{"id":208958,"date":"2010-08-17T00:00:00","date_gmt":"2010-08-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/uddhavrao-vs-the-state-of-maharashtra-on-17-august-2010"},"modified":"2015-12-25T17:30:45","modified_gmt":"2015-12-25T12:00:45","slug":"uddhavrao-vs-the-state-of-maharashtra-on-17-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/uddhavrao-vs-the-state-of-maharashtra-on-17-august-2010","title":{"rendered":"Uddhavrao vs The State Of Maharashtra on 17 August, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Uddhavrao vs The State Of Maharashtra on 17 August, 2010<\/div>\n
Bench: A. V. Potdar<\/div>\n
                                          1\n\n\n\n\n                                                                               \n                IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n\n\n\n\n                                                      \n                                 BENCH AT AURANGABAD\n\n\n                 CRIMINAL APPLICATION NO.2943 OF 2010\n\n\n\n\n                                                     \n    1. Uddhavrao S\/o.Nivrutti Sarkale,\n        Age-70 years, Occu-Agriculturist,\n\n    2. Markand S\/o.Uddhavrao Sarkale,\n\n\n\n\n                                          \n        Age-34 years, Occu-Business,\n                          \n    3. Sau.Anandibai W\/o.Uddhavrao Sarkale,\n        Age-65 years, Occu-Household,\n                         \n    All R\/o.Petrol Pump Chowk, Terna Nagar,\n    Tq. and Dist. Osmanabad                                      APPLICANTS\n      \n\n\n                 VERSUS\n   \n\n\n\n    The State of Maharashtra                                     RESPONDENT\n\n    Mr.J.R.Patil, learned counsel for applicants.\n\n\n\n\n\n    Mrs.V.A.Shinde, learned APP for State\n\n                               CORAM : A.V.POTDAR, J.\n<\/pre>\n
                               DATE : 17\/08\/2010<\/p>\n
    ORAL JUDGMENT  :\n<\/p>\n
    1.    By the present application, the applicants, who are accused <\/p>\n
    in   RCC   No.381\/2001,   pending   on   the   file   of   2nd   J.M.F.C.   at <\/p>\n
    Osmanabad,   have   assailed   the   order   passed   below   Exh.103   by <\/p>\n
    which   the   learned   J.M.F.C.   had   allowed   the   application   of <\/p>\n
    prosecution to frame additional charge against the applicants u\/s.\n<\/p>\n
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\n                                              2<\/span><\/p>\n
    229(A) of The IPC.\n<\/p>\n
    2.     It appears that the said order came to be challenged before <\/p>\n
    this  Court  and circulation  was  taken  on  03\/08\/2010.      At  that <\/p>\n
    time, implementation of the order impugned was stayed.\n<\/p>\n
    3.     Rule.\n<\/p>\n
    4.<\/p>\n
           Rule made returnable forthwith.\n<\/p>\n
    5.     Considering   the   small   issue   involved   in  this   matter,   heard <\/p>\n
    finally at the stage of admission itself.\n<\/p>\n
    6.     Such of the facts which are necessary for the just decision in <\/p>\n
    this matter can be summarized as follows : The offence came to be <\/p>\n
    registered against the applicants in Dhoki Police Station, on the <\/p>\n
    information   received   from   one   Shrikrushna   Gandhe   on <\/p>\n
    22\/06\/2001 for an offence punishable u\/s. 39, 44 of The Indian <\/p>\n
    Electricity Act.     It appears that after completion of investigation, <\/p>\n
    on   30\/06\/2001,  charge   sheet  was   filed   in   the   Court   of   Judicial <\/p>\n
    Magistrate, F.C. Osmanabad against the applicants accused.   The <\/p>\n
    applicants   appeared   before   the   Trial   Court   on   08\/11\/2001,   and <\/p>\n
    they   were   released   on   bail   as   per   order   of   the   learned   J.M.F.C.\n<\/p>\n
    court.       It   further   appears   that   the   trial   was   waiting   to   frame <\/p>\n
    charge for the period of 2 years, and on 30\/04\/2003, charge was <\/p>\n
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\n                                                3<\/span><\/p>\n
    framed against the applicants\/accused for the offence punishable <\/p>\n
    u\/s.   39,   44   of   The   Indian   Electricity   Act   r\/w.   34   of   IPC.       It <\/p>\n
    appears   that   on   02\/03\/2007,   an   application   was   moved   for <\/p>\n
    issuance of witness summons.\n<\/p>\n
    7.     It   appears   from   the   Roznama   that   the   first   witness   was <\/p>\n
    examined by the prosecution on 04\/06\/2008,   2nd witness was <\/p>\n
    examined   on   07\/11\/2008,   3rd   witness   was   examined   on <\/p>\n
    19\/08\/2009 and 4th witness was examined on 22\/01\/2010.     It <\/p>\n
    further shows that witness no.1 was sent back on 6 occasions in <\/p>\n
    view of the adjournment applications filed by the defence lawyer.\n<\/p>\n
    As against this, on 3 occasions, the matter was adjourned as the <\/p>\n
    concerned   Presiding   Officer   was   on   leave,   while   on   1   occasion, <\/p>\n
    witness   was   sent   back   as   the   learned   APP   was   on   leave.     It <\/p>\n
    appears from the contents of the Roznama that after framing of <\/p>\n
    charge, on 13 occasions, for one reason or another, no summon <\/p>\n
    was issued by the Court staff to secure attendance of witnesses of <\/p>\n
    the   prosecution.     As   the   first   witness   remained   absent   on   5 <\/p>\n
    occasions, bailable warrant was issued against him to secure his <\/p>\n
    presence.   On 3 occasions, bailable warrant was issued to secure <\/p>\n
    the presence of prosecution witness no.2.     It is to be noted that <\/p>\n
    presence of prosecution witness no.3 and 4 was also secured by <\/p>\n
    issuance   of   bailable   warrant   as   in  response   to    summons,   they <\/p>\n
    failed to appear before the Court.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 16:18:43 :::<\/span>
\n                                             4<\/span><\/p>\n
    8.     The record further shows that applicant no.1, who is arrayed <\/p>\n
    as accused no.1 in the trial before the trial court, remain absent <\/p>\n
    during   the   trial   on   13   occasions.       On   all   these   occasions, <\/p>\n
    applications for exemption were filed on behalf of him and for the <\/p>\n
    grounds stated therein, the said applications were allowed by the <\/p>\n
    Lower Court.   Thus the fact remains that the reason of absence of <\/p>\n
    applicant no.1, showing his unableness to attend the Court was <\/p>\n
    accepted by the Court and only thereafter, exemption was granted <\/p>\n
    in his favour.\n<\/p>\n
    9.     Record and proceeding further shows that after the evidence <\/p>\n
    of prosecution was closed, statement of applicants\/accused were <\/p>\n
    recorded u\/s. 313 of The Cr.P.C. on 06\/05\/2010.     Thereafter, it <\/p>\n
    appears   that   on   15\/06\/2010,   an   application   was   moved   by   the <\/p>\n
    APP to frame the additional charge u\/s. 229(A) of The IPC to which <\/p>\n
    the reply was filed by the present applicant at Exh.105 before the <\/p>\n
    Lower  Court  on  01\/07\/2010.      It  appears   that  vide   order  dated <\/p>\n
    07\/07\/2010,   after   hearing   both   the   sides,   learned   J.M.F.C.   has <\/p>\n
    allowed the application, which order is assailed in this application.\n<\/p>\n
    10.    In the light of submissions across the bar, it is necessary to <\/p>\n
    consider   the   scope   of   section   229A   of   The   IPC,   which   read   as <\/p>\n
    follows :\n<\/p>\n
                Whoever, having been charged with an offence and
\n                released on bail or on bond without sureties, fails
\n                without   sufficient   cause   (the   burden   of   proving  <\/p>\n
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\n                                                 5<\/span><\/p>\n
                which   shall   lie   upon   him),   to   appear   in   Court   in
\n                accordance with the terms of the bail or bond, shall  <\/p>\n
                be   punished   with   imprisonment   of   either
\n                description   for   a   term   which   may   extend   to   one
\n                year, or with fine, or with both.\n<\/p><\/blockquote>\n
    Considering the submissions of learned counsel for applicants as <\/p>\n
    well   as   learned   APP,   it   revealed   that   for   the   first   time,   the   bail <\/p>\n
    granted   in   favour   of   applicant   no.1   and   3   was   cancelled   by <\/p>\n
    rejecting the application for exemption by the learned Trial Court.\n<\/p>\n
    Thereafter, notices were issued to the sureties, but this order was <\/p>\n
    modified vide order dated 28\/07\/2009.   Other than this occasion, <\/p>\n
    on rest of the occasions, whenever the application for exemption <\/p>\n
    was moved by the first applicant, on medical ground or some other <\/p>\n
    ground, as he was bed ridden due to the accident, and unable to <\/p>\n
    attend   the   Court,   exemption   was   granted   to   him.       All   these <\/p>\n
    exemption   applications   were   submitted   coupled   with   medical <\/p>\n
    certificate   supporting   the   ground   on   which   the   exemption   was <\/p>\n
    claimed   for.       In   the   premise,   it   can   not   be   said   that   the   first <\/p>\n
    applicant,   after   his   release   on   bail,   without   any   just   reason, <\/p>\n
    remained absent before the Lower Court and because of the his <\/p>\n
    absence, trial was delayed.\n<\/p>\n
    11.    As   stated   in   paragraph   supra,   it   is   to   be   noted   that   even <\/p>\n
    though the charge sheet was filed in the year 2001, it require more <\/p>\n
    than 2 years to frame the charge as the charge was framed in the <\/p>\n
    year   2003.       Further   the   roznama   shows   that   after   charge   was <\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:18:43 :::<\/span>
\n                                             6<\/span><\/p>\n
    framed   in   the   year   2003,   it   took   more   than   3   years   to   issue <\/p>\n
    witness summonses to secure the presence of witnesses, and the <\/p>\n
    first witness was examined on 04\/06\/2008 by the prosecution i.e. <\/p>\n
    after 5 years of framing of charge in the year 2003.   During this <\/p>\n
    period, only on 6 occasions, due to absence of first applicant, the <\/p>\n
    case was adjourned.     At the same time, it is to be noted that on <\/p>\n
    3 occasions, as the Court was on leave, the matter was adjourned <\/p>\n
    and   on   one   occasion,   the   APP   was   on   leave.       Considering   this <\/p>\n
    aspect, it can not be said that the trial was delayed due to absence <\/p>\n
    of these applicants.     It is to be noted that even the charge was <\/p>\n
    framed in the year 2003, the last witness was examined by the <\/p>\n
    prosecution in the year 2010.   Within the span of 6-7 years, if on <\/p>\n
    six occasions, witness was sent back due to absence of one of the <\/p>\n
    accused   applicant,   the   accused   applicant   can   not   be   faulted   on <\/p>\n
    bare perusal of text of section 229(A) of The IPC.   It is also clear <\/p>\n
    that the accused did not take dis-advantage of the relief granted in <\/p>\n
    his   favour   and   has   attended   the   Court   to   face   the   trial   and <\/p>\n
    because of this, trial is delayed.  It appears that the learned Lower <\/p>\n
    Court   was   impressed   with   the   submissions   of   learned   APP   that <\/p>\n
    the delay caused to dispose of the trial is because of the delaying <\/p>\n
    tactics played by the applicant accused.     At the same time, the <\/p>\n
    learned Lower Court also require to consider whether at any point <\/p>\n
    of   time   during   this   period,   except   the   order   dated   15\/07\/2009, <\/p>\n
    whether   the   bail   bond   of   the   accused   was   cancelled   due   to   his <\/p>\n
    absence before the Court.   In absence of it, the order assailed is <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:18:43 :::<\/span>
\n                                             7<\/span><\/p>\n
    not   supported   with   the   cogent   reasons   recorded   by   the   learned <\/p>\n
    J.M.F.C.     In   the   result,   the   order   to   frame   charge   against   the <\/p>\n
    applicant u\/s. 229(A) of The IPC do not sustain.  In the substance, <\/p>\n
    the order passed below Exh.103 dated 07\/07\/2010 is require to be <\/p>\n
    quashed and set aside.   The order impugned to frame the charge <\/p>\n
    against   applicant   u\/s.   229(A)   is   not   sustainable   in   law.\n<\/p>\n
    Accordingly it is quashed and set aside.\n<\/p>\n
    12.<\/p>\n
           Rule thus made absolute as indicated above.\n<\/p>\n
    13.    Application stands disposed of accordingly.     No order as to <\/p>\n
    costs.     If no date is fixed for the appearance of these applicants <\/p>\n
    before   the   Lower   Court,   applicants   to   appear   before   the   Lower <\/p>\n
    Court on 31\/08\/2010.   Certified copy of this order is expedited.\n<\/p>\n
                                                               (A.V.POTDAR, J.)<\/p>\n
    khs\/AUG 2010\/cri.appl.2943-10<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:18:43 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Uddhavrao vs The State Of Maharashtra on 17 August, 2010 Bench: A. V. Potdar 1 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-208958","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUddhavrao vs The State Of Maharashtra on 17 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/uddhavrao-vs-the-state-of-maharashtra-on-17-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Uddhavrao vs The State Of Maharashtra on 17 August, 2010 - 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