Bombay High Court Rajendra Chandrakant Dhuru And -vs- State Of Maharashtra, The on 4 July, 2003
Author: J Chitre
Bench: J Chitre
J.G. Chitre, J.
1. This Writ came to be placed before this Court in view of the order, dated 25/6/2003 which has been passed by the Division Bench of this Court.
2. The petitioners hereby assail criminal prosecution initiated against them by respondent No. 4 by presenting a complaint in the Court of Additional Chief Metropolitan Magistrate, 5th Court, at Dadar, Mumbai. It has been numbered as C.C.No. 267/S of 1997 (323/Misc./1997) and the order of process issued against them by the said Court is for offences punishable under Sections 394, 427, 506(II) r/w Section 34 of Indian Penal Code.
3. Respondent No. 4 had presented a criminal complaint before the said Court alleging the following things.
i. That the petitioners by giving pager message called him to their house on 8/3/1997 at about 11.25 a.m.
ii. A pager message was sent to him on 10/3/1997 by Police Inspector Shri Bhosale of Dadar Police Station at about 11.30 a.m. and accordingly he went to Dadar Police station and met Shri Bhosale. Shri Bhosale informed him that there was a complaint against him lodged by the present petitioners alleging that respondent No. 4 had gone to their house at 8/3/1997 and had shown his revolver to them.
iii. On 12/3/1997 at about 11.00 a.m. Sr. Inspector Shri Babar from Crime Branch visited his house at Mahim, when he, respondent No. 4, had gone to Nagpada Police Hospital for medical treatment, Sr. Inspector Shri Babar took revolver from respondent No. 4’s wife Smt. Sujata Gautam Gaikwad, by obtaining signature of his daughter Miss Savita Gautam Gaikwad, who happens to be 16 years old as contended by him in the said complaint.
iv. On 13/3/1997 at about 10.00 a.m. when he was going to Nagpada Police hospital for medical check up and was travelling in his friend’s Maruti Van bearing No. MH-02-R-173, Petitioner Nos. 1 and 2 set up mob of 20 or more persons against him, who abused him in filthy language. He alleged that petitioner No. 1 assaulted him with a stone on his right eyebrow and caused bleeding injury of 2-1/2 c.m. X 1/2 c.m. He also alleged therein that he was assaulted by the petitioners and in that assault petitioner No. 1 pulled his golden chain weighing about 30 grams. However, fortunately, the police recovered 1/2 broken portion of the said golden chain and returned it to him on his personal bond, which was executed in Shivaji Park Police Station.
v. The petitioners threatened to kill him and they told him that they are going to take revenge for recording a case against them at the instance of their Sister-in law Smt. Saroj Santosh Dhuru.
4. On these counts the learned Magistrate after taking cognizance, issued process for the offence mentioned above which has been assailed by the petitioners by this petition.
5. Shri Nitin Pradhan, Counsel appearing for the petitioners in his vehement argument, submitted that the complaint which has been presented by respondent No. 1 is absolutely false and he has misused the judicial process for taking revenge or for some oblique motive. He while elaborating his argument, submitted that the incident dated 12/3/1997 took place, even according to the say of respondent No. 4 when he was in hospital near Prabhadevei at Sidhyvinayak Temple a Police Officer named P.S.I. Gaikwad had gone to that hospital for recording his F.I.R. but respondent No. 4 did not sign that F.I.R. Therefore, P.S.I. Gaikwad was required to embody in his own F.I.R.. that he had gone to record the F.I.R. of respondent No. 4 but he refused to sign the F.I.R. Shri Pradhan further pointed out that in the statement of respondent No. 4 which was recorded during the course of investigation, respondent No. 4 did not make the allegations, as he made in the present complaint on account of which the learned Magistrate has issued process against the petitioners.
6. Shri Pradhan further pointed out that in Sanj Loksatta, a news caption appeared wherein it was printed that one unruly officer was beaten by the members of public on account of his indisciplined behaviour, near Tilak bridge on 13/3/1997.
7. Shri Pradhan submitted that half portion of the said golden chain, as contended by respondent No. 4, was not at all recovered from the house of petitioners or was discovered at their instance and seized by the police during the course of investigation of any crime. He submitted that there is no authenticated record that police returned that chain to him. Shri Pradhan further submitted that in fact, some members of the mob might have assaulted respondent No. 4 on 13/3/1997 at 10 a.m. on account of his rude and unruly behaviour and for the purpose of protecting himself, respondent No. 4 seems to have filed this complaint. Shri Pradhan further submitted that there is absolutely no material which would show that there is truth in his complaint. Shri Pradhan submitted that respondent No. 4 has misused the process of law and therefore, the said prosecution and the said order of issuing process be quashed and this petition be allowed.
8. Shri Shringarpure, Additional Public prosecutor, submitted that so far as the crime pertaining to Shivaji Park Police Station is concerned, which bears No. 108/1997, the concerned Sr. Police Inspector had submitted a report to concerned Magistrate treating the said complaint as “A Summary” (the crime committed but it cannot be investigated to its rightful end). Shri Shingarpure also submitted that the State Government does not support the allegations made by respondent No. 4 in his complaint which was presented before the said Court privately, as per the instruction which is received from the concerned police officer of Shivaji Park Police Station and the said report which has been submitted by the Sr. Police Inspector of the said Police Station.
9. Shri Naiknavare for Respondent No. 4 vehemently justified the order passed by the learned Magistrate. He pointed out from the allegations in the complaint that it has been alleged by respondent No. 4 that petitioner No. 1 assaulted him, the mob of 20 persons have also assaulted him. Not only that but he was also assaulted by petitioner No. 2 by first blows. He pointed out that respondent No. 4 was required to take longer medical treatment for bleeding injury, which was caused on account of said assault. Shri naiknavare pointed out that unnecessarily the message was sent to him on 8/3/1997 and he was asked to settle the case, which he was investigating at the instance of one Saroj Dhuru. He further submitted that though he expressed his inability to hold that a complaint was lodged against them falsely in Shivaji Park Police Station and for that he was asked to come to said police station by concerned Police officer of Shivaji Park Police Station. He further submitted that a revolver was also withdrawn on false pretext but fortunately, it was returned to him. Shri naiknavare submitted further that the offence punishable under Section 394 of Indian Penal Code has been spelled out, because his gold chain has been snatched out and fortunately its half portion was returned to him. Shri Naiknavare further submitted that a threat has been given to respondent No. 4 that they would take revenge against respondent No. 4. But when a query was made Shri Naiknavare has failed to give any satisfactory reply about the delay in filing the complaint privately, which amounts to 4 months. Shri Naiknavare, submitted that as respondent No. 4 did not find that the F.I.R., which was recorded by P.S.I. Gaikwad was correct, he did not sign on it. Shri Naiknavare submitted that the present petition is substanceless and therefore, it be dismissed.
10. Firstly, the Counsel appearing for respondent No. 4 could not explain the delay of 4 months satisfactorily nor he was able to assign any acceptable reason as to why respondent No. 4 did not immediately protest against his grievance that P.S.I. Gaikwad had not recorded his F.I.R. correctly, properly and truthfully. Had there been any substance in the said contention of respondent No. 4, a Police Officer of the rank of Inspector would have definitely gone to Shivaji Park Police Station and would have insisted for recording his protest for not recording his F.I.R. properly. He would have also lodged complaint in that context with his Senior Officer and would have vented out his grievance. Leaving it aside, he would have himself taken pen and paper and would have written his own version and that complaint reduced into writing could have been tendered in Shivaji Park Police Station itself by him or could have been sent by registered post to concerned superior officer but nothing has been done by him and there is no reason to explain such negligent conduct on the part of respondent No. 4.
11. As submitted by Shri Nitin Pradhan, both petitioners are lawyers and if at all they wanted to go for amicable settlement in respect of the said complaint which was revolving around Section 498 of Indian Penal Code, they would have preferred the lawyer of said Saroj Dhuru and would not have thought it proper to give a message to respondent No. 4 It cannot be forgotten that being lawyers, they are presumed to know that a criminal prosecution revolving around provisions of Section 498A of Indian Penal Code is non compoundable at present. Therefore, there is no substance in the allegation which has been made against the petitioners by respondent No. 4, in complaint which has been presented by him privately in the Court.
12. Along with the complaint he has not tendered the medical certificate. When a query was made to Shri Naiknavare, Shri Naiknavare was unable to give medical certificate for perusal of this Court. No panchanama of the alleged damage to the car has been produced. No reasons are assigned for these lapses.
13. There is no allegation made in the complaint that either of the petitioner snatched the golden chain belonging to and in possession of respondent No. 4 by using force or by show of force, as it is necessary for prosecuting a person for an offence punishable under Section 394 of Indian Penal Code. There is no allegation in the complaint that either of the petitioner damaged the said Maruti van. Besides a bare statement, there is no allegation in the complaint in respect of offence spelled out by the provisions of Section 506(II) of I.P.C.
14. If at all a person wants to prosecute another, he has to mention him as accused in the complaint and he has to make allegations in clear terms against him in the complaint. He has to support such allegations by some material, which needs to be annexed to the complaint if it happens to be documentary evidence. The complaint is obliged to bring some material before the Court enabling the Court to go for judicial scrutiny by application of judicial mind. If the complainant does not do that he has to either thank himself or blame himself.
15. After such complaint is presented before the Magistrate, Magistrate is duty bound to apply judicial mind to the allegations made in the complaint and see whether sufficient material has been presented before him in respect of such complaint. He cannot, by acting mechanically, take cognizance of such complaint and issue process without following a judicial process or scrutiny to that extent for making him to take decision, whether he should take cognizance of such complaint or issue process or not. Activities lacking all these important things result in miscarriage of justice, hardship to the person named as accused in such complaint. That is one of the grounds of filing number of cases and arrears of pending cases in the Court of various types. Time has come when the Magistrate who deal with criminal cases should think seriously about this.
16. In the matter of State of Karnataka v. Muniswamy and Ors., , the Supreme Court has held that:
“The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature.
In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.”
17. In the matter of State of West Bengal and Ors. v. Swapan Kumar Guha and Ors., , Supreme Court held that:
“If an offence is disclosed, the High Court under Article 226 of the Constitution will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed. But it cannot be said that an investigation must necessarily be permitted to continue and will not be prevented by the Court at the stage of investigation. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for providing the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual.”
18. In the matter of Madhavrao Jiwaji Rao Scindiya and Anr. etc. v. Sambhajirao Chandrojirao Angre and Ors., .
The Supreme Court held that;
“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.’
19. In the present case, the case of the complainant gets toppled at every step, at every pillar. Even he has not made the allegation in the complaint that any of the petitioner forcibly snatched the chain from his possession belonging to him. Even an ordinary person would have made such an allegation, had there been truth in it. That chain is, as per his say weighing 30 grams. That means it is not a small thing for which he can afford to forget. No material has been brought to the notice of the concerned Court by him as to in what circumstances, he received the half portion of it. He has not disclosed whether Shivaji park Police Station officer while doing investigation into the said crime seized the said portion of the chain, as alleged by him, under a panchanama. There is nothing mentioned in the said complaint to show that the said portion of the gold chain was returned to him by using a lawful process. He has not mentioned in the complaint on what date, at what time and from who he received it. Experience tells that even a layman will not forget to mention it and when the complaint is presented in private way the lawyers who presents such complaints for him would ask such information from complaint and would mention it in the complaint. If it is true, it is mentioned in the complaint, because no lawyer would wants to take blame on him. Therefore, absence of it heralds falsehood against respondent No. 4. It declares his motive may be of self protection also. This protection is normal instinct in every living being and human being is not exception to it.
20. There are no allegation in the complaint, as to petitioners or either of them damaging the said Maruti van. There is no averment made in the complaint that the owner of the said Maruti van had claimed damages from Insurance Company. Normally that would have been mentioned, had there been truth in it. Absence of it is self eloquent.
21. Every threat cannot be a cause for offence punishable under Section 506(II) or even Part (I) to prosecute a person and for taking cognizance of such allegations. Such allegations should make out a case that accused had really given alarm to the complaint as contemplated by Section 503 of Indian Penal Code. No ingredients of Section 503 are present in the complaint. If the allegations do not make out an offence indicated by provisions of Section 503, 506, the hollow threats cannot be prosecuted in the criminal Courts; they deserve to be forgotten. There has to be impressions created by such threats that offences as indicated by Section 503 and 506 would be spelled out.
22. The death nail has been given to the said complaint of respondent No. 4 by the report, which has been submitted by Sr. Police Inspector of Shivaji Park Police Station, which has been addressed to Police Prosecutor, which has been tendered by A.P.P., Shri Shringarpure in this case in the interest of justice. He has done the right thing because, every Public Prosecutor is interested in protecting the case of the public. He has to prosecute the public case and not hide out the truth. The said report shows that the said Police Station sought “A Summary” order from the concerned Court by submitting that the said crime was committed but it cannot be investigated. There is substance in the said report because, when nothing is there on the record to indicate as to who were the persons in the said assembly, how the Investigating officer is to progress in the said investigation? When there is nothing special on record to make the investigation further, special on record to make the investigation further, how he is supposed to proceed in the said investigation?. He cannot afford to keep the file in his cupboard and get the blame of any authorities. He has to find out the right course in getting the end of the matter and he has rightly submitted a report to the concerned Magistrate for getting “A Summary” order in the said crime i.e. Cr.No. 108 of 1997.
23. Thus, this Court does not have slightest doubt in mind about the veracity of the complaint presented privately by respondent No. 4. The learned Magistrate should have after applying judicial mind come to the conclusion that it was not a fit case in which he should have taken cognizance and should have issued process against the petitioner. In fact it is the duty of every Magistrate to do so. It should have been done in this case also. Because as the petitioners happen to be lawyers they can collect the courage to challenge it in the High Court, they could afford to bear the expenses of it, otherwise some other weak citizens would have thought it better to keep quiet and surrender himself to the said prosecution. This Court declares that the said prosecution is not truthful and is substanceless and therefore, deserves to be dismissed and quashed.
24. Thus, this petition is allowed. The said prosecution is quashed. The petitioners need not attend the said Court in pursuance of the process issued against them, which is the subject matter of challenge in his petition. This Court does not take any action against respondent No. 4, he should understand himself the situation.
The parties to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.