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2007 DIGILAW 540 (BOM)

Anil Muttu Swamy Pillay v. State of Maharashtra

2007-04-16

C.L.PANGARKAR

body2007
ORAL JUDGMENT : 1. Rule. Heard finally with consent of parties. 2. This is an application under Section 482 of Cr.P.Code for quashing of the First Information Report (F.I.R). 3. The facts are as follow - The applicants are Policemen. Applicant no.1 is attached to Transport Section as driver while applicant no.2 is attached to Ajni Police Station. On 12/1/2007, an accident took place at Narendra Nagar. in which a truck and Moped were involved. The accident resulted in death of the Moped rider. Many people gathered on the spot and set the truck on fire. P.S.I. Salunke, upon receipt of the information rushed to the spot. The senior Police Officer and the staff from other Police station also reached the spot. The applicants were directed to reach the accused from Ajni Police Station to district court. The applicants left the Police station Ajni at 2.45 p.m. The applicants received a message on phone to rush to spot but applicants could not, as they were at that time in the district court to drop the accused there. The applicants immediately left for the spot after having come to know that their presence is required there but could not reach in time due to heavy traffic. 4. The Police registered offence under Section 304-A of I.P.Code against the driver of the truck and against unknown persons under Section 147,148, 435 and 427 of I.P.Code. The applicants were served with the notice to show cause why there was delay in reaching the spot. All of a sudden, the police on 5/2/2007 registered a crime against the applicants by adding Section 109 of I.P.Code to the offence registered by them against the unknown persons. The names of these applicants were added in the F.I.R. The applicants submitted that in no case it could be said that the applicants abetted the commission of crime, simply because they reached the place of incident late. It is for this reason they seek quashing of the F.I.R. 5. In the F.I.R., it is alleged that even though it was obligatory on the part of the applicants to reach the place, by reaching late they abetted the unknown people to set the truck on fire. 6. The station diary entry No.32 shows that both the applicants were directed at 14.45 hrs. to reach the accused from Police Station, Anji to district court. 6. The station diary entry No.32 shows that both the applicants were directed at 14.45 hrs. to reach the accused from Police Station, Anji to district court. The applicants were, therefore, certainly quite far away from the place of incident. Looking to the distance, it could be said that it was not possible to reach the place of incident instantly or even within short time. The learned counsel submitted that there was no intention not to go there but because the applicants were engaged in other duty and distance was too far, they could not reach in time as was expected. According to the learned counsel for the applicants, nothing was deliberate. He submitted that if there was delay, it could at the most be misconduct and not an offence. The learned Additional Public prosecutor for the State submitted that inspite of direction, the applicants, did not reach there within reasonable time and this omission amounts to an offence. The affidavit of the State shows that the applicants reached the spot at 16.55 hrs. The affidavit shows that the applicants took 1.12 hrs. to reach the spot. Thus, even according to the State, the delay at the most is of one hour. A simple delay in reaching to spot cannot amount to an offence. The learned Additional Public Prosecutor for the State submitted that this is an illegal omission and offence is rightly registered. In fact, when abetment by illegal omission is alleged, it is necessary to allege that the accused intentionally aided the commission of the offence by his non-interference. In case of abetment by illegal omission, the accused must be present at the place of occurrence and he must fail to interfere. Therefore, a Police officer could be held to have abetted the commission of crime when he is present at the place and though duty bound does not prevent the commission of crime by his inaction. Here, the applicants were not present at the place of crime and, therefore, it was not expected of them to do anything to prevent the crime. There was, therefore, no question of non-interference at all. Since the contents of F.I.R. do not disclose such an omission, it must be concluded that allegations made in the F.I.R. even if taken at their face value and accepted in entirety do not constitute any offence or make out a case against the applicants. There was, therefore, no question of non-interference at all. Since the contents of F.I.R. do not disclose such an omission, it must be concluded that allegations made in the F.I.R. even if taken at their face value and accepted in entirety do not constitute any offence or make out a case against the applicants. In the circumstances, application must succeed. Crime No.16/2007 registered by Police Station, Ajni against the present applicants is quashed.