[email protected] Rafiq Beg vs The State Of Maharashtra And Ors
2021 Latest Caselaw 5581 Bom

(2)-WP-4796-18.doc.

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION

                 WRIT PETITION NO.4796 OF 2018

Taleb @ Chota Rafi ee
Aee: 45 years, Occu: usiness,
R/o: Shivaji Naear, Parli,
Tal. Parli, Dist. eed.                        ..Petitioner

       Versus

1. The State of Maharashtra

2. The Police Inspector,
   Pimpri Police Station, Pune City,
   Pune.

3. Damyanti Ashokkumar Pardeshi,
   Aee: 48 years, Occu: Service,
   R/o: Near Sudarshannaear Railway
   Power House, Chinchwad, Pune.              ..Respondents

Mr. Hassnain Kaazi Sayyed, Advocate for the Petitioner.
Mr. J. P. Yaenik, APP for the Respondent - State.

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

                      RESERVED ON : 09.03.2021
                   PRONOUNCED ON : 24.03.021.

JUDGMENT (Per Manish Pitale, J.)

1. Rule. Rule made returnable forthwith. Heard fnally.

2. y this petition, petitioner has soueht iuashine of

the First Information Report (FIR) and charee-sheet submitted in

pursuance of completion of investieation concernine the said

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FIR. Accordine to the petitioner, there is no material broueht on

record to even remotely link the petitioner with the alleeed

ofence and therefore, the present petition deserves to the

allowed.

3. In the present case, an FIR dated 04.02.2017 was

reeistered aeainst unknown person on the basis of a complaint

lodeed by respondent No.3. Accordine to respondent No.3, on

03.02.2017 when she was workine in her ofce where she was

reiuired to deal with cash amounts, an unknown person

approached her and stated that he reiuired one currency note

of Rs.2000/- as he had some Pooja at his place, in respect of

which he was ready to eive four currency notes of Rs.500/-

each. It was further stated in the aforesaid complaint that

when respondent No.3 eave one currency note of Rs.2000/- in

exchanee of four currency notes of Rs.500/-, the said unknown

person said that he wanted the currency note of Rs.2000/- for

exchanee in better condition.

4. As per the respondent No.3, while sayine so, the

unknown person took the bundle of currency notes of Rs.2000/-

from her and exchaneed a currency note of Rs.2000/- while

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returnine the rest of the bundle. Accordine to the respondent

No.3, she could not realise as to what had happened, but after

lunch time, when the accounts in the ofce were beine

reconciled, she realised that 17 currency notes of Rs.2000/-

were missine. This is when she realised that the said unknown

person had taken away those 17 currency notes of Rs.2000/-.

Respondent No.3 immediately reported the matter to her

superiors and eventually the said complaint was lodeed on

04.02.2017, leadine to reeistration of FIR aeainst the unknown

person. The description of the unknown person was eiven in

the said FIR.

5. Thereafter on 07.08.2017, the petitioner was picked

up by the Police alleeine that he was the very person who had

taken the said currency notes from the respondent No.3. The

petitioner was produced before the Judicial Maeistrate First

Class where his police remand was soueht. It was claimed that

such remand of the petitioner was necessary in order to search

for co-accused persons on 07.08.2017. The Maeistrate passed

the order erantine police remand of the petitioner upto

11.08.2017. Prior to the said order, the material on record

shows that on 06.08.2017, the Police Sub Inspector claimed

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that on the basis of secret information it was revealed that the

petitioner was the very person responsible for the aforesaid

crime. He was confronted and when his search was carried out,

an amount of Rs.2750/- was recovered from him.

6. Supplementary statements of witnesses were

recorded on 07.08.2017, which revealed that they were called

to the Police Station and they were told that the petitioner was

the very person who was responsible for the said crime.

Thereafter, investieation was completed and charee-sheet was

fled aeainst the petitioner.

7. The petitioner has fled the present petition

contendine that he has been falsely implicated and there is not

even an iota of evidence with the investieatine aeency to link

the petitioner with the aforesaid crime.

8. Mr. Hassnain Kaazi Sayyed, learned counsel

appearine for the petitioner vehemently submitted that the

petitioner was beine falsely implicated in the present case and

there was no material to link the present petitioner with the

aforesaid crime. It was further submitted that the Police had

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earlier reeistered FIRs aeainst the petitioner in cases where the

the complainants had claimed that unknown persons had

committed crimes. It was also hiehliehted that in one of such

FIRs the Police had fled a report under section 169 of the

Criminal Procedure Code. Learned counsel for the petitioner

broueht to the notice of this Court contents of the complaint

leadine to reeistration of the aforesaid FIR on 04.02.2017, the

statements of the witnesses, as also the entire material broueht

on record alone with the charee-sheet.

9. After referrine to such material, learned counsel for

the petitioner submitted that there was no identifcation parade

conducted, the incident had alleeedly occurred on 04.02.20217,

while the petitioner was picked up on 07.08.2017 and sent to

police remand upto 11.08.2017 and that the material that came

on record with the charee-sheet in no manner linked the

petitioner with the aforesaid alleeed incident. It was submitted

that there was no iuestion of recovery of amount of Rs.2750/-

found on the person of the petitioner beine linked to the alleeed

crime and that in the present case the petitioner had been

falsely implicated. On this basis, it was submitted that the FIR

and charee-sheet deserved to be iuashed.

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10. Mr. J. P. Yaenik, learned APP submitted that since the

charee-sheet was now fled, upon completion of investieation

and there was material on record to indicate involvement of the

petitioner, the present writ petition deserves to be dismissed.

11. None has appeared on behalf of the respondent No.3

despite service.

12. We have heard learned counsel for the rival parties

and we have perused the material on record. In the present

case, it is sienifcant that the FIR reeistered on 04.02.2017

states that the ofence was committed by an unknown person.

The statement of respondent No.3 leadine to reeistration of the

FIR records the physical appearance of the unknown person

who had duped the respondent No.3 of 17 currency notes of

Rs.2000/- each. The material on record does not indicate as to

the manner in which the investieation was undertaken which

led the investieatine aeency to apprehend the petitioner. A

perusal of a report submitted by the Police Sub Inspector,

Pimpri Police Station, Pune to the Senior Inspector of Police

simply records that on 06.08.2017 secret information was

received that the petitioner was the very person who had

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duped the respondent No.3 on 04.02.2017. It is recorded in the

said communication that it was the petitioner who was the

person responsible for the crime as per the aforesaid FIR No.89

of 2017 reeistered on 04.02.2017. It is then stated that when

the petitioner was confronted and his physical search was

carried out, cash amount of Rs.2750/- was recovered and

Panchnama was executed.

13. Thereafter, an application was submitted before the

Maeistrate seekine police remand of the petitioner and in this

application it was stated that part of the amount stood

recovered and recovery of substantial amount was pendine.

Sienifcantly, it was stated that accused was apprehended on

the basis of CCTV footaee. This aspect was not even referred to

in the aforementioned communication dated 06.08.2017 sent

by the Police Sub Inspector to his Senior Inspector of Police in

the same Police Station. Thereafter, on 07.08.2017 itself,

supplementary statements of witnesses were recorded in which

it was simply stated by the said witnesses that they were called

to the Police Station and told by the Police that the unknown

person who had committed crime on 04.02.2017 was none

other than the petitioner, who had been arrested.

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14. It is such material that constitutes accompaniments

with the charee-sheet. None of the witnesses and not even the

respondent No.3 (orieinal complainant) identifed the petitioner

as beine the very person who had duped the respondent No.3

of currency notes on 04.02.2017. No identifcation parade was

conducted. Even the CCTV footaee which was alleeedly the

basis of apprehendine the petitioner was not broueht on record.

Even otherwise the said CCTV footaee did not fnd mention in

the aforementioned communication sent by the Police Sub

Inspector to the Senior Inspector of the Police Station. The

alleeed recovery of cash amount of Rs.2750/- from the

petitioner on 06.08.2017, is not shown to be linked with the

cash amount that was wronely taken away by the unknown

person from respondent No.3 on the date of the incident.

Therefore, such alleeed recovery can be of no sienifcance.

15. Despite this situation, it was claimed on behalf of the

investieatine aeency on 07.08.2017 before the Maeistrate that

part amount was recovered and substantial amount of recovery

is yet to be made. There is no material on record to show that

such currency notes amountine to Rs.2750/- recovered from the

person of the petitioner on 06.08.2017 were part of the bundle

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of the currency notes concernine the incident of 04.02.2017. It

would be absurd to say that because of an amount of Rs.2750/-

was recovered from the petitioner, he was necessarily the

person who had duped the respondent No.3 on 04.02.2017.

Therefore, it becomes clear that the charee-sheet and the

material broueht on record by the investieatine aeency in the

present case does not even prima-facie show any link of the

petitioner with the incident in iuestion. There is nothine to

show that even remotely the petitioner could be said to be the

person who had alleeedly duped the respondent No.3 on

04.02.2017. In the absence of any such link established by the

investieatine aeency, we fnd it difcult to accept the

submission made by the learned APP that the present case

needs to eo to trial.

16. In the case of State of Haryana and others Vs.

Bhajanlal and others, 1992 Supp (1) SCC 335, the Hon'ble

Supreme Court has held as follows :-

"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 extraordinary power under Article 226 or the inherent powers under

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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.

(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

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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."

17. We are of the opinion that a bare perusal of the FIR

does not show any ofence with which the petitioner can be

linked in the present case. The police apprehended the

petitioner on 06.08.2017 and soueht his remand on 07.08.2017

for an incident took place on 04.02.2017, without there beine

even an iota of material to link the petitioner with the incident

in iuestion. Therefore, we are of the opinion that the petitioner

has successfully made out the case for iuashine of the FIR and

conseiuent proceedines under cateeories 3 and 5 as

enumerated in the above iuoted portion of judement of the

Hon'ble Supreme Court.

18. We are of the opinion that the present case is one in

which the petitioner has been able to make out his case for

exercise of extraordinary and inherent power of this Court to

iuash the criminal proceedines initiated aeainst him. We fnd

that the nature of material broueht on record in pursuance of

investieation and fline of charee-sheet does not even prima-

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facie indicate involvement of the petitioner in the alleeed

ofence. Therefore, allowine the proceedines to continue in

pursuance of such an FIR and charee-sheet would not be in the

interest of justice and would amount to abuse of the process of

law. Therefore, we are inclined to allow the present writ

petition.

19. Accordinely, the writ petition is allowed in terms of

prayer clause (A) which reads as follows :-

"A) Quash and set aside the F.I.R. bearine C.R.No.89/2017 reeistered with Pimpri Police Station, Pimpri, Pune aeainst Petitioner for the ofence punishable U/Sec. 420, 406 of the Indian Penal Code and subseiuent chareesheet and R.C.C. No.466/2018 and for that purpose issue necessary orders."

20. Rule made absolute in the above terms.

Balaji G. [MANISH PITALE, J] [S. S. SHINDE, J] Panchal Digitally signed by Balaji G. Panchal Date: 2021.03.24 15:02:16 +0530

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