Bombay High Court
Sanjeev Bishnudev Mishra vs State Of Maharashtra on 31 October, 2012
Bench: A.M. Khanwilkar, R.Y. Ganoo
vss
wp.1681.2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
WRIT PETITION NO.1681 OF 2012
Sanjeev Bishnudev Mishra )
Indian inhabitant, residing at )
Tower No.4/1401, Swastik Regalie, Wahgbil )
Off:Godbunder Road, Thane (W) ) ... Petitioner
Vs.
1. State of Maharashtra )
2. The Director General of Police )
Police Headquarters, S.B. Marg,
ig )
Mumbai-400001 )
3. The Superintendent of Police )
Office of the Superintendent of )
Police, Thane (Rural), Thane )
4. Shri Dinkar Pinigle, )
Sr.Police Inspector, Navghar Police stn.,)
Bhayander (E), Dist.Thane )
5. Shri Ranjeet Andhale, )
Sub-Inspector, Navghar Police Station, )
Bhayander (E), Dist.Thane )
6. The Municipal Commisisoner )
Municipal Corporation of Gr.Mumbai )
Mahapalika Marg, Mumbai-1 )
7. The Branch Manager )
ICICI Bank, Pratap Building, )
Jawaharlal Nehru Road, )
Opp.Post Office, Mulund (W) )
Mumbai-400080 )
8. The Branch Manager )
ICICI Bank, Viksa Paradise )
Bakti Marg, Nr,. Bal Rajeshwar Temple )
Mulund (W), Mumbai-80 )..Respondents
Mr.Subhash Jha i/b Law Global for the Petitioner
Ms.P.H. Kantharia, A.P.P., for the Respondent Nos.1 to 5
Ms.Seema Rawde for Resp. No.6
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CORAM: A.M. KHANWILKAR &
R.Y. GANOO, JJ.
JUDGEMENT RESERVED ON : 12.9.2012
JUDGEMENT DELIVERED ON : 31.10.2012
JUDGEMENT (PER A.M. KHANWILKAR, J.):
1. By this Writ petition under Article 226 of the Constitution of
India, the petitioner prays for a direction that an investigating
agency like Central Bureau of Investigation or CID be appointed to
properly investigate the C.R. No.I-22/2012 registered with Navghar
Police Station, Bhayander, District Thane. It is also prayed that
such investigating agency be directed to enquire into the
circumstances leading to the registration of FIR by Navghar Police
Station, Bhayander and also about the illegal arrest/detention of
the petitioner. The petitioner further prays for direction to the
Director General of Police / Superintendent of Police, Thane
(Rural) to hold departmental enquiry against Respondent Nos.4 &
5 and other police personnel responsible for registration of C.R.
No.I-22/2012 by the Navghar Police Station, Bhayander, Thane
and also for effecting illegal arrest of the petitioner and extorting /
misappropriating amount of `11,25,000/- from the petitioner on
9.2.2012. The petitioner also prays that the said extorted amount
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of `11,25,000/- which has been misappropriated by respondent
Nos.4 & 5 on 9.2.2012 be recovered from them and to be made
over to the petitioner. The petitioner also prays that a direction be
issued to Respondent Nos.1 & 2 to evolve a mechanism to avoid
recurrence of such high handed action of the police personnel.
The petitioner also prays for compensation of `20 lacs for his
illegal detention in connection with C.R. No.I-22/2012 with Navghar
Police Station from 9.2.2012 to 10.4.2012. Lastly, the petitioner
prays that after receipt of investigation report from the independent
investigating agency, that agency may be directed to delete the
name of the petitioner from the array of accused in the case
registered as C.R. No.I-22/2012.
2. Notably, the petitioner has been named as accused in
connection with C.R. No.I-22/2012. He has prayed for
abovementioned diverse reliefs. However, the principal relief is not
for quashing of FIR or chargesheet, even though the chargesheet
has already been filed, on 28.3.2012, in the concerned Court
naming the petitioner as an accused in the commission of alleged
offence alongwith others, on the basis of material collected during
the investigation indicating his involvement. Further, during the
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arguments, Counsel for the petitioner submitted that he was not
pressing the relief of deletion of the petitioner's name from the FIR
but the petitioner was more concerned with the other reliefs, in
particular, of transferring the investigation of the case to
independent agency and for enquiring into the allegation of illegal
arrest and detention of the petitioner in connection with the alleged
offence and more particularly, about the misappropriation and / or
extortion of amount of `11,25,000/- from the petitioner by
Respondent Nos.4 & 5, who are police officials of Bhayander
Police Station where the offence has been registered against the
petitioner.
3. As regards the principal relief of transferring the investigation
of the criminal case to independent investigating agency, that relief
has been worked out during the pendency of this petition. In that,
the Department, on its own, because of the complexity of the case,
has decided to entrust the further investigation of the case
pertaining to municipal octroi evasion to a specialised agency,
namely, Economic Offences Wing, Thane. Further, the Department
has decided to entrust the investigation to high official not below
the rank of Deputy Superintendent of Police to obviate any
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apprehensions about proper investigation. The fact remains that
the further investigation of the case has now been transferred to an
independent agency - other than the police officials of Bhayander
Police Station against whom allegations of malafide and colourable
exercise of power has been made by the petitioner. Nevertheless,
those allegations will have to be considered in the context of the
other reliefs claimed by the petitioner on the assertion that he was
illegally arrested and detained between 9.2.2012 till 10.4.2012. In
other words, we are left to decide the allegation of illegal arrest and
detention of the petitioner on and from 9.2.2012 till 10.4.2012.
4. The real grievance is about the police officials of Bhayander
police station having misrepresented the petitioner and / or
extorting and misappropriation of amount of `11,25,000/- received
from the petitioner, which was entrusted by him to the police
officials of Bhayander Police Station under bonafide belief that the
said amount will be treated as crime property recovered and the
petitioner would be examined as one of the prosecution witnesses
to establish that fact.
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5. Indeed, the Counsel for the petitioner argued that initiation of
the criminal case is without authority of law. In that, the alleged
principal offence has not been committed within the jurisdiction of
the Bhayander police station. Thus, Bhayander Police Station has
had no authority to register the FIR much less to investigate the
criminal case or for that matter to file the chargesheet. That
argument, however, would have been relevant only if the petitioner
were to press the relief of deletion of his name from the FIR as
accused - which the petitioner has given up during arguments.
6. Be that as it may, the argument proceeds that the Navghar
Police Station, at Bhayander, has registered the FIR because of
the alleged recovery of incriminating material such as rubber
stamps, seals, etc. of Mumbai Municipal Corporation, forged and
fabricated documents used for evasion of municipal octroi charges,
thereby causing huge loss of revenue to Mumbai Municipal
Corporation, from the residence of principal accused Gorakhnath
Balwant Pawar at Bhayander. However, that per se cannot
empower the police officials of Navghar Police Station to proceed
in the matter or to register the FIR at Navghar Police Station.
Inasmuch as, the principal offence of evasion of octroi charges is
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committed within the local jurisdiction of Mumbai police at Dahisar.
To buttress this submission, reliance is placed on the provisions
contained in Chapter XIII of the Cr.P.C. dealing with jurisdiction of
the criminal Courts in inquiries and trials; and on the decision of the
Apex Court in the case of Y.Abraham Ajith & Ors. vs. Inspector
of Police, Chennai & anr1. In the case before the Apex Court, the
offence complained of was u/s 498A and 406 of the IPC. The Court
answered the question on the finding that no part of the cause of
action had arisen in Chennai where the offence was registered.
For that, the Court considered the meaning of the word "ordinarily"
and the expression "cause of action". Relying on its earlier
decisions, the Court proceeded to consider the matter. It held that
the crucial question whether any part of the cause of action arose
within the jurisdiction of the Court concerned as per section 177 of
the Code, is the place where the offence was committed.
7. In the present case, the Bhayander police registered the FIR
u/s 154 of the Code after receiving information relating to the
commission of cognizable offence. On the basis of that information,
the police officials proceeded to the residence of the principal
1 (2004) 8 SCC 368
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accused and found incriminating material at his residence as well
as office premises situated within the jurisdiction of the Navghar
Police Station. No doubt, the said incriminating material was only
a means to commit offence of octroi evasion. That does not mean
that the activities of the principal accused and his associates within
the jurisdiction of Navghar Police Station, did not constitute any
offence at all. Forgery and fabrication of official documents and
seals and preparation thereof itself is also an offence which
undoubtedly was committed within the jurisdiction of the Navghar
Police Station. The offence of octroi evasion in one sense can also
be said to have been committed within the jurisdiction of Navghar
Police Station. For, it is only upon payment of octroi charges, entry
of the vehicle in question is allowed in the city of Mumbai. The act
of offering payment of octroi charges, obviously, takes place within
the jurisdiction of the Navghar Police Station. Even if it were to be
a case of uncertainty of several local areas, the Navghar Police
Station would be justified in taking cognizance of the offence which
was committed partly in its area and partly in another and also
when it is a continuing offence and continues to be committed in
more local areas than one. It can be a case of several acts done in
different local areas. Considering the expansive provisions
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contained in sections 177 and 186 of the Code, it is unfathomable
to countenance that the Navghar Police Station could not have
registered the offence and / or investigated the same. Further, the
issue of jurisdiction is a mixed question of fact and law, which can
be dealt with at the trial. Suffice it to hold that it is not a case of bar
of jurisdiction or inherent lack of jurisdiction of the Navghar Police
Station as such.
8.
Indeed, the petitioner, at best, may be justified in contending
that considering the complexity of the case, the police authorities
ought to have entrusted the investigation to independent and
specialised agency. That has already been done by the
Department on its own. Suffice it to observe that the issue of
jurisdiction of the Navghar police raised by the petitioner is devoid
of merits.
9. Reverting to the core question about the alleged illegal
detention of the Petitioner between 9 th February, 2012 till 10th April,
2012, in the reply affidavit filed by Respondent No. 4, it is stated
that after registration of C.R.No. 22/2012 on 2 nd February, 2012,
under Sections 420, 465, 466, 467, 468, 471, 473, 474, 475, 484,
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170, 171, 120(B) of Indian Penal Code, during the course of
investigation, it transpired that petitioner had transacted with
accused No. 1 Gorakhnath Pawar on 29 th January, 2012 for octroi
duty payment in respect of two vehicles. Therefore, the petitioner
was called for the purpose of investigation on 3 rd February, 2012
along with necessary documents containing records of the said
transactions. He was again called on 8 th February, 2012 when he
submitted photocopies of DD No. 092687 dated 29 th January, 2012,
octroi receipt No.RC/1112/290112 1553/000000 499686 of
`5,61,307/-, DD No. 032477 dated 29 th January, 2012 and octroi
receipt No. RC/1112/2901121553/000000 499688 of `5,63,623/-
(two receipts and 2 DDs). Since the Petitioner failed to submit
documents with respect to all transactions, he was given notice
under Section 160 of the Code to remain present at the police
station on 9th February, 2012 along with the original relevant
documents. The Petitioner, accordingly visited the police station
on 9th February, 2012 and requested for more time to collect the
relevant papers and left the police station in the evening.
10. It is further stated that on 9 th February, 2012, when
Respondent No. 5 and other staff had gone to Eastern Express
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Highway Octroi Post, Mulund with DD numbers mentioned on
receipts collected from the house of Gorakhnath Pawar (accused
No. 1), they were informed by the office of Deputy Assessor and
Collector, Octroi, at Eastern Express Octroi Post, Mulund, that
amongst the DDs, DD No. 031536, Axis Bank, and DD No.254656
of Union Bank of India, were used by Seema Octroi Agency, which
was given to them by the Petitioner. The said agency also told the
police officials that they had paid the amount of DD to the
Petitioner from time to time since October, 2010 through Seema
Octroi Agency. It is stated that this position was reported to
Respondent No. 4 by Respondent No.5. He, therefore, asked the
Proprietor of Seema Octroi Agency to visit the police station on 10 th
February, 2012, along with necessary documents. It is further
stated that since the Petitioner had already left the police station, in
the evening on 9th February, 2012, by issuing notice under Section
160 of the Code, he was asked to remain present in the police
station on 10th February, 2012. The Petitioner, accordingly,
attended the police station on 10 th February, 2012. At that time, the
Proprietor of Seema Octroi Agency, namely, Naresh Mulani was
also present along with Daily Book Register of year 2010-11 and
2011-12. The DDs received from the Petitioner were noted in the
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said Register. The Petitioner, who was present in the police
station, was interrogated, when he admitted that he had used the
DDs received from accused No. 1 Gorakhnath Pawar, through
Seema Octroi Agency and other octroi clearing agencies.
11. It is only after confirming the involvement and participation of
the Petitioner, in the offence under investigation, he came to be
arrested on 10th February, 2012 and was produced before the
JMFC, within 24 hours from the time of his arrest, on 11 th February,
2012. The Petitioner was remanded to Police Custody till 14 th
February, 2012 and thereafter till 20th February, 2012.
12. The version narrated by the Petitioner, however, is
completely different. The Petitioner asserts that he was called to
the police station on 2 nd February, 2012 and 3rd February, 2012 and
again on 8th February, 2012. The Petitioner informed the factual
position to the police that he had already made payment of the
drafts, which were made available to him by Gorakhnath Pawar.
The police had informed the Petitioner that a cheque of
`11,24,930/-, issued by him was found in the drawer of Gorakhnath
Pawar. Since the said cheque has been seized by the police, the
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same was not encashed. The Petitioner was told that, to show his
bonafides, he must deposit the amount referred to in the said
cheque. He was further told that if the Petitioner pays that amount,
he would be made a prosecution witness in the case. The
Petitioner further asserts that as suggested by the police, the
Petitioner, on the next day i.e. on 9 th February, 2012, visited ICICI
Bank, Mulund (W) Branch between 2.00 p.m. to 3.00 p.m. and
withdrew sum of `8,50,000/- (in the denomination of `1000 X 800
and `500 X 100) from Account No. 623805025216 of M/s. Sanjeev
Octroi Company and `2,50,000/- (in the denomination of `500 X
500) from Account No. 124405000080 of M/s. Manjiri Octroi
Services. He then added `25,000/- (in the denomination of `500
X 50) from his office to make it as round figure of `11,25,000/-. He
then handed over the said amount to Respondent No. 4, who is in-
charge of Navghar Police Station, Bhayander, Dist. Thane, through
his writer Mr.Kore, on 9th February, 2012 itself. The Petitioner
further asserts that the police official, who accepted the amount,
did not give any receipt to him nor made any panchanama therefor.
Instead, the Petitioner was made to wait in the police station the
whole night on 9th February, 2012 and on the following day i.e. on
10th February, 2012, was shown arrested in C.R. No. 22/2012 and
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was produced before the JMFC at Thane, on 11 th February, 2012.
In other words, the Petitioner alleges that he was in illegal
detention/custody from 9th February, 2012 to 10th February, 2012
and was purposely shown as arrested only on 10 th February, 2012.
This, according to the Petitioner, was in complete disregard of the
mandate of Section 57 and 100(5) of the Criminal Procedure Code
and Article 22(2) of the Constitution of India.
13.
The Petitioner, with a view to buttress the stand that he was
illegally detained, without his formal arrest and production before
the Court within 24 hours, has relied on his mobile call record,
which has been "produced along with the rejoinder affidavit". The
Petitioner asserts that the mobile call record, prima facie, supports
the claim of the Petitioner that he was in the police station from the
evening of 9th February, 2012 till 10th February, 2012, without being
formally arrested.
14. We would consider the efficacy of this document, in the first
place. The document is exhibited as Exhibit - III to the rejoinder
affidavit, at Page 256 and 257 of the Paper Book. It is in the form
of a chart. It does not contain any seal, nor is issued on the
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Letterhead of the Mobile Service Provider, unlike the document at
page 258 and 259 pertaining to the local call record from 31 st
January, 2012 till 6th February, 2012. Thus, this document cannot
be taken into account. In any case, the document belies the claim
of the Petitioner that after he reported to the police station on 9 th
February, 2012, he was detained and his mobile phone was taken
away from him. Further, the last communication he could send was
SMS to his friend Pankaj Jha and Pravin Victor Rodrigues and the
call made to his father at around 00.41 a.m. on 10 th February,
2012 to inform about his arrest by Navghar Police Station.
15. From the chart purported to be the call record of the
Petitioner, it cannot be established that the Petitioner was in-fact in
Navghar Police Station, during the relevant time. Secondly, the
chart itself discloses that the mobile phone was operated at some
intervals from 19.05 hours on 9 th February, 2012 until 2.01 a.m. on
10th February, 2012. The call made by the Petitioner, purportedly
to his father, at 0.41 hours on 10 th February, 2012 lasted for 23.6
duration. Just before that at 0.26 hours, some call was made,
details whereof are not found, was of 950 duration and before that
at 0.24 hours of 171 duration, without any call details. Suffice it to
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observe that if the Petitioner was detained or arrested by the
police, soon after he visited the police station in the evening of 9 th
February, 2012, it is unfathomable that he would be allowed to use
his mobile phone in the police station, in spite of his detention or
arrest.
16. On the other hand, the facts asserted by the Respondent
No.4, on affidavit, are supported by the entries made in the police
record contemporaneously. Even in the inquiry conducted by the
Additional Superintendent of Police, Thane (Gramin), in the wake
of allegations made by the Petitioner about his illegal
arrest/detention and of extortion and misappropriation of amount of
`11,25,000/- by Respondent No. 4 and 5, it is found that the
allegations made by the Petitioner against the police officials of
Bhayander police station are untenable. We had called upon the
Learned APP to produce the original inquiry papers. It was noticed
that during the enquiry the Additional Superintendent of Police not
only recorded the statement of the Petitioner but also of his friend
Pankaj Jha. Even statements of the concerned police officials,
attached to Navghar Police Station, were also recorded.
Considering the version of these persons and the police record, the
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Additional, Superintendent of Police, in his report dated 6 th August,
2012, has found that the allegations made by the Petitioner are
unfounded. We make it clear that we are not deciding the
allegations made by the petitioner in this petition on the basis of
the said enquiry report, but independently.
17. On analysing the pleadings and material on record in this
petition, in our opinion, it is unfathomable that the Petitioner can
insist for recording of FIR against the said police officials for
alleged offence of extortion and misappropriation by them. We
shall elaborate this while dealing with the other allegations of the
Petitioner. For the time being, we would confine the discussion
with regard to illegal arrest and detention of the Petitioner. As
regards that allegation, taking over all view of the matter, the same
appears to be figment of imagination of the Petitioner to subserve
his ulterior purpose. It is only bare word of the Petitioner. As a
matter of fact, the Petitioner has approached this Court with a
specific stand that he entrusted the amount of `11,25,000/-, in
cash, to the Writer Mr. Kore, in the evening of 9 th February, 2012.
After the Respondent No. 4 filed reply affidavit denying the said
allegations and offered explanation that at the relevant time he was
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not present in the police station and in fact was on field duty, away
from the police station in connection with investigation, coupled
with the fact that there was no one named Mr.Kore in Navghar
Police Station, much-less working as Writer, under him, the
Petitioner has now in the rejoinder affidavit asserted that he had
mentioned the name of Mr. Kore under mistaken belief.
18. The Learned APP has rightly contended that the theory
propounded by the Petitioner is nothing short of his figment of
imagination and in fact an attempt to confuse and subvert the
investigation of a serious crime, in which he is involved. It is
unfathomable that the police officer would call upon the Petitioner
to handover the amount consisting of over 1400 currency notes, in
the denomination of `1000 and `500 and accept it in open and in
public view on the table and that the officer would start counting
the same in public gaze and under CCTV surveillance camera, if
he had any ill intention.
19. Indeed, the Petitioner called upon the Respondents to
disclose and produce the CCTV footage of the CCTV camera
deployed in Navghar Police Station. In response to that
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requisition, it has been stated on affidavit that the CCTV camera
has been installed in December, 2009, which, however, does not
have the facility of recording but, is only used for keeping
surveillance by the Superior Officers. If there is no recording
facility, no adverse inference can be drawn due to non production
of CCTV footage. The fact that CCTV recording facility is not
available, does not warrant any inference that there is amiss in the
police station complex, which is open to public and the officers are
sitting in open and are always under public gaze. It is not the case
of the Petitioner that the police station is located at an isolated
place and no outsider except the police officers were seen in the
police station, when he allegedly handed over the currency notes
to the so called Writer of the Respondent No. 4.
20. Counsel for the petitioner faintly argued that installation of
CCTV without recording facility by the police authorities serves no
purpose. If recording facility was to be provided, the acts of
commission and omission of the concerned police officials could
have been exposed. He submits that it is high time that the State
should forthwith provide for compulsory CCTV facility in all the
police stations with recording facility so that no untoward situation`
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takes place in the police stations. Suffice it to observe that this
argument does not take the case of the petitioner any further. In
any case, merely because recording facility of CCTV footage is not
provided in the police station, it does not per se warrant an adverse
inference against Respondent Nos.4 and 5 or any other police
official in the Navghar Police Station.
21. Reverting to the theory propounded by the Petitioner that he
went to the police station on 9 th February, 2012 along with the
currency notes of amount of `11,25,000/-, after withdrawing the
same from the Bank, is his figment of imagination. This theory has
been, now, during the investigation, found to be a preplanned
design of the Petitioner to create a cloud of suspicion, so as to
derail and confuse the investigation and instead, put the police
officials in the dock. It has now come to the notice of the
Bhayandar Police Station that on 9th February, 2012, the Petitioner
did visit the ICICI Bank but, on that date, what he did was to
withdraw certain amounts from one Account and instantly redeposit
the same in his another Account in the same Branch, which
amount was equivalent to around `11 lacs. This, obviously, has
been done with a view to create evidence against the police official
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to browbeat them, who were investigating the offence of octroi
evasion. This information now gathered, if correct, and established
during the trial by the prosecution, would be a serious matter and
would militate against the petitioner. We refrain from expressing
any final view one way or the other except to record that the
petitioner has only created cloud of suspicion and has failed to
substantiate the factum of having handed over amount of
`11,25,000/- in cash to Respondent No.4 and 5 or any other police
official in the Navghar Police Station at Bhayander.
22. The circumstances of mobile call record and of withdrawal of
amount from the bank, as discussed above, appears to be false
and figment of imagination of the Petitioner. No adverse inference
can be drawn against the police officials of having demanded or
accepted the cash as alleged. In other words, the fact that the
petitioner was present in the police station after the evening of
9.2.2012 and was taken into custody, has not been established by
the petitioner. That fact cannot be established on the basis of the
call records which are produced in the present proceedings, which
gives no indication as to the precise location where the petitioner
was sitting or moving. The generic description given in the said
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chart militates against the petitioner. If the stand of the petitioner
that he was waiting or moving outside the police station on his own
for quite some time was to be accepted as it is, then the petitioner
cannot be permitted to take advantage of the call records
pertaining to the same period to pursue his allegation that he was
inside the police station or was illegally arrested and detained.
23. We have already noticed that the petitioner has relied on the
affidavit of his friend which, in our opinion, is vague and in any
case, cannot substantiate the fact that the petitioner was in fact
arrested or detained on 9.2.2012 in his presence and was kept in
police lock-up in the police station. If the plea taken by the
petitioner is considered in the context of the fact now unravelled,
namely, that on 9.2.2012, the petitioner had gone to his bank
where he withdrew the amount equivalent to around `11,00,000/-
from his one account in the branch and then redeposited the same
in another account in the same branch, speaks volumes and belies
his claim that he had taken that amount to the Police Station for
offering it to Respondent No.4. The learned APP has produced the
original record, which, prima facie, substantiates the above stand
taken by the respondents. It is a strong circumstance, which alone
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should be sufficient to negative the claim of the petitioner of illegal
arrest or for that matter, demand of amount of `11,25,000/- made
by Respondent No.4 and its misappropriation.
24. Counsel for the petitioner relied on the decision of the Apex
Court in the case of Munshi Singh Gautam (dead) & Ors. vs.
State of U.P.2. Emphasis was placed on observations in
paragraph 6 and 7 of this decision wherein the Apex Court noted
that the Courts must deal with the atrocities or death in police
custody in an illegal manner and that the sensitivity which they
deserve, otherwise the common man may tend to gradually lose
faith in the efficacy of the system of the judiciary itself, which if it
happens, will be a sad day for anyone to reckon with. The case on
hand, is not a case of atrocities committed by the police whilst the
petitioner was in police custody. The grievance is about his illegal
arrest by the officers of the local police station and more
importantly of misrepresenting the petitioner to deposit the amount
of `11,25,000/- so that the same would be seized as crime money
and the petitioner would be examined as a prosecution witness.
As regards the illegal arrest, we have elaborately dealt with that
2 (2005) 9 SCC 631
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contention and have held that the petitioner has failed to establish
that he was in fact taken into custody or detained on 9.2.2012. On
the other hand, credence ought to be given to the
contemporaneous police record considering the fact that the
petitioner did not make any such grievance before the Magistrate's
Court where he was produced for remand at the earliest
opportunity. The grievance about illegal arrest, demand of amount
of misappropriation has been made for the first time on 29.3.2012
only after filing of the chargesheet against the petitioner on
28.3.2012. The explanation offered by the petitioner for the delay
and failure to raise the issue at the earliest opportunity, to say the
least, is after- thought and appears to be a lame excuse to make
reckless, frivolous and vexatious allegations against the concerned
police officials of Bhayander Police Station; which, it is also fairly
accepted, is on the basis of legal advise given by the advocate.
25. As regards the delay in making complaint about the demand
of amount and its misappropriation by the police officials, the
explanation offered is that the petitioner was under mistaken belief
that entry in the official record was made after the payment made
by the petitioner to the concerned police official on duty in the
vss 24 of 35
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police station. This explanation is clearly after-thought. On the
one hand, the petitioner asserts that he immediately enquired with
the concerned police official to issue receipt or make Panchanama
about receipt of amount but he was asked to wait. It is the case of
the petitioner that he reported the matter to his friend and
thereafter waited outside the police station for the arrival of
Respondent No.4. On the other hand, before this Court, he pleads
that he was under an impression that entry of receipt was made
promptly and therefore did not make grievance about that for
almost more than one and a half months until the filing of the
chargesheet. That explanation is unacceptable.
26. We may now deal with the argument of the petitioner that the
investigation done by the police officials of Navghar Police Station
is vitiated and the registration of the case by the said Police Station
itself is malafide. To buttress this argument, the petitioner relied on
the circumstances noted in the FIR that the period of commission
of offence was between 2007 and 2011. Moreover, the
investigation has been done by the informant himself, who was
none other than the police official of Navghar police station i.e.
Respondent No.5. No doubt, the FIR has been registered on the
vss 25 of 35
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basis of complaint of Respondent No.5 which was made by him
after information regarding commission of offence came to his
notice. It is also noticed that Respondent No.5 has put his initials
on the Panchanama drawn at the residence of accused No.1 as
well as the search Panchanama and Memoranda. According to the
petitioner, the Respondent No.5 also appeared at the time of
remand of the petitioner before. None of the above, in our opinion,
lead to an irresistible inference that Respondent No.5 was the
Investigating Officer. The investigation of the case has been
entrusted to Respondent No.4 Dinkar Pingle, who is the Police
Inspector working in the Navghar Police Station. The fact that
Respondent No.5 has signed the Panchanamas and Memoranda,
does not mean that he was the Investigating Officer. No legal
provision has been brought to our notice which prohibits the
informant or person, at whose instance, the FIR has been
registered, to be witness in the search or seizure and arrest
Panchanama if the situation so demands. If the police official
working in the same police station is part of the raiding party, that
does not make him the Investigating Officer or for that matter, In-
charge of the investigation.
vss 26 of 35
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27. As regards the appearance of Respondent No.5 before the
Magistrate during the remand of petitioner, that has been refuted
by the respondents. It is asserted by the respondents that all the
remand applications qua the petitioner were moved before the
Magistrate under the signature of the Investigating Officer and not
the Respondent No.5 as alleged. There is substance in this stand
of the respondents. By virtue of his office, Respondent No.5 has
discharged the role of informant as well as being member of the
raiding party or as witness to the concerned panchanamas. Thus
understood, no inference can be deduced that Respondent No.5
has acted against the petitioner with vengeance or otherwise. Nor
it is possible to hold that the entire investigation done by the
Navghar Police Station is vitiated.
28. Counsel for the petitioner relied on the decision of the Apex
Court in the case of Bhagwan Singh vs. State of Rajasthan 3,
wherein it is held that the investigation by the complainant Head
Constable himself of offence of offering bribe was improper. In that
case, the complainant was the Head Constable and he himself
undertook the investigation of the case. He made search memo
3 (1976) 1 SCC 15
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signed by the policemen accompanying him and not by
independent witness. In the first place, the exposition in this
judgment was in a matter considered after a full-fledged trial on the
basis of evidence before the Court. Secondly, the Investigating
Officer in the present case, is other than the complainant. The fact
as to why Respondent No.5 was made to sign the search memo
and Panchanamas as witness, will be matter of evidence at the
trail. Thirdly, as is noticed earlier, the further investigation has now
been entrusted to an independent agency who is specialised in
investigating economic offences such as octroi evasions. In the
circumstances, it is not necessary to dilate on this aspect any
further except to observe that the decision pressed into service will
be of no avail to the petitioner much less, to hold that he was
illegally arrested or detained or that he was misled to pay the
amount and that he acted on that representation and offered the
amount which was misappropriated by the police officials.
29. Reliance is then placed on another decision in the case of
Megha Singh vs. State of Haryana 4 and Kashmeri Devi vs.
4 (1996) 11 SCC 709
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Delhi Administration & Ors.5 Even in this case, the investigation
was done by the very police officer who lodged the complaint. As
found earlier, the fact situation in the present case is different.
Hence, this judgment will be of no avail to the petitioner.
30. Reverting back to the efficacy of the call records, the fact that
no call record is noticed after midnight of 9.2.2012, does not
necessarily mean that the petitioner was taken in custody by the
Navghar Police Station. That is a fact which will have to be
established at the trial. On the other hand, the office record
supports the stand of the respondents that on 10.2.2012, the
petitioner was called upon to produce certain documents and the
petitioner has acknowledged the communication so received by
him. If the petitioner was already in custody, there was no need to
serve the petitioner with such communication, to remain present
on 10.2.102 in the police station, alongwith the relevant records.
The version of the respondents is that after the petitioner arrived in
the police station alongwith the records and when it became clear
that he was also involved in the crime, he was taken into custody
on 10.2.2012. It is possible that the petitioner may have on his own
5 (1998) Supp. SCC 482
vss 29 of 35
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chosen to keep the mobile phone switched off; just as he planned
to withdraw the amount from one account of his bank in the same
branch and redeposit that amount in another account of the same
branch to hoodwink the investigation and then make reckless and
vexatious allegations against the police officials. This possibility
cannot be ruled out. May be, it was intended to create suspicious
circumstance to support the allegation of having paid the amount to
the police official equivalent to the amount mentioned in his cheque
which was seized by the Investigating Officer. The Petitioner must
have done that advisedly - either to take it as defence or to make
vexatious allegations against the Investigating Officer so as to
confuse the investigation.
31. Counsel for the petitioner had relied on the decision of the
Apex Court in the case of State of Haryana vs. Ch.Bhajan Lal &
Ors.6, to contend that there is no choice but it is the duty of the
police officer to register FIR u/s 154 of the Code as soon as the
allegations regarding commission of cognisable offence is made
out. That indeed, is a rule but the Apex Court itself has observed
that in excepted categories, while dealing with the allegations
6 AIR 1992 SC 604
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against the government officials, it is open to undertake preliminary
enquiry before rushing to register FIR, to ascertain whether the
allegation is genuine or vexatious. If it is vexatious, there is no
need to register the FIR. In the present case also, similar
procedure has been followed and upon noticing that the allegations
made by the petitioner are false and vexatious, the same were
ignored.
32.
To get over this position, Counsel for the petitioner was at
pains to submit that the petitioner has, prima facie, supported the
allegations by relying on call records and in that case, there would
be hardly any choice to the police officer but to register the FIR u/s
154 of the Code. For the reasons already recorded hitherto, while
dealing with the efficacy of call records relied by the petitioners,
this argument does not take the matter any further for the
petitioner.
33. Counsel for the petitioner then relied on the decision of the
Apex Court in the case Ramesh & Ors. vs. State of Tamil Nadu 7,
and the decision in the case of Y.Abraham Ajith & Ors. vs.
7 (2005) 3 SCC 507
vss 31 of 35
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Inspector of Police, Chennai & anr. (supra) to contend that FIR
could not have been registered at Navghar Police Station as the
principal offence of octroi evasion has been committed against the
Mumbai Municipal Corporation. We have already dealt with this
contention and have held that the preparation of false seals,
documents, etc. which were used in the commission of offence
was done within the jurisdiction of Navghar Police Station. The
false documents were used and presented within the jurisdiction of
Navghar Police Station. In that case, the Navghar Police Station
would also have jurisdiction to take cognisance of the offence and
register FIR on that basis even though the act may result in
defrauding the Mumbai Municipal Corporation. Suffice it to observe
that registration of FIR by the Navghar Police Station cannot be
said to be fatal at all much less to hold that the whole action has
vitiated.
34. The next argument of the petitioner is that merely because
the petitioner reported the matter belatedly on 29.3.2012 to the
DIG, about the acts of commission and omission of the police
officials of the Navghar Police Station, at Bhayander, can be no
ground for discarding the complaint. In the first place, the
vss 32 of 35
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petitioner's complaint has not been discarded merely because it
was made after lapse of almost one and a half months. But, on
examination of relevant aspects, the Enquiry Officer has formed
opinion that the allegations made by the petitioner were false and
vexatious to the knowledge of the petitioner. That opinion is
supported by the contemporaneous record including the further
revelations made during the investigation about the act of the
petitioner in withdrawing the amount equivalent to the cheque
amount from one account of his bank and immediately redepositing
the self-same amount in his other account in the same branch on
9.2.2012. That position has been certified by the concerned Bank.
Suffice it to observe that the petitioner is not being non-suited
because there is delay in reporting the matter to the superior
authority, but even otherwise the fact situation of the case does not
warrant any interference at the instance of this petitioner.
35. Counsel for the petitioner relies on the decision of the Apex
Court in the case of Sajjan Kumar vs. CBI8. Emphasis has been
based on the dictum of the Court in paragraphs 31 to 37. For the
reasons already noted, the exposition in this decision will be of no
8 (2010) 9 SCC 368
vss 33 of 35
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avail to the petitioner. Moreover, the dictum of the Apex Court is in
the context of the fact situation of that case.
36. The respondents have relied on the call records of
Respondent No.4 which indicates that at the relevant time, when
the petitioner claims to have visited the Navghar Police Station, the
said officer was on duty at some other place away from the Police
Station. This call record belies the assertion of the petitioner that
Respondent No.4 was instrumental in impressing upon the
petitioner to bring amount equivalent to the cheque amount much
less to make him deposit the same with the concerned police
officer on duty in the police station. As a matter of fact, in the
petition, the petitioner has given the name of the officer with whom
he had allegedly deposited the amount but after reply affidavit,
realising that his plea will have to be rejected as there was no
officer by that name, has come out with explanation that he
committed mistake by mentioning incorrect name. Suffice it to
observe that the theory propounded by the petitioner is not only
after-thought but false, frivolous and vexatious so as to embroil the
Investigating Officer with such accusations and to confuse and
derail the investigation of the case against him.
vss 34 of 35
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37. The respondents in the reply affidavit have given the
circumstances in which the petitioner has been arrested. There is
no reason to doubt the said version in the present proceedings.
The stand taken by the respondents is supported by the
contemporaneous official record. Therefore, the plea of the
petitioner that he was illegally arrested or detained deserves to be
stated to be rejected.ig
38. Taking overall view of the matter, therefore, the petition is
devoid of merits and accordingly the same is dismissed.
39. Consistent with our finding, we ought to have imposed
exemplary costs while dismissing this petition, but we refrain from
doing so.
(R.Y. GANOO, J.) (A.M. KHANWILKAR,J.)
vss 35 of 35
