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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2943 OF 2010
1. Uddhavrao S/o.Nivrutti Sarkale,
Age-70 years, Occu-Agriculturist,
2. Markand S/o.Uddhavrao Sarkale,
Age-34 years, Occu-Business,
3. Sau.Anandibai W/o.Uddhavrao Sarkale,
Age-65 years, Occu-Household,
All R/o.Petrol Pump Chowk, Terna Nagar,
Tq. and Dist. Osmanabad APPLICANTS
VERSUS
The State of Maharashtra RESPONDENT
Mr.J.R.Patil, learned counsel for applicants.
Mrs.V.A.Shinde, learned APP for State
CORAM : A.V.POTDAR, J.
DATE : 17/08/2010
ORAL JUDGMENT :
1. By the present application, the applicants, who are accused
in RCC No.381/2001, pending on the file of 2nd J.M.F.C. at
Osmanabad, have assailed the order passed below Exh.103 by
which the learned J.M.F.C. had allowed the application of
prosecution to frame additional charge against the applicants u/s.
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229(A) of The IPC.
2. It appears that the said order came to be challenged before
this Court and circulation was taken on 03/08/2010. At that
time, implementation of the order impugned was stayed.
3. Rule.
4.
Rule made returnable forthwith.
5. Considering the small issue involved in this matter, heard
finally at the stage of admission itself.
6. Such of the facts which are necessary for the just decision in
this matter can be summarized as follows : The offence came to be
registered against the applicants in Dhoki Police Station, on the
information received from one Shrikrushna Gandhe on
22/06/2001 for an offence punishable u/s. 39, 44 of The Indian
Electricity Act. It appears that after completion of investigation,
on 30/06/2001, charge sheet was filed in the Court of Judicial
Magistrate, F.C. Osmanabad against the applicants accused. The
applicants appeared before the Trial Court on 08/11/2001, and
they were released on bail as per order of the learned J.M.F.C.
court. It further appears that the trial was waiting to frame
charge for the period of 2 years, and on 30/04/2003, charge was
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framed against the applicants/accused for the offence punishable
u/s. 39, 44 of The Indian Electricity Act r/w. 34 of IPC. It
appears that on 02/03/2007, an application was moved for
issuance of witness summons.
7. It appears from the Roznama that the first witness was
examined by the prosecution on 04/06/2008, 2nd witness was
examined on 07/11/2008, 3rd witness was examined on
19/08/2009 and 4th witness was examined on 22/01/2010. It
further shows that witness no.1 was sent back on 6 occasions in
view of the adjournment applications filed by the defence lawyer.
As against this, on 3 occasions, the matter was adjourned as the
concerned Presiding Officer was on leave, while on 1 occasion,
witness was sent back as the learned APP was on leave. It
appears from the contents of the Roznama that after framing of
charge, on 13 occasions, for one reason or another, no summon
was issued by the Court staff to secure attendance of witnesses of
the prosecution. As the first witness remained absent on 5
occasions, bailable warrant was issued against him to secure his
presence. On 3 occasions, bailable warrant was issued to secure
the presence of prosecution witness no.2. It is to be noted that
presence of prosecution witness no.3 and 4 was also secured by
issuance of bailable warrant as in response to summons, they
failed to appear before the Court.
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8. The record further shows that applicant no.1, who is arrayed
as accused no.1 in the trial before the trial court, remain absent
during the trial on 13 occasions. On all these occasions,
applications for exemption were filed on behalf of him and for the
grounds stated therein, the said applications were allowed by the
Lower Court. Thus the fact remains that the reason of absence of
applicant no.1, showing his unableness to attend the Court was
accepted by the Court and only thereafter, exemption was granted
in his favour.
9. Record and proceeding further shows that after the evidence
of prosecution was closed, statement of applicants/accused were
recorded u/s. 313 of The Cr.P.C. on 06/05/2010. Thereafter, it
appears that on 15/06/2010, an application was moved by the
APP to frame the additional charge u/s. 229(A) of The IPC to which
the reply was filed by the present applicant at Exh.105 before the
Lower Court on 01/07/2010. It appears that vide order dated
07/07/2010, after hearing both the sides, learned J.M.F.C. has
allowed the application, which order is assailed in this application.
10. In the light of submissions across the bar, it is necessary to
consider the scope of section 229A of The IPC, which read as
follows :
Whoever, having been charged with an offence and
released on bail or on bond without sureties, fails
without sufficient cause (the burden of proving::: Downloaded on – 09/06/2013 16:18:43 :::
5which shall lie upon him), to appear in Court in
accordance with the terms of the bail or bond, shallbe punished with imprisonment of either
description for a term which may extend to one
year, or with fine, or with both.
Considering the submissions of learned counsel for applicants as
well as learned APP, it revealed that for the first time, the bail
granted in favour of applicant no.1 and 3 was cancelled by
rejecting the application for exemption by the learned Trial Court.
Thereafter, notices were issued to the sureties, but this order was
modified vide order dated 28/07/2009. Other than this occasion,
on rest of the occasions, whenever the application for exemption
was moved by the first applicant, on medical ground or some other
ground, as he was bed ridden due to the accident, and unable to
attend the Court, exemption was granted to him. All these
exemption applications were submitted coupled with medical
certificate supporting the ground on which the exemption was
claimed for. In the premise, it can not be said that the first
applicant, after his release on bail, without any just reason,
remained absent before the Lower Court and because of the his
absence, trial was delayed.
11. As stated in paragraph supra, it is to be noted that even
though the charge sheet was filed in the year 2001, it require more
than 2 years to frame the charge as the charge was framed in the
year 2003. Further the roznama shows that after charge was
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framed in the year 2003, it took more than 3 years to issue
witness summonses to secure the presence of witnesses, and the
first witness was examined on 04/06/2008 by the prosecution i.e.
after 5 years of framing of charge in the year 2003. During this
period, only on 6 occasions, due to absence of first applicant, the
case was adjourned. At the same time, it is to be noted that on
3 occasions, as the Court was on leave, the matter was adjourned
and on one occasion, the APP was on leave. Considering this
aspect, it can not be said that the trial was delayed due to absence
of these applicants. It is to be noted that even the charge was
framed in the year 2003, the last witness was examined by the
prosecution in the year 2010. Within the span of 6-7 years, if on
six occasions, witness was sent back due to absence of one of the
accused applicant, the accused applicant can not be faulted on
bare perusal of text of section 229(A) of The IPC. It is also clear
that the accused did not take dis-advantage of the relief granted in
his favour and has attended the Court to face the trial and
because of this, trial is delayed. It appears that the learned Lower
Court was impressed with the submissions of learned APP that
the delay caused to dispose of the trial is because of the delaying
tactics played by the applicant accused. At the same time, the
learned Lower Court also require to consider whether at any point
of time during this period, except the order dated 15/07/2009,
whether the bail bond of the accused was cancelled due to his
absence before the Court. In absence of it, the order assailed is
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not supported with the cogent reasons recorded by the learned
J.M.F.C. In the result, the order to frame charge against the
applicant u/s. 229(A) of The IPC do not sustain. In the substance,
the order passed below Exh.103 dated 07/07/2010 is require to be
quashed and set aside. The order impugned to frame the charge
against applicant u/s. 229(A) is not sustainable in law.
Accordingly it is quashed and set aside.
12.
Rule thus made absolute as indicated above.
13. Application stands disposed of accordingly. No order as to
costs. If no date is fixed for the appearance of these applicants
before the Lower Court, applicants to appear before the Lower
Court on 31/08/2010. Certified copy of this order is expedited.
(A.V.POTDAR, J.)
khs/AUG 2010/cri.appl.2943-10
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