Bombay High Court
Manish Kirtibhai Patel And Anr vs The State Of Maharashtra on 23 January, 2023
Bench: Nitin W. Sambre, R. N. Laddha
Digitally signed
by CHITRA
SANJAY
CHITRA SONAWANE
SANJAY Date:
SONAWANE 2023.01.25
13:17:47
+0530
Chitra Sonawane.
1
28-WP-303-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.303 OF 2020
1.Manish Kirtibhai Patel
Age 42 years, Occ-Business
2.Shital Manish Patel
Age 42 years, Occ.Housewife
Both residing at 2401,
Ekta Medows,Siddarth Nagar, Borivali(East)
Mumbai-400 066. ... Petitioners.
Versus
1. The State of Maharashtra
2. Bhavana Sandeep Kar
Age Adult, Occ-Nil
resident of - C/2402 Ekta
Medows, Siddarth Nagar, Borivali(East)
Mumbai-400 066. .... Respondents.
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Ms Rupali Shirke, Advocate for the Petitioner.
Mr V. B. Konde-Deshmukh, APP for the Respondent-State.
-----
CORAM: NITIN W. SAMBRE AND
R. N. LADDHA, JJ.
DATE : 23 JANUARY, 2023.
Judgment (Per R.N.Laddha,J.) :-
. Heard learned Counsel for the parties.
2 Rule. The Rule is made returnable forthwith with the
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consent of and at the request of the learned Counsel for the parties.
3. By this petition, under Articles 226 and 227 of the
Constitution of India and Section 482 of the Code of Criminal
Procedure, 1973 (Cr.P.C.), the Petitioners seek the quashing of the
FIR No.38 of 2019, dated 20.1.2019, registered against them at
Kasturba Marg Police Station, Borivali, Mumbai and the
proceedings arising therefrom, on the ground that the ingredients
of Section 79 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to as 'the Act') are not at
all satisfied on the basis of the allegations made in the said
complaint and the material placed on record.
4. It revealed from the record that the Petitioners are the
husband and wife, and the Complainant/Respondent No.2 is their
neighbour. It revealed from the record that the mother of the
alleged victim girl was working with Respondent No.2 as a
maidservant. Further, it revealed from the record that on
completion of investigation, a charge sheet was filed against the
Petitioners, being CC No.5392 of 2019, pending before the learned
Metropolitan Magistrate, 68th Court at Borivali, Mumbai.
5. Ms Rupali Shirke, learned Counsel appearing on behalf of
the Petitioners took us through the FIR as also the statement of the
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witnesses and submitted that there is absolutely nothing on record
to show that the Petitioners either ostensibly engaged the victim
girl and kept her in bondage for the purpose of employment or
withholds her earnings or used such earnings for their own
purposes.
6. It is submitted that the allegations made against the
Petitioners that they engaged the victim girl and kept her in
bondage was nothing but the Complainant's figment of
imagination.
7. It is submitted that at the relevant time the victim girl was 16
years old and had appeared for 10 th Standard examination. Hence,
the victim used to accompany her mother to the residence of the
Complainant. The Petitioners came in contact with the mother of
the victim through her sister Asha who used to work with them.
Sayabai/the mother of the victim girl approached the Petitioners for
monetary help for the education of her victim daughter. The
victim used to come to the petitioner's house to spend time and to
play with the Petitioner's minor children.
8. It is submitted that the bare reading of complaint alongwith
the statement of the mother and the alleged victim girl shows that
no offence is made out against the Petitioners under Section 79 of
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the Act. It is submitted that the consequential investigation, too,
does not impute any criminal act to the Petitioners. It is submitted
that even if, the allegations in the charge sheet are taken as gospel
truth, no offence can be said to have been made against the
Petitioners to warrant their prosecution. The alleged victim girl
has stated that she was neither harassed nor was subjected or forced
to do any hazardous work. The mother of the alleged victim girl
also stated that her daughter used to play with the minor children
of the Petitioners. The learned Counsel for the Petitioners invited
our attention to the affidavit filed by the mother of the alleged
victim girl stating that the Petitioners never harassed her alleged
victim daughter nor forcibly made to do work in their house. It
has been submitted that the present complaint was filed against the
Petitioners out of some vengeance and to settle some personal
grievance by the complainant/Respondent.
9. Mr Konde Deshmukh, the learned Additional Public
Prosecutor conceded that there is nothing on record to make out
the case under Section 79 of the Act against the Petitioners. He
fairly admitted that the ingredients of Section 79 of the Act are
absent in this case. He, however, submitted that all these aspects
should have been gone into the trial. According to him, even
though the inherent powers of the High Court under Section 482
of the Cr.P.C., to interfere with the criminal proceedings are wide,
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such powers have to be exercised with circumspection and only in
exceptional cases. According to him, the instant case can not be
said to be a fit case to exercise extraordinary jurisdiction under
Articles 226 and 227 of the Constitution of India and Section 482
of the Cr.P.C. Further, he submitted that the petition for quashing
of FIR is untenable since the proceedings have gone post the stage
of FIR and have resulted in a charge sheet. In his view, the ofence
committed by the Petitioners is a crime against the Society and not
the Complainant alone. Further, he submitted that the Petitioners
can not insist that this Court ought minutely to examine the
allegations made in the complaint to ascertain as to whether all the
ingredients of the offence are present therein or not.
10. We have given anxious consideration to the rival
contentions and examined the record with reference to the
applicable law.
11. It is settled position of law that while exercising the
powers under Section 482 Cr.P.C., the allegations made by the
witnesses against the accused persons are to be scrutinised on their
face value, taking them to be true and it is not permissible for the
Court to go into the aspect of reliability or credibility or
trustworthiness of the witnesses.
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12. In State of Orissa Vs. Saroj Kumar Sahoo1, it was observed
that when a report is sought to be quashed, it is permissible to look
into the material to assess what the report has alleged and whether
any offence is made out even if the allegations are accepted in toto.
13. Similarly, in State of Haryana Vs. Bhajan Lal2, it was
enunciated that 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, then it is
permissible for the High Court to exercise its inherent powers
under Section 482 of the Cr.P.C.
14. Again, in Pepsi Foods Limited Vs. Special Judicial Magistrate 3
it was observed that summoning of accused, in a criminal case, is a
serious matter and criminal law can not set in motion as a matter of
course. The accused can approach the Court, u/s 482 of the Cr.P.C.
to have the proceedings quashed when the Complaint does not
make out any case against him and he is still required to undergo
the agony of a criminal trial, as the provisions of Section 482 of the
Cr.P.C. are devised to advance justice and not to frustrate it.
15. We need not further multiply the authorities. Suffice it to say
1 (2005)13 SCC 540.
2 1992 Supp(1) SCC 335.
3 (1988) 5 SCC 749.
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that the High Court can very well exercise its inherent powers u/s
482 of the Cr.P. C., if the allegations made in the First Information
Report or complaint or the charge sheet, do not make out any case
against the Accused.
16. The essential ingredients of the offence u/s 79 of the
Act, are that, the person accused of the offenece should have
ostensibly engages a child and keeps him/her in bondage for the
purpose of the employment or withholds his/her earnings or uses
such earnings for his own purposes.
17. On perusal of the charge sheet, it is seen that there is
absolutely nothing to show that the Petitioners either ostensibly
engaged the victim girl and kept her in bondage for the purpose of
employment or withheld her earnings or used such earnings for
their own purposes. Hence, the ingredients of offence u/s 79 of the
Act, are not made out in this case. Moreover, as stated above, the
learned APP has also considered this position. It is settled law that
if allegations made in the charge sheet do not constitute any
offence, the continuance of prosecution in such matters amounts to
abuse of process of law.
18. As regards the contention of the learned Additional
Public Prosecutor that since a charge sheet has been filed, the
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Petitioners have an alternate remedy before the trial Court and this
Court may not exercise its jurisdiction under Section 482 Cr.P.C. is
concerned, it is settled position of law that the High Court can
exercise the jurisdiction under Section 482 of Cr.P.C. even when
discharge application is pending with the trial Court.
19. In Anand Kumar Mohatta Vs. State (Government of
NCT of Delhi)4 it was held in para 17 that,
"There is nothing in words of this Section
which restricts the exercise of the powers of the
Court to prevent the abuse of process of Court
or miscarriage of justice only to the stage of the
FIR. It is settled principle of law that the High
Court can exercise jurisdiction under Section
482 of Cr.P.C. even when the discharge
application is pending with the trial Court.
Indeed, it would be travesty to hold that
proceedings initiated against a person can be
interfered with at the stage of FIR but not if it
has advanced, and the allegations have
materialised into a charge sheet. On the
contrary, it could be said that the abuse of
process caused by FIR stands aggravated if the
FIR has taken the form of a charge sheet after
investigation. The power is undoubtedly
conferred to prevent abuse of process of power
of any Court."
20. In view of this, even if the alternate remedy is available
to the Petitioners, they are entitled to invoke the powers of this
Court u/s 482 of Cr.P.C.
4 (2019) 11 SCC 706.
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21. Given the above, we are of the considered view that the
continuation of the prosecution against the Petitioners would be an
abuse of the process of law and compelling them to undergo the
trial would cause grave injustice. Considering these facts and
circumstances, the petition deserves to be allowed. Hence, the
present criminal writ petition is allowed in terms of prayer clause
(a) which reads thus :
"(a) This Hon'ble Court be pleased to
quash charge sheet filed in FIR No.38 of
2019 dated 16.9.2019 registered at Kasturba
Marg Police Station, Borivali, Mumbai."
22. The Rule is made absolute in the above terms without any
order for costs.
[R. N. LADDHA, J.] [NITIN W. SAMBRE, J.]
