B R RAIRIKAR Vs. UDAY BHALCHANDRA WAVIKAR

JUDGEMENT

(1.) Accused Nos. 1 and 2 in Criminal Case No. 36/S of 1978 of the file of the Metropolitan Magistrate, 6th Court, Mazgaon, Bombay, have filed this petition under Section 482 of the Code of Criminal Procedure for quashing the said criminal case and the order framing charge in it.

(2.) In order to understand the rival contentions of the parties, it will be better to give a few salient facts. There is a college known as Lala Lajpatrai College of Commerce and Economics at Bombay. Applicant No. 1 Dr. B. R. Rairikar (who is the original accused No. 1) is the Principal of that college while applicant No. 2 Professor G. M. Rajarshi (who is original accused No. 2) is the Vice-Principal. Opponent No. 2 Vinod Singh (who was a student of the college) is accused No. 3 in the lower Court while opponent No. 1 Uday Bhalchandra Wavikar is the complainant in the said criminal case. It would be convenient to refer the parties by their names and not as applicants and oppnents or accused and complainant. A function known as the college day was to be held on 27th January, 1978. Complainant Wavikar was a past student of the said college. He appeared for the Bachelor of Commerce Examination from that college in 1977. He, however, failed. He was also invited for the said function which began at about 2.00 p.m. or so, Wavikar went to the function hall and occupied a sent somewhere in the rear portion of the hall. He had carried with him a small bag popularly known as VIP bag. That bag contained some papers belonging to Wavikar. His version is that he kept the bag near his seat and went to the front portion of the hall in order to meet his friends and the staff members of the college. When he was talking with the Staff Members of the college he found that certain pamphlets were hurled in the hall. He did not pay attention to this fact. However, he suddenly went to the place where he had kept the bag and he found that the bag was missing. He made efforts to trace it but without any success.

(3.) Wavikar further contends that in the same evening Dr. Rairikar made a phone call to the father of Wavikar that he (Rairikar) was in the possession of the bag and that the father should come and see Rairikar in that connection. On the next day Wavikar went to the college and saw Rairikar who, however, refused to return the bag and said that the bag contained leaflets or pamphlets that were hurled in the hall. Wavikar refuted the allegation. He then left the room. However, he learned outside the room that Vinod Singh had put the said pamphlets in the bag in order to falsely involve Wavikar. Wavikar further alleged that he demanded the bag from Rairikar and Rajarshi and that their refusal to return the bag constitute an offence of theft. It is with this allegation that a private complaint under Section 379 read with Section 114 of the Indian Penal Code was filed by Wavikar against Rairikar, Rajarshi and Vinod Singh. The said complaint was numbered as criminal case No. 36/S of 1978. In the complaint, Wavikar also prayed that a search warrant be issued for attaching the said bag from the possession of Rairikar. But the Roznama of the case shows that the Magistrate did not issue such a search warrant. He, however, issued a process under Section 379 read with Section 114 against Rairikar, Rajarshi and Vinod Singh. This happened on 31st January, 1978. However, on the next day i.e. on 1st February, 1978 Wavikar again made an application (copy of which is at Annexure D to the main petition) requesting that warrant be issued for searching the room of the Principle i.e., Rairikar in order to have the bag before the Court. On this day, the case had gone to another Magistrate viz., Mr. R. D. Chandavarkar, as the allotment of the work was changed as usual. The Magistrate issued search warrant as prayed for by Wavikar. It seems that the police returned the search warrant as the bag was not with Rairikar. He had already produced the bag before the police. This production took place in the background of the intimation given by Rairikar to the police that the leaflets or pamphlets were hurled at the time of the function, that the bag of Wavikar was found in the hall and that though attempts were made a deliver the bag after seeing the contents thereof. Wavikar did not choose to open the bag on the pretext that the keys were not with him and hence the bag was produced before the police.