Hiren S/O. Mulchand Shah (In Jail) vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 5797 Bom

APL  484/17                                           1                           Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
             CRIMINAL APPLICATION (APL) No. 484/2017
Hiren s/o Mulchand Shah,
Aged about 35 years, Occ:-Business,
R/o Plot No.35, Wardhaman Nagar,
Nagpur.                                                                        APPLICANT
                                     .....VERSUS.....
1.    The State of Maharashtra,
      Through the Police Station Officer,
      Police Station Saoner,
      District - Nagpur.
2.    Mohd.Sarik s/o Sheikh Abdul Raheman,
      aged about 45 years, Occ:-Private,
      R/o Plot No.102, Rathod Layout,
      Police Line Takli, Nagpur.                                          NON-APPLICA
                                                                                      NTS
                       Shri R.M. Daga, Counsel for the applicant.
      Shri P.S. Tembhare, Additional Public Prosecutor for the non-applicant no.1.
                 Shri A.A. Mardikar, counsel for the non-applicant no.2.

                                      CORAM :SMT.VASANTI  A  NAIK AND
                                                    M.G. GIRATKAR, JJ.                

DATE : 9 TH AUGUST, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

The criminal application is ADMITTED and heard finally with

the consent of the learned counsel for the parties.

2. By this criminal application, the applicant seeks the quashing

of the first information report registered against the applicant for the

offences punishable under Sections 392, 384, 363, 109 read with Section

34 of the Penal Code.

3. It is stated in the complaint that the complainant had met

Anna for the purpose of exchanging demonetized currency notes for new

APL 484/17 2 Judgment

notes. On 08.03.2017, when accused Anna and accused Vishal were

carrying the demonetized currency notes, they were stopped by three

police constables near Patansawangi and the police constables had

forcibly taken the de-monetized currency notes to the extent of Rs.40

lakhs from them and had not arrested accused Anna and accused Vishal.

It is stated in the first information report that action may be taken against

the three police constables, Anna and Vishal. It is stated in the

application that in the first information report, there is no reference

whatsoever to the applicant. It is stated that in the first information

report, the allegations are only made against three police constables,

Anna and Vishal. It is stated that despite there being no reference to the

applicant in the first information report and no material to register the

offences against him under Sections 392, 384, 363, 109 read with Section

34 of the Penal Code, the offences are wrongfully registered against the

applicant.

4. The non-applicant no.1 has filed an affidavit-in-reply. The

learned Additional Public Prosecutor states by referring to the affidavit-in-

reply filed on behalf of the non-applicant no.1 that there is no

involvement of the applicant in the crime except that he was found to be

involved in illegal transaction of exchange of the currency notes. It is

stated by referring to the affidavit-in-reply filed on behalf of the non-

applicant no.1 that the applicant is liable to be prosecuted for the offence

APL 484/17 3 Judgment

punishable under Section 188 of the Penal Code and Section 7 of the

Specified Bank Notes (Cessation of Liabilities) Act, 2017. It is stated that

the other accused are involved in the commission of the offences

punishable under Sections 392, 384, 363, 109 read with Section 34 of the

Penal Code.

5. Shri Mardikar, the learned counsel for the non-applicant no.2,

fairly admits that in the first information report lodged by the non-

applicant no.2/complainant, there is no reference to the applicant. It is

fairly admitted that no allegation is made against the applicant in the first

information report filed by the complainant.

6. On a perusal of the first information report and the reply filed

on behalf of the non-applicant no.1, we find that a prima-facie case of

kidnapping, extortion, robbery, etc. cannot be made out against the

applicant even if the first information report is accepted on its face value.

Also, the registration of the offence against the applicant under the

aforesaid sections of the Penal Code is not supported by any material. It

is surprising that after registering the offence against the applicant under

Sections 392, 384, 363, 109 read with Section 34 of the Penal Code, the

non-applicant no.1 has stated in the affidavit-in-reply that the applicant is

only involved in the exchange of de-monetized currency notes and

therefore, he is liable to be prosecuted for the offence punishable under

APL 484/17 4 Judgment

Section 47 of the Specified Bank Notes (Cessation of Liabilities) Act,

2017. By applying the tests as laid down in the case of State of Haryana

Versus Bhajanlal, reported in (1992) SCC Criminal 426 and reiterated in

the subsequent judgments, reported in (2004) 6 SCC 522 (State of A.P.

Versus Golconda Linga Swamy) and (2005) 1 SCC 122 (Zandu

Pharmaceutical Works ltd. Versus Mohd. Sharaful Haque), it would be

necessary to quash and set aside the first information report registered

against the applicant for the offences punishable under Sections 392, 384,

363, 109 read with Section 34 of the Penal Code.

8. Hence, for the reasons aforesaid, the criminal application is

allowed. The first information report registered against the petitioner

vide Crime No.78/2017 is hereby quashed and set aside.

Order accordingly.

              JUDGE                                           JUDGE
APTE