1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 17 OF 2010 1. Sulochana Vaz, Daughter of late Francis Samiro Alcantra Vaz, Aged 62 years, retired. 2. Zoraida Vaz, Daughter of late Francis Samiro Alcantra Vaz, Aged 60 years, profession-teacher, Both r/o Sapana Apartments, Monte Hill Road, Margao-Goa. ... Applicants versus 1. State(through Margao Town Police Station). 2. Shri Francisco Aldolfo Alcantra Piedade Vaz, r/o Near Civil Court, Margao, Goa. ... Respondents Shri S. D. Lotlikar, Senior Advocate with Shri K. B. Surjuse, Advocate for the Petitioners. Shri Sudesh Usgaonkar, Advocate for Respondent No.2. 2 CORAM : N. A. BRITTO, J. DATE : 20TH DECEMBER, 2010. JUDGMENT Heard. 2. The petitioners are the accused against whom charge under Section 379 r/w 34 I.P.C. has been ordered to be framed by the learned Chief Judicial Magistrate, Margao. 3. The petitioners having filed a revision against the said Order to the Court of Sessions, the same came to be dismissed by the learned Sessions Judge by Order dated 18-1-2010. The petitioners therefore have now filed the present petition for quashing and setting aside the FIR filed against them so also the orders dated 23-9-2009 and 18-1-2010 of the learned Chief Judicial Magistrate and the Sessions Judge, respectively. 4. The petitioners are the sisters of respondent No.2 who is their only brother. They belong to a family of three sisters and one brother. Maria Judith has initiated inventory proceedings upon the death of their parents by application dated 25-9-1998 and by Order dated 3 29-9-1998 their brother/Respondent No.2 was appointed as the Administrator-Cabeca de Casal in the said inventory proceedings, and the fact remains that till date i.e. for over a decade no list of properties have been filed by him in the said inventory proceedings. 5. On 17-4-2008 regarding the incident of plucking of mangoes, two complaints came to be filed. One by their brother, the said respondent No.2, and the other by petitioner No.1. The complaint of respondent No.2(hereinafter referred to as the complainant) came to be registered only on 3-10-2008 and that of petitioner No.1 was not registered. 6. From the complaint of the complainant and the statement of Prabhakar Krishna Naik, it can be seen that the complainant had rented out a mango tree to the said Prabhakar Krishna Naik for Rs.6000/-, and as he was plucking the mangoes with his labourers at about 16.00 hours on 17-4-2008 according to the complainant the petitioners came and took away and stole 3000 mangoes worth Rs.15,000/- and concealed the same in the school and the house. According to the said Prabhakar, the petitioners appeared in the property of the complainant and asked him as 4 to who had told him to come to their property and saying that they took away two baskets full of mangoes. He called the owner, but, they walked away and after they went, the complainant came and he narrated the incident to him whereupon the complainant returned Rs.3000/- and the remaining basket of mangoes. According to petitioner No.1, they questioned Prabhakar and his labourers with whose permission they had entered their ancestral property whereupon one of the labourers told them that they were instructed by the complainant to pluck the fruits and whereupon they told him that they had equal share along with the complainant, and as such they were entitled to half of the yield of mangoes, whereupon the complainant is stated to have come there and abused them saying that they would not get any share and then they told him that as per the Will of their father they have been given equal rights along with him from the income of the immovable properties and then the complainant told them that he was the only son in the family and as such inherited the entire properties left by their parents. 7. The scene of offence panchanama was done on 4-10-1998 after the offence was registered on 3-10-2008. 5 8. Shri S. D. Lotlikar, learned Senior Counsel appearing on behalf of the petitioners, submits that there was a Will made by the father in favour of the sisters. Learned Senior Counsel further submits that the petitioners took their shares of mangoes to which they were entitled to, and, therefore the dispute between the parties was primarily a civil dispute. Learned Senior Counsel submits that the fact that the Police did not register the crime until 3-10-2008 when the alleged offence had taken place on 17-4-2008 itself would indicate that this is a fit case to quash the FIR, the dispute between the parties being of a civil nature. Learned Senior Counsel submits that the taking of the mangoes was a bona fide assertion of their right, and, therefore cannot amount to theft under Section 379 I.P.C. Learned Senior Counsel submits that respondent No.2 claimed to be an owner in the complaint filed by him but had produced no document to support his ownership and he could not be the owner when the properties were yet to be allotted in the inventory proceedings. Learned Senior Counsel referring to Article 2070 of the Civil Code, 1867 submits that the petitioners would be entitled to administer the properties that were given to them. 6 9. On the other hand, Shri Sudesh Usgaonkar, learned Counsel appearing on behalf of the complainant submits that the complainant/ respondent No.2 having been appointed as an administrator in the said inventory proceedings was entitled to collect all the fruits and income of the properties by virtue of Article 2085 of the said Code. Referring to Article 2082 of the said Code, learned Counsel submits that the administrator is to continue in the administration of the estate which he has until the partition is finalized except in respect of those properties which are not to devolve to other heirs in preferential manner. Learned Counsel further submits that Article 2070 was not at all attracted because the father had made a Will and not a gift, in favour of the petitioners for them to be the administrators in respect of the gifted properties. Learned Counsel has placed reliance on the case of State of Anti-Corruption Bureau, Hyderabad and another v. P. Suryaprakasam(1999 SCC(Cri) 373) wherein the Apex Court has, inter alia, stated that at the time of framing of a charge, what the trial Court is required to, and can consider are only the police report referred to under Section 173 Cr.P.C. and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. Of course, at that stage the accused may be examined but that is a prerogative of the Court only. Reference 7 was made to Minakshi Bala v. Sudhir Kumar((1994) 4 SCC 142) wherein it was stated that under Sections 239 and 240 of the Code the Magistrate is first required to consider the police report and the documents sent with it under Section 173 Cr.P.C. and examine the accused, if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If on such consideration, examination and hearing the Magistrate finds the charge groundless he has to discharge the accused in terms of Section 239 Cr.P.C. If he finds that there is ground for presuming that the accused has committed an offence triable by him he has to frame a charge in terms of Section 240 Cr. P. C. 10. There cannot be any dispute with the law laid down by the Apex Court in State Anti-Corruption Bureau, Hyderabad and another v. P. Suryaprakasam(supra). However, it is to be noted that the petitioners have invoked by this petition a much wider jurisdiction of this Court a jurisdiction meant to secure the ends of justice to quash the very complaint filed, and consequently the two orders passed by the learned J.M.F.C. and the learned Sessions Judge respectively. No doubt, the power of quashing criminal proceedings has to be exercised very 8 sparingly and with circumspection and that too in the rarest of cases. 11. In the case of State of Maharashtra v. Arun Gulab Gawali and others(AIR 2010 SC 3762) the Hon'ble Supreme Court referred to the principles laid down by that Court in the case of R. P. Kapur v. State of Punjab(AIR 1960 SC 866) and also approved the guidelines laid down by that Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others(AIR 1992 SC 604) and then referred to the case of State of Karnataka v. L. Muniswamy and others(AIR 1977 SC 1489) wherein it was observed that:- “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. 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 9 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. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction”(emphasis supplied). 12. The Court referred to Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others(AIR 1988 SC 709) and reiterated 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 appear 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 10 the court chances of an ultimate conviction is 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”(emphasis supplied). It was further observed that:- “This Court, while reconsidering the judgment in Madhavrao Jiwaji Rao Scindia(supra) consistently observed that where matters are also of civil nature i.e. matrimonial, family disputes, etc. the Court may consider “special facts”, “special features” and quash the criminal proceedings to encourage genuine settlement of disputes between the parties”. 13. As is generally understood, the complainant as administrator is entitled to administer the properties of the estate left by the parents of the petitioners and the complainant. However, what Article 2085 of the Civil Code, 1867 expressly provides is that the administrator as administrator of the estate, shall receive all fruits and income of the properties, of which he is having possession and shall satisfy all the normal liabilities, with obligation to render the accounts in 11 case the usufruct of the said properties does not belong to him but he shall not alienate any properties of the estate except the fruits and other objects which cannot be preserved without fear of deterioration and Article 2082 provides that he will continue with the administration of the estate which he has until the finalisation of the partition, except in respect of properties not to be partitioned. 14. The complainant in his complaint stated that he was the owner but on the admitted facts, he could not have been the owner of the properties of inheritance only because he was appointed as an administrator of the properties left behind by the parents of the petitioners and the complainant. At the most, the complainant as a co-heir is a co-owner of the said properties, till they are allotted in the said proceedings. Nowhere the complainant has stated in his complaint dated 17-4-2008 that he was in possession of the disputed property at the time of the opening of inheritance, upon the death of his parents, the Inventoried nor did he state as to when he had come in possession of the same. As seen from Article 2085 of the Code, an administrator can collect fruits only in case he in possession of the property. All that he stated vaguely is that he contracted to sell the mangoes as he was doing 12 all these years. That apart, it is to be noted that the petitioners who are the accused did not even take all the mangoes but only took two baskets leaving behind a third to be taken either by the complainant or his licensee, the said Prabhakar Krishna Naik, and, therefore it is obvious that the petitioner took the said mangoes under a bona fide claim of right as the mangoes from property also belonged to them. The dispute between the complainant, as first informant and the petitioners as accused appears to be of civil nature between them. The petitioners have taken two baskets of mangoes under a bona fide claim of right, as stated facts disclose. Such taking away cannot constitute an offence of theft. It is well settled that a bona fide claim of right can be a good defence to a prosecution for theft.(See Suvvari Sanyasi Apparao(AIR 1962 SC 586). No useful purpose would be served by allowing such a prosecution to continue as chances of securing a conviction in such a case are very bleak, as reiterated by the Apex Court in the case of State of Maharashtra and others(supra). Continuing with the prosecution, is bound to cause harassment to the petitioners and waste precious judicial time of the Court. There is no useful purpose to be served. The ends of justice therefore require that the prosecution should be quashed. 13 15. A perusal of the Will shows how much the father of the parties desired that they should remain united after his death but they have chosen a warring path. It is unfortunate that the complainant having been appointed as the administrator has not filed till date the list of immovable properties belonging to the estate of their parents, the inventoried. 16. With the above observations, I allow the petition, set aside the impugned Orders of the learned Chief Judicial Magistrate as well as of the learned Sessions Judge and quash the FIR in Crime No.298 of 2008, with no order as to costs. N. A. BRITTO, J. RD