Bombay High Court
Kailash Baburao Maind vs The State Of Maharashtra And ... on 6 June, 2023
Bench: V. V. Kankanwadi, Y. G. Khobragade
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.266 OF 2022
WITH
CRIMINAL APPLICATION NO.879 OF 2023
IN CRIMINAL WRIT PETITION NO.266 OF 2022
Kailash s/o Baburao Maind
Age: 44 years, Occu.: Business,
R/o. B-408, Hari Vihar Housing
Society, Jail Road, Near Bacchav
Class, Narayan Bapu Nagar,
Nashik - 422101. .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Department of Home,
Mantralaya, Mumbai-32.
2. The Inspector General of Police,
Nashik Division, Nashik.
3. The Superintendent of Police,
Ahmednagar, Dist. Ahmednagar.
4. The Police Station, Shirdi,
Tq. Rahata, Dist. Ahmednagar,
Through its Police Inspector.
5. Mr. Gulabrao Patil,
Age: 52 years, Occu.: Service as
Police Sub Inspector, Police Station,
Shirdi, Tq. Rahata, Dist. Ahmednagar.
6. Pravin Datre
Age: 47 years, Occu.: Service as
Police Sub Inspector, Police Station,
Shirdi, Dist. Ahmednagar.
7. Prashant s/o Suresh Mundlik,
Age: 37 years, Occu.: Business,
(1)
::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 01:28:07 :::
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
R/o. Rahata, Tq. Rahata,
Dist. Ahmednagar.
8. Sagar s/o. Suresh Mundlik,
Age: 32 years, Occu.: Business,
R/o. Rahata, Tq. Rahata,
Dist. Ahmednagar.
9. Bhagwan s/o Rajaram Chavan,
Age: 60 years, Occu.: Business,
R/o. Bhaji Mandai, Shirdi,
Tq. Rahata, Dist. Ahmednagar
10. Amol Bhausaheb Borade
Age: 35 years, Occu.: Business,
R/o. Bhaji Mandai, Shirdi,
Tq. Rahata, Dist. Ahmednagar. .. Respondents
...
WITH
CRIMINAL WRIT PETITION NO.420 OF 2023
1. Sagar s/o Suresh Mundlik
Age: 32 years, Occu.: Business,
2. Prashant s/o Suresh Mundlik
Age: 36 years, Occu.: Business,
Both r/o. Rahata,
Tq. Rahata, Dist. Ahmednagar .. Petitioners
Versus
1. The State of Maharashtra
Through the Special Inspector General
of Police, Nasik Region, Nasik.
2. The Superintendent of Police, Ahmednagar.
3. The Police Inspector,
Shirdi Police Station, Shirdi,
Tq. Rahata, Dist. Ahmednagar.
4. The Police Sub-Inspector/Investigation Officer,
Shirdi Police Station, Shirdi,
Tq. Rahata, Dist. Ahmednagar.
(2)
::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 01:28:07 :::
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
5. Kailas s/o Baburao Maind
Age: 45 years, Occu.: Business,
R/o. 408B, Hari Vihar Housing Society,
Narayan Bapu Nagar, Nasik Road, Nasik,
Tq. and Dist. Nasik. .. Respondents
...
WITH
CRIMINAL APPLICATION NO.4436 OF 2022
IN CRIMINAL WRIT PETITION NO.266 OF 2022
1. Sagar s/o Suresh Mundlik
Age: 32 years, Occu.: Business,
2. Prashant s/o Suresh Mundlik
Age: 36 years, Occu.: Business,
Both r/o. Rahata,
Tq. Rahata, Dist. Ahmednagar .. Petitioners
Versus
1. The State of Maharashtra
Through the Police Inspector,
Shirdi Police Station, Tq. Rahata,
Dist. Ahmednagar.
2. Kailas s/o Baburao Maind
Age: 45 years, Occu.: Business,
R/o. 408B, Bari Vihar Housing Society,
Narayan Bapu Nagar, Nasik Road,
Nasik, Tq. and Dist. Nasik. .. Respondents
...
Mr. V. D. Sapkal, Senior Counsel i/b Mr. Yuvraj S. Choudhari,
Advocate for petitioners in Criminal Writ Petition No.266 of 2022 and
in Criminal Application No.879 of 2023.
Mr. R. S. Deshmukh, Senior Counsel i/b Mr. R. C. Bora, Advocate for
petitioners in Criminal Writ Petition No.420 of 2023 and Criminal
Application No.4436 of 2022.
Mr. Ashok A. Mundhe, Advocate for respondent Nos.9 and 10 in
Criminal Writ Petition No.266 of 2022.
Mr. R. D. Sanap, APP for respondent - State in all the matters.
...
(3)
::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 01:28:07 :::
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
CORAM : SMT. VIBHA KANKANWADI AND
Y. G. KHOBRAGADE, JJ.
RESERVED ON : 2nd May, 2023.
PRONOUNCED ON : 6th June, 2023.
JUDGMENT :- (Per Smt. Vibha Kankanwadi, J.)
. All these petitions are between the same parties and arising out
of the same set of facts, however, after hearing the submissions,
when disinclination is shown to grant any relief that has been
claimed in Writ Petition No.420 of 2023, which was filed for
directions, learned Senior Counsel Mr. R. S. Deshmukh instructed by
learned Advocate Mr. R. C. Bora for the petitioners seeks withdrawal
of the petition. Accordingly, the Writ Petition No.420 of 2023 stands
disposed of as withdrawn.
2. As regards the other three matters are concerned, Writ Petition
No.266 of 2022 has been filed by the original informant, who has
lodged FIR vide Crime No.25 of 2022 on 28.01.2022 with Shirdi Police
Station, Dist. Ahmednagar, praying that the investigation be handed
over to another agency and certain Sections of Indian Penal Code to
be added to the said FIR. In connection with the same, Criminal
Application No.879 of 2023 has been filed for permitting the
petitioner - original informant to bring certain documents on record.
Criminal Application No.4436 of 2022 has been filed by the original
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
accused persons seeking quashment of the FIR under Section 482 of
the Code of Criminal Procedure, which has been lodged by the
petitioner in Writ Petition No.266 of 2022 i.e. original informant vide
Crime No.25 of 2022 with Shirdi Police Station, Dist. Ahmednagar for
the offences punishable under Sections 454, 380, 427 read with
Section 34 of Indian Penal Code.
3. Heard learned Advocate Mr. V. D. Sapkal, Senior Counsel
instructed by learned Advocate Mr. Yuvraj S. Choudhari, Advocate
for petitioners in Criminal Writ Petition No.266 of 2022 and for
applicants in Criminal Application No.879 of 2023, learned Advocate
Mr. R. S. Deshmukh, Senior Counsel instructed by learned Advocate
Mr. R. C. Bora, Advocate for petitioners in Criminal Writ Petition
No.420 of 2023 and for applicants in Criminal Application No.4436 of
2022, learned Advocate Mr. Ashok A. Mundhe, Advocate for
respondent Nos.9 and 10 in Criminal Writ Petition No.266 of 2022
and learned APP Mr. R. D. Sanap for respondents - State in all the
matters.
4. It has been vehemently submitted by learned Senior Counsel
Mr. V. D. Sapkal instructed by learned Advocate Mr. Y. S. Choudhari
for the original informant that the property bearing Gat No.394
situated at Shirdi, Tq. Rahata and Dist. Ahmednagar is the house
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
property and it was purchased in the name of the petitioner and his
wife Pramila. The said property is situated near the temple of Shri.
Sai Baba. They had decided to purchase the residential premises at
Shirdi and therefore, the suit property, which was admeasuring 50.07
square meters, was purchased by them in the year 2018 from one
Quadri. Since then they are in possession of the house property. In
2018, the petitioners had decided to construct lodging over the said
house property. They were approached by one Swapnil Pardhe for
construction of commercial complex on the said property. It was
then told that he is willing to purchase two shops on behalf of
accused Nos.7 and 8. The deal was fixed. As the petitioners were in
need of money to construct the commercial complex, they decided to
sell 40 square meters out of 50.07 square meters to original accused
Nos.1 and 2. The total construction of 69.03 square meters out of total
92.04 square meters was to be given to original accused Nos.1 and 2.
The sale-deed was executed between the wife of the petitioner and
accused Nos.7 and 8 on 28.09.2018, however, incident took place on
29.12.2021. Prior to that, original accused Nos.1 and 2 had
approached the Civil Court and they had prayed for injunction,
which was rejected by the Court. On 29.12.2021, around 10.30 a.m., it
was informed to the informant, who ordinarily resides at Nashik that
accused Nos.1 and 2 had come along with their associates. They
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
broke open the house of the informant and by committing trespass
they had demolished the wall of the house and articles worth
Rs.67,000/- (of which details have been given in the FIR) have been
stolen by them. In respect of the said incident he therefore lodged
the said FIR, but it has also a story. The neighbours of the informant
at Shirdi had informed about the incident to the informant on the
same day and, therefore, the petitioner had come to Shirdi
immediately. Police authorities are not ready to take his FIR and
therefore, the petitioner had filed online complaint on 30.12.2021.
Thereafter, petitioner had approached the Inspector General of
Police, Nashik Division, Nashik with the request that his FIR should
be recorded. After great persuasion the police authorities had then
taken the said written complaint after about a month i.e. on
28.01.2022 at 1.26 a.m. The delay in lodging the FIR is due to the
police machinery. It has been further submitted by the learned
Senior Counsel appearing for the original informant that though the
original accused Sagar Mundlik had lodged Regular Civil Suit No.376
of 2018 for injunction, the wife of the petitioner came to be added as
party defendant in the suit at the later stage. Summons was not
received by the wife of the petitioner. She had not even engaged
Advocate Mr. A. S. Nikale, however, the documents with the Civil
Court would show that she had engaged the said Advocate and even
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
filed written statement on her behalf. The signatures on the
Vakalatnama as well as on the written statement is not of the wife.
The matter proceeded ex parte. Examination-in-chief of Sagar
Mundlik was taken on record. The affidavit at the behest of Pramila
was sworn before the Court under her signature on 02.03.2019 and
that document came to be filed before the Court, however, the said
person is not the wife of the petitioner. The application Exhibit-05
seeking temporary injunction came to be allowed by the Court by
order dated 16.03.2019. It appears that by impersonating the wife of
the petitioner all those things have been got done. That amounts to
playing fraud upon the Court. The learned Senior Counsel has taken
us through those documents which according to him are the
suspected documents before the Civil Court and also he has taken us
through the complaint that was lodged by Advocate Mr. Nikale with
the Bar Council of Maharashtra and thereafter the said Advocate Mr.
Nikale has lodged FIR against original accused Nos.1, 2 and unknown
lady with Rahata Police Station, Dist. Ahmednagar vide Crime No.227
of 2023 for the offences punishable under Sections 467, 468, 471, 419,
420 read with Section 34 of Indian Penal Code on 17.04.2023.
Learned Senior Counsel for the original informant, therefore,
submits that when all these things were going on, it is quite clear that
the police authorities have not investigated the matter properly. They
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
were not justified in not registering the FIR of the petitioner and they
are unnecessarily protecting the original accused Nos.1 and 2 and,
therefore, the investigation needs to be handed over to some
different agency and also it is necessary to add Section 166 and 167 of
the Indian Penal Code to the FIR vide Crime No.25 of 2022 against the
police authorities at Shirdi. In connection with the same in the
application for production of documents i.e. Criminal Application
No.879 of 2023, it has been prayed that the Roznama, summons copy,
complaint application by the wife of the informant to the Bar Council
of Maharashtra should be allowed to be brought on record in this
writ petition.
5. The learned Senior Counsel Mr. R. S. Deshmukh instructed by
learned Advocate Mr. R. C. Bora for the original accused Nos.1 and 2
vehemently submitted that the informant's wife has sold the said
property to the applicants (original accused Nos.1 and 2) (hereinafter
referred to as original accused Nos.1 and 2). When the wife of the
informant was no longer the owner of the property, there was no
question of committing theft by the owner themselves and also the
house trespass. The wife of the informant has not lodged any report
with the police. Now, the investigation is over and charge-sheet is
also filed, therefore, there is no question of handing over the
investigation to any other agency. Perusal of the entire charge-sheet
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
would show that no document has been produced to show that the
ownership of the stolen articles was with the wife of the informant.
Informant is a Hindu, yet the list of the stolen articles would show
that there was a book of Quran. Definitely, those articles appear to
be of the erstwhile owner Quadri, who might have left those articles
there itself. When the sale-deed was executed, the possession of the
entire property was given. Therefore, when the possession of all
those articles was with the original accused Nos.1 and 2, they can't be
branded as thieves. All these things were noted by the Civil Court
when the temporary injunction was granted. Regular Civil Suit No.94
of 2020 was filed on 07.03.2020 and it was against one Bhagwan
Rajaram Chavan and Amol Bhausaheb Borade, who were raising
obstruction. The said suit came to be decreed on 07.07.2021 against
those persons. When they were still obstructing, accused No.2 filed
Regular Darkhast No.22 of 2021 and sought police protection for
carrying out the repairs. That application was also allowed by the
competent Civil Court and accordingly, the necessary charges were
deposited on behalf of the accused with the police authorities.
6. The learned Senior Counsel for original accused Nos.1 and 2
have taken us through the seizure panchanama dated 01.02.2022
wherein it is said that witness Amol Bhausaheb Borade had shown
the police authorities where the stolen articles have been kept. He is
( 10 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
the same defendant No.2 in R.C.S. No.94 of 2020. How he came to
know about the alleged place is a mystery. It is shown in the said
seizure panchanama that those articles were kept in a tin shed. If we
consider his statement under Section 161 of the Code of Criminal
Procedure, he is rather claiming ignorance by saying that he was not
knowing the informant or his wife. Under such circumstance, then
how he has been brought in picture can only be seen from the fact
that there appears to be some domestic dispute between him and
accused No.2. Accused No.2's wife is the cousin sister of Amol Borade.
When his statement was recorded on 28.01.2022, he totally claimed
ignorance about the incident where the stolen articles would have
been taken, but then the seizure panchanama dated 01.02.2022
which is a handwritten and the date has its own corrections, shows
that he has shown the said place. Then another statement of said
Amol Borade has been taken on 01.02.2022, which appears to be the
supplementary statement and then it is said that he came to know
about the fact that where the articles have been kept. It is then said
that he had taken one room which is in the name of accused Nos.1
and 2 and discovered about 14 articles. Said Mehboob Shahnawaz
Quadri, who was the earlier owner, in his statement under Section
161 of the Code of Criminal Procedure dated 05.02.2022 stated that
when he had sold the house to informant, at that time, his certain
( 11 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
articles and documents were there in the said premises, which was
sold. All these facts would cover that a false case has been registered
and it would be injustice to the applicants - original accused Nos.1
and 2 to face the trial and, therefore, he prayed for quashment of the
FIR. He also prayed for the dismissal of writ petition, which has been
filed by the informant.
7. At the outset, we would like to deal with Criminal Application
No.4436 of 2022 first. It is not in dispute that by sale-deed dated
28.09.2018 accused Nos.1 and 2 purchased 40 square meters out of
50.07 square meters from City Survey No.394 situated at Shirdi, Tq.
Rahata, Dist. Ahmednagar. If we consider the copy of the sale-deed,
then it can be seen that the said portion which was sold i.e. 40 square
meters had the Property No. (Old) 1-262-0 and (New) A3000027,
which was also having 69.03 square meters tin shed out of 92.04
square meters. The boundaries have been given as towards east
there is property of one Shejwal, towards south there is road,
towards west there is 9 meter road and towards north the office of
Shirdi Nagari Patsanstha. Interesting point to be noted is that while
describing the said property which was sold i.e. 40 square meters
where the rest of the property i.e. 10.07 square meters was situated is
not stated in the said description by boundaries. The sale-deed also
bears the clause of handing over the possession. Under such
( 12 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
circumstance, if we take the document as it is, which is admitted, the
wife of the informant has sold the said property and given it in
possession to accused Nos.1 and 2. When the notice of this
application under Section 482 of the Code of Criminal Procedure has
been given to respondent No.2 - informant, he has not filed any such
document to show that what was there in the remaining property
and if we consider the contents of his Criminal Writ Petition No.266
of 2022, then how he was supposed to build a shopping complex in
10.07 square meters, would be a question. Though we are not
required to go into those aspects the fact thus remains. Further, we
will have to take note of the fact that earlier accused Nos.1 and 2 had
filed Regular Civil Suit No.94 of 2020 before the learned Joint Civil
Judge Junior Division, Rahata against said Bhagwan Rajaram Chavan
and Amol Bhausaheb Borade contending that they are raising the
obstruction to the possession of the plaintiffs therein. If we consider
the copy of the judgment in Regular Civil Suit No.94 of 2020, the 40
meters area was the suit property. In spite of issuing summons, the
defendants therein did not appear and therefore, the said suit came
to be decreed ex parte on 07.07.2021. It appears that the said decree
was never challenged by the defendants therein or even the present
informant and his wife. Further, there was also Regular Civil Suit
No.336 of 2018 filed by original accused Nos.1 and 2 against the wife
( 13 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
of original informant and the copy of the order below Exhibit-05 has
been given. The temporary injunction was granted on 16.03.2019 in
respect of the possession of the plaintiff therein i.e. accused No.1
against the wife of respondent in respect of 40 square meters area
which she had sold to him. Now, the contention is raised and the
documents are produced on record stating that the Advocate who
was representing her in the said suit was never engaged by her and it
is said that by impersonating her, the said order has been obtained.
Even the FIR has been lodged by the said Advocate vide Crime No.227
of 2023, but certainly there appears to be huge delay and the said FIR
appears to be the outcome of the complaint lodged by the wife of the
informant against the concerned Advocate before the Bar Council of
Maharashtra. That FIR is not the subject matter in this case, but the
fact remains is that such facts have taken place after the alleged
incident. We are more concerned with the alleged incident.
8. As regards the incident is concerned, the informant is not the
eye witness. Now, the investigation is over and entire charge-sheet is
before this Court. The supplementary statement of the informant has
been recorded on 29.01.2022. It is in fact a somersault to the
documents of sale-deed and even the FIR and also it is not in
consonance with the contentions raised in criminal writ petition by
the informant. No doubt, in his supplementary statement also he
( 14 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
admits that 40 square meters area was sold by his wife to accused
Nos.1 and 2 on 28.09.2018, but then he comes with the case that there
was an agreement executed on the same date, wherein it was agreed
that a shop should be erected 13 feet above the ground level and the
entire expenses as well as all necessary permissions would be
brought by the informant, however, one Sindhubai Ulhas Salve
lodged civil suit against the wife of the informant as well as accused
Nos.1 and 2 and, therefore, no construction has been made by them
and even the possession has not been given by them to the accused.
At the cost of repetition, the sale-deed contains a specific note of
handing over of the possession on the date of sale-deed. Further, if
there was no construction at all in the said 40 square meters area,
then where the construction was, of which the wall was allegedly
demolished by accused Nos.1 and 2. Description of a structure made
up on cement, bricks i.e. concrete is not appearing in sale-deed or
even FIR or even the supplementary statement. The statement of the
wife of the informant has been recorded on 08.02.2022 and she is
also now saying that she had not handed over the possession of the
premises, which were sold to the accused Nos.1 and 2. No doubt, this
is not a Civil Court which can go into the further aspects of the
matter, but still the question that remains is if those persons wanted
to enter into an agreement of development or agreement for
( 15 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
construction and then sale, then why the sale-deed was executed.
Why there should be two separate documents i.e. sale-deed as well as
agreement, those are the obvious questions which are arising in this
case. There is statement of one Tushar Shejwal recorded on
22.02.2022. In his statement, he has stated that the said property in
question was in fact purchased by his grandmother from Dr. Quadri
and then her grandmother had sold it to informant and then
informant sold it to accused Nos.1 and 2. No doubt, it appears that he
is resident of Shirdi, but why he should know about the transactions
between the informant and accused Nos.1 and 2 is a question, but
still he appears to be the witness who had seen that the accused
Nos.1 and 2 were taking the articles in two tempos. He then states
that the articles were belonging to the informant. Thereafter there
are statements of two witnesses, who are the owners of the tempo,
who were stated to be engaged by the accused persons. Thus, it is to
be noted that except said Shejwal nobody else is the eye witness.
9. The charge-sheet which is the outcome of the investigation of
Crime No.25 of 2022 would raise so many questions i.e. doubtful
circumstances those have been already referred earlier. Still, in the
nutshell, the role played by Amol Bhausaheb Borade raised
questions. He was defendant No.2 against whom the accused Nos.1
and 2 had filed the suit. In his statement, he claimed ignorance, but
( 16 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
then surprisingly in the supplementary statement, he comes up with
the case that he knows the place where the articles have been kept
and the seizure has been effected. If we consider the list in the
seizure panchanama, article Nos.1, 2 and 3 appear to be the
documents of Dr. Quadri, the earlier owner, who in his statement
under Section 161 of the Code of Criminal Procedure, admits that he
had left certain documents belonging to him in the premises itself.
The other articles are the household articles and there is absolutely
no such mark which would show the ownership thereof.
Interestingly, the seizure panchanama at the end bears a signature of
the person from whose possession the articles have been seized, but
whose signature it is, has not been written on the same. So also, it
raises a question under which provisions of law the said
panchanama can be held to be admissible. Said Amol Borade, who
allegedly showed the articles, cannot be the person in whose custody
those articles were. None of the accused were present in the said
premises at that time. There is no documentary evidence as to
exactly where the said shed is situated and who is the owner of the
same. Merely because the said witness i.e. Amol Borade was saying
that the said shed belong to accused No.1, it appears that the seizure
has been effected. The investigating officer appears to have not
taken steps to call accused No.1 at the said place. It is also stated that
( 17 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
the shed had wooden door and there was a latch to it which was
opened by the witness namely Amol Borade. Therefore, all these
things are suspicious. If we consider the statement of both the
drivers of the tempo, who were allegedly engaged on 29.12.2021, they
have stated that the owner is one Sachin Bendre, who directed them
to go to Shirdi as the articles from the house of accused Nos.1 and 2
are required to be shifted. Accordingly, they went to the place, took
the articles and it is stated that some of the articles were taken to
Kalika Nagar, Shirdi and some articles were taken to Rahata. Now,
they have not explained which was the place at Rahata. Therefore,
their statement cannot be tagged with seizure panchanama dated
01.02.2022. Further, as aforesaid both of them have stated that the
instructions were to transport the articles belonging to accused Nos.1
and 2. They have stated that they had gone to Sonargalli in Shirdi
from where articles were loaded. If we consider the sale-deed, there
is no mention of Sonargalli while describing the said property.
Therefore, independently if we consider whatever the investigation
has been done and the charge-sheet is now produced, it will not
attract the ingredients of Section 454, 380, 427 of Indian Penal Code.
Therefore, the case definitely fits in the parameters in State of
Haryana and others Vs. Ch. Bhajanlal and others, [AIR 1992 SC
604]. We would like to further rely on the decision in Sri.
( 18 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
Sureshkumar Goyal Vs. State of U.P., (2019) 14 SCC 318, wherein
the decision in Rajiv Thapar Vs. Madan Lal Kapoor, (2013) 3 SCC
330 has been referred, wherein in addition to parameters laid down
in Ch. Bhajanlal (Supra), following factors have been considered :-
"30. Based on the factors canvassed in the
foregoing paragraphs, we would delineate the
following steps to determine the veracity of a prayer
for quashment raised by an accused by invoking the
power vested in the High Court under Section 482
Cr.P.C.
30.1. Step one : whether the material relied upon
by the accused is sound, reasonable and indubitable
i.e. the material is of sterling and impeccable
quality?
30.2. Step two : whether the material relied upon
by the accused would rule out the assertions
contained in the charges levelled against the
accused i.e. the material is sufficient to reject and
overrule the factual assertions contained in the
complaint i.e. the material is such as would
persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as
false?
30.3 Step three : whether the material relied
upon by the accused has not been refuted by the
production/complainant; and/or the material is such
( 19 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
that it cannot be justifiably refuted by the
prosecution/complainant?
30.4 Step four : whether proceeding with the
trial would result in an abuse of process of the
Court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the
affirmative, the judicial conscience of the High
Court should persuade it to quash such criminal
proceedings in exercise of power vested in it under
Section 482 Cr.P.C. Such exercise of power, besides
doing justice to the accused, would save precious
court time, which would otherwise be wasted in
holding such a trial (as well as proceedings arising
therefrom) specially when it is clear that the same
would not conclude in the conviction of the
accused."
Therefore, Criminal Application No.4436 of 2022 deserves to be
allowed.
10. We are aware that there were certain civil litigations in respect
of the property, but still the civil litigation was not in respect of
questioning the ownership of the original accused Nos.1 and 2 over
area of 40 square meters, which is sold by the wife of the informant
under the said registered sale-deed. Another important fact is that in
the FIR, the informant is totally silent regarding the alleged
agreement of the same date i.e. 29.12.2021 as well as it is absent in
( 20 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
his written complaint dated 31.12.2021 given to the Inspector General
of Police, Nashik Division, Nashik and also on the point that the
possession of the sold property was not handed over to the accused
Nos.1 and 2. Therefore, there is no hurdle for this Court to exercise
the powers under Section 482 of the Code of Criminal Procedure.
One more aspect that has been tried to be brought on record is the
fact that the alleged impersonation of the wife of informant and the
action taken by the learned Advocate. At the cost of repetition, we
would like to say that the learned Advocate has taken that action
after the complaint was lodged against him with the Bar Council of
Maharashtra. The identity of the another lady is yet to be established
and furthermore, the Court had further proceeded in the matter. As
on today, the Civil Court had held that the summons has been duly
served on the defendant therein. On these points, the application
under Section 482 of the Code of Criminal Procedure cannot be
rejected.
11. Now, turning towards the criminal writ petition filed by the
informant as well as his application for production of documents, as
regards production of documents is concerned, it is in respect of the
production of the summons of Regular Civil Suit No.336 of 2018. Said
copy of the summons bears the signature and also report of the
bailiff. Therefore, there is prima facie thing before us. Even if that
( 21 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
production is allowed, it would be in respect of the other facts which
were not pleaded in the FIR in question. When those documents are
not connected with the facts in question i.e. FIR vide Crime No.25 of
2019, production of the documents is not necessary.
12. The charge-sheet is now already filed which we have already
considered and, therefore, the prayer clause 'C' in Criminal Writ
Petition No.266 of 2022 is become redundant. Another factor to be
noted is that there are no pinpointed allegations against the police
authorities. Merely because there was delay of one month in
registering the FIR, the investigation cannot be handed over to
another agency. One more aspect to be considered from the copy of
the charge-sheet that has been made available that the investigation
appears to have been done by PSI Yogita S. Kokate, as many
statements under Section 161 of the Code of Criminal Procedure have
been recorded by her. Respondent No.5 in criminal writ petition
appears to be the in-charge police officer, but the charge-sheet is
under the signature of said PSI Yogita Kokate. She has not been made
party to the criminal writ petition and no allegations are made
against her. On this count also, there is no substance in the prayer
for handing over the investigation to any other agency. So also
question of addition of Section 166 and 167 of the Indian Penal Code
against the police authorities cannot arise. Such offence cannot be
( 22 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
included in vague, unless it is pointed out who has committed that
offence. The contentions in the criminal writ petition are totally
vague and, therefore, the said writ petition along with the application
for production of document deserves to be rejected.
13. For the aforesaid reasons, we proceed to pass the following
order :-
ORDER
I) Criminal Writ Petition No.420 of 2023 stands
disposed of as withdrawn.
II) Criminal Application No.4436 of 2022 stands
allowed.
III) The FIR bearing Crime No.25 of 2022 dated
28.01.2022 registered with Shirdi Police Station, Tq.
Rahata, Dist. Ahmednagar for the offences punishable
under Sections 454, 380, 427 read with Section 34 of
Indian Penal Code as well as the proceedings bearing
R.C.C. No.07 of 2023 pending before the learned Judicial
Magistrate First Class, Rahata, Dist. Ahmednagar, stand
quashed and set aside, as against the applicants in
Criminal Application No.4436 of 2023.
( 23 )
wp-266-2022, appln-879-23, wp-420-23 and appln-4436-2022.odt
IV) Criminal Writ Petition No.266 of 2022 with Criminal
Application No.879 of 2023 stand rejected.
[ Y. G. KHOBRAGADE ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
( 24 )
