Bombay High Court
Shubham S/O. Radhesham Daroga And ... vs The State Of Maharashtra Thr. The ... on 5 January, 2021
Bench: V.M. Deshpande, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.959/2018
1. Shubham s/o Radhesham Daroga,
aged 24 years, Occ. Nil, r/o Durga Bhavan,
Bus Stand Square, Lonar, Tq. Lonar,
Dist. Buldhana.
2. Pankaj s/o Bholusing Thakur,
aged 21 years, Occ. Nil, r/o Mundada Colony,
Hinganghat, Dist. Wardha.
3. Nikhil s/o Santoshsingh Thakur,
aged 19 years, Occ. Nil,
r/o Near Maheshwari Bhavan,
Hinganghat, Dist. Wardha.
4. Akil s/o Santoshsingh Thakur,
aged 19 years, Occ. Nil,
r/o Near Maheshwari Bhavan,
Hinganghat, Dist. Wardha. .....APPLICANTS
...V E R S U S...
1. The State of Maharashtra through
Police Station Officer, Police Station,
Channi, Akola, Tq. Patur, Dist. Akola.
2. Sau. Manisha w/o Nilesh Thakur,
aged 26 years, Occ. Nil, r/o Alegaon,
Tq. Patur, Dist. Akola. ...NON APPLICANTS
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Mr. S. S. Shingane, Advocate for applicants.
Mr. M. J. Khan, A.P.P. for non applicant no.1.
Mr. S. V. Sirpurkar, Advocate for non applicant no.2.
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CORAM:- V. M. DESHPANDE AND
ANIL S. KILOR, JJ.
DATE:- JANUARY 05, 2021
ORAL JUDGMENT (Per: V. M. Deshpande, J.)
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsel for the parties.
2. By filing the present application under Section 482 of
the Code of Criminal Procedure, the applicants are praying for
quashment of First Information Report registered with Police
Station, Channi, District Akola for an offence punishable under
Sections 376(1), 376(2) (F) (N), 506, 417 of the Indian Penal
Code vide crime No.160/2018. It appears that in view of the
order dated 16.10.2018, the charge-sheet is not filed.
3. According to the learned counsel for applicants, there is
delay of one year in lodging the FIR. He also submits that the
applicant no.1 is not having any firearm license and/or no firearm
was seized from him. He submits that the FIR is of stereotype
nature and therefore he prays for quashing of the FIR.
4. Mr. Khan, learned A.P.P. strongly opposes the prayer
made by the learned counsel for the applicants. He also invited
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our attention to the detalied reply filed on behalf of the
prosecuting agency. Mr. Sirpurkar, learned counsel for non
applicant no.2-complainant supports the submissions made by the
learned A.P.P. and also read out the submissions made by the non
applicant no.2.
5. Insofar as delay is concerned, law is well crystallized on
the said issue. Delay cannot be the sole criterion or ground for
quashing FIR, which otherwise shows commission of cognizable
offence. It is always open for the complainant to explain the delay
at the time of filing of the complaint. Merely because the delay is
not explained in the complaint that itself is not sufficient to view
the case of the complainant with tainted eyes since it is always
open for the prosecution to explain delay during the course of the
investigation or even during the course of trial. In that view of
the matter, an opportunity is required to be given to prosecution
to explain the delay during the course of trial. Delay cannot be
the criterion for throwing the case of the prosecution in dustbin
especially when the FIR makes out case for investigation. In that
view of the matter, contention of Mr. Shingne, learned counsel
that FIR must go because of the delay in lodging of the FIR, has to
be floored down and accordingly it is rejected.
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6. Law in respect of the power under Section 482 of the
Code of Criminal Procedure for quashing of the FIR is well
crystallized by various decisions of the Hon'ble Apex Court. We
ourselves will not burden this judgment by citing various
authoritative pronouncements of the Hon'ble Apex Court. Suffice
it to state that the Hon'ble Apex Court in State of Haryana Vs.
Bhajanlal and ors.; reported in AIR 1992 SC 604 has given
guidelines when this Court shall exercise its powers under Section
482 of the Code of Criminal Procedure.
7. The FIR in question clearly attributes overt acts on the
part of each of the applicants qua complainant-non applicant no.2.
She has very vividly described every single assault committed on
her by the present applicants. Not only that, in very clear words,
she has reported to the police authorities while committing sexual
assault that the applicants photographed the forcible sexual
assault on her at different points of time.
8. Applicants who are on bail will get ample opportunity
to cross-examine complainant-non applicant no.2 during the
course of trial to test veracity of statements made in FIR or her
evidence which she will be deposing from witness box on oath.
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9. The statement of learned counsel for applicants that
the applicant no.1 is not having any firearm license, is of no use
since it may be a country made pistol and it is also possible that he
might be in illegal possession of such a pistol. Insofar as non
recovery of weapon aspect is concerned, merely because there is a
lapse on the part of the investigating officer, that cannot be a
bounty or premium in favour of applicant no.1, who has
committed rape on the prosecutrix taking disadvantage of their
close relations.
10. In our view, the present case is a case wherein the
prosecution must be given the fullest opportunity to adduce
detailed evidence to prove this charge. No case is made out by the
applicants. The application is, therefore, rejected.
Rule is discharged.
JUDGE JUDGE
kahale Digitally
signed by
Yogesh Yogesh Kahale
Date:
Kahale 2021.01.07
13:02:16
+0530
