Prashant S/O Dattatraya Deshmukh vs The State Of Maharashtra And Anr
2017 Latest Caselaw 8259 Bom

                                       1                Cri.W.P.275-17.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.275 OF 2017

     Prashant Dattatraya Deshmukh,
     Age - 40 years, Occu. Agri.,
     R/o Sugaon (Bk), Tq. Akole,
     District Ahmednagar.                          ...  Petitioner

                      Versus

     1.      The State of Maharashtra
             Through its Principal Secretary, 
             Home Department, Mantralaya,
             Mumbai - 32. 
     2.      Sau. Manisha W/o Vikas Waghchaure,
             Age 34 years, Occu. Household,
             Resident of Sugaon (Bk), Tq. Akole,
             District Ahmednagar.             ...  Respondents

                                ...
     Mr. R.N.Dhorde, Senior Counsel h/f Mr. A.C.Darandale, 
     Advocate for Petitioner
     Mr. A.R.Kale, APP for Respondent No.1-State 
     Mr. K.N.Shermale, Advocate for Respondent No.2
                                ...

                               CORAM :  S.S.SHINDE AND
                                        MANGESH S. PATIL, JJ.

RESERVED ON : 12th October, 2017 PRONOUCED ON : 31st October, 2017

JUDGMENT : (Per Mangesh S. Patil , J.) :-

1. Rule. The Rule made returnable forthwith. Heard

finally with the consent of learned counsel for the

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parties.

2. In this petition invoking the powers of this Court

under Article 226 of the Constitution of India read with

Section 482 of the Criminal Procedure Code, the

petitioner is seeking quashment of FIR bearing Crime

No.I-05 of 2017 registered against him in Akole Police

Station, District Ahmednagar on 25.01.2017 for the

offences punishable under Section 354 and 323 of the

Indian Penal Code.

3. We have perused the petition, affidavit-in-reply of

Respondent No.2 at whose instance the impugned FIR

has been registered and the papers filed by both the

sides.

4. According to the learned Senior Advocate for the

Petitioner, the impugned FIR being the second FIR in

respect of the same incident could not have been

registered and is liable to be quashed. According to the

learned Senior Advocate, due to local politics a quarrel

had taken place between the petitioner's wife and

3 Cri.W.P.275-17.odt

Respondent No.2 on 05.01.2017. At the instance of the

complaint filed by Respondent No.2, at 12.45 noon, at

Akole Police Station a non-cognizable case No.15 of 2017

was registered. Since the petitioner's wife was also

beaten up, she lodged a complaint with the same Police

Station, at about 1.00 p.m. against Respondent No.2

and her mother-in-law and a non-cognizable report

No.16 of 2017 was registered. However, belatedly with a

view to harass the petitioner, Respondent No.2 and her

husband concocted a story and lodged a second FIR,

which is impugned in the matter. Since the incident on

the basis of which non-cognizable Case No.15 of 2017

was registered, the Second FIR for the same incident

could not have been registered, as has been laid down

by several pronouncements of the Supreme Court and

the High Court. The learned Senior Advocate referred to

the decisions in the case of (i) Keshav Lal Thakur Vs.

State of Bihar [(1996) 11 Supreme Court Cases 557],

(ii) Vishwajit P. Rane Vs State of Goa & Ors. [2010

ALL MR (Cri.) 3237], (iii) T.T. Antony Vs. State of

4 Cri.W.P.275-17.odt

Kerala & Ors. [2001 Cri.L.J. 3329 and (iv) Shivraj

Kundlik Ubale & Ors. Vs. The State of Maharashtra

& Anr. [2014 ALL MR (Cri) 3799], (to which one of us

S.S.Shinde, J. was a party).

5. The learned APP and the learned Advocate for

Respondent No.2 vehemently opposed the petition and

submitted that Respondent No.2 had attempted to lodge

a complaint for outraging her modesty on the very day of

the incident. However, instead of registering the offence

which was in the nature of cognizable one, the police

had registered only a non-cognizable report.

Respondent No.2 was required to be admitted in the

Civil Hospital, Akole and was discharged only on the

next day. Since the police were not taking cognizance of

her genuine complaint, she had to approach the

Superintendent of Police, Ahmednagar as well as Deputy

Superintendent of Police, Sangamner for registering a

cognizable case. It is only after such persuasion that

belatedly the impugned FIR came to be registered and

therefore it cannot be said that the impugned FIR being

5 Cri.W.P.275-17.odt

the second FIR of the same incident, is liable to be

quashed.

6. At the outset, it is necessary to note that it is trite

that a second or subsequent FIR in respect of the same

incident would tantamount to improvisation and is not

permissible in law. The decisions cited on behalf of the

Petitioners (Supra) lay down the same principle and

there can be no two opinion about it.

7. It is necessary to understand the scheme of the

Code of Criminal Procedure contained in Chapter XII

and particularly Section 154 to Section 155. Whenever

same information is given about a non-cognizable

offence it has to be reduced into writing in the form of a

non-cognizable report in pursuance of the provisions of

Section 155 of the Criminal Procedure Code. It requires

such information to be reduced into writing as a non-

cognizable case and the police can investigate such

cases only with the permission of the concerned

Magistrate. As against this, when incident is reported to

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police in respect of commission of a cognizable offence it

is bound to register it under Section 154 of the Criminal

Procedure Code, which is usually described as FIR.

Therefore, even in the given set of facts pleaded in the

petition, since there was no earlier FIR registered under

Section 154 of the Criminal Procedure Code, the

impugned FIR cannot be said to be a second or

subsequent FIR in respect of the same incident.

Therefore, the very basis of the argument of the learned

Senior Advocate that the impugned FIR is second FIR is

factually incorrect. It is for this reason alone, the

petition does not hold any water.

8. Apart from the above state of affairs, assuming

that the impugned FIR is a second FIR in respect of the

same incident, it is necessary to note that Respondent

No.2 in her affidavit-in-reply has specifically contended

that the police were reluctant to register her complaint

for cognizable offence of outraging modesty, which is

punishable under Section 354 of the Indian Penal Code.

She had to persuade superior Police Officers to cause

7 Cri.W.P.275-17.odt

the impugned FIR to be registered and that has caused

the delay. In support of her statement she has also filed

copies of letters, one addressed to the Superintendent of

Police, Ahmednagar dated 07.01.2017 and the letter

addressed to the Chief Minister dated 09.01.2017, which

also bears acknowledgment of the Officer Incharge of

the Akole Police Station, Ahmednagar about having

received it on 11.01.2017. Contents of these letters

clearly show that she and her husband were making a

grievance that inspite of molestation the police were

reluctant to register a suitable FIR and they would have

to sit for hunger strike if the complaint was not duly

registered. It is thus apparent that since inception,

Respondent No.2 was trying to register a complaint for a

cognizable offence but for the reasons best known to

concerned police, it was not being registered. Under

these circumstances, it cannot be said that the

impugned FIR is concocted one. For these reasons also

we are not inclined to quash the impugned FIR.

8 Cri.W.P.275-17.odt

9. Referring to the wording of Section 155 of the

Criminal Procedure Code, the learned Senior Advocate

submitted that since already a non-cognizable report

No.15 of 2017 was registered, no investigation in to it

could be made without the sanction of the concerned

Magistrate. The police could not have registered the

impugned FIR and seek to investigate the non-

cognizable report circuitously. In this regard one need

not delve much in view of the mandate of Section 155 of

the Criminal Procedure Code. The police indeed cannot

carry out any investigation into a non-cognizable case

without the leave of the concerned Magistrate. However,

as we have demonstrated herein above infact the police

were reluctant to register the FIR and instead have

registered only a non-cognizable case. The Respondent

No.2 had to cause the impugned FIR registered by

making the grievance to the superior Police Officers.

Therefore, the submission of the learned Senior

Advocate cannot be accepted. The police are now duly

bound to carry out investigation since the impugned FIR

has been registered under Section 154 of the Criminal

9 Cri.W.P.275-17.odt

Procedure Code.

10. In the result, the petition is liable to be dismissed

and is accordingly dismissed. The Rule is discharged.

(MANGESH S. PATIL, J.) (S.S.SHINDE, J.)

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