals.Accordingly, these appeals also disposed off.

Ankit GyanB

Appeals disposed of.

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