SANJAY DHANCHAND GHODAWAT S/O DHANCHAND GHODAWAT; SATISH DHANCHAND GHODAWAT S/O DHANCHAND GHODAWAT AND ORS Vs. ANNASAHEB MALAGONDA PATIL S/O MALAGONDA PATIL

JUDGEMENT

(1.) Heard the learned Senior Advocate appearing for the Counsel for the petitioners and the learned Counsel appearing for the respondent.

(2.) The background to the present petition would necessarily have to be stated. The petitioners are aggrieved by the orders dated 17.02.2011 and 13.04.2012 passed by the Court of I Additional Civil Judge and J.M.F.C, Chikkodi, whereby the Court has taken cognizance of a private complaint filed by the respondent herein in P.C.R No.23/2011, which has been later converted into criminal case bearing C.C.No.454/2012 for offences punishable under Sections 109, 143, 147, 148, 149, 307, 323, 324, 326, 352, 500 and 506 read with Sec. 34 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC' for short). On issuance of a non-bailable warrant against the petitioners No.1 to 7, the petitioners after having obtained bail seek to question the maintainability of the said complaint.

(3.) The learned Senior advocate Sri. S. Naganand appearing for the Counsel for the petitioners, would contend, apart from the fact that, the Court below could not have taken cognizance of the complaint filed by the respondent, since the very Court was fully aware of the case by the petitioners in the first instance and in relation to the very same incident, as differently sought to be narrated by the present respondent and had found that the case brought by the petitioners was to be committed to the Sessions Court and having thus committed, the case ought to have proceeded with circumspection, insofar as the present respondent's complaint was concerned. But, however, the Magistrate having proceeded to take cognizance and thereafter having issued a non-bailable warrant against the petitioners, results in a miscarriage of justice, as the Court below has failed to abide by the provisions of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C' for short) and has committed an error of jurisdiction in not complying with the requirement of law. The learned Senior Advocate would submit that, apparently, the very same incident is the subject matter of the two proceedings, one by the petitioners on a police report and one by the respondent on a private complaint. When the case of the petitioner has been committed to the Sessions Court, on a finding by the Court below that it was a fit case, where it ought to be committed under Sec. 209 of the Cr.P.C, a different yard stick could not be applied in respect of an alleged counter case in relation to the same incident. The Court below ought to have examined, whether there is substance in such a counter case, which is admittedly brought three weeks after the incident and to have decided thereafter, whether it was a fit case to be committed to the Sessions Court, to be tried as a counter case along with the case that has already been committed, insofar as the petitioner is concerned. This has been completely overlooked by the Magistrate and in the result, there are parallel proceedings in relation to the same incident, one instituted by the petitioners and the other, in which the petitioners face trial before the Court of Magistrate. This incongruity is the result of the Court below not having followed the procedure prescribed in law and on that short point, the learned Senior Advocate would submit that, an appropriate direction be issued to the Magistrate to consider the complaint of the respondent in the first instance in terms of Sec. 209 of Cr.P.C, in due regard to the earlier complaint of the petitioners, which has been committed to the Sessions Court and which pertains to the very same incident, which is the subject mater of the present complaint of the respondent.