Latesh Kumar Ganeshbhai Patel And ... vs The State Of Maharashtra
2017 Latest Caselaw 1006 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION
                   CRIMINAL APPLICATION NO.768 OF 2016



 Mr.Latesh Kumar Ganeshbhai Patel and Another. ..   Applicants
        Vs
 The State of Maharashtra.                     ..   Respondent
        -

Shri Meghashyam Kanoji Kocharekar along with Mrs. Prabha Badadare for the Applicants.

Dr.F.R.Shaikh, APP for the Respondent State.

-

CORAM : A.S. OKA & SMT.ANUJA PRABHUDESSAI, JJ

DATED : 24TH MARCH 2017

ORAL JUDGMENT ( PER A.S. OKA, J)

1. The submissions of the parties were heard yesterday. The

parties were put to notice that an endeavour shall be made to decide

the Application finally at the stage of admission.

2. The prayer in this Application under Section 482 of the

Code of Criminal Procedure, 1973 (for short "CrPC") is for quashing the

First Information Report (for short "FIR") registered for the offence

punishable under Section 124 of the Maharashtra Police Act, 1951 ( for

short "the said Act of 1951") and Section 52 of the Motor Vehicles Act,

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1988 ( for short "the said Act of 1988"). A chargesheet was filed on

13th January 2016 against the Applicants. A copy of the chargesheet is

placed on record. We have allowed the learned counsel appearing for

the Applicants even to argue on merits of the chargesheet as a remedy

of applying for discharge is not available. We permit formal amendment

to be carried out for incorporating a challenge to the chargesheet which

shall be done within a period of two weeks from the date on which this

Judgment is uploaded.

3. The first informant is a Police Constable attached to

Bhivandi Taluka Police Station. Along with other Police personnel, on

2nd March 2016, when he was on patrolling duty on Mumbai-Nashik

Highway, he received an information that a Scorpio vehicle is likely to

pass containing suspicious goods. Around 6.30 a.m. on 3 rd March 2016,

the first informant and other police personnel spotted the vehicle.

According to the first informant, the the Driver and one of the

occupants of the said vehicle did not give satisfactory answer to the

inquiry made with them. Therefore, a report was submitted to the

Police Officer. After the Police Officer came, it was realized that there

were drawers below the seat of the vehicle which could not be easily

seen and the same were locked. The two Panchas were called and a

person was also called for taking a video film. In their presence, the

drawers were opened and it was found that there were bundles of

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currency notes of Rs.500/- and Rs.1,000/-. The total cash found was of

Rs.2,84,50,000/-. It was suspected that the cash amount had been

fraudulently obtained by the Applicants by illegal means. It was alleged

that the Applicants could not give satisfactory explanation to the

possession of the cash amount. The custody of the said amount was

taken on the very day (3rd March 2016 at 22.32 hrs.) by the Police. The

Applicants were arrested in purported exercise of power under Clause

(d) of Sub-section (1) of Section 41 of the CrPC. On 4 th March 2016, a

remand report was submitted by the Police before the learned Judicial

Magistrate, First Class at Bhivandi when the applicants were produced

before him. Along with the remand report, a separate report was

submitted recording that the Applicants have been arrested under

Clause (d) of Sub-section (1) of Section 41 of the CrPC. A permission

was sought from the learned Magistrate under Sub-section (2) of

Section 155 of the CrPC which was duly granted. Probably, on the basis

of the said permission that the Police ventured to register the impugned

FIR under Section 154 of the CrPC, on the basis of which, an

investigation was carried out and chargesheet was filed for the offence

punishable under Section 124 of the said Act of 1951 and Section 52 of

the said Act of 1988.

4. The first submission of the learned counsel appearing for

the Applicants was that merely because a permission was granted under

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Sub-section (2) of Section 155 of the CrPC, there was no power vesting

in the Police to register FIR under Sub-section (1) of Section 154 of the

CrPC. The submission is that the investigation carried out on the basis

of the impugned FIR registered for non-cognizable offence is completely

illegal. It is further submitted that Section 52 of the said Act of 1988

does not incorporate any penal provision. In any case, there is no

violation of Section 52 of the said Act of 1988. Further submission is

that even Section 124 of the said Act of 1951 will have no application

as, later on, the information about the offence was communicated to

the Income Tax Authorities and at highest, the case may be of evading

the payment of Income Tax. Though, there is no specific prayer made

in that behalf, it was contended that when the allegation was of

commission of a non-cognizable offence, in exercise of the powers

under Clause (d) of Sub-section (1) of Section 41 of the CrPC, the

Applicants could not have been arrested. Therefore, the arrest is illegal.

We may note here that on 4 th March 2016, the Police custody remand

was granted by the learned Magistrate for a period of 14 days. As far as

the applicability of Clause (d) of Sub-section (1) of Section 41 of the

CrPC is concerned, reliance was placed by the Applicants on a decision

of the learned Single Judge of this Court in the case of Avinash

Madhukar Mukhedkar v. State of Maharashtra1.

 1     1983 CrLJ 1983





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5. The learned APP submitted that even assuming that due to

mistake, the impugned FIR was registered, the investigation has been

carried out on the basis of the express provisions of Sub-section (2) of

Section 155 of the CrPC, and therefore, the investigation and the

consequent chargesheet does not become bad-in-law. Inviting our

attention to the chargesheet, the submission of the learned APP is that

the offence punishable under Section 124 of the said Act of 1951 is

squarely attracted as the specific case made out is that the property

(cash) has been fraudulently obtained as the Applicants and they could

not offer any explanation for possessing the cash. The submission is that

during the trial, the Applicants will have to account for such possession

of cash to the satisfaction of the learned Magistrate as provided under

Section 124 of the said Act of 1951. The learned APP has also

supported the action of invoking Clause (d) of Sub-section (1) of

Section 41 of the CrPC and submitted that there is no illegality attached

to that.

6. The first question to be considered is whether any offence

is made out against the Applicants. We have perused the Section 52 of

the said Act of 1988, which reads thus:

"52. Alteration in motor vehicle. - (1) No owner of a motor vehicle shall so alter the vehicle that the particulars contained in the certificate of registration are at variance with those originally specified by the manufacturer :

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Provided that where the owner of a motor vehicle makes modification of the engine, or any part thereof of a vehicle for facilitating its operation by different type of fuel or source of energy including battery, compressed natural gas, solar power, liquid petroleum gas or any other fuel or source of energy, by fitment of a conversion kit, such modification shall be carried out subject to such conditions as may be prescribed:

Provided further that the Central Government may prescribe specifications conditions for approval, retrofitment and other related matters for such conversion kits;

Provided also that the Central Government may grant exemption for alteration of vehicles in a manner other than specified above, for any specific purpose.

(2) Notwithstanding anything contained in sub- section (1), a State Government may, by notification in the Official Gazette, authorise, subject to such conditions as may be specified in the notifications, and permit any person owing not less than ten transport vehicles to alter any vehicle owned by him so as to replace the engine thereof with engine of the same make and type, without the approval of registering authority.

(3) Where any alteration has been made in motor vehicle without the approval of registering authority or by reason of replacement of its engine without such approval under sub-section (2), the owner of the vehicle shall, within fourteen days of the making of the alteration, report the alteration to the registering authority within whose jurisdiction he resides and shall for ward the certificate of registration to that authority together with the prescribed fee in order that particulars of registration may be entered therein.

(4) A registering authority other than the original registering authority making any such entry shall communicate the details of the entry to the original registering authority.

(5) Subject to the provisions made under sub-section (1), (2), (3) and (4), no person holding a vehicle under

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a hire-purchase agreement shall make any alteration to the vehicle except with the written consent of the registered owner.

Explanation.- For the purpose of this section, "alteration" means a change in the structure of a vehicle which results in change in its basic feature.]"

The Section deals with alteration in a motor vehicle. It provides that no

owner of a motor vehicle shall so alter the vehicle that the particulars

contained in the certificate of registration are at variance with those

originally specified by the manufacturer.

7. We have carefully perused the entire chargesheet. The

specifications of the vehicle involved in the offence provided by its

manufacturer are not a part of the chargesheet. Therefore, it is not

possible to hold that the particulars of the vehicle mentioned in

Registration Certificate are at variance with the specifications provided

by the manufacturer. In fact, that is not the case made out in the

chargesheet. Hence, there is no material to show that the provision of

Sub-section (1) of Section 52 of the said Act of 1988 has been infringed.

Moreover, there is no penal provision contained in Section 52 in the

sense that the Section itself does not provide for any punishment. At

highest, for violation of Section 52, a recourse can be taken to Section

171 of the said Act of 1988. However, on perusal of the entire

chargesheet and by taking the material therein as true, we find that no

case of violation of Sub-section (1) of Section 52 of the said Act of 1988

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is made out. Therefore, the chargesheet filed for the offence punishable

under Section 52 of the said Act of 1988 cannot be sustained.

8. Now, we turn to Section 124 of the said Act of 1951, which

reads thus:-

"124. Possession of property of which no satisfactory account can be given.--

Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he failed to account for such possession or to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for a term1[which may extend to one year but shall not, except for reasons to be recorded in writing, be less than one month and shall also be liable to fine which may extend to2[five thousand rupees]."

9. In the present case, there is a prima facie material on

record to show that cash of Rs.2,84,50,000/- was found in the vehicle

which was in possession of the Applicants. In the statement of the first

informant, it was stated that it was suspected that the cash amount has

been obtained by the Applicants by illegal means and fraudulently. In

the chargesheet, there are similar allegations. In the statement of the

first informant, it was mentioned that there was reason to believe that

the cash was fraudulently obtained by the Applicants. As provided in

Section 124 of the said Act of 1951, the offence will be complete if the

person found in possession of the property fails to account for such

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possession to the satisfaction of the learned Magistrate. Therefore,

what is pleaded by the Applicants in this Application is a defence to the

charge under Section 124 of the said Act of 1951. Suffice it to say that

there is material against the Applicants for filing chargesheet for the

offence punishable under Section 124 of the said Act of 1951. Whether

the Applicants account for the possession of the said cash is a matter of

evidence.

10. Now, we come to the second question regarding the

registration of the impugned FIR. It is not in dispute that the offence

alleged is a non-cognizable offence. It will be necessary to make a

reference to Section 154 of the CrPC, which reads thus:-

"154. Information in cognizable cases. (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied

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that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."

11. On plain reading of Sub-section (1) of Section 154, every

information relating to the commission of a cognizable offence, if given

orally to an officer in charge of a police station, shall be reduced to

writing and the substance thereof shall be entered in a book to be kept

by such officer in charge at the police station in the form prescribed by

the State Government. Section 155 of the CrPC reads thus:-

"155. Information as to non-cognizable cases and investigation of such cases. (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non- cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.

(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

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(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable."

12. Sub-section (1) of Section 155 mandates that when an

information is given to an officer in charge of a police station of the

commission of a non-cognizable offence within the limits of such

station, he shall enter or cause to be entered the substance of the

information in a book to be kept by such officer in such form as the

State Government may prescribe in that behalf and refer the informant

to the learned Magistrate. No police officer can investigate a non-

cognizable offence without an order of a Magistrate having a power to

try such case or commit the case for trial. Only after an order is passed

under Sub-section (2) of Section 155 of CrPC by the learned Magistrate

permitting the police to investigate, Sub-section (3) of Section 155

comes into picture which provides that any officer who is armed with a

permission under Sub-section (2) of Section 155 can exercise the same

powers in respect of the investigation (except the power to arrest

without warrant) as an officer in charge of a police station may exercise

in case of a cognizable offence. Thus, by virtue of power under Sub-

section (2) of Section 155, an officer armed with a permission can

investigate into a non-cognizable case by exercising the same powers as

an officer in charge of a police station may exercise in a cognizable

case. In the present case, admittedly, on 4 th March 2016, a specific

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permission was granted under Sub-section (2) of Section 155 by the

learned Magistrate. Even if such permission is granted, the offence does

not become a cognizable one for the purposes of Sub-section (1) of

Section 154 of the CrPC. As stated earlier, only if the information

relates to the commission of a cognizable offence that the same can be

reduced into writing and the substance thereof shall be entered in a

book in accordance with the provisions of Sub-section (1) of Section

154 of the CrPC. As narrated earlier, the information regarding a non-

cognizable offence is to be entered in a book maintained in the

prescribed form as provided in Sub-section (1) of Section 155. The only

effect of the order under Sub-section (2) of Section 155 is that the

officer in charge of the police station can exercise all the powers (except

arrest without warrant) relating to investigation which could be

exercised in relation to a cognizable offence while carrying out

investigation into a non-cognizable offence. Therefore, in our view, the

registration of the FIR under Sub-section (1) of Section 154 on the basis

of the permission granted under Sub-section (2) of Section 155 is

illegal. If such practice of registering FIR under Sub-section (1) of

Section 154 is being followed in any part of the State, the same will

have to be forthwith discontinued.

13. An argument was canvassed that as the impugned

chargesheet is filed after carrying out investigation on the basis of the

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impugned FIR which is illegal, even chargesheet deserves to be quashed

and set aside. There is a fallacy in this argument. A permission was

granted under Sub-section (2) of Section 155 by the learned Magistrate

to investigate, and, therefore, the chargesheet does not become illegal

on the ground that the FIR was registered. We have already recorded a

finding that there was sufficient material to file a chargesheet for the

offence punishable under Section 124 of the said Act of 1951. The

chargesheet has been filed after carrying out the investigation on the

basis of permission granted by the learned Magistrate under Sub-section

(2)of Section 155 of CrPC.

14. Now, we come to the issue of illegal arrest. Perhaps, the

police officer who arrested the Applicants completely ignored Sub-

section (2) of Section 41 of the CrPC . Sub-section (1) of Section 41 of

the CrPC confers the power on any police officer to arrest any person

without warrant and without an order from the learned Magistrate in

the cases specified under Clauses (a) to (i) thereof. Sub-section (2) of

Section 41 of the CrPC is material, which reads thus:

"41. When police may arrest without warrant. (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

                   (a)     .....
                   (b)     .....
                   (c)     .....
                   (d)     .....
                   (e)     .....





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                   (f)     .....
                   (g)     .....
                   (h)     .....
                   (i)     .....

(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate."

15. The Sub-section (2) of Section 41 unequivocally lays down

that no person concerned in a non-cognizable offence shall be arrested

except under a warrant or under an order of the Magistrate. The power

under Sub-section (1) can be exercised by arresting a person without

any order from the Magistrate and without a warrant. However, in case

where non-cognizable offence is alleged, the officer can exercise the

power under Sub-section (1) to arrest provided either there is a warrant

issued or an order to that effect is passed by the learned Magistrate. In

this case, admittedly, there was neither a warrant issued nor an order

passed by the learned Magistrate permitting arrest of the Applicants.

We have, therefore, no hesitation in coming to the conclusion that the

arrest of the Applicants by exercising the power under Clause (d) of

Sub-section (1) of Section 41 of the CrPC was completely illegal. In this

case, though a specific contention is raised in the grounds in this

Application that the arrest is illegal, there is no consequential prayer

made in the Application. As the illegal arrest infringes the fundamental

rights guaranteed under Article 21 of the Constitution of India, it will be

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open for the Applicants to file appropriate proceedings for seeking

appropriate relief on the basis of violation of Article 21 of the

Constitution of India.

16. Therefore, the Application succeeds in part and we pass the

following order:-

ORDER :

(a) We hold that the registration of the First Information

Report impugned in this Application is illegal;

(b) We hold that the chargesheet to the extent of the

applicability of Section 124 of the Maharashtra Police

Act, 1951 is legal and valid. However, the defences

of the Applicants during the trial is kept open.

However, that part of the chargesheet by which the

offence under Section 52 of the Motor Vehicles Act,

1988 is alleged is quashed;

(c) We hold that the arrest of the Applicants for

purported exercise of powers under Clause (d) of

Sub-section (1) of Section 41 of the Code of Criminal

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Procedure, 1973 is illegal. We grant liberty to the

Applicants to take appropriate proceedings in that

behalf in accordance with law;

(d) The Rule is partly made absolute on above terms.

          (SMT.ANUJA PRABHUDESSAI, J)                                      ( A.S. OKA, J)