1 wp1780.08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1780 OF 2008 KJ Hanmant Govindrao Dhumal ) Age-44 years, Occ.: Sub-Divisional Forest ) Officer, Bhor, Dist. Pune ) R/a. A/p Bhor, Tal-Bhor, Dist. Pune )..Petitioner Versus 1 Dharmarao Baba Attram ) Age-55 years, Occ. MLA ) R/a.Amber-34, Malabar Hill, Mumbai-06 ) 2 Senior Inspector of Police ) Azad Maidan Police station, Mumbai ) 3 The State of Maharashtra )..Respondents ---- Mr.S.V.Kotwal along with A.R.Kapadnis for the petitioner. Mrs.M.H.Mhatre APP for the Respondent Nos.2 & 3. Mr.Sachin Dhakephalkar i/by Virendra Maurya for the respondent no.1. ---- CORAM : A.M.KHANWILKAR & P.D.KODE,JJ DATE : 23.8.2011 ORAL JUDGMENT ( PER : A.M.KHANWILKAR,J) 2 wp1780.08.sxw 1 This petition under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 is filed for quashing of FIR registered as C.R.No.19 of 2008 at the Azad Maidan Police station, Mumbai. 2 Briefly stated, the petitioner was the Sub-Divisional Forest Officer, Bhor, District Pune at the relevant time. The forest offence was registered within the area of his jurisdiction bearing no.3/2008-09 and Round offence No.1/2008-09 dated 20.6.2008 for offences under Section 26(i) of the Indian Forest Act and under Sections 9, 18, 39, 50 & 51 of the Wild Life Protection Act 1972. The said offence was in connection with the illegal hunting of protected species of Wild Life namely Chinkara, Barking Deer and Indian Hare in violation of the provisions of the Indian Forest Act 1927 and Wild Life Protection Act 1972. 3 By an order dated 22.6.2008 issued by the Chief Conservator, the investigation of the said case was entrusted to the petitioner herein. The offence was registered against the respondent no.1 3 wp1780.08.sxw who, at the relevant time, was Minister of State incharge of Transport, Mining, Women and Child Wellfare and Backward Classes Welfare in Maharashtra. The investigation of the said case revealed that the respondent no.1 himself shot and killed two Chinkaras and two Hares on 14.6.2008 in the Talukas of Baramati and Purandar and one barking Deer on 16.6.2008 at Mahabaleshwar. In connection with the said offence, summons was issued on 18.8.2008 by the petitioner to the respondent no.1 to appear before him for investigation. Before that, respondent no.1 had already tendered his resignation as Minister on 7.8.2008. Respondent no.1 however, proceeded to file anticipatory bail application before the Sessions Court, Pune which came to be rejected on 19.8.2008. He thereafter moved the High Court by way of anticipatory bail application on 22.8.2008. Even this anticipatory bail application came to be rejected on the same day i.e 22.8.2008. 4 The FIR in which the petitioner herein has been named is registered upon the complaint lodged by respondent no.1 on next 4 wp1780.08.sxw day of incident i.e on 23.8.2008. Significantly the Advocate for the respondent no.2 who claims to have appeared in the anticipatory bail application before this Court, had lodged complaint about the incident on 22.8.2008, on the basis of which, NC was recorded at Azad Maidan police station. In the complaint given by the respondent no.1, he has stated that after his anticipatory bail application was rejected by the High Court and when he was walking out of the Court complex at around 2.00 P.M along with his bodyguards and associates at the northern gate of the High Court building, one forest officer Mr.Landge along with another employee of the forest division touched him and pulled him out of the car. It is alleged that the said officer threatened respondent no.1 and used abusive language with reference to the caste of the respondent no.1 such as “lkY;k HkMO;k] xkasMkG;k] 28 rkj[ksyk rw gtj >kY;koj rq>;kdMs c?kqu ?ksrks’. It is alleged that these utterances were made by the said officer on the instigation of his superior i.e petitioner herein. It is further alleged that the petitioner and Mr.Landge belong to upper caste and therefore, they insulted the Respondent No.1 by abusing with reference to his caste. On the 5 wp1780.08.sxw basis of this statement, the FIR in question bearing No.19 of 2008 came to be registered on 23.8.2008. 5 The petitioner has approached this court for quashing of the said FIR on two fold grounds. The first ground is that even if the allegations made in the statement of the respondent no.1 dated 23.8.2008 are to be taken as it is, no offence is disclosed as against the petitioner herein. Secondly, the petitioner has been named by the respondent no.1 only out of vengeance and as a counter blast and retaliatory measure as the petitioner was the Investigating officer in the case registered against the respondent no.1 for offences under Indian Forest Act and Wild Life Act. 6 The respondent no.1 though duly served and has appeared through Counsel, at the stage of admission of this petition, has not chosen to counter the allegations made by the petitioner in this petition. In other words, the assertion of the petitioner that the respondent no.1 has falsely named the petitioner has remained un- controverted. Although the respondent no.1 has engaged 6 wp1780.08.sxw Advocate, at the time of admission of the petition, Mr.Dhakephalkar has appeared for him and submited that as of now he has no instructions to appear on behalf of the respondent no.1. The Advocate on record for the Respondent No.1 has not chosen to appear before us, nor the respondent no.1 has chosen to file counter affidavit. Thus, the assertion made by the petitioner that the Respondent no.1 has named him in his statement only out of vengeance and to dissuade the petitioner from investigating the serious offence registered against him in his capacity as the investigating officer of that case, remains unchallenged. On that count alone this assertion made by the petitioner deserves acceptance. 7 Even otherwise, the controversy can be answered in the context of the contents of the FIR. The Assistant Commissioner of Police has filed reply affidavit dated 30.9.2008. The reply affidavit discloses the steps taken for investigation of the present case by the local police. During the investigation, statements of various witnesses including the Advocate for respondent no.1, Personal 7 wp1780.08.sxw Assistant of respondent no.1, escort staff, political party worker, as well as Additional Public Prosecutor who were present on the day of incident in the High Court have been recorded. The affidavit also refers to the fact that during the investigation, DVD has been produced by the Complainant which however, reveals that the petitioner was not seen in the clippings of the DVD. In that sense, the presence of the petitioner at the scene of offence is not disclosed from the DVD. Further, the statements of all the witnesses except the two witnesses do not make reference to the presence of the petitioner at the time of the incident in question. It is only Mr.Menganwar Advocate of the respondent no.1 has stated that Mr.Landge and Mr.Dhumal (petitioner herein) both of them abused the respondent no.1. Similar statement is made by witness Shrikant Bhriguvar. Notably, none of these witnesses have stated as to what abuses were given by the petitioner, assuming that he was present at the scene of offence. Furthermore even names of said witnesses are not in complaint lodged by Respondent no.1. It is not the case of the complainant that the forest officer Mr.Landge had stated that he was acting under the 8 wp1780.08.sxw instructions of the petitioner herein. If so, the question of proceeding against the petitioner for offence under the provisions of the Atrocities Act does not arise. 8 We will revert back to the allegations contained in the FIR which is registered on the basis of statement of respondent no.1 dated 23.8.2008. On perusal of that statement, it is noticed that the case of the respondent no.1 is very specific that Mr.Landge and other staff of forest department had attempted to remove the respondent no.1 from his car as they wanted to arrest him. As regards utterances made by Mr.Landge, the petitioner cannot be held responsible for the same. In as much as, those utterances were obviously made by Mr.Landge on the spur of the moment. Indeed, the allegations in the FIR is that the forest officer Mr.Landge made those utterances at the instigation of the petitioner. However, FIR nowhere mentions that the petitioner was present at the scene of offence and had committed any overtact. No such allegation is found in the statement of the respondent no.1 given on 23.8.2008. The statements of 9 wp1780.08.sxw Mr.Menganwar and Mr.Shrikant Bhriguvar have been recorded only on 2.9.2008 and 3.9.2008 respectively. 9 Be that as it may, the question is whether the allegations contained in the FIR discloses involvement of the petitioner and more so of having committed the offence in question. Going by the allegations in the FIR, we have no manner of doubt that no offence is disclosed as against the petitioner herein. In fact, the FIR makes no reference to the presence of the petitioner at the scene of offence. No other witness has stated about the presence of the petitioner at the scene of offence except the two witnesses viz. Mr.Menganwer Advocate and Mr.Shrikant Bhriguvar. As aforesaid the statements of these two witnesses is after thought. These two witnesses who have stated that the petitioner had hurled abuses to respondent no.1, which is not even the case of respondent no.1. Even if the allegation contained in the FIR that Mr.Landge hurled abuses to respondent no.1 at the instigation of the petitioner herein may constitute offence under the provisions of the Atrocities Act, we have no hesitation in taking the view that 10 wp1780.08.sxw the petitioner is justified in contending that the petitioner has been falsely named by the respondent no.1 out of vengeance as the petitioner was the Investigating officer in the offence registered against the respondent no.1 for having killed chinkara, barking deer and Indian hare. There is strong probability that the petitioner has been named in the present FIR by the respondent no.1 as a counter blast and retaliatory measure. 10 Learned Counsel for the petitioner has rightly relied on the decision of the Apex Court in the case of State of Orissa Vs. Ganesh Chandra Jew reported in AIR 2004 SC 2179. Even in that case the criminal case registered against the Investigating officer in respect of offence under the provisions of Wild Life Protection Act came to be quashed as being counter blast and retaliatory measure adopted by the complainant. The credibility of the complainant itself was in doubt and there were palpable inherent improbabilities and infirmities in the complainant’s case. Further, the complaint was malafide. The opinion recorded by the Apex Court in the said case applies on all fours to the fact situation of 11 wp1780.08.sxw the present case. 11 In our opinion, therefore, petition ought to succeed and the FIR as registered, naming the petitioner as one of the accused will have to be quashed to that limited extent. Accordingly, the petition is made absolute in terms of prayer clause-(a). (P.D.KODE,J) (A.M.KHANWILKAR,J)