1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 1254 OF 2010 (Rashid Khan Pathan and anr. vs. State and Ors.) =============================================================== Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders =============================================================== CORAM : A.P. BHANGALE, J. DATED : 7th July, 2011. Heard Mr. V. Ramteke, Adv. for applicant no.1, Mr.S.R.Narnaware, Adv. for applicant no.2, Mr.A.P.Parihar, A.P.P. for respondent nos. 1 to 6 and Mr.S.P.Dharmadhikari, Senior Counsel with Mr.N.S.Deshpande, Adv. for respondent no.7. By this application u/s.482 of the Code of Criminal Procedure, the petitioners have prayed for quashing of the F.I.R. and the proceedings against the petitioners in Crime No.191 of 2010 with further directions to the respondents to pay compensation to the petitioners. It is contended on behalf of the petitioners that petitioner no.1 is a National Secretary and petitioner no.2 is a National President of the organization namely “ Human Rights Security Council”, which, according to them, is a non-governmental organization duly registered with the Office of the Charity Commissioner, Nagpur bearing Registration No.MH-932/08/NGP. According to the petitioners, petitioner no.2 is a lifetime National President of the said organization and a declaration has been published in daily 'Sahasik' on 2.7.2010. It is also the contention of the petitioners that the object of the 2 above organization is to promote awareness of Fundamental Human Rights guaranteed by the Constitution and to serve the nation. It is claimed that the work of the organization has been appreciated even by the Chief Justice of Bombay High Court and the Chairman of the Human Rights Commission. According to the petitioners, there are various complaints lodged against the Police Officers namely Mr.Abdul Rahman, Mr.Chandansing Bais and one Shailesh Karhale on the ground that the police are not investigating properly and are harassing the petitioner and other witnesses. A complaint was also made against Mr.Dnyaneshwar Kadu with the State Human Rights Commission, Mumbai as, according to the petitioners, said Mr. Kadu is habitual in filing cases and preparing false evidence. It is also contended that the police are harassing petitioner no.2 because of the complaint made against the police. According to the petitioners, false complaints have been filed against them by the police. The grievance in this petition by the petitioners is that the police ought not to have registered the F.I.R. against them in respect of alleged cognizable offence at the instance of Mr.Meghraj Hiraman Dhule who reported the alleged offences punishable under Sections 384, 419, 420, 500 and 506 as also the offences punishable under Sections 468, 469 and 471 of the Indian Penal Code. It appears that, on 16.7.2010, Mr.Meghraj Dhule, President of Pusad Bar Association lodged report at Police Station, Pusad, District Yavatmal which was registered as FIR No.191 of 2010 on 17.7.2010. According to the complainant, the accused were named as Nilesh Chandrabhushan Oza and Rashid Khan Pathan and the substance of the complaint against them is that both the accused, in conspiracy with each 3 other, misrepresented to the complainant that they are National President and National Secretary respectively of “Manav Adhikar Suraksha Parishad” and are involved in doing illegal activities like undue influence, extortion, defamation, threats, cheating etc. According to the complainant, accused Nilesh Oza represents to the people that he is possessing a degree in Engineering and that he is Lawyer, although he does not possess any enrollment certificate issued by the Bar Council of Maharashtra and Goa. In the Courts at Pusad as also in the State of Maharashtra, there are many civil and criminal cases pending against him and he is cheating innocent people on the pretext that he is a lawyer and that he has influence over the Courts and extorting people. He also professes himself as a National President of 'Manav Adhikar Suraksha Parishad' in order to restrain the people from making complaints against him and is trying to create undue influence in the society. He has also lodged many false complaints against the Judges, Lawyers, Police Officers and is trying to misrepresent common man in the society. He has published a booklet titled as 'Police Nagrik Aani Manav Adhikar Kayda' and included published Newspaper cuttings in it and misrepresented people on the ground that he is connected with the Human Rights Commission. He has also misused the said “Manav Adhikar Suraksha Parishad” in order to publish news against the Judges, Police as also lawyers. He has arranged a debate on the ground as to whether the Pusad Bar Association is creating a force against illegal activities and undue influence. He had published a circular in order to influence the lawyers and circulated it in the premises of Court which contained false accusations against the Advocates. He had also issued notices using letter pad of “Manav Adhikar Suraksha Parishad” and demanded money from the Advocates. Although he is 4 not an Advocate, he has participated in the Court proceedings. He has also published a circular in the name of 'Manav Adhikar Suraksha Parishad' in order to create an impression that the said Parishad is running under consultation from the State Human Rights Commission and the National Human Rights Commission and on that pretext, he is extorting money and cheating common man and is terrorising common people as well as police, Judges and Lawyers by creating impression that he is connected with the Human Rights Commission and that he is a lawyer. Thus, it is alleged that the accused has created false and bogus documents giving impression that he is a National President of 'Manav Adhikar Suraksha Parishad' as well as an Advocate. It appears that, along with this petition, copies of some documents are annexed indicating that the petitioner Nilesh Oza had entered into correspondence with the Chief Justice of Bombay High Court requesting that the case registered as M./01/2010 be investigated by C.B.I. and that no any police Officer from Police Station, Pusad shall investigate the matter against him or against “Manav Adhikar Suraksha Parishad” in any case and that, any such case, shall be investigated by Dy.S.P. (home) Shri Patil or Senior Police Officer of the rank of I.G. and above and that any proceedings against Office bearers with “Manav Adhikar Suraksha Parishad” be videorecorded including statements. The learned Advocate appearing for the petitioners made a reference to plethora of rulings in support of the petition in order to argue that the FIR ought not to have been registered against the petitioners and it is their second submission that the FIR shall be quashed as also the proceedings, on the ground that the FIR do not spell off necessary ingredients 5 of the offences alleged against the accused. Reliance is placed on the ruling in the case of State of Haryana and others .vs. Ch. Bhajan Lal and Others , reported in 1992 Cri.L.J.527 (1) , in which the Apex Court, after making reference to the earlier rulings, formulated seven guidelines as follows : 1. 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. 2. 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. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. 5. Where the allegations made in the F.I.R. 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. 6 6. 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. 7. Where a criminal proceedings 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.” It is submitted that since the report lodged with the police did not make out any offence or case against the accused ex-facie the complaint should be quashed as it did not constitute any cognizable offence. Further it is submitted that the F.I.R. has been registered by one Police Officer Mr.Kadu maliciously with vengeance due to his personal grudge and therefore, it should be quashed. According to the learned Advocate for the petitioners, the allegations made against the petitioners are vague in nature and if investigation continues, it would be abuse of the process of law to prosecute the accused. Reference is made to the ruling in the case of Neelu Chopra and another .vs. Bharti reported in (2010) 1 SCC (Cri) 286 in order to submit that if there are vague allegations in the complaint, the proceedings ought to be quashed and set aside. It appears that in Neelu Chopra' s case that there was dispute between the husband and the wife on one hand and their daughter-in-law Bharti on the other hand. The Apex Court, in the facts and circumstances of that case, concluded that the complaint is sadly vague. 7 It does not show as to which accused has committed what offence and what is the exact role played by these accused in the commission of the offence. Therefore, on the basis of the vague and general complaint which is silent about precise acts of the accused, the Apex Court decided to set aside the order of taking cognizance. According to the learned Advocates for the applicants, complaint has to be lodged promptly with adequate details regarding commission of offence as also particulars such as date, time, place, nature of offence etc. The object of the First Information Report to the police is to set up the police machinery in action. I need not refer to all the rulings cited before me since the legal position in this regard is crystal clear. U/s. 154 of the Code of Criminal Procedure every information related to commission of cognizable offence is required to be reduced into writing. Police are also obliged to furnish copy of the information lodged under the signature of the first informant to the first informant immediately and free of costs. It is the duty of the police to investigate into the accusations made by the first informant in respect of the cognizable offences. If the offences are non-cognizable then only police are prevented from investigating unless there is order of Magistrate of the local area concerned. But, in respect of the cognizable offence if reported, it is the duty of police to investigate without requirement of any order from the Magistrate. Section 154 of the Code of Criminal Procedure reads thus : 154 . Information in cognizable cases - (1) Every information relating to the commission of a 8 cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence. “ Regarding the contents of the F.I.R., u/s. 154 of the Code of Criminal Procedure it is intended to set the police machinery in action to investigate into it. The F.I.R. requires essential or broad picture. It is not 9 verbatim summary of the prosecution case nor it is encyclopedia so as to contain all details of the occurrence. It is not necessary to catalog each minute overt act therein. Therefore, non-mention of some facts or vague reference to some facts cannot be considered as fatal. In the present case, looking into the contents of the F.I.R., which appears to have been signed by the President of Pusad Bar Association while making accusations against the accused, it appears that the first informant has listed various acts as also penal sections under which such acts are punishable with a request to take action against the accused for the offences allegedly committed. Therefore, it cannot be said that the allegations contained in the F.I.R. in this case do not constitute any cognizable offence. Furthermore, one cannot say that no any case is made out against the accused in respect of the alleged commission of cognizable offence. When such uncontroverted allegations disclose penal sections as well as alleged commission of cognizable offence, it does justify investigation into such allegations u/s. 156 (1) of the Code of Criminal Procedure. Section 156 (1) of the Code of Criminal Procedure is enacted thus : “156. Police officer's power to investigate cognizable case - (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.” 10 Section 157 of the Code of Criminal Procedure mentions the procedure for investigation and Section 158 mentions about the report to be submitted to the Magistrate concerned. U/s. 159 of the Code of Criminal Procedure, a Magistrate may direct an investigation or direct holding of preliminary enquiry. Chapter XII of the Code of Criminal Procedure deals with powers of police to investigate the information lodged with them in respect of the cognizable offences. Police have necessary power to compel attendance of witnesses, exempt them, record their statements etc. and then, after completion of investigation, to submit a police report before the Magistrate concerned who is entitled to take cognizance of the offences upon receiving police report of facts vide Section 190(1)(b) of the Code of Criminal Procedure. The accused, as such, cannot come into picture or claim right to be heard in respect of the F.I.R. lodged against him and the investigation that followed until the competent Court takes cognizance and issues process. Investigation following the first information report in respect of cognizable offence has to be a continuous process which begins with collection of evidence and ends with filing of final report u/s. 173 or u/s. 169 of the Code of Criminal Procedure. Cognizance of offence, thus, is required to be taken by the Magistrate concerned as contemplated u/s. 190 of the Code of Criminal Procedure. Although a number of rulings have been cited before me, it has to be stated that each case is required to be examined and decided in the light of its peculiar facts and circumstances. There can be no hard and fast rule to invoke inherent powers of this Court to quash the F.I.R. and the investigation which is in progress. 11 The learned A.P.P. on behalf of the respondent/State strongly opposed the prayer on the ground that the petitioners herein have posed themselves as National Secretary and National President of the so-called “Human Rights Security Council” and they have taken disadvantage of the so- called institution and lodged police complaint against various Police Officers, Judicial Officers and Advocates. Under these circumstances, cognizance of the complaint made by the President of Pusad Bar Association has been taken by the investigating agency in view of the allegations made u/ss. 385, 417, 419, 500, 506, 468, 469, 471 r/w. Section 34 of the Indian Penal Code and further r/w. Section 5 of the Names and Emblems Act, 1950. According to the learned A.P.P., the investigating agency has collected certain documents to spell out a prima facie material against the present applicants. It is submitted that the documents collected from the Office of the Charity Commissioner prima facie revealed that the name of the accused did not find place in the memorandum of Association of Human Rights Security Council, Khaperkheda. It also appears that there was past conviction against the applicant Nilesh Oza u/s. 345 of the Code of Criminal Procedure by the learned Sessions Judge, Yavatmal. According to the respondent/State, the applicant had formed 'Vishwa Bandutwa Mission' at Yavatmal by using the letter pads of the Human Rights Security Council, Khaperkheda and Yavatmal. The statements of some Advocates and witnesses have already been recorded by the investigating agency, which, according to the learned A.P.P., revealed that the applicants were pressuring them to lodge false complaint against the members of Judiciary also. It is contended that the investigation is in progress and there is prima facie involvement of the applicants. Therefore, the application is strongly opposed. 12 The respondent/President of the Bar Association, Pusad also by a detailed affidavit in reply dt. 6th October, 2010 opposed the prayer in the application on the ground that the applicants have suppressed the facts from this Court regarding their past prosecutions as also past cases filed by them against various Advocates and complaints made by the Advocates against them. It is contended that the applicants have misused the letter heads and that matter is within the domain of the Charity Commissioner's Office. It is further contended that the F.I.R. does prima facie show commission of cognizable offence which the police Authorities were bound to investigate since there is prima facie material against the applicants. It is also contended by the respondent (Original complainant) that there was unanimous resolution from the Bar Association, Pusad for lodging complaint against the present applicant Nilesh Oza in respect of the offences committed by him. On behalf of the applicants, a grievance is also made about criminal attitude of Gnyaneshwar Kadu (respondent no.6). In this regard, it is made clear that the Court taking cognizance of the offences is empowered to take action against all offenders involved in the case even if some of them are not named or not made accused before the Court. Once a complaint is lodged in respect of the cognizable offence or offences, investigation has to follow as a normal rule and it has to be taken to its logical conclusion by police who may file a report either u/s. 169 or 173 of the Code of Criminal Procedure. It is for the competent Criminal Court to take cognizance of the offences and to take appropriate action according to law. If the accused are summoned, it is open for them to claim discharge from the case on the ground that the accusations made are groundless or there is no sufficient 13 material against them. Having considered the submissions advanced at the bar as also the facts and circumstances revealed before me, particularly, copy of communication addressed to the Registrar, Bombay High Court, Nagpur received on 12.10.2010 (Inward No.28593) copy of which also appears to have been forwarded to the Hon'ble Chief Justice of Bombay High Court and the Hon'ble Chief Justice of India, Supreme Court, New Delhi, which appears to have been signed by applicant Rashid Khan Pathan as National Secretary, Manav Adhikar Suraksha Parishad from Vasant Nagar, Pusad, District Yavatmal making wild allegations against Senior Counsel Adv. Mr.Subodh Dharmadhikari, who appeared and submitted that because he was to appear before this Court to support the cause of original complainant/President of Pusad Bar Association, wild allegations were made against him by one of the applicant herein. Looking into such conduct of one of the applicants also, I think the allegations or accusations made against the applicants shall be taken to their logical conclusions. Under the circumstances, even otherwise inherent powers u/s. 482 of the Code of Criminal Procedure cannot be used to stifle investigation or to prevent legitimate prosecution. Power has to be used sparingly with abundant caution to meet unforseen cases and situations. Inherent powers are required to be used to secure the ends of justice and not to stifle or scuttle legitimate prosecution looking at the alleged mala-fides of the Police Officer who had recorded the complaint in this case. According to the learned Advocate for the applicants, some of the accusations are in respect of non-cognizable offence. This contention is left open to be raised before the learned Magistrate concerned who is supposed to take cognizance of offences u/s. 190 of the Code of Criminal Procedure. Considering the legal 14 position that inherent powers u/s. 482 of the Code of Criminal Procedure are to be used sparingly with circumspection in rarest of the rare case with caution, the applicants have not made out a case for quashing and setting aside the F.I.R. as well as the investigation following the same, which is in progress. Hence, the application stands dismissed with costs. JUDGE jais