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2014 DIGILAW 808 (BOM)

Sushma C. Hede v. Police Inspector

2014-03-26

F.M.REIS, Z.A.HAQ

body2014
JUDGMENT Z.A. Haq, J. 1. Heard Shri Arun Bras De Sa, learned Advocate for the Petitioners, Ms. Pinto, learned Public Prosecutor for the Respondent no. 1 and Mr. S. D. Lotlikar, learned Senior Advocate for the Respondent no. 2. 2. This is a Petition filed by the Petitioners under Section 482 of the Code of Criminal Procedure, praying that the Order passed by the learned Magistrate on 06.07.2013 and the consequential FIR No. 196/2013 dated 27.07.2013 registered at the Ponda Police Station, be quashed. 3. The Respondent no. 2 has filed complaint before the learned Magistrate stating that his daughter Sapana, aged about 15 years, is studying in IXth standard in Kamalabai Hede High School, Karai, Shiroda; that on 05.09.2012, in the late evening, she informed the respondent no. 2 that Smt. Sushma Hede (Petitioner no. 1) and Shri Ramkrishna Tukaram Parkar (Petitioner no. 2), had detained her in the school premises for almost three hours and made her sign a false complaint against one Shri Yogesh Khandeparkar, who is a teacher in the school. He has further stated in the complaint that the Petitioners had mentally tortured and harassed his daughter in the school premises and that a complaint about it was made to the Superintendent of Police, North Goa, on 07.09.2012. It is stated that a complaint was also made to the Police Inspector, Ponda, on 05.09.2012 in the matter. According to the respondent no. 2, the Police having not taken any steps and having not registered any offence against the Petitioners, he was compelled to file the complaint before the learned Magistrate. 4. The learned Magistrate by the impugned Order has recorded that the complaint dated 05.09.2012 filed with the Ponda Police Station, discloses cognizable offence and the Police Station Officer has not acted in terms of Section 154 of the Code of Criminal Procedure and, therefore, direction is issued to register FIR and to act in accordance with Chapter XII of the Code of Criminal Procedure. 5. Shri Arun Bras De Sa, learned Advocate appearing for the Petitioners, has submitted that there is earlier history of the matter and as the learned Magistrate has issued the directions without considering the material on record and without giving any notice to the State and the Petitioners and, therefore, the entire history of the subject matter could not be considered by the learned Magistrate. The learned Advocate points out that Sapana and her father Uday Naik (Respondent no. 2), had made complaint against Shri Yogesh Khandeparkar stating that he had misbehaved with Sapana. The learned Advocate further pointed out that Shri Yogesh Khandeparkar had filed bail application no. 128/2012 and the Children's Court for the State of Goa, Panaji, by Order dated 12.09.2012, directed that Shri Yogesh Khandeparkar be released on bail on the conditions as incorporated in the Order. The learned Advocate for the Petitioners has submitted that after the bail is granted to Shri Yogesh Khandeparkar, the Respondent no. 2 has filed the false complaint against the Petitioners and these facts clearly show that the complaint made against the Petitioners is not bonafide and devoid of any truth and it is motivated. Shri Arun Bras De Sa, learned Advocate for the Petitioners, has submitted that the allegations made in the complaint even if they are taken at the face value and accepted in their entirety, no offence is made out against the Petitioners as the complaint is totally silent about the details of the alleged confinement. The learned Advocate has submitted that the allegations of confinement in the school, of a student of the same school, as stated in the complaint, is fallacious. The learned Advocate has submitted that the complaint therefore has to be quashed. In support of his submission, he has relied on the Judgment of the Hon'ble Supreme Court in the case of Lee Kun Hee, Peresident, Samsung Corporation, South Korea & Ors. vs. State of Uttar Pradesh reported in (2012) 3 S.C.C. 132 and the Judgment of the Division Bench of this Court in the case of Pinni Co-operative Housing Society & Ors. vs. Maruti Mathu Gaikwad & Ors, reported in 2013(3) Bom.C.R. (Cri.) 313. 6. Shri S. D. Lotlikar, learned Senior Advocate appearing for the Respondent no. 2, has submitted that the Petitioners are not entitled for hearing before the Magistrate while the Order is passed under an application under Section 156(3) of the Criminal Procedure Code. vs. Maruti Mathu Gaikwad & Ors, reported in 2013(3) Bom.C.R. (Cri.) 313. 6. Shri S. D. Lotlikar, learned Senior Advocate appearing for the Respondent no. 2, has submitted that the Petitioners are not entitled for hearing before the Magistrate while the Order is passed under an application under Section 156(3) of the Criminal Procedure Code. The learned Senior Advocate has submitted that the impugned Order shows that the learned Magistrate has applied his mind to the facts on the record and after considering the documents filed along with the complaint, the learned Magistrate has found that the complaint makes out a cognizable offence and the Police authorities having not registered the FIR pursuant to the complaint and, therefore, the directions are issued by the learned Magistrate by the impugned Order. Learned Senior Advocate has submitted that the impugned Order does not suffer from any infirmity and has submitted that the Petition be dismissed. 7. Ms. Pinto, learned Addl. Public Prosecutor, has supported the impugned Order. 8. With the assistance of the learned Advocates for the respective parties, we have examined the record. It is an undisputed fact that a complaint is made against Shri Yogesh Khandeparkar on 18.08.2012 and pursuant to it, the police authorities have acted and Shri Yogesh Khandeparkar was required to file the Bail Application no. 128/2012, in which he is granted bail by the learned Addl. Sessions Judge, Mapusa, in charge of Children's Court for the State of Goa, by Order dated 12.09.2012. Subsequently, it appears that there is a complaint by the Respondent no. 2 that the Petitioners have obtained a false complaint from his daughter Sapana against Shri Yogesh Khandeparkar. Looking to the history of the matter, in our view, the learned Magistrate should have considered all the documents submitted by the Respondent no. 2 along with his application under Section 156(3) of Criminal Procedure Code. Further more, the factum of the registration of another FIR against Shri Yogesh Khandeparkar is also relevant in the matter which ought to have been considered by the learned Magistrate. The documents filed by the Respondent no. 2 along with his application under Section 156(3) of Cr. P. C., prima facie, showed that there is some history in the matter and, therefore, in our view the learned Magistrate should have heard the prosecution before passing the impugned Order. 9. The documents filed by the Respondent no. 2 along with his application under Section 156(3) of Cr. P. C., prima facie, showed that there is some history in the matter and, therefore, in our view the learned Magistrate should have heard the prosecution before passing the impugned Order. 9. Shri Arun Bras De Sa, learned Advocate for the Petitioners, has relied on the Judgment in the case of Lee Kun Hee, Peresident, Samsung Corporation, South Korea & Ors. vs. State of Uttar Pradesh (supra), more specifically paragraph nos. 57, 58 and 59 of the abovementioned Judgment. He has submitted that as the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, they do not, prima facie, constitute any offence or make out a case for prosecution of Petitioners. He has submitted that in view of this fact and in view of the ratio laid down by the Hon'ble Supreme Court in the case of Lee Kun Hee, Peresident, Samsung Corporation, South Korea & Ors. vs. State of Uttar Pradesh (supra), the complaint made by the Respondent no. 2 under Section 156(3) of the Criminal Procedure Code, has to be quashed. However, we are of the view that as the learned Magistrate has not applied his mind to the subject matter and has not dealt with the controversy on the basis of the material on the record, the submission as made on behalf of the Petitioners, cannot be considered at this stage. 10. In view of the above, we pass the following: ORDER The impugned Order passed by the learned Magistrate on 06.07.2013 and the consequent FIR no. 196/2013 dated 27.07.2013 registered at Ponda Police Station, are quashed. The learned Magistrate to consider the matter afresh and take a decision after hearing the State, according to law. The Criminal Writ Petition is accordingly allowed. Rule made absolute in terms of prayer clause (b). In the circumstances, the parties to bear their own costs.