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Dnyanesh Anandrao Gabhane And -vs- The State Of Maharashtra Through on 26 July, 2007

Bombay High Court Dnyanesh Anandrao Gabhane And -vs- The State Of Maharashtra Through on 26 July, 2007
Author: C Pangarkar
Bench: C Pangarkar

JUDGMENT

C.L. Pangarkar, J.

1. This criminal application seeks to quash the First Information Report, registered against the present applicants.

2. Applicant No. 1’s sister Anita is married to non-applicant No. 2 Bhagwan Jogdand. Their marriage had taken place in the year 1997. Applicant No. 2 to 6 are relatives of applicant No. 1. All applicants are resident of different places. It is alleged that after the marriage, non-applicant No. 2 Bhagwan started ill-treating Anita. She was turned out of the house. She was, therefore, compelled to lodge the report with the police, upon which an offence under Section 498A of Indian Penal Code was registered by the police along with an offence under the Dowry Prohibition Act. Non-applicant No. 2 was convicted in the said case. Similarly, applicant No. 1 had filed another criminal case against non-applicant No. 2 -Bhagwan alleging that he had entered into second marriage during subsistence of the first marriage. The said criminal case is still pending. Applicants submit that on 20/5/2005, non-applicant No. 2 filed a complaint with the police alleging that he was beaten by the present applicants. The said complaint was filed at 23.30 hours alleging that the incident had taken place 19.30 hrs. It was registered as non-cognizable case and the matter was referred to the head-constable for taking preventive action. It is alleged that on 10/6/2005 non-applicant No. 2 once again lodged a report with the police alleging that on 20/5/2005 at about 10.45 p.m. all accused i.e. present applicants assaulted and questioned him as to why he had lodged report against them. The police registered an offence on the basis of this report dated 10/6/2005. It is this First Information report which the applicants seek to quash.

3. The applicants submit that this report is patently false and concocted one. It is contended that on 20/5/2005 the brother-in-law of applicant No. 3 Jagdish was to get married at Aurangabad and his name is Ganesh. He is also nephew of applicant No. 6 Digambar. Applicant Nos. 3 and 6 therefore were at Aurangabad on 20/5/2005 for the marriage of said Ganesh. Applicant No. 1 is a Talathi and he was on duty on 20/5/2005 with Shri P.H.Rathod, Naib Tahsildar, as he was member of flying squad. Applicant No. 4 is a Sectional Engineer and he was on duty at Akot. Applicant No. 5 Rohit had suffered fracture of his ankle and was under treatment of Dr. Basatwar. As such none of the applicants was, in fact, present and therefore it is apparent that they have been falsely implicated in the matter.

4. I have heard the learned Counsel for the applicants and the non-applicants.

The leaned counsel for the applicants contends that on the face of it, the F.I.R. is false and police could not have taken action on the basis of it. He submitted that the F.I.R. is malafide and mischievous. The F.I.R. dated 10/6/2005 makes reference to two incidents which occurred on 20/5/2005. The first incident is said to have taken place at 7.30 p.m. and second at 10.45 p.m. Shri Mardikar, learned Counsel, invited my attention to the entry of information lodged by non-applicant No. 2 in respect of incident which occurred at 7.30 p.m. This report is treated as non-cognizable. It is an Annexure P/5. It shows that the incident had taken place at 7.30 p.m. on 20/5/2005 and the report was lodged at 23.30 i.e. at 11.30 pm. It is treated as non-cognizable and complaint was handed over to head constable for Preventive action. Shri Mardikar then invited my attention to the contents of F.I.R. dated 10/6/2005. It is alleged in this F.I.R. that while complainant was going to house from Patni Chowk around 10.45 pm. He was again accosted by the applicants and beaten and questioned as to why he had lodged report with Police. Shri Mardikar submitted that the second report i.e. the F.I.R. in question (Annexure P/6) is patently false and concocted as the report of first incident was lodged at 11.30 p.m. i.e. after the alleged happening of the second incident at 10.45 pm. and there is no reference to second incident and even if there was, it was already treated as non-cognizable case. Drawing such inference on the basis of the timing mentioned would be scanning the evidence itself and determining its reliability. Prima facie, there appears to be some mistake in mentioning the time. The F.I.R. in question does make a reference to complainant being questioned as to why he had lodged report with police. Obviously, the applicants were questioning about first report which is treated as non-cognizable case. Hence, second incident apparently occurred after report of the first was lodged. In a case reported in 2006 Cri.L.J. 4050 (Central Bureau of Invesdtigatiion v. Ravi Shankar Shrivastava), it is held by the Supreme Court as follows

One of the many categories of cases where inherent power can and should be exercised to quash the proceedings is where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. While dealing with the such case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial judge.

When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequences and cannot by themselves be consequences and cannot by themselves be the basis for quashing the proceedings.

It is thus obvious that the High Court cannot embark upon an enquiry whether evidence is reliable or not and whether on a reasonable appreciation of it accusation would not be sustained. The F.I.R. in this case does disclose a cognizable offence prima facie. A charge sheet is already filed. Shri Mardikar, learned Counsel, submitted that the investigation was also not proper. He had invited my attention to certain documents allegedly substantiating the plea of alibi. This Court cannot go into the question since now charge-sheet is already filed and alibi would be a defence. The court cannot look into the defence at the stage of quashing of the F.I.R. It is not the function of this Court to determine that aspect at this stage. Since there are clear cut allegations of assault having been committed on the complainant/non-applicant No. 2 and the First Information Report discloses an offence, I do not see any merit in this application. It is dismissed.

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