1 Cri.Appln.No.2615/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2615/2009 1) Shri Sahebrao Haribhau Ghadge Patil and Ors. - APPLICANTS VERSUS 1) The State of Maharashtra and others. - RESPONDENTS ***** Aasha S.Rasal, Advocate for Applicants; Mr.PP More, APP for Resp.Nos.1/State, 7 to 9; Smt. RP Gaur, Adv. For Resp.Nos.2 to 6 ----- CORAM : K.U.CHANDIWAL, J. DATE : 23rd June, 2011. PER COURT : 1) Heard extensively. Elaborate submissions are advanced, running in two sessions. The counsel for the applicants has attributed partisan to the Investigator by quoting instances as to how the Investigator has tarnished applicants image, and he was not fair to both the sides. 2 Cri.Appln.No.2615/2009 2) It is informed, by quoting the instances referred herein after, that the complaint, lodged before the learned Judicial Magistrate First Class on 5th May, 2009; and the learned Judicial Magistrate First Class directing investigation in terms of Section 156(3) of Cr.P.C., is abuse of process of law/court, as the complaint is actuated with malice, fraud and falsehood. The applicants seek quashment of proceedings. 3) The complainant’s case reflected in his complaint summarized as under, - (a) The complainant and the accused/applicant hold respective fields. The complainant has land Gut no.280, which he claims to be irrigated at the western side. The accused/applicants have their industrial unit and they wanted access from the field of the complainant, for which the parties are at loggerhead. Civil litigation, being RCS No. 126/2009, moved by few of the accused/applicants for grant of injunction, has been turned down. (b) The complainant alleged, on 29th April, 2009, in the evening, when he along with his family members were in the house, the accused/applicant – Sahebrao, barged in his SKODA 3 Cri.Appln.No.2615/2009 Car – MH-17-V-3182 along with his driver, his relations, driven by Anand, along with persons on two motor-cycles, registration numbers of which are quoted in the complaint. The complainant claimed that the accused/applicant – Sahebrao, Anand barged his house, abused him and his family members in most filthy language, as referred in paragraph 5 of the complaint. The Accused dragged the complainant from his house. The complainant was yelling. Due to his shouts and commotion, neighbours, who incidentally happens to be cousin of the complainant, rushed the spot. The accused/applicant – Sahebrao allegedly threatened to carry their elimination (in Marathi, “_________”). The complainant has named the persons, who intervened. One of the accused Thakaji is said to have been possessing an axe while accused – Sahebrao was having a pistol. Accused – Sahebrao has allegedly said that he will eliminate by the pistol. The matter was informed to the police and on 30th April, 2009, regular report was given. However, police did not activate, hence the complaint. (c) Based on such order dated 5.5.2009, FIR, vide Crime No.55/2009 is registered. 4) Learned Counsel for the accused/applicants informs by documentary 4 Cri.Appln.No.2615/2009 evidence that the accused/applicant – Sahebrao could not carry the fire-arm or pistol at the material time, as it was surrendered to the revenue authorities. One of the accused/applicant is crippled and, therefore, could not run away, as has been referred in the complaint. Learned Counsel desired to inform falsity in recording the panchanama concerning seizure of the above referred four-wheelers as to its dates. In the panchanama dated 6th June, 2009, there is a reference of the vehicle. The date is changed in subsequent panchanama as "21.6.2009". On the contrary, the vehicle was in possession of the accused/applicants as on 22.5.2009. The Counsel submits, the subsequent statement of the complainant, has been successfully manipulated, altered to remove lacunae in the complaint, as the Investigator got alert by virtue of the proceedings filed by the present petitioner before this Hon'ble Court (being Criminal Application No.2615/2009, i.e. Present proceedings), in which, on 11th August, 2009, orders are passed and the matter was adjourned to 8th September, 2009 and consequently, the FIR, vide crime No.55/2009, is manipulated by virtue of changing the statement of Satish, the complainant, making it dated 6th June, 2009. 5) Taking survey of the events and 5 Cri.Appln.No.2615/2009 different affidavits, rejoinders from the accused/applicants, I find the presence, on the date of event dated 29.4.2009, of applicant nos. 1 to 4, 5 and 7, is not controverted. An impression, reading the complaint as a whole, is emerged that some incident indeed has taken place. 6) The applicants desired to rely on independent witness, Naib Tahsildar – Avhad. With the assistance of learned Counsel, I have gone through the same. It is unfortunate for the accused/applicants that the Naib-Tahsildar also record presence of the accused/applicants, who disowned of visiting incident that allegedly has taken place between the accused/applicants or the complainant. 7) As on today, there are statements of independent witnesses. The accused/applicants brand them to be interested witnesses, may be so, however, considering the event that has taken place at late hours in the vicinity, the village, in natural parlance, neighbours naturally rush forward on commotion. They may be close relations or cousin, rushed to resolve the controversy, outsiders cannot be expected to be remained present. Interestedness of the witnesses, at this stage of the matter, by itself 6 Cri.Appln.No.2615/2009 will not dilute worth to their statements. These features will have to be scanned/analyzed at proper stage of evidence before the learned Judge. 8) I quite see, after hearing the learned counsel, complainant, role of the Investigator, who has been named as respondent no.7, is not fair to the accused/applicants. He has, for no reasons, crossed his limits from impartial Investigator. However, that by itself will not dilute the merits in the complaint or the accusations accelerated by the complainant. 9) The accused/applicant – Sahebrao, not possessing the fire-arm may be true, it will have its impact on the worth of such accusations against him, but his presence, at the time of incident, manhandling to the persons of rival group, has been surfacing in the narration from the witnesses, does not call for any interference. 10) Learned Counsel for the accused/applicant has placed reliance to the judgment of the Apex Court reported in AIR 1978 SC 47 –(Madhu Limaye Vs. State of Maharashtra) and particularly paragraph 11 thereof. The Hon’ble Lordships have given reference to the 7 Cri.Appln.No.2615/2009 judgment of R.P.Kapoor Vs. State of Punjab – AIR 1960 SC 866, in which, the Apex court has observed as under, - “In R. P. Kapur v. The State of Punjab (1960) 3 SCR 388 : (AIR 1960 SC 866) Gajendragadkar J. as he then was, delivering the judgment of this Court pointed out, if we may say so with respect, very succinctly the scope of the inherent power of the High Court for the purpose of quashing a criminal proceeding. Says the learned Judge at pages 392-93 (of SCR ) (at p.889 of AIR) :- "Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an 8 Cri.Appln.No.2615/2009 offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to. prove the charge'. In dealing with this class of cases it is important to bear in- mind the distinction between a case where there is no legal evidence or 9 Cri.Appln.No.2615/2009 where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent Jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained." We think the law as stated above is not affected by section 397(2) of the new Code. It still holds good in accordance with section 482.” 11) The learned Counsel has also placed reliance to the judgment in the matter of Vijay Shekhar and Anr. Vs. Union of India – (2004) 4 SCC 666) The Hon'ble Apex Court have in paragraph 10 dealt with what is fraud and its impact on the matter. It reads as under, - “10) Similar is the view taken by the Court in the case of Ram Chandra Singh Vs. Savitri Devi, wherein this Court, speaking through one of us (Sinha,J.) held thus : (SCC pp 327 328 & 329, paras 15-18, 23 & 25) Fraud as is well known vitiates every solemn act, Fraud 10 Cri.Appln.No.2615/2009 and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been had. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata." 12) In the said proceedings, NBWs were issued by a Judicial Magistrate First Class against eminent persons on extraneous 11 Cri.Appln.No.2615/2009 consideration, based on false complaint. A whistle-blower allegedly played with system. The Apex Court found, such exercise was actuated with fraud. The Hon'ble Lordships quashed and set aside the cognizance that has been taken by the Magistrate of the complaint. Consequently, issuance of NBWs against the eminent persons were quashed. No such eventuality emerged in the present case. 13) With all said and done, it is explicit, primarily, the event, as stated herein above, has taken place. It is not that it is magnified with any fraud. Worth of the statements, including whether crippled could run away, will be independently looked into by the Magistrate. Charge sheet is already filed. Accused/applicant, if desires, has his remedy before the said Court. At this stage, though I find role of the investigator to be leaning to the complainant, however, by that itself, events reflected in the complaint or the statements need not be diluted and squeezed. 14) The accused/applicants in the light of specific accusations against the Respondent no.7 Police Officer, are at liberty to approach the Superintendent of Police or the Higher Officer, seeking action. The petition lacks merit, 12 Cri.Appln.No.2615/2009 dismissed. The observations are prima facie. The learned Judge dealing the matter need not be influenced. ( K.U.CHANDIWAL ) JUDGE bdv/