SHAIKH BANNU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THESE are appeals by two of the three accused who were tried for offences under Sections 205, 205 and 109, 419, 419 read with 109, 465, 465 and 109, 467 and 471 of the Indian Penal Code. The prosecution of the three accused was on the basis of a complaint made by Shri R. K. Karandikar, Judicial Magistrate, First Class, Akola on 128-1969 under Section 476 read with Section 195 of the Code of Criminal Procedure. It arose out of Criminal case against one Deolal Kisan under Section 85 (1) (2) and (3) of the Bombay Prohibition Act.

(2.) ONE Deolal Kisan was arrested on 25-10-1968 in connection with an offence alleged to have been committed by him under Section 85 (1) (2) and (3) of the Bombay Prohibition Act. He was produced before Shri L. G. Deshpande, Second Joint Civil Judge, (Junior Division), First Class, Akola and was remanded to custody till 2-11-1968. On 1-111968 an application was made before that Court for releasing the offender Deolal Kisan on bail and along with that application an affidavit was filed purporting to be by one Gulabrao Rupchand Tikar as a surety. This affidavit was sworn before the Senior Clerk and the accused No. 2 Sk. Bannu is alleged to have identified him as Gulabrao. The Senior Clerk accepted what they stated and he made the endorsement on the affidavit and on the basis of that affidavit accepted the surety and on the basis of the bail application, offender Deolal Kisan was released on bail on 1-11-1968.

(3.) THE case against Deolal Kisan came to be transferred on 20-4-1969 to the Court of Mr. Karandikar before whom the case came for hearing on 12-5-1969. On that date the accused Deolal Kisan remained absent and a non-bailable warrant was issued against him. Since the surety Gulabrao was not also present and failed to produce the accused in the Court on the date of hearing, a notice was issued to him. Gulabrao appeared on 2-6-1969 before the Magistrate in answer to this notice. He made a statement before the Magistrate that he did not stand as a surety for the accused Deolal Kisan and that he did not make any affidavit nor did he sign the application or the affidavit or the bail bond. He denied that he swore any affidavit for standing surety of Deolal Kisan. On this statement, the original accused No. 3 Mohammad Nazir who was the scribe of the bail application was called and his statement was recorded. The original accused No. 2 Sk. Bannu who had identified the deponent of the affidavit was also called. The accused No. 2 is the father of accused No. 3, Accused No. 2 Sk. Bannu was then asked to produce the real surety on 10-6-1969 as the learned Magistrate was satisfied on the statements that the person named in the bail application and the surety was not the real surety. On 9-6-1969 the accused No. 3 Mohammad Nazir made an application to the Magistrate on behalf of his father the accused No. 2 that the real name of the surety was Shankar Kisan Kawitkar and therefore on 10-6-1969 a summons was issued to the accused No. 1 Shankar Kisan Kawitkar who appeared in pursuance of this summons on 17-6-1969. His statement was also recorded. The accused No. 1 stated that the thumb impression on the bail application and the affidavit was obtained by the accused No. 2 and he had no knowledge about the contents of the application and the affidavit. The real Gulabrao also stated that he is a literate person and can sign his name whereas the bail application and the affidavit bore the thumb impression purporting to be that of Gulabrao which he denied. It is on the basis of these facts that the learned Magistrate Mr. R. K. Karandikar forwarded his complaint, to the Judicial Magistrate, (First Class) Akola to deal with the same. The Committing Magistrate Shri P. N. Panchawadkar held an enquiry under Section 207-A of the Code of Criminal Procedure, recorded the evidence of Magistrate Shri Karandikar, Shri. Pawar Senior Clerk and Gulabrao Rupchand Tikar and finding that there was a prima facie case against all the accused, committed them for trial before the Court of Session. The learned Additional Sessions Judge after recording the evidence of witnesses came to the conclusion that there was no case against the accused No. 3 Mohammad Nazir and acquitted him of the offences under Sections 205, 419, 465 and 471 read with Section 109 of the Indian Penal Code. He found the accused No. 1 Shankar son of Kisan guilty of the offence under Section 205 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/-or in default of payment of fine to suffer further rigorous imprisonment for six months. Accused No. 1 was also convicted for the offences under Sections 419, 465 and 471 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for two years on each Count. The substantive sentences were to run concurrently.