Bombay High Court
Jagdeo S/O Mahadeo Akhare And ... vs The State Of Maharashtra And Anr on 9 March, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.818 OF 2016
1. Jagdeo s/o.Mahadeo Akhare
Age: 61 years, Occ : Retired Dy.S.P.
R/o.New Jagruti Society, Plot No.92,
Katol Road, Nagpur.
2. Deelip s/o.Murlidhar Patil
Age: 52 years, Occ : Service,
R/o.Pimpalgaon, Tq. Pachora,
Dist. Jalgaon.
3. Kailas s/o.Umraosing Chauhan,
Age: 53 years, Occ : Service,
R/o.Police Line, Faizpur,
Tq.Yawal,Dist.Jalgaon. PETITIONERS
[Orig.Accused]
VERSUS
1. The State of Maharashtra
Through its Principal Secretary,
Home Department, Mantralaya,
Mumbai-32.
2. Sameer s/o.Ramesh Takte,
Age: 35 years, Occ: Business,
R/o. Gita Bhavan, Narayanwadi,
at Chalisgaon, Tq. Chalisgaon,
Dist. Jalgaon. RESPONDENTS
...
Mr.R.N.Dhorde, Senior counsel i/b.
Mr.V.R.Dhorde, Advocate for petitioners
Mr.R.S.Deshmukh, Advocate for respondent no.2
Mr.M.M.Nerlikar, APP for the Respondent/
State
...
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2
CORAM: S.S.SHINDE &
V.K.JADHAV,JJ.
Reserved on : 24.01.2017
Pronounced on : 09.03.2017
JUDGMENT: (Per S.S.Shinde, J.):
1. This Petition under Article 226 of
the Constitution of India and under section
482 of Criminal Procedure Code is filed with
the following prayers:
B) Quash and set aside the F.I.R.
bearing C.R.No.338/2012 registered
with Chalisgaon Police Station under
Sections 166, 167, 201, 217, 218,
219 of the Indian Penal Code dated
22.10.2012 as well as the order
dated 06.04.2016 passed by the
learned Judicial Magistrate, First
Class, Chalisgaon in Criminal M.A.
No.1098/2015 rejecting the "B"
Summary Report and issuing the
process against the petitioners for
the offence punishable under
Sections 166, 167, 218, 219 r/w. 34
of the Indian Penal Code and
registering the R.C.C. against the
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petitioners and for that purpose
issue necessary orders;
2. Brief facts leading for filing the
present Writ Petition as disclosed in the
memo of the Petition, are as under:
The learned Magistrate has passed
the order of issuing process against the
petitioners. The petitioners herein are the
opponents/accused in RCC No.572/2012, filed
by respondent no.2 for the offence punishable
under Sections 166, 167, 196, 201, 217, 218,
219 and 34 of the Indian Penal Code.
Respondent no.2 herein is the original
complainant in RCC No.572/2012.
3. It is the case of the petitioners
that the petitioner no.1 was working as
Police Inspector at Chalisgaon Police
Station, Dist. Jalgaon. At the relevant time,
petitioner no.2 was also working in the said
Police Station as the Police Head Constable,
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who registered the offence bearing Crime No.
125/2008, under Section 380 of the IPC as
reported by respondent no.2. Petitioner no.3
is one of the Head Constable at Chalisgaon
Police Station.
4. Respondent no.2 is local shop keeper
filed a written complaint on 07.07.2008
bearing C.R. No.125/2008, with Chalisgaon
Police Station under Section 380 of the IPC,
alleging that, while he was in shop selling
mobiles, there was theft in his shop and 10
mobiles have been stolen. Petitioner no.2
Constable S.H.O.Deelip Patil registered the
C.R.No.125/2008, on the basis of complaint
written by respondent no.2 himself. It is
further the case of the petitioners that in
the said complaint, one Vilas Deshmukh, Head
Constable (deceased), was an Investigating
Officer to whom the investigation was
entrusted. Said Vilas Deshmukh investigated
the said offence and thereafter on 30.09.2008
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filed "A" summary report before the learned
Judicial Magistrate First Class, Chalisgaon,
stating that the accused are not traceable
though offence is committed. Accordingly, the
notice was also given to respondent no.2 in
view of the provisions of Section 173 (f) of
the Criminal Procedure Code, intimating that,
"A" summary final has been filed before the
learned JMFC, Chalisgaon in the said C.R.No.
125/2008. The petitioners have placed on
record copy of the said "A" summary report
submitted by the Investigation Officer in the
compilation of the Writ Petition.
5. It is further the case of the
petitioners that on 07.07.2009, there was
some dispute between one Purushottam Patel, a
building contractor and one Dr.Uttamrao
Mahajan, local resident, who is running
Ayurvedic College at Chalisgaon about dues of
the amount in respect of construction bills.
Therefore, the said Purushottam Patel
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approached petitioner no.1 and requested him
to register the complaint for non-payment of
the said amount against Dr.Uttamrao Mahajan.
However, since it was a civil dispute
regarding payment of amount of construction
work, the petitioner no.1 informed the
complainant that, it is a civil dispute
regarding settlement of dues, and allegations
do not disclose cognizable offence.
Therefore, complainant was advised to adopt
civil remedies. Thereafter, said Purushottam
Patel approached directly to Shri. Lohar, the
then Additional S.P., Chalisgaon Division,
and in turn the said Additional S.P. directed
the petitioner no.1 (P.S.O.) to register the
offence in respect of said civil dispute by
letter dated 01.07.2009, for some obvious
reasons, which are disclosed hereinafter.
However, the petitioner no.1 refused to
register the offence informing that, earlier
he has informed Shri Patel that the said
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dispute is purely of civil nature and hence
no cognizable offence is made out. It is
further the case of the petitioners that,
thereafter said Dr.Mahajan, who is also
member of the Zilla Parishad, Jalgaon, was
called to the office of Additional
Superintendent of Police by the said
Additional S.P. in his cabin, and he was
informed that there is complaint received
against him about the dispute of building
construction work. Then the said Dr.Uttamrao
Mahajan was informed by the Additional S.P.
to pay the amount immediately, otherwise he
may be arrested. Thereafter, the said
Dr.Mahajan informed, the Additional S.P.,
that he has problem of ailment of heart and
already undergone angioplasty and he is under
tension. It is the case of the petitioners
that Additional S.P. Shri Lohar demanded
Rs.60 lacs from Shri Mahajan to settle the
dispute. Three cheques were taken in the name
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of 'Shivam Constructions' which belongs to
Patel Contractors, and Dr.Mahajan was
informed if the said cheques are not
encashed, again he would be taken in
confinement.
6. It is further the case of the
petitioners that, said Dr. Mahajan was kept
in confinement, and was not allowed to talk
even to his family members. So also it was
informed that he will not be allowed to go
unless the amount is paid. Thereafter,
Dr.Mahajan was kept in confinement in one
unknown private place situate in front of
office of Additional S.P. Thereafter, he was
again taken to some other private place.
Ultimately, son of said Dr.Mahajan lodged a
complaint against the said Additional S.P.
and there was hue and cry in the local press
as well as local area. At the relevant time,
even assembly session was going on.
Therefore, the offence bearing C.R.No.
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145/2009, came to be registered against the
Additional S.P. Shri Lohar for the offences
punishable under Sections 347, 364A, 385 and
34 of the Indian Penal Code on 16.07.2009.
The petitioners have placed on record copy of
the said FIR/Crime registered with the
Chalisgaon Police Station on 16th July, 2009.
7. It is further the case of the
petitioners that the investigation of the
said crime was handed over to CID and charge-
sheet came to be filed before the learned
JMFC, Chalisgaon, under Sections 166, 342,
346, 348, 364A, 385, 504, 506 r/w. 34 of the
IPC and the Sessions Case is registered as
Sessions Case No.131/2012, which is pending
in Sessions Court at Jalgaon. It is the case
of the petitioners that the said Additional
S.P. Shri. Lohar was enraged with the
petitioner no.1, who registered the offence
against him due to the complaint of
Dr.Mahajan and his son and the consequences
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were immediate. It is further the case of the
petitioners that with vengeance the
Additional S.P. issued notice to the
petitioners on 13th September, 2011, and the
order of punishment was also effected, though
petitioner no.1 did not commit any cognizable
or non cognizable offence. The disciplinary
action has been taken against him for lapses
in taking action and he was awarded
punishment of censure as per the provisions
of Rule 10 of the Maharashtra Civil Services
[Discipline an Appeal] Rules, 1979.
Petitioner no.1 was issued warning and
petitioner nos.2 and 3 were reduced in rank.
Petitioner no.1 has already filed an appeal
with the higher authority vide Rule 17 of the
said Rules, 1979.
8. It is further the case of the
petitioners that on 15th September, 2009, the
said Additional S.P. Chalisgaon Division
behind the back of the petitioner no.1
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appears to have taken antedated complaint
from respondent no.2 about the offence
committed on 07.07.2008, and directed an
enquiry through subordinate Police Officer,
who was immediately working under him, namely
Dy.S.P., Shri Latkar, and has received the
report from the said Latkar after enquiry,
which was vague, wherein it was concluded
that the complaint given by Mr.Sameer i.e.
respondent no.2, was not properly recorded
and investigated. It is further the case of
the petitioners that the said enquiry report
was prepared and submitted by subordinate of
the Additional S.P., Shri Lohar, Chalisgaon,
and the petitioner no.1 has registered the
offence under Section 364 of the IPC bearing
Crime No.145/2009 dated 16.07.2009 against
the Additional S.P. Shri Lohar. The
petitioner no.1 also gave written application
to the Director General of Police that, as
the petitioners have registered the offence
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against the said Additional S.P., therefore,
he would create some problems to the
petitioner no.1, and hence no enquiry should
be done by him or Officers appointed by him
against the petitioners. Thereafter, on
02.07.2009, the said subordinate Officer of
the Additional S.P. who submitted the report,
made an application to the JMFC, Chalisgaon
to reopen the enquiry. The enquiry was
reopened on the basis of the order passed by
the learned JMFC. The petitioners have placed
on record copy of application dated
02.07.2009 along with order dated 20.07.2009
passed by the JMFC, Chalisgaon. It is further
the case of the petitioners that one person
shown to have been arrested, and he was tried
in pursuance of the Crime No.125/2008 in RCC
No.293/2010 by the learned JMFC, and the said
person was acquitted in summary trial for the
offence punishable under Section 411 of the
IPC. The petitioners have placed on record
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copy of the judgment in RCC No.293/2010 dated
28.10.2015 passed by the JMFC, Chalisgaon.
9. It is further the case of the
petitioners that trial against the
Additional S.P. Shri Lohar in Sessions Case
No.131/2012 is yet pending, and the
petitioner no.1 is prosecution witness in the
said Sessions Case. It is further the case of
the petitioners that in order to pressurize
and harass the petitioner no.1, who
registered the offence against the then
Additional S.P. Shri Lohar under Section 364A
etc., the said Additional S.P. through
respondent no.2 filed private complaint
bearing RCC No.92/2016, alleging offences
against the petitioners punishable under
Sections 166, 167, 201, 217, 218, 219 and 34
of the IPC. It is the case of the petitioners
that the complaint did not disclose in
respect of registration of offence bearing
Crime No.125/2008 under Section 380 by him.
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The learned Magistrate passed the order
directing investigation under Section 156 [3]
of Criminal Procedure Code. Petitioners have
placed on record copies of private complaint
bearing Criminal M.A.No.572/2012 along with
order dated 18.10.2012 passed by the learned
JMFC, Chalisgaon.
10. On 22.10.2012, in pursuance of the
order under Section 156 [3], passed on
18.10.2012, the offence came to be registered
against the petitioners after 4 years from
the alleged incident, bearing Crime No.
338/2012 with Chalisgaon Police Station under
Sections 166, 167, 201, 217, 218, 219 of the
IPC. The petitioners have placed on record
copy of FIR bearing Crime No.338/2012
registered on 22.10.2012 with Chalisgaon
Police Station.
11. Meantime, on 04.11.2015, the
petitioners were transferred at different
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places. The petitioner no.1 stood retired at
Pusad on 31st July, 2013, and the petitioner
nos. 2 and 3 were posted at Yawal and Chopda
Police Station respectively. On 15.02.2015
the Public Prosecutor submitted a detailed
opinion not to file criminal case and charge-
sheet in the matter. The petitioners have
placed on record copy of letter dated
15.02.2015 sent by the Public Prosecutor.
12. It is further the case of the
petitioners that the Investigating Officer
pursuant to the said FIR has carried out
investigation and submitted the "B" Final
Report before the learned JMFC on 04.11.2015.
Petitioners have placed on record copy of "B"
summary report filed before the learned JMFC
on 04.11.2015. Respondent no.2, who is
interested and acting at the behest of the
then Additional S.P., filed the Protest
Petition in Criminal M.A. No.1098/2015
objecting the said "B" summary report in
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which the evidence of three Officers was
recorded. The fact that accused in C.R.No.
125/2008 has been acquitted, in which the
charge-sheet was filed for the offence
punishable under Section 411 of the IPC is
not in dispute.
On 06.04.2016 the learned JMFC,
Chalisgaon rejected "B" summary report and
issued process under Sections 166, 167, 218,
219 r/w. 34 of the IPC and directed to
register the said case as RCC. The petitioner
no.1 is retired from service on 31.07.2013 as
Dy. Superintendent of Police at Pusad as he
was transferred from Chalisgaon in the year
2009. The petitioner nos. 2 and 3 are the
Head Constables at Pachora and Yawal Talukas.
13. It is further the case of the
petitioners that the prosecution against the
petitioners is vindictive, and to place the
petitioners under pressure as the Sessions
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Case is pending against the then Additional
S.P. Shri Lohar, for framing serious charges
of kidnapping etc. in the Sessions Court, at
Jalgaon. In said case, the petitioner no.1 is
a witness for the prosecution. Therefore, the
pending proceeding before the Court of
Magistrate is nothing but an abuse of process
of law, and with ulterior motive to harass
and to pressurize the petitioner no.1, who is
one of the witness in Sessions Case.
14. The learned Senior Counsel appearing
for the petitioners submit that, pursuant to
the directions given by the then Additional
S.P. Shri Lohar, to his subordinate Officer
to make an enquiry in respect of the alleged
offence of theft of mobile, mentioned in the
complaint given by respondent no.2. Said
subordinate Officer approached the learned
JMFC, Chalisgaon, and prayed for reopening
the enquiry, and accordingly, on 2nd July,
2009, enquiry was reopened by the learned
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JMFC. It is submitted that, after full-
fledged enquiry, on 28th October, 2015, the
JMFC acquitted the accused in the said case
i.e. RCC No.293/2010, by summary trial. It is
submitted that, in the year 2008, though the
petitioner no.1 was incharge of the Police
Station when the FIR/complaint was lodged in
respect of the alleged theft of mobile, and
petitioner nos.2 and 3 were also working as
Police Constables in said police Station,
none of the petitioners were Investigating
Officer in the said crime in which "B"
summary was filed. It is further submitted
that the said "B" summary was reopened on the
application filed by the Officer as directed
by the Additional S.P. Shri Lohar. It is
submitted that, there was investigation after
reopening the case and charge-sheet came to
be filed after investigation. The said case
was tried and the accused were acquitted.
The learned counsel submitted that though the
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impugned order issuing process can be
challenged by way of filing the Revision,
however, the petition cannot be rejected on
the ground of availability of remedy of
Revision. In support of aforesaid contention,
reliance is placed in the case of
International Advanced Research Centre for
Powder Metallurgy and New Materials (ARCI)
and others Vs. Nimra Cerglass Technics
Private Limited and another1.
15. The learned Senior counsel further
submits that before prosecuting the
petitioners, it is necessary to obtain
sanction from the appointing authority. In
support of the aforesaid contention, he
invites our attention to the ratio laid down
in the case of N.K.Ganguly Vs. Central Bureau
of Investigation, New Delhi2. He further
invites our attention to the ratio laid down
1 [2016] 1 SCC 348
2 [2016] 2 SCC 143
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in the case of State of Haryana Vs. Bhajan
Lal3 and submits that the case of the
petitioners fall under category 7 of the said
categories i.e. where a criminal proceeding
is manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and with a
view to spite him due to private and personal
grudge. Therefore, relying upon the pleadings
in the Petition, annexures thereto, the
learned counsel appearing for the petitioners
submits that the Petition deserves to be
allowed.
16. The learned APP appearing for the
respondent-State, relying upon the
investigation papers submits that, in fact
when the petitioners filed a complaint in the
year 2012, he did not submit necessary
documents and did not extend cooperation to
3 AIR 1992 SC 604
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the Investigation Officer for 1 and ½ years
from registration of the FIR. He further
submits that respondent no.2 did approach the
then Additional Superintendent of Police and
thereafter again on the same set of
allegations like in the earlier complaint
filed by respondent no.2 in the year 2008
with the Chalisgaon Police Station crime No.
125/2008 was registered. After investigation
in that case, charge sheet was filed and
thereafter accused in the said case has been
acquitted in the year 2015. It is submitted
that after proper investigation and enquiry,
Chalisgaon Police Station did submit "B"
summary report bearing No.5/2016 on 25th
February, 2015, in the Court of Judicial
Magistrate First Class-1, Chalisgaon.
17. The learned counsel appearing for
respondent no.2 invites our attention to the
averments in the affidavit-in-reply. He
submits that, the Petition is not tenable, as
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the petitioners have an alternate and
efficacious remedy to file a Revision against
the order of rejection of "B" summary report
and against the order of issuance of process
for the offence punishable under Sections
166, 167, 218, 219 r/w. 34 of the IPC against
the petitioners, passed by the Judicial
Magistrate First Class at Chalisgaon.
18. He further submits that, in the year
2008, there was theft in his shop on 4th July,
2008. His shop was broken and some hand-sets
pieces of the mobile were stolen. Respondent
no.2 rushed to the Chalisgaon Police Station,
where at the relevant time the present
petitioners were working as Police Officers,
however, the petitioners have not taken
cognizance of the grievance raised by
respondent no.2. It is submitted that, it is
due to the persistent follow up of the
respondent no.2, petitioner no.1 has agreed
to get lodged the FIR subject to condition of
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respondent no.2 agreeing to give in writing
as per the say of petitioner no.1. As the
respondent no.2 was having no alternative,
except lodging of the FIR as per the say of
petitioners, he lodged report on 7th July,
2008, bearing Crime No.125/2008, thereby
alleging that his bag consisting of the
mobile phones has been taken away by someone
from his shop.
19. It is submitted that after 2 and ½
months from registering such FIR, respondent
no.2 was communicated that, the investigation
has been stopped. It is submitted that, only
for the sake of record, the FIR was lodged,
however, there was no investigation at all.
Respondent no.2 filed detailed say to the
Additional Superintendent of Police and said
Officer found prima facie case and then he
directed de novo investigation of the crime.
The learned counsel invites our attention to
the contents of the representation, which was
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given to the Additional Superintendent of
Police. He submits that, one Mr.Dilip Karle
[PSI] carried out the investigation and then
Section 457 of the IPC was added in the
crime, as per the leave of the trial Court.
It is submitted that, detailed enquiry was
conducted in the said crime by said Sanjay
Latkar, Sub Divisional Police Officer,
Chalisgaon. During the enquiry, the SDPO has
recorded the statement of the witnesses,
including that of the petitioners and came to
the conclusion that, in fact, the petitioners
are guilty for the charge of the minimizing
the nature of offence and accordingly sent
the enquiry report dated 26th November, 2009,
along with the statement of witnesses
recorded to the office of the Additional
Superintendent of Police, Chaligaon.
Respondent no.2 obtained copy of the said
report and copy of the said report is placed
on record with the reply. Pursuant to above
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enquiry report, common departmental enquiry
has been conducted by the Superintendent of
Police, Jalgaon, against the petitioner
nos. 2 and 3 along with one Vilas Rangrao
Deshmukh [who worked as Police Head Constable
at the relevant time] and also awarded
punishment to all of them.
20. It is submitted that, upon receipt
of the above said report and information
received vide letter dated 24th May, 2011,
from the office of the Director General of
Police [M.S.], Mumbai, regarding the
petitioner no.1, respondent no.2 again
approached to the Police Station, Chalisgaon,
for lodging the First Information Report
against the petitioners and one Vilas
Deshmukh, Head Constable, but in vain. So
considering the said fact, the respondent no.
2 was constrained to file a private complaint
with the learned Judicial Magistrate First
Class, Chalisgaon, thereby seeking directions
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under Section 156 [3] of the Code of Criminal
Procedure for the offences punishable under
Sections 166, 167, 196, 201, 217, 218, 210
r/w. 34 of the IPC. Upon hearing the above
said complaint, the Magistrate at Chalisgaon
has been pleased to issue directions under
Section 156 [3] of Code of Criminal Procedure
and thereupon the crime bearing No.338/2012,
has been registered against the petitioners
and one Vilas Deshmukh for the offences
punishable under Sections 166, 167, 201, 217,
218, 219 of the IPC.
21. Upon registration of the aforesaid
crime No.338/2012, the concerned Police
Authorities have started the investigation
and upon completion of the same have filed
"B" summary report in the Court of Judicial
Magistrate First Class at Chalisgaon. Upon
receipt of the same, the respondent no.2
appeared before the Magistrate and filed his
protest petition and to substantiate his
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claim and considering the evidence led by the
respondent no.2 and investigation papers, the
Court of Judicial Magistrate First Class at
Chalisgaon has been pleased to pass an order
dated 6th April, 2016, thereby issuing process
against the petitioners and further rejected
the 'B' summary report submitted by
Investigating Officer in Crime No.338/2012.
22. It is submitted that, it reveals
from the enquiry report and fact that the
process is issued against the petitioners,
the petitioners not only are found guilty for
minimizing the nature of offence in a full-
fledged departmental enquiry conducted
against them, but also punishment has been
awarded and also implemented against them.
It is submitted that, respondent no.2 is
having no concerned with Mr.Manoj Lohar, who
was the then Additional Superintendent of
Police at the relevant time, except the fact
of filing representation regarding
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unsatisfactory investigation in crime
registered by respondent no.2 at the hands of
petitioners. It is further revealed from the
investigation made by Mr.Dilip Karle, PSI,
who took over the investigation of crime upon
the directions of the Additional
Superintendent of Police, and arrested the
accused and also sought permission for adding
Section 457 of the Indian Penal Code in the
crime registered by respondent no.2. It is
denied that the FIR has been lodged by
respondent no.2 at the pretext of Manoj
Lohar. It is submitted that, the Magistrate
has already issued process and therefore this
Court may not entertain this Petition.
23. We have given careful consideration
to the submissions of the learned Senior
Counsel appearing for the petitioners,
learned APP appearing for the respondent -
State and the learned counsel appearing for
the respondent no.2. With their able
818.2016Cri.WP.odt
assistance, we have carefully perused the
investigation papers, pleadings and grounds
taken in the petition, annexures thereto, and
also reply filed by respondent no.2, relevant
provisions of the Indian Penal code and the
judgments cited across the bar by the learned
Senior Counsel appearing for the petitioners.
The preliminary objection raised by the
counsel appearing for the respondent no.2 in
respect of maintainability of the present
Writ Petition, on the ground that, there is
alternate remedy available to challenge the
order of issuance of process by the Judicial
Magistrate First Class, it would be
appropriate to make reference to the judgment
of the Supreme Court in the case of
International Advanced Research Centre for
Powder Metallurgy and New Materials (ARCI)
and others Vs. Nimra Cerglass Technics
Private Limited and another [cited supra], in
that case also, the appellants therein
818.2016Cri.WP.odt
challenged order passed by the Magistrate
taking cognizance of the complaint filed by
the respondent therein seeking prosecution of
the appellants for the offences punishable
under Sections 405, 415, 418, 420 IPC read
with Sections 34 and 120-B IPC. In that
case, after investigation, the Investigation
Officer submitted final report dated 28th
January, 2008, stating that the dispute is
purely of civil nature and that no offence
was made out against the appellants and the
same may be accepted and the case be treated
as closed. On protest petition filed by the
respondent, the Magistrate took cognizance of
the case for the offences under Sections 419
and 420 IPC read with Section 34 IPC vide
order dated 11th November, 2008. The said
order was challenged by the appellants
therein directly before the High Court
invoking the provisions of Section 482 of the
Criminal Procedure Code. In that context,
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the Supreme Court while explaining the scope
of Section 482 of Criminal Procedure Code,
observed that, the powers of quashing
criminal proceedings should be exercised very
sparingly and quashing a complaint in
criminal proceedings would depend upon the
facts and circumstances of each case. The
High Court's inherent powers, be it, civil or
criminal matters, is designed to achieve a
salutary public purpose and that a court
proceeding ought not to be permitted to
degenerate into a weapon of harassment or
persecution. If the averments in the
complaint do not constitute an offence, the
Court would be justified in quashing the
proceedings in the interest of justice.
Therefore, it follows from the observations
of the Supreme Court in the aforesaid
judgment that, merely because an alternate
remedy is available to the petitioners to
take exception to the order passed by the
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Judicial Magistrate First Class issuing
process, cannot be a ground for not
entertaining the Petition on merits.
[Underlines added]
24. Upon careful perusal of the
documents placed on record, it appears that,
respondent no.2 is involved in the business
of the sales and services of Mobile phones by
name 'Neels Cellular' at Chalisgaon, District
Jalgaon. It is alleged that, in the year
2008, when respondent no.2 proceeded to
Mumbai for purchasing the material for the
purpose of shop, at that time, he received
phone call of his mother and got knowledge of
theft / decoity in his shop during night of
4th July, 2008. When he returned back from
Mumbai and visited his shop, he found that,
shop has been broken and some hand-sets
pieces of mobile had disappeared, therefore,
he lodged the FIR with Chalisgaon Police
Station. It is the case of the petitioner
818.2016Cri.WP.odt
that, petitioner no.1 was working as Incharge
Police Station Officer and petitioner nos. 2
and 3 were working as Constables in the said
Police Station. According to the respondent
no.2, though FIR bearing Crime No.125/2008,
was registered, there was no proper
investigation / enquiry of the said FIR for 2
and ½ months. However, it appears from the
report submitted by the Police that,
petitioner no.1 entrusted the investigation
of crime bearing No.125/2008 to one Police
Officer Shri. Deshmukh, Head Constable,
appointed as Investigation Officer, and it
was exclusive domain of the said
Investigation Officer to look into the
allegations in the FIR and then cause further
investigation and take it to the logical end.
The Supreme court in the case of State of
Haryana Vs. Bhajan Lal [cited supra], has
made specific observations that investigation
is an exclusive domain of the Investigation
818.2016Cri.WP.odt
Officer, and as long as investigation is in
accordance with law, there cannot be
interference by any other person or Court. It
further appears that after investigation, 'A'
summary report was filed before the Judicial
Magistrate First Class, Chalisgaon.
Respondent no.2 was not satisfied with the
said investigation and he approached Mr.Manoj
Lohar, who was working as Additional
Superintendent of Police at the relevant time
at Jalgaon. It further appears from the
perusal of the documents placed on record
that, he issued direction to the Chalisgaon
Police Station to cause enquiry and
accordingly investigation was handed over to
one Mr.Dilip Karle [PSI]. During the course
of an investigation, said Mr.Dilip Karle
[PSI] arrested one of the accused, namely,
Pravin Mahale from Nashik on 3rd August, 2009.
He caused further investigation, and found it
appropriate to add Section 457 of the IPC,
818.2016Cri.WP.odt
and accordingly said section was added after
taking permission from the Judicial
Magistrate First Class, Chalisgaon. After
investigation, charge sheet was filed before
the Judicial Magistrate First Class at
Chalisgaon. It appears that, after filing the
charge sheet after full-fledged trial,
accused came to be acquitted. It means the
crime which was registered in the year 2008
by respondent no.2 has been thoroughly
investigated by independent Police Officer,
and thereafter charge sheet came to be filed
and accused therein came to be acquitted.
25. It further appears from the material
placed on record that, departmental enquiry
was initiated against the petitioners and
same resulted into taking an action against
them for not properly investigating the
crime. The petitioner no.1 has stated in the
petition that, he has preferred an appeal,
challenging the said department enquiry.
818.2016Cri.WP.odt
There was full-fledged investigation /
enquiry in crime No.125/2008, and then same
resulted into filing the charge sheet,
conducting full-fledged trial and subsequent
acquittal of the accused.
26. It appears that respondent no.2
filed private complaint i.e. RCC No.572/2012
in the Court of Judicial Magistrate First
Class, Chalisgaon, thereby seeking direction
under Section 156 [3] of the Criminal
Procedure Code for the offences punishable
under Section 166, 167, 196, 201, 217, 218,
219 r/w. 34 of the IPC. It further appears
that the Judicial Magistrate First Class,
Chalisgaon, issued directions under Section
156 [3] of the Code of Criminal Procedure,
and thereafter crime bearing No.338/2012 is
registered. In our opinion, belated
complaint, without obtaining sanction from
the appointing Authority i.e. State
Government, filed in the year 2012 for the
818.2016Cri.WP.odt
grievance, which was already addressed after
full-fledged investigation of the crime
No.125/2008, by the Investigating Officer
Mr.Jagdeo Akhare i.e. petitioner no.1, there
was no question of entertaining private
complaint belatedly after four years from the
registration of Crime No.125/2008, about the
incident taken place in the year 2008.
27. We find considerable force in the
argument of the learned counsel appearing for
the petitioners that, private complaint is
instituted with vengeance and due to
departmental rivalry. It is not in dispute
that the petitioner no.1 is witnesses in
Sessions Case No.131/2012 [Crime No.
145/2009], which is filed against Mr.Manoj
Lohar, the then Additional S.P. It also
appears from the investigation papers that,
after registration of FIR bearing Crime No.
338/2012, the complainant did not turn up to
the Police Station for more than 1 and ½ year
818.2016Cri.WP.odt
and as a result further investigation was
delayed, as it revealed from perusal of the
report prepared by the Investigating Officer
and the investigation papers. There is
serious doubt about and intention of the
complainant i.e. respondent no.2, in filing
said complaint in the year 2012, belatedly
after four years about the alleged incident
of theft, which was allegedly taken place in
the year 2008. As already observed, he did
not turn up to the Police Station for 1 and ½
years to cooperate the Police machinery for
investigation.
28. As already observed, already
departmental enquiry has been caused and
appropriate action is taken against the
petitioners. Even in the present round of
litigation, the concerned Investigating
Officer after considering the statements of
the witnesses and other material collected
during the course of investigation has filed
818.2016Cri.WP.odt
'B' final report before the learned JMFC,
Chalisgaon. The report prepared by the Deputy
Superintendent of Police, Chalisgaon, clearly
mentions that, he has considered the entire
material/documents in relation to the alleged
incident including earlier investigation done
in Crime No. 125/2008, and has also taken
into consideration the fact that, the
complainant did not turn up to the Police
Station for about 1 ½ year after registration
of the FIR, pursuant to the direction issued
by the JMFC, Chaligaon under Section 156 [3]
of the Code of Criminal Procedure. It is also
mentioned that complaint is filed with
vengeance and mala fide intention before the
learned JMFC-1, Chalisgaon, and accordingly,
after considering the entire material 'B'
final report is filed before the JMFC,
Chalisgaon.
29. It is true that the process is
issued by the concerned Court, however, in
818.2016Cri.WP.odt
our opinion, when the offence was registered
in the year 2008, and thereafter, appropriate
investigation has been done about the same
offence again filing the complaint against
the petitioners attributing negligence on
their part, belatedly in the year 2012,
appears to be abuse of process of law
inasmuch as already about the incident of
theft full-fledged enquiry / investigation
was conducted, charge sheet was filed and
after trial accused came to be acquitted.
30. Therefore, in the light of the
discussion in the foregoing paragraphs, in
our considered opinion, further continuation
of the proceedings against the petitioners
i.e. FIR bearing Crime No.338/2012,
registered with Chalisgaon Police Station
under Sections 166, 167, 201, 217, 218, 219
of the Indian Penal Code dated 22.10.2012 as
well as the order dated 06.04.2016 passed by
the learned Judicial Magistrate First Class,
818.2016Cri.WP.odt
Chalisgaion in Criminal M.A.No. 1098/2015,
will be abuse of process of law/court. When
the material brought on record by the
petitioners and also the prosecution
unequivocally indicates mala fide
intention/institution of proceeding with
vengeance by the complainant, the pending
proceedings in RCC No.572/2012 and RCC No.
92/2016, deserves to be quashed and set
aside. The Supreme Court in the case of State
of Haryana Vs.Bhajan Lal [cited supra] held
that, in following categories the Court would
be able to quash the F.I.R.
108. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated
by this Court in a series of decisions
relating to the exercise of the extra-
ordinary power under Article 226 or the
inherent powers under Section 482 of the
Code which we have extracted and
818.2016Cri.WP.odt
reproduced above, we give the following
categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any Court or otherwise to
secure the ends of justice, though it
may not be possible to lay down any
precise, clearly defined and
sufficiently channelised and inflexible
guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.
1. Where the allegations made in the First
Information Report or the complaint,
even if they are taken at their face
value and accepted in their entirety do
not prima facie constitute any offence
or make out a case against the accused.
2. Where the allegations in the First
Information Report and other materials,
if any, accompanying the F.I.R. do not
disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the
Code except under an order of
Magistrate within the purview of
Section 155(2) of the Code.
3. Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the
818.2016Cri.WP.odt
same do not disclose the commission of
any offence and make out a case against
the applicant.
4. Where, the allegations in the F.I.R. do
not constitute a cognizable offence but
constitute only a non-cognizable, no
investigation is permitted by a police
officer without an order of a
Magistrate as contemplated under
Section 155(2) of the Code.
5. Where the allegations made in the FIR
or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach
a just conclusion that there is
sufficient ground for proceeding
against the accused.
6. Where there is an express legal bar
engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is
instituted) to the institution and
continuance of the proceedings and/or
where there is a specific provision in
the Code or the concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.
7. Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him
due to private and personal grudge.
[Underlines added]
818.2016Cri.WP.odt
31. The case in hand is squarely covered
in category 7. Therefore, for the reasons
aforesaid, Criminal Writ Petition is allowed
in terms of prayer clause-B. The rule is made
absolute on above terms and the Petition
stands disposed of accordingly.
[V.K.JADHAV] [S.S.SHINDE]
JUDGE JUDGE
DDC
