Mansingh S/O Dhondibhau Shitole vs The State Of Maharashtra And Anr
2017 Latest Caselaw 3128 Bom

                               1                              Cri.A-175-17+1


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

              CRIMINAL APPLICATION NO. 175 OF 2017

 Mansingh S/o Dhondibhau Shitole,
 Age: 50 years, Occu: Agril.,
 R/o: Bhangaon, Tq. Shrigonda,
 District Ahmednagar                                     ...APPLICANT

          versus

 1.       The State of Maharashtra,
          Through Investigating Officer,
          Shrigonda Police Station,
          Ta. Shroginda, Dist. Ahmednagar.

 2.       Shakuntala W/o Ramesh Toradmal
          Age: 65 years, Occ. Household,
          R/o: Bhangaon, Tq. Shrigonda,
          District Ahmednagar.

 3.       Shri Bharat More,
          Age: 48 years Occ: Service as PSI
          Shrigonda Police Station, Dist. Ahmednagar,
          R/o : Shrigonda, Dist. Ahmednagar.      ...RESPONDENTS

                                .....
 Mr. N.B. Narwade, Advocate for applicant
 Mr. P.G. Borade, APP for Respondent Nos.1 and 3
 Mr. R.P. Phatake, Advocate for respondent No. 2
                                .....
                               WITH

             CRIMINAL APPLICATION NO. 987 OF 2017

 1.       Mirabai W/o Bhaskar Kundade,
          Age: 50 years, Occ. Agril.,

 2.       Rama @ Vikas Bhaskar Kundade,
          Age: 26 years, Occu. Agril.,

 3.       Vishwanath S/o Ambar Kundade,
          Age: 48 years, Occu. Agril.,
          All R/o Bhangaon, Tq. Shrigonda,
          Dist. Ahemadnagar.                             ...APPLICANTS



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                                       2                                Cri.A-175-17+1


          versus

 1.       The State of Maharashtra,
          Through Investigating Officer,
          Shrigonda Police Station,
          Ta. Shroginda, Dist. Ahmednagar.

 2.       Shakuntala W/o Ramesh Toradmal
          Age: 65 years, Occ. Household,
          R/o: Bhangaon, Tq. Shrigonda,
          District Ahmednagar.           ...RESPONDENTS

                                .....
 Mr. N.B. Narwade, Advocate for applicants
 Mr. P.G. Borade, APP for Respondent No.1 -State
 Mr. R.P. Phatake, Advocate for respondent No. 2
                                .....


                                          CORAM :     S.S. SHINDE AND
                                                      K.K. SONAWANE, JJ.

                               RESERVED ON :          20th APRIL, 2017.

                           PRONOUNCED ON:             14th June, 2017.


 ORAL JUDGMENT :- ( Per : K.K. Sonawane, J.)

1. Rule. Rule made returnable forthwith. Heard finally, with

consent of the parties.

2. The applicants taking recourse of section 482 of the

Criminal Procedure Code (for short "Cr.P.C."), preferred present

applications seeking relief to quash and set aside the impugned

First Information Report (for short "FIR") bearing crime No. I-341

of 2016 registered at Shrigonda Police Station, District

Ahmednagar, under sections 143, 147, 337, 354, 323, 504 and

3 Cri.A-175-17+1

506 of the Indian Penal Code (for short "IPC") and under section

3 (1) (xi) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (for short "Atrocities Act")

and under section 7(1)(b) of Protection of Civil Rights Act.

3. The genesis of the applications culled out in brief is that,

first informant-Shakuntala W/o Ramesh Toradmal, resident of

Bhangaon, Ta. Shrigonda, District Ahmednagar on 22-08-2016

approached to the Police Station, Shrigonda and ventilated the

grievance that, she accompanied with husband - Ramesh, both

were residing in the field Gut No. 162 by erecting shed and eking

livelihood by doing agricultural work. The land of accused

Bhaskar @ Nana Ambad Kundade was located abutting to the

land of the first informant. The accused - Bhaskar and his family

members were residing in the field and they used to harass and

pick-up the quarrels with first informant on one or other pretext.

It has been alleged that on 13-08-2016 in the morning at about

10.00 a.m.,first informant - Shakuntala and her daughter-in-law

both started agricultural work of uprooting the grass in the

Bajara crop of their field. In the evening at about 5.00 p.m.,

accused Bhaskar Kundade, his wife Meerabai Bhaskar @ Nana

Kundade, his son Rama Kundade, his brother Vishwanath Ambar

Kundade and one Mr. Mansing Dhondibhau Shitole arrived in the

field of the first informant and they started reprimanding and

4 Cri.A-175-17+1

hackled the first informant and her daughter in-law. They thrown

grass uprooted by first informant and her daughter in-law in the

Bajara crop. The first informant asked accused for why throwing

the grass in Bajara Crop, as she wanted to take the grass at

home for she-goats. But, accused hurled castiest abuses and

assaulted first informant and her daughter in-law by kick, fist and

with the handle of axe. Accused Bhaskar @ Nana caught hold the

hand of her daughter in-law and roughed up her. He had made

attempt to outrage the modesty of her daughter in-law. The

assailants also gave threat to the first informant and went away.

After the alleged incident first informant and her daughter in-law

immediately approached to the Shrigonda Police Station, and

filed the report of incident. At that time, they were mentally

disturbed and in frighten condition. Therefore, unwittingly the

first informant forget to make a reference of alleged castiest

abuses and act of molestation of daughter-in-law in the police

report. After medical treatment they both returned to home. The

first informant divulged about the incident to her husband, sons

and other relatives. After consultation and discussion, first

informant again visited to the Shrigonda Police Station on

22-08-2016 and filed the FIR in detail about the castiest abuses

and molestation of her daughter in law by accused.

4. Pursuant to FIR of Shakuntala Toradmal dated 22-08-2016

5 Cri.A-175-17+1

Police of Shrigonda Police Station registered the crime No. I-341

of 2016 and set the criminal law in motion. Investigating Officer

commenced the investigation and recorded the statements of

witnesses acquainted with the facts of the case. Meanwhile,

applicants approached to this court and preferred the present

application invoking remedy under section 482 of the Cr.P.C.,

and prayed to quashed and set aside the impugned FIR bearing

Crime No. I-341 of 2016 registered at Shrigonda Police Station,

against them.

5. The learned counsel for the applicant vehemently

submitted that applicants are innocent of the charges pitted

against them. They have not committed any crime, but they are

implicated in this case on false and fabricated accusations. The

learned counsel for applicants harped on the circumstance that,

after alleged incident occurred on 13-08-2016, first informant

visited to Shrigonda Police Station and lodged the report against

applicants. But, she has not stated about castiest allegations or

molestation of her daughter in-law by the accused during the

course of incident. In the report, she has disclosed only about

the assault by accused on herself and her daughter in-law by

kick, fist and with the handle of axe. She has also stated in her

report that the present applicant - Mansing Dhondibhau Shitole

had arrived at the spot for intervention in the fight. There was

6 Cri.A-175-17+1

only contusion injury received to the first informant and her

daughter-in-law. Therefore, they were referred to medical

treatment. According to learned counsel, in view of nature of

allegations and the injuries received to the first informant, Police

of Shrigonda Police Station registered the NC No. 656 of 2016

under section 323, 504 and 506 of the IPC and referred first

informant to Magistrate. There was no offence registered against

applicants nor first informant stated about commission of

cognizable offence in her report dated 13-08-2016. The learned

counsel submitted that the first informant on consultation with

her husband, relatives and others after efflux of 8/9 days filed

subsequent impugned FIR at belated stage and made false

accusation against applicants. The subsequent FIR of the same

incident allegedly occurred on 13-08-2016 is after thought,

concocted and not maintainable at all. Therefore, the learned

counsel prayed to quash and set aside the impugned FIR by

exercising powers under section 482 of the Cr.P.C. The learned

counsel fervidly contended that applicant - Mansing Shitole did

not participate or involved in the alleged assault, but he

attempted to intervene in the scuffle and pacify the quarrel. But,

he has been falsely implicated by making false allegations in the

subsequent FIR. The learned counsel for the applicants added

that no such incident as alleged by the first informant has

occurred, as the first informant did not make reference of such

7 Cri.A-175-17+1

incident in her report filed on 13-08-2016. These circumstances

are sufficient to draw inference that impugned FIR is filed with

malafide intention to wreak vengeance against the applicants.

The learned counsel submitted that applicants and family

members of the first informant are on inimical terms. There were

complaints filed by family members of first informant against

applicants as well as other villagers by taking disadvantage of

provisions of Atrocities Act. He contended that after alleged

report dated 13-08-2016, first informant and her family members

gave threats to the applicants to embroil them by making false

allegation of castiest abuses. The applicants due to apprehension

of false accusation of catiest abuses rushed to the Police of

Shrigonda Police Station as well as Superintendent of Police,

Ahmednagar District and filed the application to shield them from

false complaint. However, the first informant preferred the

present complaint. According to learned counsel, first informant

and her family members have an habit of making false

allegations on cast against villagers. The impugned FIR being

second FIR of the same incident occurred on 13-08-2016 is not

maintainable, within ambit of law. Therefore, he prayed to allow

application and exercise inherent powers under section 482 of the

Cr.P.C., to quash and set aside the impugned FIR, which is totally

false, baseless and not sustainable at all.

8 Cri.A-175-17+1

6. In refutal, the learned counsel for respondent No. 2 - first

informant vehemently raised the objection and opposed the

contentions put forth on behalf of applicants. According to

learned counsel, the Police of Shrigonda Police Station initially

registered the N.C. against the applicants. But, when the first

informant discussed the events of alleged incident in detail to the

family members, it was decided to file the first information report

against the applicants. The police has rightly registered the crime

against the applicants for commission of cognizable offence. It

cannot be said that the impugned FIR is second FIR of same

incident. He contends that first informant was the rustic, illiterate

lady, she was mentally disturb and under frighten condition at

the time of report to Police. Therefore, she did not disclose the

alleged incident in detail. But, later on she again approached to

the concerned Police to ventilate her grievance against the

applicants and lodged the detail report. According to learned

counsel, there is no legal infirmity in the registration of crime for

commission of cognizable offence against the applicants. He

denied the allegations of castiest abuses and molestation made

by the first informant are false and fabricated one. There was no

misuse of provisions of Atrocities Act. He prayed not to nod in

favour of applicants and dismiss the application.

7. The learned APP stepped into the shoe of learned counsel

for respondent No. 2 and submitted that the action of Police for

9 Cri.A-175-17+1

registration of crime against applicants is proper and within

purview of law. Therefore, application deserves to be rejected.

8. In the instant case, the attending circumstances on record

reflect that the first informant on 13-08-2016 after the alleged

incident of assault immediately lodged the report against the

applicants to the Police of Shrigonda Police Station. But, as the

information was relating to non-cognizable offence, the

concerned Police registered the N.C. No. 656 of 2016 under

sections 323, 504 and 506 of the IPC. However, later on the first

informant once again visited to the Police of Shrigonda Police

Station on 22-08-2016 and filed the information about

commission of alleged cognizable offence against the applicants.

Pursuant to allegations of cognizable offence of molestation and

castiest abuses, the Police of Shringonda Police Station registered

the impugned crime and set the investigation into motion.

9. It is not in dispute that the very purpose of registration of

FIR is to set the criminal law in motion, which would eventually

culminate in filing the Police report under section 169, 170 or 173

of the Cr.P.C. The law does not permit more than one FIR in

relation to the same incident or factual aspect. The Section 154

of the Cr.P.C. pertains to cognizable cases, while section 155

deals with the information as to non-cognizable cases and

investigation of such cases. It is evident that the scheme of

10 Cri.A-175-17+1

sections 154, 156 and 190 of Cr.P.C. does not recognize more

than one FIR about the allegations of one and the same

cognizable offience.

10. According to learned counsel for the applicants, the

impugned FIR bearing Crime No. I-341 of 2016 being an second

FIR of one and the same alleged incident of assault occurred on

13-08-2016 is not sustainable within purview of law and deserves

to be quashed and set aside. We are not in agreement with

contentions propounded on behalf of learned counsel for the

applicants for reference of the impugned FIR as an subsequent or

second FIR of one and the same incident occurred on

13-08-2016. It is to be noted that informant Smt. Shakuntala

Toradmal approached to the Shrigonda Police Station on 13-08-

2016 and furnished the information about occurrence of non-

cognizable offence. The concerned Police took the entry of the

substance of information in the book kept in the Police Station for

such purpose and referred the informant -Shakuntala to the

Magistrate under section 155 of the Cr.P.C. There was no any

offence registered by the Police to set the criminal law in motion

for investigation and to file report under section 173 of the

Cr.P.C. Therefore, the report of the first informant - Shakuntala

dated 13-08-2016 for the information as to commission of non-

cognizable offence could not be treated as FIR under section 154

11 Cri.A-175-17+1

of Cr.P.C. In contrast, the information given on 22-08-2016, on

the part of informant Shakuntala was of occurrence of cognizable

offence, which impelled the concerned Police to take recourse of

provisions of section 154 of the Cr.P.C. for registration of crime

against alleged culprits and set the criminal law in motion for

collecting evidence in regard to alleged crime. The earlier

information furnished on 13-08-2016 to the concerned Police by

the informant Shakuntala did not clearly specify the commission

of cognizable offence and consequently would not be an FIR

under section 154 of Cr.P.C. The mere fact that this information

was first in point of time does not by itself clothe it with character

of FIR.

11. We would reiterate that there was no any crime registered

nor there was any investigation set in motion on the basis of

report of first informant - Shakuntala dated 13-08-2016.

Obviously, no question arises for application of section 154 of

Cr.P.C. in this case prior to registration of impugned FIR dated

22-08-2016. In such circumstances, it would fallacious to

appreciate that as the report of the alleged incident was filed on

13-08-2016 resulting into registration of N.C. No. 656 of 2016,

the impugned FIR dated 22-08-2016 is not amenable within the

ambit of law being second FIR and same be treated as statement

of first informant under section 161 of Cr.P.C.. The impugned FIR

12 Cri.A-175-17+1

would not be termed as a subsequent or second FIR of the

crime reported to the Police earlier on 13-08-2016 by the first

informant.

12. In view of object and purpose of provisions of Section 154

of the Cr.P.C., we are of the opinion that the impugned FIR

cannot be treated as subsequent or second FIR in this crime. The

earlier report filed on behalf of first informant dated 13-08-2016

was relating to non-cognizable offence. The Police caused entry

of the same in the book maintained and preserve for the same in

the Police Station and referred the first informant to the

Magistrate as contemplated under section 155 of Cr.P.C.. There

were no parallel investigation going on following the reports filed

on 13-08-2016 as well as impugned FIR dated 22-08-2016. It is

preposterous to appreciate that the impugned FIR is not

maintainable with the purview of law being second - subsequent

FIR. In the result, it would unjust and improper to quash and set

aside the impugned FIR on this legal aspect.

13. Now, in regard to merits of allegations to allow the

Investigating Officer for continuation of investigation against the

applicants-accused, we are of the opinion that the allegations

made in the FIR, if taken at their face value and accepted in their

entirety prima faice constitute the offence and make out a case

against the applicants. The investigation is at initial stage, it

13 Cri.A-175-17+1

would not justifiable to appreciate the allegations cast on behalf

of applicants that the impugned FIR is filed with malafide

intention to wreak vengeance on the part of first informant. In

case, the impugned FIR is quashed and set aside, on this count

at this initial stage, it would result in finality of the accusation

nurtured against the applicants, without allowing prosecution to

adduce evidence to substantiate the claim. This is not a stage of

evaluating truthfulness or otherwise of the allegations made on

behalf of prosecution against the applicants. It is to be noted that

the Hon'ble Apex Court in the case of "State of Haryana V/s

Bhajanlal reported in AIR 1992 SC 604 has delineated the

guidelines in paragraph No. 109 as below:

"109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

14. In view of aforesaid exposition of law laid down by the Apex

Court and the list of categories of cases of myraid kind given by

way of illustration for exercising inherent powers to prevent

abuse of process of law or otherwise to secure ends of justice in

14 Cri.A-175-17+1

the Bhajanlal's Case (Supra), we are not inclined to nod in favour

of applicants. The allegations made in the FIR prima facie

disclose the commission of cognizable offence to allow the

Investigating Officer to proceed further for investigation into

crime to collect the evidence and to file report, if any, under

section 173 of Cr.P.C.

15. In the above premises, we are of the considered opinion

that the impugned FIR bearing Crime No. I-341 of 2016 could not

be termed as second-subsequent FIR of one and the same

incident occurred on 13-08-2016. An information given by the

informant - Shakuntala Toradmal on 13-08-2016 does not

disclose commission of cognizable offence for further process

under section 154 of the Cr.P.C. The Police registered the NC

No. 656 of 2016 by invoking powers under section 155 of Cr.P.C.

There was no crime registered nor investigation was set in

motion on the report of Shakuntala filed on 13-08-2016.

Therefore, it cannot be termed as FIR only on the fact that it was

filed first in point of time. The report dated 13-08-2016 of the

first informant Shakuntala at the most would be considered as

previous statement under section 157 of the Evidence Act for

corroboration or contradiction to impeach credibility of the first

informant during the course of trial as prescribed under section

145 of Evidence Act. But, the impugned penal action initiated

15 Cri.A-175-17+1

pursuant to FIR bearing Crime No. I-341 of 2016 would not liable

to be quashed and set aside merely on the fact that first

informant filed earlier report dated 13-08-2016 of the same

incident of assault by the applicants/accused. In such peculiar

circumstances, both the applications deserve to be dismissed

being devoid of merit.

16. In view of the aforesaid discussion, both the Criminal

Applications stand rejected and disposed of accordingly. Rule is

discharged. No order as to costs.

                           Sd/-                       sd/-

        [ K. K. SONAWANE, J.                 [ S.S. SHINDE, J.]




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