1 Cri.W.P.275-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.275 OF 2017
Prashant Dattatraya Deshmukh,
Age - 40 years, Occu. Agri.,
R/o Sugaon (Bk), Tq. Akole,
District Ahmednagar. ... Petitioner
Versus
1. The State of Maharashtra
Through its Principal Secretary,
Home Department, Mantralaya,
Mumbai - 32.
2. Sau. Manisha W/o Vikas Waghchaure,
Age 34 years, Occu. Household,
Resident of Sugaon (Bk), Tq. Akole,
District Ahmednagar. ... Respondents
...
Mr. R.N.Dhorde, Senior Counsel h/f Mr. A.C.Darandale,
Advocate for Petitioner
Mr. A.R.Kale, APP for Respondent No.1-State
Mr. K.N.Shermale, Advocate for Respondent No.2
...
CORAM : S.S.SHINDE AND
MANGESH S. PATIL, JJ.
RESERVED ON : 12th October, 2017 PRONOUCED ON : 31st October, 2017 JUDGMENT : (Per Mangesh S. Patil , J.) :-
1. Rule. The Rule made returnable forthwith. Heard finally with the consent of learned counsel for the ::: Uploaded on - 01/11/2017 ::: Downloaded on - 02/11/2017 02:05:22 ::: 2 Cri.W.P.275-17.odt parties.
2. In this petition invoking the powers of this Court under Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code, the petitioner is seeking quashment of FIR bearing Crime No.I-05 of 2017 registered against him in Akole Police Station, District Ahmednagar on 25.01.2017 for the offences punishable under Section 354 and 323 of the Indian Penal Code.
3. We have perused the petition, affidavit-in-reply of Respondent No.2 at whose instance the impugned FIR has been registered and the papers filed by both the sides.
4. According to the learned Senior Advocate for the Petitioner, the impugned FIR being the second FIR in respect of the same incident could not have been registered and is liable to be quashed. According to the learned Senior Advocate, due to local politics a quarrel had taken place between the petitioner's wife and ::: Uploaded on - 01/11/2017 ::: Downloaded on - 02/11/2017 02:05:22 ::: 3 Cri.W.P.275-17.odt Respondent No.2 on 05.01.2017. At the instance of the complaint filed by Respondent No.2, at 12.45 noon, at Akole Police Station a non-cognizable case No.15 of 2017 was registered. Since the petitioner's wife was also beaten up, she lodged a complaint with the same Police Station, at about 1.00 p.m. against Respondent No.2 and her mother-in-law and a non-cognizable report No.16 of 2017 was registered. However, belatedly with a view to harass the petitioner, Respondent No.2 and her husband concocted a story and lodged a second FIR, which is impugned in the matter. Since the incident on the basis of which non-cognizable Case No.15 of 2017 was registered, the Second FIR for the same incident could not have been registered, as has been laid down by several pronouncements of the Supreme Court and the High Court. The learned Senior Advocate referred to the decisions in the case of (i) Keshav Lal Thakur Vs. State of Bihar [(1996) 11 Supreme Court Cases 557],
(ii) Vishwajit P. Rane Vs State of Goa & Ors. [2010 ALL MR (Cri.) 3237], (iii) T.T. Antony Vs. State of ::: Uploaded on - 01/11/2017 ::: Downloaded on - 02/11/2017 02:05:22 ::: 4 Cri.W.P.275-17.odt Kerala & Ors. [2001 Cri.L.J. 3329 and (iv) Shivraj Kundlik Ubale & Ors. Vs. The State of Maharashtra & Anr. [2014 ALL MR (Cri) 3799], (to which one of us S.S.Shinde, J. was a party).
5. The learned APP and the learned Advocate for Respondent No.2 vehemently opposed the petition and submitted that Respondent No.2 had attempted to lodge a complaint for outraging her modesty on the very day of the incident. However, instead of registering the offence which was in the nature of cognizable one, the police had registered only a non-cognizable report. Respondent No.2 was required to be admitted in the Civil Hospital, Akole and was discharged only on the next day. Since the police were not taking cognizance of her genuine complaint, she had to approach the Superintendent of Police, Ahmednagar as well as Deputy Superintendent of Police, Sangamner for registering a cognizable case. It is only after such persuasion that belatedly the impugned FIR came to be registered and therefore it cannot be said that the impugned FIR being ::: Uploaded on - 01/11/2017 ::: Downloaded on - 02/11/2017 02:05:22 ::: 5 Cri.W.P.275-17.odt the second FIR of the same incident, is liable to be quashed.
6. At the outset, it is necessary to note that it is trite that a second or subsequent FIR in respect of the same incident would tantamount to improvisation and is not permissible in law. The decisions cited on behalf of the Petitioners (Supra) lay down the same principle and there can be no two opinion about it.
7. It is necessary to understand the scheme of the Code of Criminal Procedure contained in Chapter XII and particularly Section 154 to Section 155. Whenever same information is given about a non-cognizable offence it has to be reduced into writing in the form of a non-cognizable report in pursuance of the provisions of Section 155 of the Criminal Procedure Code. It requires such information to be reduced into writing as a non- cognizable case and the police can investigate such cases only with the permission of the concerned Magistrate. As against this, when incident is reported to ::: Uploaded on - 01/11/2017 ::: Downloaded on - 02/11/2017 02:05:22 ::: 6 Cri.W.P.275-17.odt police in respect of commission of a cognizable offence it is bound to register it under Section 154 of the Criminal Procedure Code, which is usually described as FIR. Therefore, even in the given set of facts pleaded in the petition, since there was no earlier FIR registered under Section 154 of the Criminal Procedure Code, the impugned FIR cannot be said to be a second or subsequent FIR in respect of the same incident. Therefore, the very basis of the argument of the learned Senior Advocate that the impugned FIR is second FIR is factually incorrect. It is for this reason alone, the petition does not hold any water.
8. Apart from the above state of affairs, assuming that the impugned FIR is a second FIR in respect of the same incident, it is necessary to note that Respondent No.2 in her affidavit-in-reply has specifically contended that the police were reluctant to register her complaint for cognizable offence of outraging modesty, which is punishable under Section 354 of the Indian Penal Code. She had to persuade superior Police Officers to cause ::: Uploaded on - 01/11/2017 ::: Downloaded on - 02/11/2017 02:05:22 ::: 7 Cri.W.P.275-17.odt the impugned FIR to be registered and that has caused the delay. In support of her statement she has also filed copies of letters, one addressed to the Superintendent of Police, Ahmednagar dated 07.01.2017 and the letter addressed to the Chief Minister dated 09.01.2017, which also bears acknowledgment of the Officer Incharge of the Akole Police Station, Ahmednagar about having received it on 11.01.2017. Contents of these letters clearly show that she and her husband were making a grievance that inspite of molestation the police were reluctant to register a suitable FIR and they would have to sit for hunger strike if the complaint was not duly registered. It is thus apparent that since inception, Respondent No.2 was trying to register a complaint for a cognizable offence but for the reasons best known to concerned police, it was not being registered. Under these circumstances, it cannot be said that the impugned FIR is concocted one. For these reasons also we are not inclined to quash the impugned FIR. ::: Uploaded on - 01/11/2017 ::: Downloaded on - 02/11/2017 02:05:22 :::
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9. Referring to the wording of Section 155 of the Criminal Procedure Code, the learned Senior Advocate submitted that since already a non-cognizable report No.15 of 2017 was registered, no investigation in to it could be made without the sanction of the concerned Magistrate. The police could not have registered the impugned FIR and seek to investigate the non- cognizable report circuitously. In this regard one need not delve much in view of the mandate of Section 155 of the Criminal Procedure Code. The police indeed cannot carry out any investigation into a non-cognizable case without the leave of the concerned Magistrate. However, as we have demonstrated herein above infact the police were reluctant to register the FIR and instead have registered only a non-cognizable case. The Respondent No.2 had to cause the impugned FIR registered by making the grievance to the superior Police Officers. Therefore, the submission of the learned Senior Advocate cannot be accepted. The police are now duly bound to carry out investigation since the impugned FIR has been registered under Section 154 of the Criminal ::: Uploaded on - 01/11/2017 ::: Downloaded on - 02/11/2017 02:05:22 ::: 9 Cri.W.P.275-17.odt Procedure Code.
10. In the result, the petition is liable to be dismissed and is accordingly dismissed. The Rule is discharged. (MANGESH S. PATIL, J.) (S.S.SHINDE, J.) ...
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