Hasan M. Mushrif vs State Of Maharashtra And Anr
2023 Latest Caselaw 2318 Bom

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         signed by
         SHAGUFTA
SHAGUFTA Q PATHAN
Q PATHAN Date:
         2023.03.13                                             908-WP-ST-4333-2023.doc
         19:04:06
         +0530

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL WRIT PETITION (STAMP) NO. 4333 OF 2023


               Hasan M. Mushrif                               ...Petitioner
                    Versus
               1. The State of Maharashtra
               2. Vivek V. Kulkarni                           ...Respondents


               Mr. Aabad Ponda, Sr. Advocate a/w Mr. Prashant Patil,
               Mr. Swapnil Ambure, Mr. Atit Soni and Mr. Sushant Mhatre for
               the Petitioner

               Mr. J. P. Yagnik, A.P.P for the Respondent No.1-State

               None for the Respondent No. 2

               PSI Mr. K. D. Dhere from Murgud Police Station, Kolhapur, is present


                                       CORAM : REVATI MOHITE DERE &
                                                SHARMILA U. DESHMUKH, JJ.

FRIDAY, 10th MARCH 2023

P.C :

1 Heard learned senior counsel for the petitioner and

learned A.P.P for the State.

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            2           By this petition, the petitioner seeks quashing of the

FIR registered vide C.R. No. 30/2023 (dated 23 rd February 2023),

registered with the Murgud Police Station, Kolhapur. By way of

interim relief, the petitioner prays that no coercive action should

be taken by the respondent No.1 against the petitioner in

connection with the aforesaid C.R; direction to the respondent

No.1, not to file any charge-sheet and to stay all further

proceedings with respect to the aforesaid C.R. The petitioner has

also sought calling of the Police Case Diary of the aforesaid FIR.

3 Learned senior counsel for the petitioner submits that

the FIR lodged as against the petitioner, an ex-Cabinet Minister

of the State of Maharashtra is politically motivated and has been

instituted malafidely, by the respondent No. 2- Vivek Kulkarni, at

the behest of one Mr. Kirit Somaiya. He further submits that

admittedly, the petitioner is not a Director/Promoter/Partner/

Shareholder of M/s. Sar Senapati Santaji Ghorpade Sugar Factory

Ltd. In support of the said submission, learned senior counsel

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relied on the compilation of documents tendered by him, to show

the role of Mr. Somaiya in the registration of the FIR as against

the petitioner. He further submits that the police has registered

the aforesaid FIR in complete contravention of the directions of

the Apex Court in the case of Lalita Kumari vs. Government of

Uttar Pradesh & Ors.1. He further submits that the complaint has

been filed belatedly inasmuch as, according to the complainant,

the petitioner induced him to invest in the said Sugar Factory in

2012 and that the said Sugar Factory had failed to issue share

certificates, as promised. According to the learned senior counsel,

the petitioner had availed of the sugar i.e. 60 kgs every year i.e. 5

kgs every month, as promised.

4 Mr. Ponda, learned senior counsel further submits

that although the respondent No. 2 has claimed that there were

40,000 such people like him, who had invested Rs. 10,000/- with

the said Sugar Factory and have not received the share

certificates, there is a cross FIR lodged by the other persons as 1 (2014) 2 SCC 1

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against the respondent No. 2 with the very same Police Station,

stating that the complainant had falsely involved them in the FIR

lodged by him. Learned senior counsel relied on the said counter

FIR being FIR No. 0032/2023, lodged against the respondent

No.2, which is at Exhibit `I' at page No. 198 of the petition.

5 Learned senior counsel for the petitioner relied on

the judgments of the Apex Court in Neeharika Infrastructure Pvt.

Ltd. vs. State of Maharashtra & Ors.2 and A.P. Mahesh

Cooperative Urban Bank Shareholders Welfare Association vs.

Ramesh Kumar Bung & Ors.3, in support of his submission for

granting interim relief i.e. stay of the investigation or no coercive

action to be taken, etc. He submits that there is no bar to either

staying of the investigation or to grant relief of no coercive steps.

Learned senior counsel relied on para 63 of Neeharika

Infrastructure Pvt. Ltd. (supra), and para 21 of Ramesh Kumar

Bung (supra), which read thus :

2    2021 SCC OnLine 315
3    (2021) 9 SCC 152

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Para 63 of Neeharika Infrastructure Pvt. Ltd.:

"63. As observed hereinabove, there may be some cases where the initiation of criminal proceedings may be an abuse of process of law. In such cases, and only in exceptional cases and where it is found that non interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation. However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e., quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure. There is no denial of the fact that power under Section 482 Cr.P.C. is very wide, but as observed by this Court in catena of decisions, referred to hereinabove, conferment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts."

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Para 21 of Ramesh Kumar Bung :

"21. As rightly pointed out by the learned Senior Counsel appearing for Respondents 1 to 3, Neeharika (supra) certainly allowed space for the High Court to pass an interim order of the nature impugned herein, "in exceptional cases with caution and circumspection, giving brief reasons". What is frowned upon in Neeharika (supra) is the tendency of the courts to pass blanket, cryptic, laconic, non speaking orders reading "no coercive steps shall be adopted". In para 16 of the Report in Neeharika (supra), this Court recognized that there may be allegations of abuse of process of law, converting a civil dispute into a criminal dispute, with a view to pressurize the accused. In the order impugned in these petitions, the High Court has given elaborate reasons as to how the allegations of bank fraud were developed during the proceedings concerning allegations of election fraud. Therefore, the impugned order cannot be said to be bad in the light of Neeharika principles."

6 Learned senior counsel has further made serious

allegations with respect to procurement of the order passed by

the trial Court on 1st April 2022 in Criminal Miscellaneous

Application No. 240/2022, by Mr. Somaiya, on the same day,

despite not being a party to the proceeding, when infact, the

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petitioner took almost four days to secure certified copy of the

said order. He further submits that even a copy of the FIR

registered by the respondent No. 1 at the behest of the

respondent No.2 on 24th February 2023 was made available to

Mr. Somaiya on the very next day, despite the fact, that till date,

the FIR has not been uploaded on the website as mandated. He

submits that the facts i.e. the tweets clearly reveal that the

complaint/FIR is lodged by the respondent No.2, at the behest of

Mr. Somaiya, so that the Enforcement Directorate (`ED') could

commence their investigation, after the registration of the FIR i.e.

the scheduled offence.

7 Learned A.P.P opposed the grant of interim relief.

Learned A.P.P, does not dispute the fact, that no preliminary

inquiry was conducted in the said case, as mandated by the Apex

Court in Lalita Kumari (supra), as the police had after perusing

the complaint, found that a cognizable offence was committed,

and hence, they registered the FIR. When questioned, learned

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A.P.P, on instructions, states that the FIR was not uploaded on

that day and he has no instructions today as to, if at all, the FIR

has been uploaded or not.

8 We have heard the aforesaid petition for

consideration of the interim reliefs as sought for by the petitioner.

Admittedly, the aforesaid FIR i.e. C.R. No. 30/2023 has been

registered at the behest of the respondent No. 2 only as against

the petitioner, an ex-Cabinet Minister of the State of

Maharashtra. Admittedly, the petitioner was never the

Director/Promoter/Partner/Shareholder of the said Sugar Factory,

from its inception till date. According to the respondent No. 2,

the petitioner had made an appeal to the people in 2012, that if

they invested an amount of Rs. 10,000/-, they would not only get

share certificate of the said Sugar Factory but would also get 5 kgs

of sugar every month at a nominal rate and that they would also

be eligible for other benefits. It is the respondent No.2's case that

no share certificates as promised, were issued either to him or to

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others. In this backdrop, the aforesaid complaint came to be filed

by the respondent No. 2 in 2023, as respondent No. 2 felt that he

and others were cheated by the petitioner, by non issuance of

share certificates of the said Sugar Factory.

9 During the course of the hearing of the aforesaid

petition, learned senior counsel appearing for the petitioner has

tendered compilation of documents showing malafides and how

the FIR came to be lodged by the respondent No. 2, at the behest

of Mr. Somaiya. The said compilation of documents consists of

various tweets made by Mr. Somaiya from 14 th September 2021,

when he went to the Office of the ED and asked the ED to carry

out investigation against the petitioner and his shell companies.

There are several tweets which were relied upon to show how the

petitioner was being targeted by the said person. In one of the

tweets, Mr. Somaiya has stated that he would be meeting the

Officials of the Income-Tax and Company Ministry, to pursue

the money laundering scam of the petitioner. In one of the tweets

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dated 1st April 2022, Mr. Somaiya has mentioned about the action

taken by the Government of India against the petitioner's family.

It is stated that the Government of India has filed a Complaint

Petition at Pune Court and that actions were requested under

Sections 447 and 439 of the Companies Act against the

petitioner's family. The entire copy of the complaint has been put

up on the said tweet dated 1st April 2022 along with the copy of

the order dated 1st April 2022 passed by the learned District

Judge-1, Pune, issuing process as against accused Nos. 1 to 9 (not

the petitioner) for the offence punishable under Section 447 of

the Companies Act.

10 On perusal of the said tweets/documents, it is evident

that the order issuing process by the learned District Judge-1,

Pune dated 1st April 2022 was put up by Mr. Somaiya on his

tweet on the very same day i.e. 1 st April 2022 at 7:39 p.m.

Admittedly, Mr. Somaiya is not a complainant in the said case.

According to the learned senior counsel for the petitioner, the

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accused therein, had applied for a certified copy of the order

dated 1st April 2022 on 2nd April 2022 and had received the

certified copy of the same, only on 5 th April 2022, pursuant to

which, the same was challenged by the accused before this Court.

Learned senior counsel submitted that hence, under what

circumstances the order dated 1st April 2022 got leaked, when the

order was not uploaded on that day i.e. 1 st April, the date on

which Mr. Somaiya put up the said order on his tweet, despite

Mr. Somaiya not being a party to the said proceeding. He

submits that this needs to be gone into. It is indeed a matter of

concern, how the order dated 1 st April 2022, if it had not been

uploaded on 1st April 2022 by the trial Court, was leaked/made

available, to a third party.

11 It is not in dispute that the order dated 1 st April 2022

was challenged by the accused therein, before this Court by way

of Writ Petition Nos. 1157/2022 and 1178/2022 and that this

Court (Coram : N. J. Jamadar, J.) vide order dated 2 nd May 2022,

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after passing a reasoned order, observed in para 18 that arguable

questions were raised and that a prima facie case was made out

for granting the interim relief and accordingly stayed the

proceeding i.e. Special Case No. 240/2022, pending before the

Special Judge, Pune.

12 As far as the present FIR is concerned, it prima facie

appears from the documents submitted by the learned senior

counsel for the petitioner that Mr. Somaiya, in his tweet dated

22nd February 2023, had stated that he was going to visit

Kolhapur and meet the farmers and others including the

Kolhapur Sahakari Bank officials/staff. The schedule of

Mr. Somaiya's program was set-out in the said tweet, which is at

page 231 of the additional compilation. It appears from the said

schedule that on 23rd February 2023, Mr. Somaiya was to meet

the farmers at 11:30 a.m. The aforesaid FIR has been registered

on 24th February 2023 at about 15:17 hours. As far as the said

FIR is concerned, the same was immediately put up by

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Mr. Somaiya on his tweet at 8:25 a.m on 25 th February 2023,

alongwith the copy of the FIR. The said tweet is at page 232 of

the additional compilation.

13 When questioned, as to when the copy of the FIR was

sent to the Magistrate as mandated by law, learned A.P.P, on

instructions of the Officer, who is present in Court, submits that

the copy of the FIR was sent to the Magistrate on 1 st March 2023

i.e. after 4 days of the registration of the FIR. Further, when

questioned, learned A.P.P, on instructions, states that the FIR was

not uploaded on the website on the same day and that today, he

is not able to make a statement as to when the same was

uploaded.

14 It is the categoric assertion of the learned senior

counsel appearing for the petitioner that they have checked the

website and that till date, the FIR has not been uploaded by the

police. From the aforesaid, it appears that Mr. Somaiya had

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received a copy of the FIR on the very next date of the

registration of the FIR i.e. on 25 th February 2023, as is evident

from his tweet.

15 It also prima facie appears that the complaint/FIR

lodged by the respondent No. 2 on 24 th February 2023, was

registered by the police, without complying with the mandate laid

down by the Apex Court in Lalita Kumari (Supra). The relevant

paragraph with which we are concerned reads thus :

"120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

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The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry."

16 Having regard to the fact that the allegation was of

2012, prima facie, we are of the opinion that the police should

have atleast conducted some preliminary inquiry into the same.

17 It also appears that the respondent No. 2 has filed the

aforesaid FIR, stating that apart from him, there are 40,000 other

people who have been cheated. In this context, learned senior

counsel for the petitioner relied on the FIR, which is at Exhibit-I

at page 198 of the petition, lodged by the other farmers as against

the complainant i.e. respondent No. 2 on 25 th February 2023, on

the very next day. It appears that in the said FIR, it is alleged that

the complainant i.e. respondent No. 2 had falsely alleged that

they too were cheated. It appears that the said persons have not

supported the claim of the respondent No. 2. The said C.R is,

C.R. No. 32/2023 lodged with the very same police station.

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            18           Having heard learned senior counsel for the petitioner,

            issue notice to the respondents,     returnable on 29th April 2023.

Learned A.P.P waives notice on behalf of respondent No.1-State

and seeks time to take detailed instructions.

19 In addition to Court notice, petitioner to serve the

respondent No.2 by private notice and file an affidavit of service

before the returnable date.

20 The advocate on record for the petitioner to supply spare

copy in the Registry within two weeks from today, if not already

supplied, so as to enable the Registry to issue notice to the

respondent No.2, failing which, petition to stand dismissed for non-

prosecution, without further reference to the Court.

21 Having heard learned senior counsel for the

petitioner, and after observing as aforesaid, in the facts, we deem

it appropriate to pass the following ad-interim order :

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                 (i)    We   direct   the    police   to   continue      with   the

investigation, however, not to file charge-sheet against the

petitioner, till the next date.

(ii) No coercive steps be taken against the petitioner, till

the next date.

22 Having heard learned senior counsel for the

petitioner and the manner in which the order dated 1 st April

2022 (although pronounced) was allegedly leaked, we deem it

appropriate to direct the Principal District Judge, Pune, to

conduct an inquiry as to whether the copy of the said order was

made available to any person on the very same day; whether the

order was uploaded on 1st April 2022 itself and whether the same

could have been made available, without issuing a certified copy

of the order, and to submit a report on or before the next date.

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            23         Learned A.P.P to also file an affidavit as to how the

FIR copy, when it was not uploaded on the website, was leaked

and also when the FIR was uploaded on the website.

            24         Stand over to 29th April 2023.




            25         Registry to forthwith communicate the order passed

today to the learned Principal District Judge, Pune, either

telephonically/fax/e-mail, so as to enable the learned Principal

District Judge to submit his report.

25 All concerned to act on the authenticated copy of this

order.

SHARMILA U. DESHMUKH, J. REVATI MOHITE DERE, J.

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