1 WP 1548.09.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO. 1548 OF 2009 Mr. Vikram Ashok Mittal. ... Petitioner. V/s. The State of Maharashtra & Anr. ... Respondents. Mr. A.P. Mundargi, Sr. Counsel a/w. Mr. Anoop Pandey i/b. Mr. Jay K. Bhatia for the Petitioner. Ms. R.V. Newton, APP for the State. Ms. Amba Salekar for Respondent 2. CORAM : K.U. CHANDIWAL, J. DATED : 18th AUGUST 2011. P.C. :- Heard learned Counsel for both sides. Rule made returnable forthwith. 2. In an incident dated 28th January 2006, a brawl has taken between two youths. The Respondent herein tried to intervene when the Petitioner was being taken by the security guards and the colleagues of the Respondent. The Respondent alleged, she was abused and man-handled even outraged. 3. The learned Senior Counsel for the Petitioner submits that the prosecution initiated by Respondent No.2 - alleged victim is nothing but the persecution made as a counter to 2 WP 1548.09.sxw avoid rigor and effect of FIR of C.R. No.38 of 2006 lodged by the Petitioner before police dated 29th January 2006, which highlights the events making out a case for an offence under Section 307 of I.P.C. against the suspects referred in the said FIR. 4. The learned Senior Counsel criticized the question FIR and issuance of summons by order dated 2nd August 2008 by the learned Metropolitan Magistrate on the ground that if the incident has taken place on 28th January 2006 of alleged outraging modesty of the Respondent, there was no injunction to her to immediately report the matter. However, it is belatedly reported on 1st February 2006. This was certainly at the behest of suspects in FIR No.38 of 2006 to create a pressure and to avoid the prosecution by the Petitioner in FIR No.38 of 2006. The statement of the witnesses recorded by the investigator as a whole even if some incident indeed has taken place at the hotel on 28th January 2006, it does not culminate into outraging modesty of the Respondent or abusing her in filthy language. 5. The learned Senior Counsel invited my attention to the statement of Smt. Manavi Roy and few others. These witnesses primarily indicate that incident indeed has taken place between the Petitioner and other suspects wherein the Respondent tried to intervene. She was allegedly abused and pushed. Push by itself by no scale would attract provisions of Section 354 of I.P.C. The theory of tearing of her shirt has 3 WP 1548.09.sxw been attacked, was found to be bitter to accept as the shirt was allegedly seen torn by metallic object. 6. The Police/Investigator informed the learned Magistrate by their ‘C’ Summary report that the version of Respondent - victim is not supported by any independent person except Mr. S.D. Bambot and Mr. Thapa. The independent witnesses do not implicate the Petitioner with efforts to molest the Respondent. 7. I have referred to the statement of three witnesses, it is clear, her FIR is primarily an out-burst and after thought to avoid the effect of Crime No.38 of 2006 made by the Petitioner against the suspects named therein. Even if there is no detail observation as to why the learned Judge declined to act upon the ‘B’ Summary. The issuance of process by the learned Judge was certainly not within the parameters as were excepted to be looked into. 8. It would be difficult to accede the contention of the learned Counsel for the Respondent that any act by this Court would amount to atrocious effort to high-jack the FIR of Respondent. 9. The legal position is quite clear. Power in terms of Section 482 of Cr.P.C., are to be exercised in the parameter as carved in the very Section itself. Legal position is again explained in the matter of State of Haryana V/s. Bhajanlal, 4 WP 1548.09.sxw reported in (AIR) 1992 S.C. 604, in the matter of Pepsi Foods Ltd. & Anr. V/s. Special Judicial Magistrate & Ors. reported in AIR 1998 S.C. 128 and Indar Mohan Goswami V/s. State of Uttaranchal, reported in (2008) 1 SCC (Cri). In the later case, in paragraph 25, the Hon’ble Lordships have observed as under :- “25. 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. On analysis of the aforementioned cases, 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 specially laid down in the Statute itself.” 10. Taking the survey of these events, the Court is not preventing from invoking Section 482 of Cr.P.C. as the inherent powers referred above informs (a) to give effect to any order, (b) to prevent abuse of the process of any Court, and (c) to secure the ends of justice. The categories indicated by the Apex Court in the matter of Bhajanlal also illustrate the scope of Section 482 of Cr.P.C. and its applicability in facts of present case. 5 WP 1548.09.sxw 11. Taking all the events into consideration as canvassed by the learned Counsel for the Respondent, this is a fit case warranting interference in the questioned orders. The efforts of Respondent to file FIR was to create a block in Petitioners FIR No.38 of 2006 and nothing else. Reading statement of independent witness, mere challenge by Petitioner to Respondent’s intervention and meddling would seldom attract criminal liability. No primary motive even is surfaced. 12. In the result, the FIR initiated by the Respondent and cognizance taken by the learned Metropolitan Magistrate by order dated 2nd February 2008 and confirmed by the learned Additional Sessions Judge by order dated 18.12.2008 is set aside. C.C. No.171/Misc./2006 arising out of C.R.No.44/06 registered with N.M. Joshi Police Station is quashed. Rule made absolute. (K.U. CHANDIWAL,J.)