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2021 DIGILAW 667 (BOM)

Taleb @ Chota Rafiq Beg v. State of Maharashtra

2021-03-24

MANISH PITALE, S.S.SHINDE

body2021
JUDGMENT : Manish Pitale, J. 1. Rule. Rule made returnable forthwith. Heard finally. 2. By this petition, petitioner has sought quashing of the First Information Report (FIR) and charge-sheet submitted in pursuance of completion of investigation concerning the said FIR. According to the petitioner, there is no material brought on record to even remotely link the petitioner with the alleged offence and therefore, the present petition deserves to the allowed. 3. In the present case, an FIR dated 04.02.2017 was registered against unknown person on the basis of a complaint loaded by respondent No.3. According to respondent No.3, on 03.02.2017 when she was working in her office where she was required to deal with cash amounts, an unknown person approached her and stated that he required one currency note of Rs.2000/- as he had some Pooja at his place, in respect of which he was ready to give four currency notes of Rs.500/- each. It was further stated in the aforesaid complaint that when respondent No.3 eave one currency note of Rs.2000/- in exchange of four currency notes of Rs.500/-, the said unknown person said that he wanted the currency note of Rs.2000/- for exchange in better condition. 4. As per the respondent No.3, while saying so, the unknown person took the bundle of currency notes of Rs.2000/- from her and exchanged a currency note of Rs.2000/- while returning the rest of the bundle. According to the respondent No.3, she could not realise as to what had happened, but after lunch time, when the accounts in the office were being reconciled, she realised that 17 currency notes of Rs.2000/- were missing. This is when she realised that the said unknown person had taken away those 17 currency notes of Rs.2000/-. Respondent No.3 immediately reported the matter to her superiors and eventually the said complaint was lodged on 04.02.2017, leading to registration of FIR against the unknown person. The description of the unknown person was given in the said FIR. 5. Thereafter on 07.08.2017, the petitioner was picked up by the Police alleging that he was the very person who had taken the said currency notes from the respondent No.3. The petitioner was produced before the Judicial Magistrate First Class where his police remand was sought. It was claimed that such remand of the petitioner was necessary in order to search for co-accused persons on 07.08.2017. The petitioner was produced before the Judicial Magistrate First Class where his police remand was sought. It was claimed that such remand of the petitioner was necessary in order to search for co-accused persons on 07.08.2017. The Magistrate passed the order granting police remand of the petitioner upto 11.08.2017. Prior to the said order, the material on record shows that on 06.08.2017, the Police Sub Inspector claimed that on the basis of secret information it was revealed that the petitioner was the very person responsible for the aforesaid crime. He was confronted and when his search was carried out, an amount of Rs.2750/- was recovered from him. 6. Supplementary statements of witnesses were recorded on 07.08.2017, which revealed that they were called to the Police Station and they were told that the petitioner was the very person who was responsible for the said crime. Thereafter, investigation was completed and charge-sheet was filed against the petitioner. 7. The petitioner has filed the present petition contending that he has been falsely implicated and there is not even an iota of evidence with the investigative agency to link the petitioner with the aforesaid crime. 8. Mr. Hassnain Kaazi Sayyed, learned counsel appearing for the petitioner vehemently submitted that the petitioner was being falsely implicated in the present case and there was no material to link the present petitioner with the aforesaid crime. It was further submitted that the Police had earlier registered FIRs against the petitioner in cases where the complainants had claimed that unknown persons had committed crimes. It was also highlighted that in one of such FIRs the Police had filed a report under section 169 of the Criminal Procedure Code. Learned counsel for the petitioner brought to the notice of this Court contents of the complaint leading to registration of the aforesaid FIR on 04.02.2017, the statements of the witnesses, as also the entire material brought on record alone with the charge-sheet. 9. After referring to such material, learned counsel for the petitioner submitted that there was no identification parade conducted, the incident had allegedly occurred on 04.02.20217, while the petitioner was picked up on 07.08.2017 and sent to police remand upto 11.08.2017 and that the material that came on record with the charge-sheet in no manner linked the petitioner with the aforesaid alleged incident. It was submitted that there was no question of recovery of amount of Rs.2750/- found on the person of the petitioner being linked to the alleged crime and that in the present case the petitioner had been falsely implicated. On this basis, it was submitted that the FIR and charge-sheet deserved to be quashed. 10. Mr. J.P. Yagnik, learned APP submitted that since the charge-sheet was now filed, upon completion of investigation and there was material on record to indicate involvement of the petitioner, the present writ petition deserves to be dismissed. 11. None has appeared on behalf of the respondent No.3 despite service. 12. We have heard learned counsel for the rival parties and we have perused the material on record. In the present case, it is significant that the FIR registered on 04.02.2017 states that the offence was committed by an unknown person. The statement of respondent No.3 leading to registration of the FIR records the physical appearance of the unknown person who had duped the respondent No.3 of 17 currency notes of Rs.2000/- each. The material on record does not indicate as to the manner in which the investigation was undertaken which led the investigating agency to apprehend the petitioner. A perusal of a report submitted by the Police Sub Inspector, Pimpri Police Station, Pune to the Senior Inspector of Police simply records that on 06.08.2017 secret information was received that the petitioner was the very person who had duped the respondent No.3 on 04.02.2017. It is recorded in the said communication that it was the petitioner who was the person responsible for the crime as per the aforesaid FIR No.89 of 2017 registered on 04.02.2017. It is then stated that when the petitioner was confronted and his physical search was carried out, cash amount of Rs.2750/- was recovered and Panchnama was executed. 13. Thereafter, an application was submitted before the Magistrate seeking police remand of the petitioner and in this application it was stated that part of the amount stood recovered and recovery of substantial amount was pending. Significantly, it was stated that accused was apprehended on the basis of CCTV footage. This aspect was not even referred to in the aforementioned communication dated 06.08.2017 sent by the Police Sub Inspector to his Senior Inspector of Police in the same Police Station. Significantly, it was stated that accused was apprehended on the basis of CCTV footage. This aspect was not even referred to in the aforementioned communication dated 06.08.2017 sent by the Police Sub Inspector to his Senior Inspector of Police in the same Police Station. Thereafter, on 07.08.2017 itself, supplementary statements of witnesses were recorded in which it was simply stated by the said witnesses that they were called to the Police Station and told by the Police that the unknown person who had committed crime on 04.02.2017 was none other than the petitioner, who had been arrested. 14. It is such material that constitutes accompaniments with the charge-sheet. None of the witnesses and not even the respondent No.3 (original complainant) identified the petitioner as being the very person who had duped the respondent No.3 of currency notes on 04.02.2017. No identification parade was conducted. Even the CCTV footage which was allegedly the basis of apprehending the petitioner was not brought on record. Even otherwise the said CCTV footage did not find mention in the aforementioned communication sent by the Police Sub Inspector to the Senior Inspector of the Police Station. The alleged recovery of cash amount of Rs.2750/- from the petitioner on 06.08.2017, is not shown to be linked with the cash amount that was wrongly taken away by the unknown person from respondent No.3 on the date of the incident. Therefore, such alleged recovery can be of no significance. 15. Despite this situation, it was claimed on behalf of the investigating agency on 07.08.2017 before the Magistrate that part amount was recovered and substantial amount of recovery is yet to be made. There is no material on record to show that such currency notes amounting to Rs.2750/- recovered from the person of the petitioner on 06.08.2017 were part of the bundle of the currency notes concerning the incident of 04.02.2017. It would be absurd to say that because of an amount of Rs.2750/- was recovered from the petitioner, he was necessarily the person who had duped the respondent No.3 on 04.02.2017. Therefore, it becomes clear that the charge-sheet and the material brought on record by the investigating agency in the present case does not even prima-facie show any link of the petitioner with the incident in question. Therefore, it becomes clear that the charge-sheet and the material brought on record by the investigating agency in the present case does not even prima-facie show any link of the petitioner with the incident in question. There is nothing to show that even remotely the petitioner could be said to be the person who had allegedly duped the respondent No.3 on 04.02.2017. In the absence of any such link established by the investigating agency, we find it difficult to accept the submission made by the learned APP that the present case needs to go to trial. 16. In the case of State of Haryana and others Vs. Bhajanlal and others, 1992 Supp (1) SCC 335, the Hon’ble Supreme Court has held 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 cognizable 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. (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 allegations 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.” 17. We are of the opinion that a bare perusal of the FIR does not show any offence with which the petitioner can be linked in the present case. The police apprehended the petitioner on 06.08.2017 and sought his remand on 07.08.2017 for an incident took place on 04.02.2017, without there being even an iota of material to link the petitioner with the incident in question. Therefore, we are of the opinion that the petitioner has successfully made out the case for quashing of the FIR and consequent proceedings under categories 3 and 5 as enumerated in the above quoted portion of judgment of the Humble Supreme Court. 18. We are of the opinion that the present case is which one in the petitioner has been able to make out his case for exercise of extraordinary and inherent power of this Court to quash the criminal proceedings initiated against him. We find that the nature of material brought on record in pursuance of investigation and filing of charge-sheet does not even prima-facie indicate involvement of the petitioner in the alleged offence. We find that the nature of material brought on record in pursuance of investigation and filing of charge-sheet does not even prima-facie indicate involvement of the petitioner in the alleged offence. Therefore, allowing the proceedings to continue in pursuance of such an FIR and charge-sheet would not be in the interest of justice and would amount to abuse of the process of law. Therefore, we are inclined to allow the present writ petition. 19. Accordingly, the writ petition is allowed in terms of prayer clause (A) which reads as follows :- “(A) Quash and set aside the F.I.R. bearing C.R.No.89/2017 registered with Pimpri Police Station, Pimpri, Pune against Petitioner for the offence punishable U/Sec. 420, 406 of the Indian Penal Code and subsequent charge-sheet and R.C.C. No.466/2018 and for that purpose issue necessary orders.” 20. Rule made absolute in the above terms.