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2021 DIGILAW 469 (BOM)

Shoeb Arif Memon v. State of Maharashtra

2021-02-26

MANISH PITALE, S.S.SHINDE

body2021
JUDGMENT MANISH PITALE, J. - The applicants have approached this Court under Section 482 of the Criminal Procedure Code, 1973 (for short, "the Cr.P.C.") for quashing of the First Information Report ("FIR") dated 10th September, 2020 registered against them, bearing Crime No.114 of 2020 at Police Station Dongri, Mumbai, for the offences punishable under Sections 354, 509, 323, 504, 506 read with Section 34 of the Indian Penal Code (for short, "the IPC"). Respondent No.2 is the original complainant. The complaint lodged by respondent No.2, leading to registration of the FIR, pertains to an alleged incident that took place on 13th August, 2020. It is an admitted position that the complaint of respondent No.2 was recorded by the police on 10 th September, 2020. 2. The applicants contended that the husband of respondent No.2 was working as their employee in a shop dealing in the business of ladies accessories and that there was a dispute between the applicants and the husband of respondent No.2. The applicants claimed that the husband of respondent No.2 had caused loss to their business by indulging in misappropriation and dealing directly with the clients of the applicants. It was their case that when they confronted the husband of respondent No.2 on 13 th August, 2020 in respect of the said dispute, there was an exchange of words between the applicants and the husband of respondent No.2. This had resulted in registration of two non-cognizable complaints with the police. 3. At the behest of the applicants and on the basis of the written complaint submitted by them on 18th August, 2020, on the same date, a non-cognizable offence was registered against the husband of respondent No.2 for offences punishable under Sections 323, 504 and 506 of the IPC. A copy of the said registration of non-cognizable offence bearing No.580 of 2020 was annexed to the present application. It was further the case of the applicants that even the husband of respondent No.2 had approached the police with regard to the said incident and at his behest also, a non-cognizable complaint was registered against the applicants for certain offences. A copy of the said registration of non-cognizable offence bearing No.580 of 2020 was annexed to the present application. It was further the case of the applicants that even the husband of respondent No.2 had approached the police with regard to the said incident and at his behest also, a non-cognizable complaint was registered against the applicants for certain offences. According to the applicants, they had also approached the concerned authorities under the provisions of the Right to Information Act, 2005 by submitting an application dated 28th September, 2020 for details and copies of such complaints pertaining to non-cognizable offences registered against them at the behest of the husband of respondent No.2. It was submitted that the requisite information was not provided to them. It is in this backdrop that the applicants claimed that respondent No.2, as an after thought, approached the police on 10th September, 2020 to claim that the applicants on the said date i.e. on 13th August, 2020 had not only abused and manhandled her husband, but they had abused and also assaulted her in a manner that required registration of offences punishable under Sections 354, 509, 323, 504, 506 read with Section 34 of the IPC. 4. The applicants have approached this Court, claiming that such registration of FIR on the basis of a complaint, which was not only belated but was a clear after thought, was not justified and that the FIR deserved to be quashed. 5. Mr.Gaud, learned counsel appearing for the applicants, submitted that when non-cognizable offences stood already registered against the applicants at the behest of husband of respondent No.2 for the incident that occurred on 13 th August, 2020, registration of FIR after about 28 days for the same incident at the behest of respondent No.2, was not justified. It was clearly an after thought and an act of vengeance on the part of respondent No.2 and her husband, which the police failed to take into account. It was submitted that registration of the FIR for the very same incident, when the cross complaints pertaining to non-cognizable offences stood already registered, violated the mandate of Section 155(2) of the Cr.P.C. It was further submitted that such registration of FIR clearly fell in category 7 identified in the judgment of the Hon'ble Supreme Court in the case of State of Haryana and Ors. Vs. Vs. Bhajan Lal and Ors.; 1992 Supp (1) SCC 335. It was submitted that such a belated complaint pertaining to cognizable offences, was clearly an act of wreaking vengeance on the applicants by respondent No.2 and that such a complaint was mala fide and the FIR registered on the basis of the same, deserved to be quashed. 6. On the other hand, Mr.Yagnik, learned APP appearing on behalf of respondent No.1/State, submitted that he had received a report from the Investigating Officer wherein it was pointed out that on 13th August, 2020, the applicants had reached the house of respondent No.2. There, they had altercation with her husband and at that time, they abused respondent No.2 and physically assaulted her, thereby justifying registration of the said FIR. It was further submitted that the second limb of the incident that occurred on 13 th August, 2020 was when the applicants as well as respondent No.2 and her husband moved from the house of respondent No.2 to a hotel, namely, 'Delhi Darbar Hotel' in front of the house where the incident occurred, leading to registration of the cross complaints pertaining to the non-cognizable offences. On this basis, it was submitted that the registration of the FIR was clearly justified and that the application deserved to be dismissed. 7. It is pertinent that respondent No.2 herself was present in Court. She did not wish to engage any counsel and stated before the Court that she was satisfied with the arguments advanced by the learned APP and this fact was recorded in the order dated 10 th February, 2021, when hearing was closed and judgment was reserved. 8. We have heard the learned counsel appearing for the rival parties and perused the material on record. There is no dispute about the fact that the incident in question occurred on 13 th August, 2020. While copy of the complaint dated 18 th August, 2020 and copy of the non-cognizable offences registered against the husband of respondent No.2 on 18th August, 2020 bearing No.580 of 2020 are on record, the fact about registration of non-cognizable offences against the applicants was not disputed. But at the same time, copy of such registration of non-cognizable offences against them, was not provided to them. But at the same time, copy of such registration of non-cognizable offences against them, was not provided to them. It is only after notice was issued on this application that the learned APP conceded to the fact that non- cognizable offences stood registered against the applicants for the incident dated 13th August, 2020, on 17th August, 2020 bearing No.579 of 2020 for the offences punishable under Sections 323, 504 and 506 of IPC, at the behest of husband of respondent No.2. Thus, it is an undisputed fact that two cross complaints pertaining to non- cognizable offences , stood registered in respect of the incident that occurred on 13th August, 2020. 9. There is also no dispute about the fact that respondent No.2 approached the police and gave her statement on 10th September, 2020 making allegations against the applicants for the incident that occurred on 13th August, 2020, leading to registration of the aforesaid FIR against the applicants for the offences punishable under Sections 354, 509, 323, 504, 506 read with Section 34 of the IPC. It is evident that while the incident took place on 13 th August, 2020, respondent No.2 approached the police on 10 th September, 2020 when her statement was recorded, thereby showing that there was a delay of atleast 28 days in registration of the FIR. This becomes significant in the backdrop of the admitted fact that husband of respondent No.2 had already approached the police as far back as on 17th August, 2020 with regard to the incident that took place on 13th August, 2020, making allegation against the applicants whereby non-cognizable offences stood registered against them bearing No.579 of 2020 for the offences punishable under Section 323, 504 and 506 of the IPC. 10. It is surprising that when the husband of respondent No.2 approached the police on 17th August, 2020 itself pertaining to the alleged incident of 13th August, 2020, he never mentioned anything about the allegations levelled much later by his wife i.e. respondent No.2 against the applicants. Respondent No.2 also took about 28 days to approach the police to level aforementioned allegations against the applicants, again for the alleged incident that took place on 13th August, 2020. Respondent No.2 also took about 28 days to approach the police to level aforementioned allegations against the applicants, again for the alleged incident that took place on 13th August, 2020. These admitted facts clearly show that the complaint lodged by respondent No.2 on 10th September, 2020, leading to registration of FIR against the applicants was an after thought, in the backdrop of the cross complaints of non-cognizable offences registered by the applicants and husband of respondent No.2 against each other. Nothing prevented the husband of respondent No.2 to give details of the alleged actions of the applicants as alleged by respondent No.2 on 17 th August, 2020 itself, thereby showing that the subsequent complaint lodged by respondent No.2 was not just an after thought, but it was with a view to get back at the applicants for the manner in which, they had lodged a complaint for non-cognizable offences against her husband. 11. Learned APP suggested that the incident that occurred on 13 th August, 2020, was in two parts. The first part being the altercation that happened outside the house of respondent No.2 where the applicants allegedly misbehaved with respondent No.2 and the second part took place in front of the house of respondent No.2, opposite the aforesaid hotel. It was sought to be submitted that the FIR was registered pertaining to the first part of the incident dated 13th August, 2020 and the cross complaints pertaining to non- cognizable offences were registered with regard to the second part of the incident that allegedly took place on 13th August, 2020. 12. We find it difficult to accept the said submission for the reason that any reasonable person, in the position of the husband of respondent No.2 or respondent No.2 herself, would have given details of the alleged actions of the applicants in the incident that occurred on 13th August, 2020 when such person approached the police for the first time to raise a grievance. Not having done so and then approaching the police after 28 days to allege that the applicant had committed offences punishable under Sections 354, 509, 323, 504, 506 read with Section 34 of the IPC demonstrates that respondent No.2 was seeking to give a different colour to the very same incident. 13. Not having done so and then approaching the police after 28 days to allege that the applicant had committed offences punishable under Sections 354, 509, 323, 504, 506 read with Section 34 of the IPC demonstrates that respondent No.2 was seeking to give a different colour to the very same incident. 13. It is significant that there is indeed a grudge between the parties for the reason that the applicants have been alleging that husband of respondent No.2, their former employee, had indulged in some misappropriation for which they had sought to confront him. In this backdrop, it becomes clear that the manner in which respondent No.2 chose to approach the police after about 28 days of the incident, when already cross complaints pertaining to non- cognizable offences had been registered by the applicants and her husband against each other, we are of the opinion that there is substance in the contentions raised on behalf of the applicants. 14. Section 155 (2) of the Cr.P.C. provides that a police officer can investigate a non-cognizable case only upon an order of Magistrate having power to try such a case or commit such a case for trial, thereby indicating that in absence of such an order, the police officer could not have initiated investigation. In a present case, the said mandate does not appear to have been followed. 15. Apart from this, the Hon'ble Supreme Court in the case of Bhajan Lal (supra) has held in para 102 as follows : "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a congnizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted ) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 16. Category (7) identified in the above quoted portion shows that where an FIR has been registered on the basis of the complaint lodged maliciously or to wreak vengeance, it would be liable to be quashed. Category (7) identified in the above quoted portion shows that where an FIR has been registered on the basis of the complaint lodged maliciously or to wreak vengeance, it would be liable to be quashed. In the present case, we are of the opinion that the subsequent complaint lodged by respondent No.2 on 10 th September, 2020, pertaining to the very same incident of 13 th August, 2020, in respect of which her husband had already lodged a complaint leading to registration of non-cognizable offences against the applicants, was not only an after thought, but it was clearly with a view to wreak vengeance on the applicants, in view of the grudge between the parties. It was certainly with an oblique motive and in a malicious manner to get back at the applicants, who had themselves caused registration of non-cognizable offences for the very same incident against the husband of respondent No.2. 17. In view of the above, we are of the opinion that there is substance in the contentions raised on behalf of the applicants that the present application deserved to be allowed. 18. Accordingly, the application is allowed in terms of prayer clause (b), which reads as follows : "(b) This Hon'ble Court may be pleased to quash and set aside the FIR against all the above-named Applicants which is registered with Dongri Police Station bearing its C.R.No.114 of 2020 dated 10.09.2020 lodged at the instance of Respondent No.2 for an alleged offences punishable u/s 354, 509, 323, 504, 506 r/w 34 of IPC." 19. The Criminal Application stands disposed of in the above terms.