Bombay High Court
Rushabh Minishkumar Mehta And Anr vs The State Of Maharashtra on 14 January, 2021
Bench: S.S. Shinde, Manish Pitale
1/7 Judgment WPST-4799-20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO.4799 OF 2020
1. Mr.Rushabh Minishkumar Mehta }
Aged 28 years, Indian Inhabitant, }
Occ :- Student }
R/at Flat No.5, Shri Mangal Society, }
SV Road, Vile Parle (West), }
Mumbai- 400056 }
}
2. Mr.Adit Himanshu Purohit }
Aged 29 Years, Indian Inhabitant, }
Occ : Student }
R/at 7B, Kalyangram Society, }
Vitthalbhai Patel Marg, }
Andheri Railway Station, Andheri (West), }
Mumbai- 400058 } Petitioners
Versus
State of Maharashtra }
At the instance of Santacruz Police Station } Respondent
Mr.Rajesh P. Khobragade a/w Ms.Gayatri H.
Nayak, Mr.Sadik Pathan i/b Mr.Sandeep
Sherkhane for the Petitioners.
Mr.V.B.Konde-Deshmukh, APP for the
Respondent/State.
CORAM: S.S.SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 11th JANUARY, 2021.
PRONOUNCED ON : 14th JANUARY, 2021
M.M.Salgaonkar
::: Uploaded on - 14/01/2021 ::: Downloaded on - 07/02/2021 16:49:28 :::
2/7 Judgment WPST-4799-20.doc
JUDGMENT (PER MANISH PITALE, J.)
1. Heard learned counsel for the parties.
2. Rule.
3. Heard finally with the consent of the learned counsel for
the parties.
4. By this writ petition, the petitioners are seeking quashing
of First Information Report (FIR) bearing C.R.No.46 of 2017
registered against them and other accused persons at Santacruz
Police Station, Mumbai, for offences punishable under Sections
294, 111 read with Section 34 of the Indian Penal Code (for
short, "IPC") and Sections 3, 8(1), 8(2) and 8(4) of the
Maharashtra Prohibition of Obscene Dance in Hotels,
Restaurants and Bar Rooms and Protection of Dignity of Women
(Working Therein) Act, 2016 (for short, "Act of 2016").
5. The aforesaid FIR came to be registered against the
petitioners and other accused persons on 21st January, 2017, on
the allegation that there were obscene dances being performed
by certain girls in a Bar owned by the accused persons wherein
the petitioners were allegedly present. According to the
petitioners, even if the contents of the FIR and the charge-sheet
submitted pursuant to investigation are perused, no role is
attributable to the petitioners, attracting the said offences. It is
for these reasons that the petitioners seek to invoke extra
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ordinary jurisdiction of this Court under Article 226 of the
Constitution of India read with Section 482 of the Criminal
Procedure Code for quashing of the FIR as against them.
6. This Court issued notice in the present petition on 3 rd
December, 2020 and taking note of the fact that no role was
attributed to the petitioners, except mentioning their names,
this Court granted stay of the trial restricted to the petitioners
only. The writ petition is taken up for final hearing.
7. The learned counsel for the petitioners reiterated the
contention that there were no specific allegations against the
petitioners and that the material brought on record, even if
accepted to be true, did not make out any offence against the
petitioners. On this basis, it was submitted that when the
ingredients of the alleged offences were not made out, there
was no question of the petitioners being made to face the trial.
8. On the other hand, the learned APP representing the
respondent/State submitted that the names of the petitioners
were clearly stated in the FIR and that the material collected in
the charge-sheet indicated their presence at the spot of incident
and, therefore, the petition deserves to be dismissed.
9. Having heard the learned counsel for the rival parties, this
Court perused the FIR, charge-sheet and the material placed on
record. It is necessary to examine the specific contention raised
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on behalf of the petitioners that there are no allegations against
the petitioners demonstrating that the ingredients of the alleged
offences could be said to be present against the petitioners. A
perusal of the charge-sheet would show that the petitioners,
alongwith other accused persons, are alleged to have
committed offences under Sections 294 and 114 of IPC.
10. Section 294 reads as follows :
"294. Obscene acts and songs.- Whoever, to the annoyance of
others-
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or
words, in or near any public place,
shall be punished with imprisonment of either description for a
term which may extend to three months, or with fine, or with
both."
Section 114 reads as follows :
"114. Abettor present when offence is committed.- Whenever
any person, who is absent would be liable to be punished as an
abettor, is present when the act or offence for which he would
be punishable in consequence of the abetment is committed, he
shall be deemed to have committed such act or offence."
11. A perusal of the above quoted provisions would clearly
indicate that for attracting offence under Section 294 of IPC, a
person against whom the offence is alleged is said to have
indulged in any obscene act at a public place. A perusal of the
material on record shows that no such allegations are made
against the petitioners at all. Similarly, as per Section 114 of
IPC, a person is liable when he is an abettor present when the
alleged offence is committed. The material on record does not
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indicate any specific act on the part of the petitioners to qualify
as 'abettors'.
12. Similarly, as regards the provisions of the Act of 2016,
mere mentioning names of the petitioners in the FIR and the
charge-sheet would not suffice and there is lack of material to
indicate that the ingredients of the offences alleged under the
said Act could be said to be present against the petitioners.
13. In the case of State of Haryana and Others Vs. Bhajan Lal
and Others1, the Hon'ble Supreme Court had laid down certain
tests to verify as to whether an accused person needs to be
made to face a trial or the FIR can be quashed. It has been
observed in paragraph 102 as follows :
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary 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.
(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.
1 1992 Supp (1) Supreme Court Cases 335
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(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR 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 FIR 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 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. A perusal of the above quoted paragraph would show that
the case of the petitioners is covered in the first three clauses
thereof, as no case is made out against the petitioners about the
alleged offences, even if the FIR and other material on record is
accepted. The names of the petitioners are merely mentioned
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alongwith the other accused persons and, therefore, the present
petition deserves to be allowed.
15. In view of the above, the writ petition is allowed. The FIR
bearing No.46 of 2017 registered at the Santacruz Police
Station, Mumbai dated 21st January, 2017 is quashed, as against
the petitioners only.
16. Rule is made absolute in the aforestated terms.
(MANISH PITALE, J.) (S.S.SHINDE, J.)
M.M.Salgaonkar
