The Bombay High Court recently comprising of a bench of Justices Ravindra V. Ghuge & B.U. Debadwar held that the Court, under section 482 of Cr Pc, would investigate whether the allegations in the case include the requisite elements of a crime. If the face value of the allegations doesn’t amount to the charge, the charges can be overturned. (Amol S/o Marotirao Talwadkar vs The State of Maharashtra & Ors)
“The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482”, the bench noted.
Facts of the Case
The Respondent along with two other members of flying squad noticed one trailer proceeding towards Bidar, trailer driver was asked to show R.T.O. papers, which they didn’t showed and diverted the trailer toward bus stop and applicant arrived there, called upon the respondent to leave the trailer without taking any action or registering any crime under the provisions of M.V. Act. Since the applicant had prevented and used criminal force to deter the respondent. They were charged with section 353 or 504 and 506 of the IPC.
Contention of the Parties
While taking the bench through the FIR, Mr.Mahesh Deshmukh, the learned Advocate for the applicant, vehemently argued that the averments/allegations made in the FIR are false, baseless and an after thought. They do not disclose a cognizable offence justifying an investigation by the competent Police Officer. The applicant had not at all, either prevented or deterred respondent no.2 and his associates from discharging their lawful duty. The avertments/allegations in FIR are not at all sufficient to make out a case, either under section 353 or 504 and 506 of the IPC. There is no, prima facie, evidence for proceeding against the applicant. There is a delay of 17 days caused in lodging FIR. The averments made in the FIR, pertaining to sanction obtained from higher authorities, are false and baseless averments, not supported by any evidence. Even after getting alleged sanction, the FIR was not lodged immediately. This inordinate delay, either of 17 days or 9 days, prima facie, makes it clear that the FIR sought to be quashed is false and concocted one.
The Learned Additional Public Prosecutor vehemently argued that in the relevant period, the respondent, along with his staff, was discharging his lawful duty. The averments made in the FIR are clear, cogent and sufficient to make out a prima facie case under section 353 of the IPC.
Courts Observation & Judgment
The court relied on the apex court in the case of Prof. R.K. Vijayasarathy and anr Vs. Sudha Seetharam and anr, “it was held that The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code”
The Court observed, “In case at hand, the allegations/averments made in the FIR at their face value, prima facie, constitute offence under sections 353 and 506 of the IPC. The arguments advanced by the learned Advocate for the applicant are based upon merits. As ruled by the Hon’ble Supreme Court, the merits of the allegations cannot be examined while dealing with the application for quashing of the FIR under section 482 of the Cr.P.C. Therefore, on the basis of the arguments relating to the merits, the FIR, which prima facie makes out a case under section 353 and 506 of the IPC cannot be quashed. Absolutely nothing is brought on record showing that the FIR came to be lodged with mala fides or malice. Respondent No.2 has no reason to lodge the false FIR against the applicant.”
The Court further observed that, “We have carefully gone through the judgment in Kundan Khanderao Dhande Vs Vasudeo Nivruti Fegde (2017 All MR (Cri) 5272), relied upon by the learned Advocate for the applicant. The facts of the case in hand are some what different. In Kundan’s case, the FIR came to be quashed mainly for non-compliance of section 186 of the IPC. Therefore, the ratio laid down in Kundan’s case (supra) will not come to the rescue of applicant for claiming quashing of FIR.”
The Court dismissing the case remarked, “After examining the FIR in its entirety, we are satisfied that the averments made therein constitute ingredients necessary for offence under sections 353 and 506 of the IPC. For the reasons discussed hereinabove, the FIR cannot be quashed. With this, we dismiss the application and vacate the interim relief dated 01/03/2019.”
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