Baburao V Nair ( Baburaj V K Nair) vs The State Of Maharashtra And Anr on 4 May, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.5948 OF 2016

Baburao V. Nair,
Baburaj V.K. Nair (Correct name)
Age : 50 years, Occ. Service,
R/o. Channayakpuri, R.H.No.27-C,
Aurangabad. APPLICANT

VERSUS

1. The State of Maharashtra

2. Aarati Manoharrao Medhewar,
Age: 38 Yrs. Occ: Social Service,
R/o. Mayur Park Marg.
Vasant Nagar, Aurangabad,
Tq Dist. Aurangabad. RESPONDENT


Mr.V.D.Salunke, Advocate holding Mrs.
Chaitali R. Chaudhari Kutti, Advocate for
Applicant
Mr.S.J.Salgare, APP for Respondent/State
Mrs.Ranuka Ghule, Advocate for Respondent
no.2.

CORAM: S.S.SHINDE
K.K.SONAWANE,JJ.

Reserved on : 27.04.2017
Pronounced on : 04.05.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

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2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. This Application is filed with

prayer to quash and set aside the First

Information Report vide Crime No.118/2016

registered with Harsool Police Station,

Aurangabad, for the offence punishable under

section 376 of the Indian Penal Code.

4. The learned counsel appearing for

the applicant submits that, the applicant is

reputed and married person. He has housewife

and two children, aged 13 and 18 years

respectively. He is only bread earner in the

family. It is submitted that, wife of the

applicant filed complaint against respondent

no.2 on 20th March, 2016, alleging that,

respondent no.2 is threatening to file false

complaint against applicant and his wife. The

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said complaint was registered as N.C. Again

on 23rd March, 2016, the wife of applicant was

required to approach to the Deputy

Commissioner of Police due to threat given by

respondent no.2 that, she is going to file

false complaint against the applicant as well

as his wife. On 12th April, 2016, the

applicant had given detailed application to

the Commissioner of Police, stating that,

respondent no.2 is demanding money by giving

threats of filing false complaint.

Accordingly, the Police Inspector was

directed to make an enquiry about the said

complaint.

It is submitted that, respondent

no.2 filed Criminal Misc.Application

No.1278/2016, alleging that, the applicant

has committed offences punishable under

Sections 376, 420 and 354 of the Indian Penal

Code. It is stated in the said complaint

that, the Police Station at Harsool refused

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to register the FIR, and therefore, she has

filed said complaint with prayer to issue

directions to the Harsool Police Station to

register the FIR, and for investigation of

the allegations in the complaint filed by the

respondent no.2. The court of Judicial

Magistrate First Class rejected the prayer

for sending the matter for investigation

under Section 156 [3] of the Criminal

Procedure Code and directed respondent no.2

to lead evidence under Section 200 of the

Criminal Procedure Code. Thereafter, in said

court proceedings respondent no.2

continuously remained absent. Learned counsel

appearing for the applicant invites our

attention to the fact that, though the

complaint filed by respondent no.2 was listed

on more than 11 occasion on various dates,

respondent no.2 did not cause appearance

before the Court. Learned counsel invites our

attention to the copies of the documents

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placed along with the application, and

further invites our attention to the contents

of the said documents and submits that,

respondent no.2 threatened the applicant on

different dates. Learned counsel invites our

attention to the order passed by the learned

Judicial Magistrate First Class, Court No.6,

Aurangabad, below Exh.1 in Criminal Misc.

Application No.1278/2016, filed by respondent

no.2 and submits that, when the said Court

declined to give direction to register the

FIR so as to investigate the allegations in

the complaint filed by respondent no.2, there

was no question of approaching the Harsool

Police Station by respondent no.2 and lodging

the FIR. It is submitted that, the FIR should

not have been registered by the concerned

Police Station in view of the fact that in

the Criminal Misc. Application No.1278/2016

i.e. complaint, filed by respondent no.2, the

Judicial Magistrate First Class declined to

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issue directions to register the FIR and

cause the investigation.

5. It is submitted that, the applicant

has not committed any offence as alleged in

the complaint. The complainant has falsely

implicated the present applicant in a serious

crime. If the entire FIR is perused, it shows

that, it is nothing but a concocted story

made out by respondent no.2. An accused is a

married person and having no any criminal

history or antecedents. If the FIR is perused

in its entirety, it can be seen that, no

offence is made out against the applicant.

Prior to filing of the present FIR,

respondent no.2 has attempted to lodge false

complaint against the applicant to the Police

Station, and the Police Authority refused to

entertain her complaint. Therefore, the

complainant filed Criminal Misc. Application

No.1278/2016, before the Judicial Magistrate

First Class. The Court of Judicial Magistrate

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First Class passed the order on 25th May,

2016, observing that the complainant has not

made out prima facie case for issuing

directions to the police to lodge the FIR

under Section 156 [3] of the Criminal

Procedure Code, hence, the prayer for sending

the matter under Section 156 [3] of the Code

of Criminal Procedure for investigation has

been rejected. The complainant is directed to

examine herself and lead the evidence of

witnesses, if any, in support of her

complaint under Section 200 if Criminal

Procedure Code, but she has not given any

evidence in above matter. However, by

suppressing the order passed by the learned

Judicial Magistrate First Class, respondent

no.2, by joining hands with police, got

registered FIR with frivolous and false

allegations against the applicant with a view

to extract money from him.

6. It is submitted that, the applicant

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is well reputed person having sound

economical position as such there is no

question of demand of money from the

complainant as alleged by her, when the

complainant is having no any income source.

There is gross delay in lodging the

complaint, which itself shows that, no any

offence is committed by the applicant; on the

contrary it is nothing but an attempt to

falsely implicate the applicant in alleged

crime with an ulterior motive. The proceeding

initiated by respondent no.2 is grave and

serious abuse of process of law. The

applicant is being harassed by the police

unnecessarily, due to filing of FIR with

false allegations. If the allegations in the

FIR are considered in its entirety, an

alleged offences are not disclosed, and

therefore, the chances of conviction of

applicant is bleak and no purpose will be

served by continuation of further

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investigation. However, if the investigation

is allowed to be continued, the applicant

will be required to suffer for the

harassment, which is uncalled for, and also

there will be irreparable loss of money and

reputation of the applicant.

7. In support of his contention that,

the complaint was already filed by respondent

no.2 and the same complaint is not being

attended / prosecuted by her, and when the

concerned Court refused to issue directions

for registration of the FIR and

investigation, in that case, the FIR at the

instance of respondent no.2 needs no further

investigation, learned counsel placed

reliance on the reported judgment of the

Bombay High Court, Bench at Panaji [Goa], in

the case of Mr.T. Chandramouli Vs. Police

Inspector, Vasco Police Station Anr.1.

Therefore, the learned counsel appearing for

1 2017 ALL MR [Cri.] 17

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the applicant submits that, the application

may be allowed.

8. On the other hand, the learned APP

appearing for the respondent-State invites

our attention to the allegations in the FIR,

and also other material collected during the

course of investigation, and the statement of

the witnesses and submits that, the

allegations in the FIR will have to be read

as it is and the appreciation of the said

allegations or the statement of the witnesses

even in a summary manner is not permissible

while exercising the jurisdiction under

Section 482 of the Criminal Procedure Code.

He submits that, there is specific

allegations in the FIR that, the applicant

committed sexual intercourse on more than one

occasion with respondent no.2 against her

will and without her consent, and therefore,

it is only during trial the said allegations

can be tested.

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9. Learned counsel appearing for

respondent no.2, relying upon the affidavit-

in-reply on behalf of respondent no.2 submits

that, respondent no.2 is a social worker and

running NGO and also reputed person in the

society. There were good relations between

present respondent no.2 with applicant and

his family members. Therefore, there were

some financial transactions made between

respondent no.2 and applicant. Respondent no.

2 had given Rs.20,000/- to the applicant on

22nd February, 2013, through IDBI Bank and

also there are some cash transaction between

respondent no.2 and applicant and also his

wife. It is further submitted that,

respondent no.2 is doing the business of

repairing and selling the small plates /

dishes. The applicant called respondent no.2

at Ahmedabad [Gujrat] on 18th December, 2013,

giving impression that, he will help her in

purchasing the raw material in a cheaper

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rate. Therefore, she went to Ahmedabad on 18th

December, 2013. On her arrival at Ahmedabad,

the applicant received respondent no.2 and

taken her to a flat in front of stadium. At

past midnight of 18th December, 2013, during

the morning hours in between 2.00 to 2.15

a.m., the applicant, in spite of refusal of

respondent no.2 and without her consent, made

sexual intercourse. Thereafter, the applicant

promised respondent no.2 that, he will marry

with her. It is submitted that, the complaint

registered by the applicant and his wife are

with a view to malign the image of respondent

no.2. When respondent no.2 demanded the

amount given to applicant by her, non

cognizable offence with false allegations has

been registered at Jawaharnagar Police

Station against her. The applicant sexually

abused respondent no.2 up to December 2015.

Though respondent no.2 approached the Harsool

Police Station, the concerned Police Station

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Officer did not register the FIR, and

therefore, she approached the Court of

Judicial Magistrate First Class, Aurangabad

and filed complaint. It is only after

respondent no.2 approached the Court of

Judicial Magistrate First Class by way of

filing Criminal Misc. Application No.

1278/2016, seeking direction to the concerned

Police Station to lodge the FIR, and cause

further investigation; the Harsool Police

Station registered the FIR. It is

submitted that, there is no bar for

registering the FIR, and the investigation of

the said FIR on disclosure of the cognizable

offence.

10. It is submitted that, even the

applicant has continuously sent vulgar

messages to respondent no.2 on her mobile

number. The applicant has cheated respondent

no.2. Therefore, the FIR is registered.

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11. Learned counsel appearing for the

respondent no.2 submits that, repeated sexual

assault by the applicant was without consent

of respondent no.2, and same caused physical

as well as mental agony and harassment and

also damage to the reputation of respondent

no.2. The statement of respondent no.2 will

have to be tested during the course of trial,

when she would depose on oath. Therefore,

entertaining the prayer for quashing of the

FIR in such serious cases, while exercising

jurisdiction under Section 482 of the

Criminal Procedure code is not desirable. In

support of the aforesaid submission, she

placed reliance on an observations of para 11

in the case of Bhaskar Lal Sharma and Anr.

Vs. Monica and Ors.2 and submits that, the

Supreme Court has taken a view that, the

facts, as alleged, will have to be proved

which only be done in the course of a regular

2 [2014] 3 SCC 383

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trial. Appreciation, even in a summary

manner, of the averments made in a complaint

petition or FIR would not be permissible at

the stage of quashing and the facts stated

will have to be accepted as they appear on

the very face of it. For same proposition,

she also placed reliance in the case of

Taramani Parakh Vs. State of Madhya Pradesh

and others3. Therefore, she submits that, the

application may be rejected.

12. We have given careful consideration

to the submissions of the learned counsel

appearing for the applicant and learned APP

appearing for respondent-State. With their

able assistance, we have perused the

averments and grounds taken in the

application, annexures thereto, the reply

filed by respondent no.2 and the

investigation papers made available by the

learned APP. It is the submission of the

3 [2015] 11 SCC 260

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learned counsel appearing for the applicant

that, already respondent no.2 has filed

Criminal Misc. Application No.1278/2016,

seeking direction to the concerned Police

Station for registering the FIR and the

investigation, has not been entertained by

the Judicial Magistrate First Class, Court

No.6, Aurangabad, and therefore, the request

for registration of the FIR subsequent to

filing of such Misc. Application / complaint

should not have been entertained by the

concerned Police Station. In our opinion,

there is no bar of registering the FIR on

disclosure of the cognizable offence on

reading the allegations in the First

Information Report. On the contrary on

disclosure of the cognizable offence, the

provisions of Section 154 [1] of the Code of

Criminal Procedure mandate that, the FIR

should be registered, and thereafter, the

investigation should be caused. The Hon’ble

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Supreme Court in the case of Lalita Kumari

Vs. Government of Uttar Pradesh and others4

held, the registration of FIR is mandatory

under S. 154, if the information discloses

commission of a cognizable offence and no

preliminary inquiry is permissible in such a

situation.

13. So as to avoid any prejudice to the

interest of accused, the provisions of

Section 210 of the Criminal Procedure Code,

1973, takes care of such situation when there

is complaint and the police investigation in

respect of the same alleged offences.

Section 210 of the Criminal Procedure Code

reads thus:

210. Procedure to be followed
when there is a complaint case
and police investigation in
respect of the same offence.-

(1) When in a case instituted

4 [2014] 2 SCC 1

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otherwise than on a police report
(hereinafter referred to as a
complaint case), it is made to
appear to the Magistrate, during
the course of the inquiry or
trial held by him, that an
investigation by the police is in
progress in relation to the
offence which is the subject-

matter of the inquiry or trial
held by him, the Magistrate shall
stay the proceedings of such
inquiry or trial and call for a
report on the matter from the
police officer conducting the
investigation.

(2) If a report is made by the
investigating police officer
under section 173 and on such
report cognizance of any offence
is taken by the Magistrate
against any person who is an
accused in the complaint case,
the Magistrate shall inquire into
or try together the complaint
case and the case arising out of
the police report as if both the

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cases were instituted on a police
report.

(3) If the police report does
not relate to any accused in the
complaint case or if the
Magistrate does not take
cognizance of any offence on the
police report, he shall proceed
with the inquiry or trial, which
was stayed by him, in accordance
with the provisions of this Code.

In the present case, yet investigation

is in progress, and therefore, it cannot be

said that, the registration of the FIR and

the investigation has caused prejudice to the

applicant inasmuch as the stage of filing the

charge-sheet or trying the case is yet to

arrive. Article 20 (2) of the Constitution of

India reads thus:

“No person shall be prosecuted
and punished for the same
offence more than once”.

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14. As already observed, yet the

investigation is in progress and the stage of

filing the charge-sheet / report as the case

may be is yet to arrive. There is no further

progress in the complaint pending before the

Judicial Magistrate First Class. Therefore,

an investigation can not cause any prejudice

to the applicant. On the contrary, after

investigation truth will surface on record.

Upon careful perusal of the allegations in

the FIR, so far as it relates to the offence

punishable under Section 376 is concerned, it

is stated that the prosecutrix was called at

Ahmedabad by the applicant on 17th December,

2013. The applicant and respondent no.2

stayed at Lodge at Ahmedabad, thereafter,

applicant committed forcible sexual

intercourse with her for 5 days, with an

assurance of marriage with her. It is alleged

in the FIR that, the said sexual intercourse

by the applicant with the prosecutrix was

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without her consent. The said allegations can

be tested during trial. It is only after

statement of the prosecutrix is tested during

trial, it will have to be determined, whether

the offence falls in any of the categories

mentioned in Section 375 of the Indian Penal

Code. In the facts of the present case, when

there are allegations of sexual intercourse

without consent or against will of respondent

no.2 i.e. prosecutrix, it is not appropriate

to quash the FIR by exercising powers under

Section 482 of the Criminal Procedure Code.

The Hon’ble Supreme Court in catena of

decisions has consistently held that, powers

under Section 482 of the Criminal Procedure

Code should be exercised with great care,

sparingly and only in appropriate cases.

15. In the light of discussion herein

above, the prayer for quashing the FIR stands

rejected. The observations made herein before

are prima facie in nature and confined to the

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adjudication of the present application only.

This order will not preclude the applicant

from availing of an appropriate remedy of

filing an application for discharge. Rule

stands discharged.

[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE

. After pronouncement of the judgment,

learned counsel appearing for the applicant

prays for continuation of ad-interim relief

which was in force during the pendency of the

Application for further four weeks. The

prayer is vehemently opposed by the learned

counsel appearing for the State and learned

counsel appearing for respondent no.2.

. Since we have rejected the

Application, there is no propriety in

continuing the ad-interim relief any further,

since it may cause interference in the

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further investigation by the Investigating

Officer. In that view of the matter, prayer

stands rejected.

[K.K.SONAWANE] [S.S.SHINDE]
JUDGE JUDGE
DDC

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