1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2349 OF 2008 1) Prabhu s/o Apparao Ijalkar & Ors. - PETITIONERS VERSUS 1) Bhojraj s/o Madhavrao Wakode and Anr. - RESPONDENTS ***** Mr.SS Choudhari Advocate for Petitioners; Mr.MV Ghatge, Adv.h/for Mr.BN Gadegaonkar, Adv. For Respondent No.1; Mrs.BR Khekale, APP for Respondent No.2/State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 4th August 2009. PER COURT : . Heard learned Counsel for the petitioners/accused; learned Counsel for the original complainant and learned APP for State extensively. 2) In an incident dated 14.4.2008, where by dismantling temporary tin shed in bricks and tins by ten persons (present petitioners), when it was in occupation of Maruti, employee of complainant – Bhojraj (Respondent No.1 herein) on his behalf gave rise to prosecution. The police having shown 2 apathy, as in spite of report to the concerned Police officer immediately, no action was taken. Consequently, matter was reported to learned JMFC, Hadgaon, making allegations by his complaint dated 2nd May, 2008. It is thereafter, the learned JMFC directed investigation in terms of Section 156(3) of Cr.P.C, vide RCC No.52/2008. This order of the learned Judge, which records for an offence under Section 395 read with 34 of IPC is subject of challenge by the accused persons (petitioners herein). 3) It was contended that the matter basically relates to the immovable property. Complainant – Bhojraj is alleged purchaser of the plot admeasuring 33 X 66 ft. having purchased it from one Sahebrao Mhaske dated 13th October, 1983, such sale-deed is said to be unregistered. It was canvassed, in order to give boost to the civil proceedings, initiated by Bhojraj by RCS No.34/2008 before the learned Civil Judge, Junior Division, Hadgaon, where no injunction is clamped against Prabhu and Soma (two of the present petitioners/applicants), false proceedings, making the employee Maruti as a stooge, is initiated against the the accused persons, who claimed to be innocent, and assert, are unnecessarily dragged in the frivolous complaint. 4) Reference of earlier prosecution under Section 307 whereupon Crime No.11/2002 was 3 registered against the petitioners and others, who were acquitted in the said proceedings by the learned Additional Sessions Judge, at Nanded in Sessions Case No.54/2002 by order dated 1st September, 2003 is given to display attitude of Bhojraj. 5) So far as purchase of the plot by the complainant Bhojraj is concerned, it is none of the business of the petitioners to attribute any malice or erroneous purchase. So far as criminal prosecution, vide C.R.No.11/2002 (Sessions Case No.54/2002) is concerned, it was only to the extent of present petitioner nos. 1 and 10. 6) The Counsel for the original complainant tendered before me a certified copy of Roznama in RCS No.34/2008 to indicate that at least on 15 occasions, the civil proceedings were protracted by defendants to avoid the temporary injunction. 7) The Counsel for original complainant took me to the Judgment of the Apex Court in the matter of State of Haryana and Ors. Vs. Ch.Bhajan Lal and Ors. - AIR 1992 SC 604, wherein the Apex Court have set out categories of the cases, in which High Court may exercise its powers under Article 226 of Constitution of India or under Section 482 of Cr.P.C, by causing interference in the proceedings relating to cognizable offences to prevent abuse of process of any court or 4 otherwise to secure the ends of justice. The Lordships cautioned, however, the powers should be exercised sparingly and that too, in the rarest of rare cases. The categories laid down by the Hon’ble Lordships in the above matter are quoted as under : (a) 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; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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; (c) where the controverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused; (d) 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 5 without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) 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; (f) 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; (g) 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.” 8) In the recent judgment of the Apex Court in Criminal Appeal No.287 of 2009 decided on 12.2.2009, the matter of Aashabai Macchindra Adhagale Vs. State of Maharashtra and Ors, the Apex Court was dealing with an identical situation of quashment of proceedings by invoking 6 provisions of Section 482 of Cr.P.C, and the Apex Court, in paragraph 13 thereof, has observed as under : 13. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540 and Minu Kumari v. State of Bihar AIR 2006 SC 1937). 9) It is thus indicative that the FIR as a 7 whole or the complaint will not be an encyclopedia to decide the matter at the threshold of invocation of provisions under Article 226 of the Constitution of India or Section 482 of Cr.P.C. The Hon’ble Lordships of the Apex Court in the matter of Inder Mohan Goswami and another Vs. State of Uttaranchal and others ( 2007 AIR SCW 6679 ) have observed - “The Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused.” The Lordships have also observed - “ We are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the .” 10) Now, reverting back to the facts of the present case, the witness said, he overheard the incident of removal of tin shed. One of the 8 witness disclosed that he learnt that it was done at the behest of the present petitioners. In addition thereto, there is a statement of Maruti, his son Anand Maruti Khandare, who have witnessed as to what has transpired exactly on 14.4.2008. They have specifically named the petitioners herein as to how they have threatened, abused and removed the articles. There is no recovery and Counsel for the original complainant rightly pointed, recovery or no recovery by itself will not be a parameter and not relevant aspect to draw an inference that the allegations are false. That apart, he invited my attention to the order of release in favour of the present petitioners, by way of interim protection, which has injuncted the Investigator to further proceed in the matter of seeking recovery of the looted articles/items. 11) The offence and the allegations attributed against the petitioners are for infraction of Section 395 read with 34 of IPC. Section 391 of IPC deals with the definition of `dacoity’, as under - 391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting 9 or aiding, is said to commit" dacoity". 12) Thus, dacoity is a robbery committed by five or more persons, which provided inter alia, different stages of punishments. However, statement of said Maruti, at this stage, indicates that he was threatened and influenced by the petitioners. The goods belonging to the complainant were removed conjointly by the petitioners herein with attempt to commit robbery. In the situation, it cannot be said that the present prosecution is a sabotage created by the complainant to get the rights of the present petitioners defeated or a boon for his prosecution in RCC No.34/2008. There is no merit in the Criminal Application, it is dismissed. Interim relief vacated. ( K.U.CHANDIWAL ) JUDGE bdv/cran2349.08