Bombay High Court
Builder vs The State Of Maharashtra on 2 December, 2011
Bench: A. H. Joshi
Cri. Writ Petition No. 572/2011
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Writ Petition No. 572 of 2011
Anil son of Chunnilal Agrawal,
aged 53 years,
occupation
Builder,
resident of Telephone Exchange
Square, Shantiprakash Complex,
C.A. Road, Nagpur. .... Petitioner.
Versus
1. The State of Maharashtra,
through Police Station
Umred, Tq. Umred.
2. Rajendra son of Tulsiram
Meshram,
aged 30 years,
occupation Contractor,
resident of Flat No. 106,
Jindal Complex, beside
Umrer Bus Stand,
Tq. Umrer, Distt. Nagpur. .... Respondents.
*****
Mr. A.A. Kathane, Adv., for the petitioner.
Mr. P.V. Bhoyar, Additional Public Prosecutor for
respondent no.1.
Mr. Anup Dhore, Adv., for respondent no.2.
*****
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Cri. Writ Petition No. 572/2011
2
CORAM : A.H. JOSHI, J.
Date : 02nd Dec.,2011.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith, and is
heard finally by consent of parties.
2. By this writ petition, the petitioner challenges
following things:-
[a] The registration of offence in Crime
No. 3006/2011 under Section 3 (1) (x)
of the Scheduled Castes and the
Scheduled Tribes (Prevention of
Atrocities) Act, 1989 [hereinafter
referred to as the Act , for short].
[b] The order passed by Fifth Ad Hoc
Additional Sessions Judge, Nagpur, in
Special Criminal Case [SC ST Act] No.
31 of 2011 passed below Exh.11 on 12th
October, 2011 refusing to discharge
the accused person.
3. The petitioner had earlier preferred Criminal
Application No. 468 of 2011 before this Court and
challenged the registration of First Information Report,
and had prayed for quashing.
Cri. Writ Petition No. 572/2011
On 8th September, 2011, this Court had heard said
Criminal Application No. 468 of 2011 and dismissed the
same as withdrawn with liberty to avail alternate
remedies as are available in law.
4. On completion of investigation, the charge-
sheet has been filed.
ig The Special Criminal Case [SC ST
(PA) Act] No. 31 of 2011 is commenced. Petitioner had
then applied for discharge. The copy of application for
discharge is not placed on record.
5. The grounds, which were put forward on facts and
law, have to be gathered from oral submissions and
contents of the petition. Those are summarized as
follows:-
[a] Petitioner is a builder and
complainant is purchaser of a flat
from the petitioner.
[b] There exists a dispute between the
complainant and the accused relating
to dues recoverable by the accused
from the complainant and certain
unjust and wrong demands made by the
complainant.
[c] Complainant wants to avoid his civil
liability and push ahead his unjust
demands, and he is using the device
Cri. Writ Petition No. 572/2011
of publicity, bad propoganda and the
false and vexatious FIR against
petitioner for advancing his cause.
[d] Petitioner had lodged a report with
police, which was registered N.C. No.
54/11, and followed thereby the FIR
in relation to offence, subject-
matter, was lodged by the respondent.
[e]
The complainant has lodged a report
as a counter-blast to the
petitioner s FIR.
[f] The imputations constituting
ingredients of offence under Section
3 (1) (x) of the Act were not
incorporated in FIR lodged on 27 th
January, 2011.
[g] The complainant has given another
written report on 29th January, 2011.
In this subsequently lodged [second
or supplementary complaint], the
complainant has stated that he was
labouring under the belief that the
imputations relating to the
commission of offence under the Act,
were incorporated in first report.
Having realized that those
allegations were not incorporated,
now he is giving a detailed
complaint.
[h] Statement of complainant was recorded
by police. In the statement, he had
reiterated his version contained in
Cri. Writ Petition No. 572/2011
subsequent, i.e., written complaint.
By these allegations, the description
of commission of offence under
Section 3 (1) (x) of the SC ST (PA)
Act is found, and FIR is registered
accordingly.
[i] Learned Trial Court seemed to be
opposed to discharge, on the ground
that the trial had commenced.
fact of commencement of charge shall
The
not operate as a bar in law for
considering such application at any
stage.
[j] In the present case, the intimation,
which is liable to be treated
factually and legally as FIR, was
given by the complainant on 27th
January, 2011.
[k] There cannot be more than one FIRs
for one offence.
6. In support of his submissions, learned Adv., for
the petitioner has placed reliance on following reported
judgments:-
[1] Baburao Hari Pawar Vs. State of Maharashtra
[1987 Cri. L.J. 584].
Proposition :
The accused can apply for discharge at any stage
of trial. Commencement of trial is no bar for making and
Cri. Writ Petition No. 572/2011
consideration of an application for discharge.
[2] State of Haryana & others Vs. Ch. Bhajan Lal
& others [AIR 1992 SC 604].
Proposition :
Station Officer has a duty to register a
cognizable
offence when it is
information laid before him. He can, if a doubt/suspicion
disclosed in the
arises as to commission of offence, he has to
subjectively satisfy himself as to sufficient ground of
entering on investigation. Any deeper probe prior to
investigation is not contemplated. If description of
offence is made, it constitutes adequate mandate to
proceed to investigate. If it is shown or made out that
the FIR is actuated with malafides etc., the FIR is
liable to be quashed to prevent the abuse of process of
law.
[3] T.T. Antony Vs. State of Kerala & others
[(2001) 6 SCC 181].
Proposition :
For one incident forming description of an
offence, there can be only one FIR. Any further
statements or information constituting information of any
other act out of or part of same incident describing any
other offence would constitute a statement under Section
161 of Criminal Procedure Code, but not a fresh FIR. Any
such additional information may, even if received after a
Cri. Writ Petition No. 572/2011
final report, can lead to further investigation and
another report under Section 173 of Criminal Procedure
Code can be given.
7. After considering the facts, submissions, the
matter in issue, the impugned order and the precedents
cited at bar, what is seen is that the learned Special
Judge :-
[a] Has considered and examined the
request of petitioner for discharge on
merits.
[b] Has not declined to entertain the
request for discharge on the ground
that the trial has commenced.
[c] Has observed that what the accused is
contending as a ground for discharge is
what his defences are.
8. As is seen from what this Court has summarized
in the foregoing Paragraph Nos. 5 and 6, is that, thrust
of the applicant s submission as a ground for quashing
is:-
The background of strained relations
and rivalry, the falsehood of the complaint
and it being actuated with malafides.
9. After considering entire material on record and
submissions, this Court is satisfied that the observation
Cri. Writ Petition No. 572/2011
contained in the impugned order that accused is exerting
to set up his defence as a ground for discharge is worth
endorsement by concurrence.
10. Existence of prior dispute and rivalry between
the parties cannot per se constitute a ground for
discharge, since it would amount to accepting the plea of
not guilty or innocence raised by the accused, before
the complainant proves his case.
11. A plea that the complaint is false and
vindicative cannot be judged without trial. On facts of
this case, it is extremely onerous to adjudicate on a
summary look that FIR is vexatious and to put a full
point to the investigation and trial by concluding on
surmise that no offence, whatsoever, is committed by
relying on Test No.7 laid down in para no.108 in
Bhajanlal s case [supra].
12. The test prescribed in Item No.7 contained in
Para No.108 of Bhajanlal s case [supra] is a yardstick of
easy as citation. It is utmost difficult and scary to
apply.
Cri. Writ Petition No. 572/2011
13. While availing said test [Item No.7 in Para 108
of Bhajanlal s Judgment (supra)], a petitioner has to
walk on a sleek and tight rope. It is not an easy job to
walk on it. It is more difficult the job for the Judge
to apply said yardstick without being guided by
objectively examining the FIR or investigation papers and
even material surfacing after some stages in the trial.
14. While scrutinizing any case for quashing an FIR
by applying the test contained in Item No.7 aforesaid, a
Judge of this Court is required to make a choice between
letting the trial proceed, or by endorsing on a
certificate of innocence without trial on a bare look at
FIR or the case diary or the charge-sheet, the evidence
as regards rivalry or enmity etc., as may have been
averred and brought forward by the accused, and on a bare
look thereon and without a trial of case.
15. Be it that it is a case where admittedly to the
prosecution there is no material, whatsoever, on
record. Then it would be a case liable to be described
as one where admittedly prosecution has no evidence in
hands to continue to prosecute and that the FIR is
actuated with motives which fit in said test No.7.
Cri. Writ Petition No. 572/2011
16. There is a vast difference in barely saying that
the complaint is false and vexatious, propelled on
enmity, rivalry, by way of counter-blast etc., in
comparison with basing such ground for quashing on some
evidence of un-impeccable evidentiary worth emerging
without enquiry or investigation, akin to the weight and
worth of a public document attached with a binding
presumption of value to be taken and read as proved.
17. Before quashing FIR, a Judge cannot be driven or
carried away emotionally based on submission that the FIR
would not essentially lead to a charge-sheet and a trial,
and being false, is bound to vex the accused by trial,
without being propelled by indisputable facts supported
by equally indisputable worth of evidence of material
which answers the test No.7 objectively.
18. Thus, what a judge is required to believe and
accept is that the FIR is based on falsehood, enmity or
any ill-motive of a degree of worth of binding nature.
19. The question, which arises for determination at
the stage of reaching the decision that a complaint is
Cri. Writ Petition No. 572/2011
false and vexatious, is need of having at hand such
material or evidence of conclusive and un-impeccable
character, nature and texture that even upon full trial,
no other conclusion can ever emerge.
20. Next point, which arises before this Court, is
who below the sky has conferred on this Court that super
sensory power [divine or godly as a common god-fearing
man may word it] to guage and judge that the FIR is
false, vexatious, untrue, sheerly as a counter-blast and
actuated due to malice and enmity etc. before completing
the trial.
21. All that can be considered for own guidance is
that eventually it could be considered possible to have
facts and material on hand which may withstand the tests
indicated in the foregoing paras and possibility to rely
upon such material to be able to quash the FIR. However,
the objectivity as a basic rule cannot be parted at any
cost to be immune from the blame of being subjective.
22. It has to be remembered that words of Hon ble
Supreme Court in para No. 108 of Bhajan Lal s case as
regards points narrated therein read as follows:-
Cri. Writ Petition No. 572/2011
108. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions
relating to the exercise of the
extraordinary power under Article 226 or
the inherent powers under Section 482 of
the Code which we have extracted and
reproduced above, we give the following
categories of cases by way of illustration
wherein such power could be exercised
either to prevent abuse of the process of
any Court or otherwise to secure the ends
of justice, though it may not be possible
to lay down any precise, clearly defined
and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases
wherein such power should be exercised.
[Quoted from Para No. 108 at page 629 of AIR 1992 SC 604]
23. It cannot be forgotten that the justice cannot
be brought in peril for certifying presumption of
innocence of the accused without trial. Presumption of
innocence is available rather imperative in the trial,
but not before or without trial.
24. If need arises, the accused can be compensated
or dealt with in Criminal Law, if he so chooses, and if
it is ultimately found that he was wrongfully tried and
vexed. The accused is equipped with remedies thereto in
law.
However, if justice is put to peril by closing
Cri. Writ Petition No. 572/2011
doors of Criminal Law and Administration of Justice by
quashing FIR, the injury, which would be caused to
Administration of Justice in Criminal Law, can never be
restituted by any means and measures, whatsoever.
25. Putting justice to peril would bring immense
damage to very process of justice which cannot be undone
by any measure of compensation. Law would be shown to be
a destitute, and rendered so at the hands of Courts
alone. It is well known that law and Courts do not do a
wrong to anyone and this rule needs to be observed here.
26. The enmity and rivalry are not available as an
all-time shield against prosecution.
27. In the case on hand, at least a conclusion that
the FIR is actuated with mala fides and has no essence of
offence would amount to pre-judging the plea of accused
and endorsing it to be true before trial and that too
basing it on an unproved version of the accused.
28. Therefore, this Court chooses the course of
permitting the trial, and lets the FIR to proceed than to
quash it.
Cri. Writ Petition No. 572/2011
29. Therefore, no grounds are made out, whatsoever,
for indulgence. Rule is discharged.
JUDGE
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Cri. Writ Petition No. 572/2011
