BAPU APPAJI PATRAVALE Vs. KUSUM VASANT GALANDE

JUDGEMENT

(1.) The petitioners are accused in pending criminal case No. 377 of 1973 instituted by respondent No. 1 in the Court of the Judicial Magistrate, First Class. Barsi. The complaint is lodged dn 31st March 1972. According to the averments in the complaint camplainaut's lands bearing survey Nos. 408 and 409 happened to be situated near Gormala tank. Accused petitioners are alleged to be contractors. It is alleged that they have obtained the contract from the Government to excavate the said Gormala tank. According to the complainant, in the process of this work undertaken by the accused petitioners from the Government, the accused have trespassed on her lands Gut Nos. 408, & 409, removed earth therefrom and caused damage to the Bunds in her land, It is on these allegations that offences under sections 447, 424 and 427 read with section 341. P. C are alleged to have been committed by both the accused Accused No. 1 is the husband, while accused No. 2 is his wife.

(2.) It appears that similar complaint was made by the complainant to the police. However, the complainant was constrained to file this complaint, as no action was taken by the police on her complaint. The learned trial Magistrate issued process on 31st March 1973, for offences under sec. 447, 424 and 427 read with section 34 I.P,C. The complainant then examined herself and also examined one more witness. Both these witnesses, were extensively cross-examined by the defence, After this cross-examination the learned Magistrate framed charge on 23-7-1974 against the accused for all these offences Validity and legality of this order of framing the charge is challenged in this Special Criminal Application under Article 227 of the Constitution.

(3.) Mr. Naik, the learned Advocate appearing for the petitioners, contends that the evidence recorded so far does not make out any case of the oifences under sections 447, 424 and 427 read with section 34 of the Indian Penal Code. We find much substance in this grievance of the learned advocate as far as the complainant's case against accused No. 2, the wife of accused No. 1 is concerned. In the complaint it is generally stated that both, the accused have done the impugned acts, viz. of entering in the land, removing the earth and causing damage to the Bunds. In the evidence at the trial however the witnesses have not said even a word against accused No 2. In cross-examination, the witnesses have admitted that accused No. 2 had nothing to do with the contract. We are not called upon to decide at this stage whether the acts alleged to have been committed by the accused constituted anv of the offences mentioned in the complaint or in the charge. It is enough to observe that no overt act is attributed to accused No. 2 nor anything is said against accused No. 2 in the whole of the evidence of the witnesses. On this material the learned Magistrate was not justified in framing the charge against accused No 2. The charge, at any rate, against accused No 2 is liable to be quashed.