Bombay High Court

Sandeep Deelip Wayal And Others vs The State Of Maharashtra And ... on 7 April, 2021

Bench: Ravindra V. Ghuge, B. U. Debadwar

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                  CRIMINAL WRIT PETITION NO. 1634 OF 2020


1.     Sandeep s/o Deelip Wayal,
       Age 34 years, Occ. Service
       Serving as Assistant Block
       Development Officer,
       R/o Amalner, Tq.Amalner,
       District Jalgaon.

2.     Lotan s/o Dashrath Chinchore,
       Age 45 years, Occ. Service
       serving as Extension Officer
       (Village Panchayat)
       R/o Amalner, Tq.Amlaner,
       District Jalgaon.

3.     Anil s/o Bhaskar Rane,
       Age 48 years, Occ. Service
       serving as Extension Officer
       (Village Panchayat)
       R/o Amalner, Tq.Amlaner,
       District Jalgaon.
                                                    ...PETITIONERS

       -VERSUS-


1.     The State of Maharashtra.
       Through the Police Inspector,
       Amalner Police Station,
       Tq. Amalner, District Jalgaon.

2.     The Sub Divisional Police Officer,
       Amalner, Tq.Amalner,
       District Jalgaon.

3.     Smt.Mayabai w/o Praveen Wagh,
       Age : 34 years, Occupation : Social Work,




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       R/o Mathgavhan, Tq.Amalner,
       District Jalgaon.
                                                ...RESPONDENTS

                                      ...
     Shri V.D. Hon, Senior Advocate h/f Shri A.V. Hon, Advocate for the
                            petitioners/ accused.

               Shri R.V. Dasalkar, APP for respondent Nos.1 and 2.

           Shri H.F. Pawar, Advocate for respondent No.3/ informant.
                                       ...


                                    CORAM :     RAVINDRA V. GHUGE
                                                      &
                                                B. U. DEBADWAR, JJ.

Reserved on :- 31st March, 2021

Pronounced on :- 07th April, 2021

JUDGMENT (Per Ravindra V. Ghuge, J.):-

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. By this petition, the petitioners have put forth prayers B,

and D as under :-

"B) Issue a writ of certiorari or writ in the nature of certiorari to quash and set aside the F.I.R. No.0681 of 2020 registered with Amalner Police Station for the offences punishable under Sections 385, 509, 504, 506 of I.P.C. and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; C) Pending the hearing and final disposal of this Criminal Writ Petition grant stay to the further proceedings of the F.I.R. No.0681 of 2020 registered with Amalner Police Station for the offences punishable under Sections 385,

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509, 504, 506 of I.P.C. and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989;

D) Pending the hearing and final disposal of this Writ Petition the respondents be directed not to take any coercive action against the petitioners in pursuance to the F.I.R. No.0681 of 2020 registered with Amalner Police Station for the offences punishable under Sections 385, 509, 504, 506 of I.P.C. and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989;"

3. We have considered the strenuous submissions of the learned

Senior Advocate on behalf of the petitioners, the learned prosecutor on

behalf of respondent Nos.1 and 2 and the learned advocate on behalf of

respondent No.3/ informant.

4. Petitioner No.1 is the Assistant Block Development Officer and

petitioner Nos.2 and 3 are the Extension Officers (Village Panchayat).

They had initiated steps for an enquiry and action against the informant,

who is the Sarpanch of village Mathgavhan, for having indulged in

misappropriation of public funds while implementing the Swaccha Bharat

Mission and the grants received under the 14 th Finance Commission

Scheme. As action under Section 39(1) of the Maharashtra Village

Panchayats Act, 1958 seeking disqualification of the informant as a

Sarpanch, was initiated, that the informant has filed a frivolous FIR

No.0681/2020 with the Amalner Police Station. She has alleged that the

petitioners have committed offences punishable under Sections 389, 509,

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504 and 506 of the Indian Penal Code and under Section 3 of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989.

5. It is canvassed by the petitioners that they have not

committed any offence as is alleged in the FIR. The informant has filed the

same only to pressurize the petitioners as they have initiated an enquiry in

her affairs as a Sarpanch. A primary enquiry report has been submitted to

the Chief Executive Officer, Zilla Parishad, Jalgaon, who has forwarded the

same to the Commissioner (Revenue), Nashik Division, Nashik, for

initiating the process for removal of the informant under Section 39 of the

1958 Act.

6. It is then submitted that petitioner No.1 belongs to the

"Dhangar" caste, which is recognized as a Nomadic Tribe (N.T.). He has

put in seven years of service and his year of retirement is 2044. He has a

clean and unblemished service record for seven years. Petitioner No.2 also

belongs to "Dhangar" caste and has a clean service record for 26 years.

Petitioner No.3 belongs to the "Pardhi" community, which is recognized as

a "Scheduled Tribe" (S.T.). He has also put in 26 years of service and has

not faced any departmental enquiry.

7. It is then submitted that as these petitioners probed into the

matter of inappropriate expenditure of the 14th Finance Commission funds,

they noticed that the Village Development Officer (Gram Sevak)

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Mr.Prashant Bhaidas Wankhede was not cooperating in the enquiry. A

notice for production of the record was issued on 18.03.2020 and since he

refused to supply the record, petitioner No.1 suspended him. A show cause

notice dated 29.06.2020 has also been issued to respondent No.3/

informant as the proceedings for her disqualification were initiated. The

primary report of the Deputy Chief Executive Officer, Zilla Parishad,

Jalgaon dated 28.07.2020 would indicate the involvement of the

informant as well as the earlier Sarpanch Mrs.Chetana Jitendra Pawar.

8. It is then contended that these petitioners also belong to the

reserved tribe categories. The offence alleged by the informant would not

attract the sections of the IPC set out in the FIR. No offence can be made

out under Section 3 of the 1989 Act and the FIR is an abuse of the process

of law, which deserves to be quashed and set aside.

9. The learned advocate for respondent No.3/ informant

submits, on the basis of the affidavit in reply filed, that she became the

Sarpanch on 22.02.2018. As she belongs to the reserved category, several

persons developed antipathy towards her. Petitioner No.1 had called the

Gram Sevak Shri Prashant Wankhede in his office and demanded a

contribution of Rs.1 lac under the Toilet Construction Scheme. He directed

Mr.Wankhede to convey this message to the informant. Later on, petitioner

No.1 created a whatsapp group by name " Ghar Patti/ Pani Patti Vasooli".

Courageously he posted messages from time to time on the whatsapp

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group demanding illegal contributions. The whatsapp screenshot printouts

are placed on record.

10. The informant further submits that as petitioner No.1

continuously demanded illegal gratification, she went to his office on

06.12.2019 along with her husband and two other witnesses, namely,

Kiran Pawar and Shivaji Pawar. When questioned, petitioner No.1 got

annoyed and abused her in full public view as under :-

"तुला काय अक्कल आहे, तुम्ही मागास जातीच्या लोकांना प्रशासन सांभाळता येत नाही, तू सरपंच पदावर कशी राहते ते मी पाहतो, तुला अपात्र केल्याशिवाय मी गप्प बसणार नाही असे म्हणून मला व इतरांना त्यांच्या दालनातून बाहेर हाकलून दिले .... "

He then demanded sexual favours in the presence of her

husband and two persons by stating as under :-

".... तुझ्या कडे contribution चे पैसे नाहीत तर मी रात्री फ्री असतो, तू रात्री आल्यास तुझे सर्व कामे होतील अश्या दुष्ट हेतन ू े व अश्लील भावनेने मला हिनवले आहे ..."

11. The informant submits that she was shattered after hearing

such statements and after pondering over the chain of events, she finally

got fed up and tendered her resignation to the Chairman of the Panchayat

Samiti, Amalner on 24.02.2020. She also made representations to the

Honourable Chief Minister and other authorities. The Chairman of the

Panchayat Samiti summoned petitioner No.1, who tendered an apology to

the informant and therefore, the informant withdrew her resignation after

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being assured that he will not commit such acts in future.

12. The informant then contends that petitioner No.1, with the

active cooperation of petitioner Nos.2 and 3, opened a tirade against her.

They started preparing reports based on false allegations so as to oust the

informant from her position as a Sarpanch. She relied upon the

resolutions passed by the Panchayat Samiti dated 02.07.2020 and the

written statements of the Block Coordinator and Cluster Coordinator of

Swaccha Bharat Mission, Panchayat Samiti, Amalner, while replying to the

show cause notice received by her. In her reply dated 17.07.2020, she has

set out the entire procedure and sequence of events to indicate that she

had not misused a single rupee. However, as these petitioners were

preparing false reports against her and made every attempt to make life a

hell for her, that she lodged the FIR. The police authorities were convinced

that the preparation of false reports/ evidence against a person belonging

to the Scheduled Caste/ Tribe would attract Section 3 of the 1989 Act.

False and fabricated preliminary enquiries were conducted to manufacture

documentary evidence against the informant.

13. We find that, practically, in all matters under Section 482 of

the Code of Criminal Procedure, 1973, the accused approaches the Court

on the ground that the First Information Report (F.I.R.), on the face of it,

does not disclose ingredients that would constitute a cognizable offence.

Thus, the inherent power of the High Court, in it's jurisdiction under

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Section 482, is invoked for seeking the quashing of the F.I.R..

14. In C.B.I. vs. Tapan Kumar Singh, (2003) 6 SCC 175 : AIR

2003 SC 4140, the Honourable Supreme Court has held in paragraph 22

that "The law does not require the mentioning of all the ingredients of the

offence in the FIR. It is only after completion of the investigation that it

may be possible to say whether any offence is made out on the basis of

the evidence collected by the investigating agency." It is observed that an

FIR is not an encyclopedia which must disclose all the facts and details

relating to the offence alleged to have been committed. It requires no

debate that an FIR is merely a report by the informant about the

commission of a cognizable offence and it cannot be ruled out that minute

details may not be mentioned. It cannot be ignored that an FIR pertains to

an offence, which is alleged to have been committed and the informant, in

a disturbed state of mind and shaken on account of a serious offence

committed, approaches a police station for recording an FIR.

15. In the State of Punjab vs. Dharam Singh, 1987 SCC (Cri.) 621

: 1987 Supp. SCC 89, the Honourable Supreme Court held that the High

Court had erred in quashing the FIR by going beyond the averments, to

consider the merits of the case even before the investigating agency has

embarked upon the legal exercise of collecting evidence.

16. In Kurukshetra University vs. State of Haryana, (1977) 4 SCC

451 : AIR 1977 SC 2229 (a Three Judges Bench) , the Honourable

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Supreme Court has observed thus:-

"It surprises in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482, Criminal Procedure Code, it could quash an FIR. The Police had not even commenced investigation into the complaint filed by the warden of the University and no proceeding at all was pending in any Court in pursuance of the FIR. It ought to be realized that inherent powers do not confer any arbitrary jurisdiction on the High Court to act according to its whim or caprice."

17. In Geeta Mehrotra and another vs. State of Uttar Pradesh and

another, (2012) 10 SCC 741, the Honourable Supreme Court has held that

in the absence of any specific allegation in an FIR, prima facie, indicating

no case against the co-accused, the Court would have the power to quash

an FIR.

18. In Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur

and others vs. State of Gujarat and another, (2017) 9 SCC 641 , the

Honourable Supreme Court has laid down the guiding principles to be

considered in determining whether an FIR could be quashed, as under:-

"(1) Section 482 CrPC preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

(2) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an

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offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(3) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

(4) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court.

(5) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

(6) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. (7) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.

(8) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

(9) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the

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disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and (9) There is yet an exception to the principle set out in propositions (8) and (9) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

19. Considering the crystallized position of law, we are of the

view that we cannot venture into a fact finding exercise or conduct a

parallel investigation while considering the petition invoking Section 482

of the Code of Criminal Procedure and Article 226 of the Constitution of

India. It is for the investigating agency to investigate into the FIR and

based on the documentary record collected during investigation, to file a

charge sheet against the accused or hold that there is no material against

them.

20. On perusal of the FIR, we find that the informant has set out

specific incidents that have occurred on 04.12.2019, 06.12.2019,

28.12.2019, 24.02.2020 and 30.06.2020. After she received the show

cause notice under Section 39(1) of the 1958 Act, dated 09.11.2020, that