Sudeep Kumar Saha vs The State Of Maharashtra And Anr
2021 Latest Caselaw 3575 Bom

            Digitally signed
Laxmikant   by Laxmikant G.
G.          Chandan
            Date: 2021.02.26
Chandan     14:12:39 +0530
                                                                                 (918) cri.wp-848.21.odt




                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                   CRIMINAL WRIT PETITION NO.848 OF 2021

                 Sudeep Kumar Saha                                      : Petitioner.
                       Versus
                 The State of Maharashtra and anr.                      : Respondents.

Mr. Tanveer Nizam/by Ms. Vrushali Maindad a/w Ms. Ankita Nishad, Ms. Shaheen Kapadia and Ms. Mariam Nizam for the Petitioner. Mr. Deepak Thakare, PP a/w Mrs. S D Shinde, APP for the Respondent/State. Mr. Subhash Jha i/by Law Global for Respondent No.2.

                                            CORAM :       S. S. SHINDE,
                                                          MANISH PITALE, JJ
                                            DATE      :   25th FEBRUARY 2021
                 P.C.

                 1             This Petition is filed for the following reliefs :-



                        (a)    That this Hon'ble Court may be pleased to call for

records and proceedings in respect of C.R. No.225/20 dated 22.07.2020 registered with the Santacruz Police Station, Mumbai on the basis of complaint filed by Respondent No.2/Informant.

(b) That this Hon'ble Court may be pleased to call for the entire report including the statements of various eye witnesses in respect of the investigation carried out by the ACP, Santacruz Division dated 22.01.2021 on the basis of the complaint of unfair and biased Investigation filed by the Petitioner on 30.09.2020 and 01.10.2020.

(c) That after perusal of records and proceedings this Hon'ble Court may be pleased to quash and set aside C.R. No.225/20 dated 22.07.2020 registered with the Santacruz Police Station, Mumbai on the basis of complaint filed by Respondent No.2.

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                                                            (918) cri.wp-848.21.odt

2           Mr. Tanveer Nizam, the learned counsel appearing for the

Petitioner invites our attention to the allegations made in the impugned FIR

and submits that the offence under Section 376 of the Indian Penal Code is not

disclosed and the 2nd Respondent is in the habit of filing false complaints. He

further submits that even in past i.e. in the year 2012 and 2015 the 2 nd

Respondent has filed the false complaints. It is submitted that even other

offences alleged in the impugned FIR are not disclosed.

3 It is submitted that even reading the allegations made in the FIR in

its entirety against the Petitioner, the offence under Section 376 of the Indian

Penal Code is not disclosed. It is not stated in the FIR by the informant that the

said alleged sexual act was without her consent and against her will. It is

further submitted that the Investigating Officer is conducting the investigation

in a biased manner. The learned counsel for the Petitioner invites our attention

to the letters written by the Petitioner to the higher authorities of the police.

He submits that the Petitioner filed complaint against the Investigating Officer

with the Assistant Commissioner of Police. The Assistant Commissioner of

Police on inquiry of said complaint found that the allegations made against the

Investigating Officer appear to be correct. Therefore the learned counsel for

the Petitioner submits that, this Court may consider the prayer of the Petitioner

to quash and set aside the impugned FIR since the investigation carried out by

the Investigating Officer is in a biased manner. He further submits that the

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allegations made in the FIR are false. It is submitted that, this Court can

consider the prayer for quashing if the allegations in the FIR are false. The

learned counsel appearing for the Petitioner sought to place reliance on the

judgment of the Supreme Court in the case of Babubhai v/s State of Gujarat 1

and submitted that in the said case the Supreme Court has ruled that if the

investigation is conducted in a bias manner, in that case, such tainted

investigation has to be quashed.

4 On the other hand, the learned APP appearing for the

Respondent/State, relying upon the contents of the FIR, submits that if the

allegations in the FIR are taken at its face value and read in its entirety, the

alleged offences are disclosed and therefore needs further investigation. It is

submitted that there are serious allegations against the Petitioner and from the

material collected during the course of investigation, prima facie case is made

out against the Petitioner.

5 Mr. Subhash Jha, the learned counsel appearing for the 2 nd

Respondent invites our attention to the allegations made in the FIR and

submits that if the said allegations are taken at its face value and read in its

entirety, the alleged offences are disclosed, and therefore, the prayer of the

Petitioner for quashing the FIR may not be entertained. He further submits

that the Petitioner has approached the Supreme Court by way of filing of SLP 1 2011 (1) SCC (Cri) 336

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(Cri) No.6831 of 2020 (Sudeep Kumar Saha v/s. The State of Maharashtra and

anr.) and by order dated 30/12/2020 the Supreme Court has granted four

weeks time to the Petitioner to surrender and apply for regular bail and, in the

meanwhile, no coercive steps shall be taken against the Petitioner, and

accordingly the said Special Leave Petition was disposed of. He further submits

that the Petitioner did not surrender so as to apply for regular bail. Thereafter

the Petitioner approached the Supreme Court by way of filing Misc. Application

bearing No.206/2021 for extension of time to surrender. However, that Misc.

Application was not entertained by the Supreme Court. The learned counsel for

the 2nd Respondent submits that as on today the status of the Petitioner is

"absconder". Since the Petitioner is absconding, Petition does not deserve to be

heard on merits.

6 We have given our due consideration to the rival submissions.

With the assistance of the learned counsel for the parties, we have perused the

grounds taken in the Petition, annexures thereto and the contents of the FIR.

We have read the allegations in the FIR in its entirety, prima facie the

ingredients of alleged offences are attracted and consequently the alleged

offences are disclosed. Since the investigation is in progress, in order to avoid

the prejudice to the case of both the sides, we do not wish to elaborate on the

said allegations. The specific contention of the learned counsel appearing for

the Petitioner that the offence under Section 376 of the Indian Penal Code is

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not disclosed cannot be accepted in view of the specific allegations made by

the informant in the impugned FIR to the following effect :-

"fnukad [email protected]@20 jksth eh dydRrk ;sFkqu eqacbZ ;sFks vkys rsOgk lqfni dqekj lgk gs vkarj jkf"Vz; foeukrG ;sFks vkyk gksrk] R;kosGh lqfni dqekj lgk gk eyk ek>s uohu ?kjkps vXkzhesa.V nk[kfoys vls lkaxqu R;kaps jkgrs ?kjh vkscsjk; LiysaMj g;k jkgR;k ?kjh ?ksmu xsyk- vkf.k R;kosGh ek>s'kh tcjnLrh 'kjhjlaca/k Bsoys- rsOgk eh lqfni dqekj lgk g;kyk eh iksyhlkar rdzkj nsbZy vls lkafxrys vlrk] R;kus eyk eh R;kps'kh 'kjhjlaca/k Bsoys ukgh] rj rks ek>s o R;kps 'kjhjlaca/kkps fp=.k izlkfjr dfjy v'kh /kefd fnyh- R;keqGs eh dks.kkykgh dkfg ,d u lkaxrk ?kjh fu?kqu xsyh-"

In the FIR it is specifically alleged that the Petitioner committed sexual

intercourse/assault without the consent and against the will of the informant.

There are allegations of forceful sexual assault.

7 When there is a prayer for quashing the FIR, this Court is not

supposed to enter into the exercise of finding out whether the allegations made

in the FIR are false or correct. The endeavour on our part should be restricted

to its adjudication to the extent of reading the allegations in the FIR and to

find out, whether the ingredients of alleged offences are attracted and

consequently the alleged offences are disclosed or not. If the allegations are

disclosed, then the matter should be left to the Investigating Officer for the

investigation. In that view of the matter, we cannot accede to the prayer of the

Petitioner to quash the FIR. The contention of the learned counsel for the

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Petitioner that investigation is being carried out in a biased manner needs no

consideration once the allegation in the FIR prima facie discloses an alleged

offence.

8 The Hon'ble Supreme Court in the SLP (Cri.) No.6831 of 2020

filed by the Petitioner on 30/12/2020 passed the following order :-

"The petitioner is granted four weeks' time to surrender and apply for regular bail.

In the meanwhile, no coercive steps shall be taken against the petitioner.

The Special Leave Petition stands disposed of.

Pending applications stand disposed of."

9 It appears that the Petitioner filed Misc. Application No.206 of

2021 before the Hon'ble Supreme Court for extension of time to surrender.

Vide order dated 08/02/2021 the Hon'ble Supreme Court rejected the said

application. It is admitted position that the Petitioner till date has not

surrendered. Time to surrender stood expired on 30/01/2021.

10 In so far as reliance placed on judgment of Hon'ble Supreme Court

in the case of Babubhai v/s. State of Gujarat (supra) is concerned, we are of

the opinion that in that case there was a dispute between two communities and

FIR was registered in a one sided biased manner by the police. It was in that

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context that the Hon'ble Supreme Court held that such a one sided FIR was not

sustainable. Such is not the position in the present case and on facts we find

that the judgment is not applicable.

11 So far the grievance of the Petitioner against the Investigating

Officer is concerned, already the Petitioner has approached the higher

authorities of the police and it appears from the documents/material placed on

record that the matter is under consideration before the Additional

Commissioner of Police, Mumbai. In that view of the matter, we do not think it

necessary to intervene in the said matter. It is for the said authority to take

appropriate decision in that respect.

12 For the reasons afore-stated, we do not find any substance in the

Petition. Hence the Writ Petition stands rejected.

13 The observations made herein above are prima facie in nature and

confined to adjudication of the present Petition.

[MANISH PITALE, J]                                      [S. S. SHINDE , J]




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