1 Crim.Appln. No.1588/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1588 OF 2010 Dhansukh Raman ...Applicant vs. The State (Through COP Daman, Union Territory of Daman & Diu) ...Respondent Mr.C.M. Kothari for the Applicant/Petitioner. Mr.D.A. Nalavade, Government Pleader for the Respondent. CORAM : V.M. KANADE, J. DATED : JULY 21, 2010 P.C. :- 1 By this application which is filed under Section 482 of the Cr.P.C., the applicant is seeking an order from this Court for quashing FIR which is registered with Nani Daman Police Station vide Crime 2 Crim.Appln. No.1588/2010 No.152 of 1992 and the charge sheet No.73 of 1993 filed in the court of CJM at Daman. 2 Brief facts are that the applicant had filed an application before the Chief of Police (COP), Daman, seeking a Police Clearance Certificate. However, this certificate was not issued to him and he was informed that criminal case vide C.R.No.152 of 1992 in which charge sheet No.73 of 1993 was filed, was pending in the court. The applicant, therefore, filed an application under Section 91 of the Cr.P.C. in the court of Judicial Magistrate at Daman vide Criminal Misc.Application No.73 of 2009 in which he had called upon the State Chief Police, Daman to furnish the details of CR No. 152 of 1992 and the copy of the charge sheet No.73 of 1993 filed in respect of the CR be supplied to him. Accordingly, the learned Magistrate was pleased to pass an order dated 17th July, 2009 asking the Chief of Police, Daman, to produce the Station Diary for the month of October and November 1993 and also 3 Crim.Appln. No.1588/2010 copy of the police investigation and charge sheet for the perusal of the court. The matter was adjourned from time to time and thereafter, the COP, Daman was pleased to give a xerox copy of the complaint and xerox copy of the charge sheet. Reply was also filed by the COP, Daman in the court of CJM, Daman, dated 3rd August, 2009 and in view of the said reply, the application filed by the applicant was disposed of. 3 It is submitted by the learned Counsel appearing on behalf of the applicant that the applicant was not arrested at any point of time nor was he supplied with the copy of the charge sheet nor was summons issued by any court to him. 4 Respondent no.1 has filed reply of the Norbu Tshering S.P.Crime, Daman & Diu and it is further stated that the record of Station Diary is not available with the said police station since the office copy of the case papers and case diaries were 4 Crim.Appln. No.1588/2010 retained by the Investigating Officer in his own custody and that he has retired from service and is residing in Diu. 5 The learned Counsel for the applicant submits that for the first time when he filed an application for police clearance, he was informed about the pending case. He submitted that there is no record regarding the pending matter. It is further submitted that even perusal of the FIR does not disclose commission of offence under Section 446 if whatever stated in the said FIR is accepted at its face value. He then submitted that in the charge sheet also, the names of th independent witnesses are not mentioned, no particulars are given, no reference is made to any document. In the column of names and addresses of witnesses, the names of two panchas and two police officers are mentioned, however, copy of the panchnama is not annexed. Copy of the statements of these witnesses also is not annexed. It is, therefore, submitted that the said 5 Crim.Appln. No.1588/2010 proceedings should be quashed, firstly, they are pending since last 18 years, secondly, in spite of direction being given by the trial court, the relevant necessary documents have not been produced. 6 Shri Nalavade, the learned Government Pleader appearing on behalf of the State submitted that this Court may call for record and proceedings from the trial court in order to ascertain the stage of the proceedings before the trial court. It is further submitted that the trial court may be directed to decide the case, expeditiously. It is further submitted that the offence under Section 436 is punishable with life and therefore, at this stage, the FIR may not be quashed in view of the judgments of the Apex Court. 7 I have heard both the learned Counsel at length. It is an admitted position that apart from the xerox copy of the complaint and the xerox copy of the charge sheet, original records have not been 6 Crim.Appln. No.1588/2010 produced by respondent no.1 though several directions were given both by CJM, Daman, and by this Court. The respondents also have not been in a position to point out the court in which these proceedings are pending. The case number given to this matter also has not been mentioned in the affidavit-in-reply filed in this court and in the affidavit-in-reply filed before the CJM, Daman. The applicant apparently came to know about the said criminal case only after he had filed an application for police clearance since he was seeking a job outside Daman and for that purpose, he was asked to obtain a police clearance certificate. The said FIR allegedly was registered in 1992. No explanation has been given as to what happened since 1992 or at least after 1993 when the charge sheet was filed. Surprisingly, along with charge sheet, statements of witnesses as well as documents such as panchnama and the other record is not annexed. Perusal of the complaint - FIR also discloses that the complainant does not state that the complainant had seen the 7 Crim.Appln. No.1588/2010 applicant throwing the said fire cracker on the house of the complainant one R. Mendse. No panchnama of the scene of offence and the damage caused to the house of the complainant is annexed to the charge sheet The complaint also does not state that the Rebello, Police Constable had witnessed the said incident. The complaint reads as under :- Today at about 8:00 O Clock to 13:00 I was on government duty at Bariyawaad, Moti Daman That Jaswant Sorthi has lodge the Complaint and Police Constable Buckle No.50 was along with me. At about 8:30am entry was made in Station diary and went to the duty. At that time on seeing there were three boys namely (1) Dhansukh Raman Sorthi and two others that can be identified by face They were hidding and told me that make gate on this road. And At that time Police Constable (P.C.) 0.50 Rebello was also present and then after at about 11:45 O Clock back of this house Dhansukh Raman has fired the bomb of fire crackers and thrown to the roof of house and set the fire in back side of the house and with Dhansukh and two other person were also to set the fire at that time I was with police constable the smoke from bomb coming from backside side roof an 8 Crim.Appln. No.1588/2010 going to see Dhansukh with two boys ran away that fire was set by them. On receiving of information I took my cycle and Police constable buckle No. 50 went personally to Moti Daman Out Post. I informed through wireless to the Daman Police Station. This fire was set intenhonally set by this two person. This boys has fired the bomb. This is my legal complaint against them and take necessary action against them. In the single page charge sheet, only the property which was attached was a few pieces of burnt bamboo stick and the panchnama is not annexed. Therefore, even if the statement in the complaint is accepted, it does not disclose commission of offence under Section 436 of the IPC. The complaint does not disclose that any person was injured as a result of the fire cracker being thrown on the roof of the house. There is no reference to the extent of damages either to the house or roof as a result of the said fire. No explanation has been given as to what happened for the last 18 years after the filing of the alleged charge sheet by the police. The case 9 Crim.Appln. No.1588/2010 number or other particulars of the case also is not disclosed in the affidavit-in-reply. Though it is stated that the original case papers are with the retired police officer who was staying at Diu, no explanation has been given as to the step taken by the COP in regaining the original papers. There is, therefore, much substance in the submission by the learned Counsel for the applicant that the applicant was not arrested at any time in connection with the said offence and there is no record to show that in fact, the said criminal complaint was registered or charge sheet was filed in the court. It appears that possibility of these papers having been fabricated to justify the rejection of the police clearance application filed by the applicant herein cannot be ruled out. Though sufficient opportunity was given by the CJM, Daman, all that was produced was a xerox copy of a complaint and a single page charge sheet. To say the least, the COP, Daman has utterly failed to satisfy the court about the pendency of the said criminal complaint in any court of law. It is a 10 Crim.Appln. No.1588/2010 settled position in law that after the criminal complaint is filed, it has to be reported to the Magistrate and copy of the FIR has to be filed in the said court. Thereafter, the police either should investigate into the case and file a report under Section 169 or if there is sufficient material against the accused under Section 173 of the Cr.P.C. After the charge sheet is filed, the learned Magistrate then issues summons by taking cognizance of the said offence and thereafter, the accused is produced before the court and the prosecution is given time to prove its case by examining the witnesses. None of these documents have been produced by the COP, Daman. This being the position, there is some substance in the submission made by the learned Counsel for the applicant that these documents are fabricated and no such criminal proceedings are pending and even if it is held that the said proceedings are pending, in view of the facts and circumstances of the case, the said complaint is liable to be quashed. 11 Crim.Appln. No.1588/2010 8 The submission made by the Government Pleader appearing for the State that this is a serious offence punishable with life and therefore, should not be quashed, also cannot be accepted. The prosecution has utterly failed in producing the statements of witnesses which are mentioned in the copy of the charge sheet. Neither the panchnama nor other particulars have been produced and therefore, even prima facie case against the applicant has not been established. More than 18 years have passed and still it is claiming that this case is pending against the present applicant though there is no record in support of the said submission. In view of these circumstances, therefore, in my view, there is no other alternative but to allow the application filed by the applicant in terms of prayer clause (a). 9 Hence, application is allowed in terms of prayer clause (a). If an application for police 12 Crim.Appln. No.1588/2010 clearance is filed, the same may be disposed of, expeditiously. 10 Application is disposed of. (V.M. KANADE, J.)