Captain Rajneesh Suresh Sharma vs The State Of Maharashtra
2021 Latest Caselaw 1075 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION
      CRIMINAL WRIT PETITION (ST.) NO.4749 OF 2020


Captain Rajneesh Suresh Sharma,               ]
an adult, Indian inhabitant, residing at      ]
A-Wing, 3103, Avalon Building,                ]
Hiranandani Garden, Powai, Mumbai             ]
- 400 076.                                    ]     ...               Petitioner

                        Versus

1.     The State of Maharashtra           ]
       (Through the Senior Police ]
       Inspector, Airport Police Station, ]
       Mumbai) Mumbai.                    ]

2.     Capt.        Charanveersingh           ]
       Randhawa,  1902    Ambrosia,           ]
       Powai Hiranandani Gardens,             ]
       Mumbai.                                ]
3.     Bureau of Civil Aviation Security,     ]
       14 B Sahar Road, New Airport           ]
       Colony,    Airports     Authority      ]
       Colony, Vile Parle, Mumbai -           ]
       400 099.                               ]    ...       Respondents

                                        ...

Mr. Arshad Shaikh i/b Mr. Hemant Ingale for the petitioner.

Mr. K.V. Saste, A.P.P. for respondent No.1-State.

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Mr. Amol Keskar, PSI Airport Police Station, Mumbai, is present
in the court.
                             ...

                                    CORAM: S.S. SHINDE &
                                           MANISH PITALE, JJ.

DATED : 18TH JANUARY, 2021.

JUDGMENT :- [Per: Manish Pitale, J.]

1. Rule. Rule made returnable forthwith. With the consent of the rival parties, heard finally.

2. The petitioner has approached this court by filing the present writ petition seeking to invoke extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India as also power under Section 482 of the Criminal Procedure Code ("Cr.P.C.") for quashing of First Information Report ("FIR") dated 03/07/2020 registered at Airport Police Station, District Mumbai, Maharashtra for offences punishable under Sections 269, 323, 504 and 506 of the Indian Penal Code ("IPC").

3. The petitioner and respondent No.2 (original complainant) are employees of Air India and, the incident in question leading to registration of FIR, took place in their office premises. The said incident is said to have taken place on 02/06/2020, while the AJN

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FIR was registered on 03/07/2020.

4. Since learned counsel for the petitioner has vehemently submitted that none of the ingredients of the alleged offences are made out even on a bare reading of the contents of the FIR, it would be appropriate to reproduce the contents thereof.

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5. The gist of the said contents of the FIR when translated, show that according to respondent No.2, when he was sitting in the briefing room and filling a report concerning another colleague, the petitioner entered the room and started speaking to respondent No.2 in a very aggressive manner. He questioned respondent No.2 regarding the manner in which the regulations were being made in the Covid-19 period. According to respondent No.2, he told the petitioner to cool down but, the petitioner allegedly continued his provocative behaviour and statements, leading to incident of banging the table aggressively and using extremely abusive language against respondent No.2. It was also alleged that the petitioner was not wearing a mask and by

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shouting at respondent No.2, droplets of spit from the mouth of the petitioner fell on the face of respondent No.2. It was then alleged that the petitioner gave a push to respondent No.2 as a result of which, he fell on the table. Thereafter, the other colleagues in the room i.e. one Pankaj Agarwal and Gagan Datta restrained respondent No.2 from reacting, after which, the petitioner left the said room repeating abusive language against respondent No.2. It is then alleged that respondent No.2 brought the said incident to the notice of his senior colleagues and, thereafter, on the advise of the Joint Director of the Directorate General of Civil Aviation ("DGCA") as also the legal officer, the respondent No.2 gave a written complaint on 03/06/2020.

6. The process of investigation was undertaken in pursuance of registration of FIR and during the pendency of such investigation, the present petition was filed, wherein interim relief was granted to the petitioner to the extent that the investigation would continue but, the charge-sheet would not be filed without the leave of this court. Thereafter, the petitioner amended the petition to add the original complainant i.e. respondent No.2 as party respondent as also the Bureau of Civil Aviation Security as respondent No.3. The writ petition was also amended to add certain statements along with an additional interim prayer for direction to the newly added respondent No.3 to issue the AJN

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physical Airport Entry Pass to the petitioner. According to the petitioner, this was necessitated for the reason that due to the said incident dated 02/06/2020, the petitioner was suspended on 03/06/2020 and a show cause notice was issued to the petitioner on 22/06/2020 and that during this period, the Airport Entry Pass was withdrawn due to which the petitioner could not perform his duties of flying.

7. The order of suspension issued against the petitioner was withdrawn on 24/06/2020 and on 10/07/2020, an order was issued by the Executive Director of Air India, taking note of the behaviour of the petitioner during the said incident and a penalty of strict censure was issued against him. According to learned counsel for the petitioner, during the pendency of the writ petition, the concerned authority issued Airport Entry Pass to him subject to the result of the present writ petition.

8. This writ petition was taken up for final hearing and disposal today. Mr. Arshad Shaikh, learned counsel instructed by Mr. Hemant Ingale, advocate, appearing for the petitioner submitted that the aforesaid FIR deserved to be quashed for the reason that it was clearly covered under atleast four categories identified in the landmark judgment of the Hon'ble Supreme Court in the case of State of Haryana v. Bhajan Lal 1. It was claimed that a bare perusal of the contents of the FIR would show 1 1992 Supp (1) SCC 335 AJN

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that even if they were to be taken at their face value and accepted in their entirety, a prima facie case for showing the ingredients of the said offence was not made out and, hence, no cognizable offence was disclosed. It was further submitted that the un- controverted allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence and, most importantly, the criminal proceedings are manifestly attended with mala fides and/or maliciously instituted with an ulterior motive for wreaking vengeance against the petitioner due to private and personal grudge. It was submitted that the case of the petitioner is clearly covered under categories (1), (2), (3) and (7) specifically identified in the said landmark judgment of the Hon'ble Supreme Court in Bhajan Lal (supra).

9. In order to support the said contentions, learned counsel for the petitioner invited the attention of this court to the above quoted contents of the FIR. It was submitted that the alleged incident had taken place on 02/06/2020 and yet the FIR was registered on 03/07/2020, thereby showing that it was delayed and, that, this was an additional ground for seeking quashing of the FIR. Learned counsel for the petitioner then invited the attention of this court to the fact that the Executive Director of Air India had indeed, enquired into the allegations levelled against the petitioner pertaining to the very same incident alleged AJN

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to have taken place on 02/06/2020 and, only a minor penalty of the strict censure was imposed on the petitioner. It was submitted that when departmental proceedings had led to such a minor penalty, the FIR registered on the very same incident certainly will not lead to any kind of conviction for the alleged offences. It was emphasized that the standard of proof in criminal proceedings is clearly much higher than the civil proceedings and, consequently, the FIR is clearly not sustainable. It was then submitted that respondent No.2 had sent a letter dated 28/09/2020 to the Office of the DGCA specifically requesting that the instructor-ship of the petitioner should be withdrawn, thereby indicating that the initiation of criminal proceedings against the petitioner was nothing but an attempt on the part of the said respondent to wreak vengeance on the petitioner.

10. Learned counsel for the petitioner has also relied upon the judgment of the Hon'ble Supreme Court in the case of Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EoW, CBI & Anr.2 and judgment of the Division Bench of this court in the case of HLA Shwe & Ors. v. State of Maharashtra3.

11. Mr. Saste, learned A.P.P. representing respondent No.1- State has opposed the contentions raised on behalf of the petitioner. It was submitted that a bare perusal of the complaint 2 2020 DGLS (SC) 710 3 2020 (4) Bom.C.R. (Cri.) 154 AJN

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leading to the registration of FIR would show that the basic ingredients of the said offence were made out. It was submitted that there was no substance in the contentions raised on behalf of the petitioner regarding delay in registration of the FIR because the petitioner had given a written complaint to the police on 03/06/2020 i.e. the date immediately following the date of incident, which was 02/06/2020. It was submitted that the police undertook a preliminary enquiry and the written recording of the FIR took place thereafter on 03/07/2020. It was further submitted that the investigation proceeded and statements of the witnesses were recorded, including the two persons, who were present in the said room when the incident took place and whose names were mentioned in the FIR itself. It was submitted that the material that came on record during the course of investigation, so far, did indicate that the petitioner was not entitled to seek quashing of the FIR. The investigation papers were handed over by learned A.P.P. to this court for perusal.

12. None appeared on behalf of respondent No.2 when the matter was heard.

13. Having heard learned counsel appearing for the rival parties, in view of the specific contentions raised on behalf of the petitioner, it would be appropriate to first take into consideration the position of law concerning the situation in which this court AJN

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would be justified in quashing an FIR. It is significant that in the aforesaid judgment in the case of Bhajan Lal (supra), the Hon'ble Supreme Court has given a note of caution by stating that such power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and in rarest of rare cases. It is further laid down in the said judgment that the court should not embark upon an enquiry about reliability or genuineness of the allegations made in the FIR or in the complaint. Since learned counsel for the petitioner has heavily relied upon the categories specified in the judgment in Bhajan Lal (supra), where the court would be justified in exercising the inherent and extra-ordinary power, it would be appropriate to reproduce the relevant portion of the said judgment.

"102. 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 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.

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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 a 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 same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, 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 AJN

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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."

14. The said principles laid down by the Hon'ble Supreme Court have been followed consistently in subsequent judgments. In the recent judgment on which learned counsel for the petitioner has placed much reliance i.e. judgment in the case of Ashoo Tewari which was decided by the Supreme Court on 08/09/2020, it has been reiterated that civil and criminal proceedings can be initiated simultaneously and then the interplay between the said proceedings would depend upon the facts of each case. The Hon'ble Supreme Court, in the facts of the said case, found that in view of the detailed order pursuant to an enquiry conducted by the CVC, the chances of conviction in a criminal trial involving the same facts appeared to be bleak. On this basis, the Hon'ble Supreme Court held in favor of the accused. In the case of HLA Shwe (supra), the Division Bench of this court considered the ingredients of the offences under

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Sections 269 and 370 of the IPC and, again in the facts of that case, held that the accused deserved benefit of quashing of criminal proceedings.

15. A perusal of the judgments relied upon by learned counsel for the petitioner shows that the court has to come to a conclusion on perusal of the FIR and the material that emerges during the course of investigation, that basic ingredients of the alleged offences are not made out and, therefore, continuation of the proceedings pursuant to such a FIR amounts to an abuse of process. It is, therefore, necessary to apply the said position of law to the material that is placed before this court in the present case.

16. At the outset, the contention regarding delayed registration of FIR need not detain this court, for the reason that the investigation papers placed before this court by learned A.P.P. clearly indicate that on 03/06/2020 itself i.e. the day immediately following the date of the incident, respondent No.2 (original complainant) had submitted a written complaint before the police. A copy of the said complaint was also annexed to the affidavit filed on behalf of respondent No.2. This document has not been denied by the petitioner and, learned counsel representing the petitioner, in fact, relied upon the same to insist that there was discrepancy in the contents of the said document and the eventual FIR. Therefore, the aspect of delay in AJN

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registering the FIR pales into insignificance in the present case.

17. Since learned counsel for the petitioner has placed much emphasis on the categories specifically delineated by the Hon'ble Supreme Court in the aforesaid judgment in Bhajan Lal (supra), specifically relying upon categories (1), (2), (3) and (7), it needs to be examined whether the FIR and material placed before this court qualify the petitioner to successfully claim quashing of the FIR under the aforesaid categories.

18. This court has minutely perused the contents of the above- quoted complaint leading to registration of FIR. The manner in which the incident is described by respondent No.2 shows that the petitioner allegedly behaved in an aggressive and abuse manner with respondent No.2. He advanced towards respondent No.2 and pushed him. In the process, the petitioner was not wearing a mask and the droplets of the spit from the mouth of the petitioner fell on the face of respondent No.2. Names of two persons were specifically stated by respondent No.2 as being present in the room when the incident allegedly took place. During the course of investigation, the statements of these two persons were recorded. The said statements were found in the investigation papers placed before this court by learned A.P.P. The statement of Pankaj Agarwal, who was allegedly present in the room at the time of incident on 02/06/2020 supports the

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contents of the complaint leading to the registration of FIR, including the fact that the petitioner was not wearing a mask and that the droplets of his spit fell on the face of respondent No.2 during the incident. The other person i.e. Gagan Datta has also described the incident supporting the version of respondent No.2, including the fact that the petitioner was not wearing a mask and the droplets of spit fell on the face of respondent No.2. In both these statements recorded during the course of investigation on 21/06/2020 and 12/07/2020, the aforesaid two persons have also stated about the abusive language used by the petitioner against respondent No.2 and the aggressive behaviour displayed by him.

19. The offences in the present case have been registered against the petitioner under Section 269 of the IPC pertaining to negligent act likely to spread the infection of any disease dangerous to life; Section 323 of the IPC pertaining to punishment for voluntarily causing hurt (hurt being defined in Section 319 of the IPC); Section 504 of the IPC pertaining to intentional insult with intent to provoke breach of peace and Section 506 of the IPC pertaining to punishment for criminal intimidation.

20. Learned A.P.P. representing respondent No.1-State conceded to the fact that even respondent No.2 did not claim that AJN

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the second part of Section 506 of the IPC is applicable to the present case.

21. In this backdrop, what needs to be examined is as to whether reading of the contents of the FIR and the material that has come on record during the course of investigation would prima facie show that the ingredients of the said offences can be said to be present. In the manner in which respondent No.2 and the aforesaid two witnesses present in the room at the time of the incident have described falling of the droplets of spit from the mouth of the petitioner on the face of respondent No.2, it cannot be said that even prima facie, no case can be said to be made out under Section 269 of the IPC. Similarly, the highly abusive words used by the petitioner as claimed by respondent No.2 and supported by the aforesaid two witnesses in their statements before the police would show that it would not be safe to conclude that offences under Sections 504 and 506 of the IPC cannot be said to be even prima facie made out. There is statement on behalf of respondent No.2 that he was pushed due to which he fell on the table, indicating the ingredients of offence under Section 323 of the IPC.

22. In this backdrop, when categories (1), (2) and (3) of the above-quoted portion of the judgment of the Hon'ble Supreme AJN

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Court in the case of Bhajan Lal (supra) are applied, it becomes clear that the petitioner is not justified in claiming quashing of FIR under the said categories. It cannot be said that even if the allegations made in the FIR are taken at their face value and are accepted in their entirety, they would not, even prima facie, constitute any offence. Similarly, it cannot be said that the allegations made in the FIR do not disclose a cognizable offence because offence under Section 269 of the IPC is clearly a cognizable offence. It also cannot be said, in the face of the material available, that uncontroverted allegations made in the FIR and the statement of the said two witnesses collected in support thereof do not support the ingredients of any offence and, therefore, the said submission of learned counsel is rejected.

23. Insofar as category (7) of the above-quoted judgment in the case of Bhajan Lal (supra) is concerned, pertaining to the criminal proceedings being malicious and instituted with an ulterior motive for wreaking vengeance due to private and personal grudge, the material available on record does not seem to suggest the same. The petitioner has heavily relied upon letter dated 28/09/2020 sent by respondent No.2 to the office of the DGCA seeking withdrawal of the instructor-ship of the petitioner in support of the said contention but, such a letter was written after the alleged incident had taken place and after registration of the FIR. It cannot be said that there is material on record in this case AJN

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to suggest that there was rivalry or some grudge between the petitioner and respondent No.2 prior to the incident in question, due to which respondent No.2 had lodged a false complaint to wreak vengeance on the petitioner. Additionally, the statements of the two witnesses recorded by the police, who were allegedly present in the room at the time of the incident, clearly support the version of respondent No.2 and, this is a significant factor in the present case.

24. Much emphasis is placed on behalf of the petitioner that he was deprived of Airport Entry Pass and opportunity of flying, but this is not of much significance because such factors were only consequences of the incident and subsequent registration of FIR. It is not that respondent No.2 has caused the FIR to be registered in order to get the petitioner suspended or imposition of penalty of strict censure or he being deprived of conducting flying and/or entering the Airport premises. This court is of the opinion that such factors were only consequential to the initiation of criminal proceedings and that, therefore, the case of the petitioner cannot be said to be covered by the above-quoted category (7).

25. Reliance placed on the judgment of the Hon'ble Supreme Court in the case of Ashoo Tewari (supra) is also misplaced because in the said case, the Hon'ble Supreme Court came to the conclusion on facts that the enquiry report of the CVC was AJN

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enough to show that no criminal liability could be proved against the accused. In the present case, a perusal of the order imposing penalty of strict censure on the petitioner would show that the competent authority found that there was clearly an incident which took place, in which the petitioner had indulged in indecorous behaviour, which was not acceptable. Thus, it was not as if the petitioner was exonerated in the said proceedings on any technical ground. Hence, the said judgment of the Hon'ble Supreme Court is of no assistance to the petitioner. In this context, reliance placed by learned counsel for the petitioner on the letter sent by the Executive Pilots Association, mildly supporting the petitioner, can also be of no assistance to the petitioner, at this stage, for considering the question of quashing the FIR.

26. Insofar as the Division Bench of this court in HLA Shwe (supra) is concerned, it has been held therein that the material on record indicated that the applicants before the court had undergone Covid-19 test during their period of quarantine and the test report was negative, thereby indicating that the ingredients of offence under Section 269 of the IPC were not made out. In the present case, there is no such material before this court and the allegations made in this context by respondent No.2 assume great significance due to the fact that Covid-19 pandemic is indeed prevalent even today and, certainly, it was at AJN

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intense stage on the date of the incident dated 02/06/2020. Therefore, the said judgment of the Division Bench of this court is also of no assistance to the petitioner.

27. The contention raised on behalf of the petitioner that the Airport Entry Pass issued to him is subject to the outcome of the present petition and an adverse order will be gravely prejudicial to him, cannot be a factor while considering the question of quashing of FIR. Insofar as this aspect is concerned, the petitioner is certainly at liberty to approach the competent authority, which shall take a decision in accordance with law.

28. In view of the above, it is found that there is no substance in the present writ petition and, accordingly, it is dismissed.

29. Rule discharged accordingly. The observations made hereinbefore are prima facie in nature and confined to the adjudication of the present petition only.

30. Learned A.P.P. has informed this court that the investigation in the present case would be completed within two weeks from today. Depending upon the outcome of the investigation, either a report or charge-sheet, as the case may be,

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will be filed within one week thereafter. The said statement is taken on record. The investigation papers be returned to learned A.P.P. forthwith.

(MANISH PITALE, J.)                                (S.S. SHINDE, J.)




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