Sanjay Pandurang Singhan v. The State of Maharashtra and Anr.

1. By this application under Section 482 of the Code of Criminal Procedure, 1973 (‘the Code’), the Applicant seeks quashing of the Criminal Proceedings being CC No.1171/PW/2024, arising out of C.R.No.213 of 2024 registered at Kasturba Marg Police Station, and the order of cognizance dated 5 March 2025 passed by the learned Magistrate, 68th Court, Borivali, Mumbai, thereby issuing the process against the Applicant for an offence punishable under Section 354 of the Indian Penal Code, 1860 (‘the Penal Code’).

2. Shorn of unnecessary details, the background facts leading to this application can be stated as under: 2.[1] The Applicant is a social worker and husband of a former Corporator affiliated to a police party. The first informant (R[2]) was also holding the office 2025:BHC-AS:55414-DB of the Deputy Chief of a local unit of the said political party. On 12 March 2023, a meeting of the workers of the said local unit was organized at Garden Hall, Near Phulpakharu Ground, Devipada, Borivali. After the meeting was over, the first informant (R[2]) was discussing the issues with Mrs. Madhuri Khanvilkar, a Coordinator of the local Unit of the said political party, in the presence of other workers. The first informant made a grievance that some office-bearers of the political party were calling the ladies for meetings, though their presence was not required, and, thereby sabotaging the meeting convened for the redevelopment of Rehman Chawl and Ganesh Compound SRA projects. 2.[2] The first informant alleged, the applicant, whom she had known from before, overheard the said conversation between the first informant and Mrs. Khanvilkar, and charged on the person of the first informant, proclaimed that he had not taken any bribe from anybody and pushed the first informant back by touching her chest. The applicant allegedly exhorted that the first informant was required to be taught a lesson. The first informant felt that her modesty was outraged. Hence, the first informant lodged a report leading to the registration of C.R.No.213 of 2024 at Kasturba Marg Police Station. 2.[3] Post completion of investigation, during the course of which the Investigation Officer recorded statements of as many as 59 witnesses, who were allegedly present in the said meeting, chargesheet came to be lodged against the applicant for an offence punishable under Section 354 of the Penal Code.

3. The Applicant has preferred this application asserting, inter alia, that the first informant had lodged a report with a view to wreck vengeance. The continuation of the prosecution constitutes abuse of the process of the Court as in the initial non-cognizable report lodged by the first informant, there was no whisper about the alleged act of outraging the modesty of the first informant (R[2]), attributed to the applicant. As a non-cognizable case for the offences punishable under Sections 506, 323 of the Penal Code was registered on 12 March 2024, the IO could not have registered FIR and proceeded with the investigation without obtaining the orders of the Magistrate under Section 155(2) of the Code, 1973. The initiation of the prosecution was clearly malafide, and, thus, resultant proceeding deserves to be quashed and set aside.

4. I have heard Mr. Rathod, learned Counsel for the Applicant, Mrs. Tendulkar, learned APP for the State, and Mr. Sahil Choudhary, learned Counsel for the first informant (R[2]), at some length. With the assistance of the learned Counsel for the parties, I have also perused the report under Section 173 of the Code and the documents annexed thereto, including the statements of the first informant and the witnesses.

5. Mr. Rathod, learned Counsel for the Applicant, would urge that, the prosecution of the Applicant is a classic case of abuse of the process of Court. Laying emphasis on the fact that, in the NC complaint, which was lodged almost instantaneously, there was no reference at all to the alleged acts of outraging the modesty of the first informant, it was urged that, once a NC complaint, on the basis of the statement made by the first informant (R[2]) before the Police was registered, if the Police intended to further investigate into the matter, permission of the Magistrate under Section 155(2) of the Code, 1973, was indispensable. The IO could not have circumvented the mandatory procedure by registering the FIR on the next day on the basis of motivated and trumpped up allegations. To lend support to this submission, Mr. Rathod placed reliance on a Division Bench judgment of this Court in the case of Asif Khan Pathan V/s. State through PP and Ors.1.

6. As a second limb of the submission, Mr. Rathod would urge that, even if the report filed by the IO under Section 173 of the Code and the documents annexed with it, is taken at its face value, no offence under Section 354 of the Code, can be said to have been made out, as many as 58 out of 59 witnesses have completely disowned the prosecution version. Even Mrs. Khanvilkar, who was stated to be the prime witness, did not support the prosecution version. Therefore, continuation of the criminal proceeding, which is ex-facie initiated with an ulterior motive for wrecking vengeance, would defeat the ends of justice.

7. Per contra, Mrs. Tendulkar, learned APP for the State, submitted that, the statement of Mrs. Soni, one of the witnesses examined by the IO, lends support to the claim of the first informant. Moreover, in her statement recorded under Section 164 of the Code, before the learned Magistrate, the first informant has reiterated the allegations against the Applicant. Therefore, the veracity of the allegations must be left to be determined at the trial, though no other eye witness has supported the version of the first informant (R[2]).

8. Mr. Choudhary, learned Counsel for Respondent No.2, supplemented the submissions of Mrs. Tendulkar. It was submitted that, what the Applicant wants this Court to do is, to evaluate the veracity of the statements of the majority of the witnesses, who have not supported the first informant, and the sole witness, who has supported the first informant’s version. At this stage, the said exercise is legally impermissible, submitted Mr. Choudhary. Since in her examination under Section 164 of the Code, before the learned Magistrate, the first informant (R[2]) has stood by her allegations, the issue must await adjudication at the trial. Therefore, the application does not deserve countenance, at this stage.

9. At the outset, it is necessary to note that there is not much controversy over the circumstances in which the offence was allegedly committed by the applicant. The first informant was allegedly enraged on account of the conduct of the office bearers of the political party including the applicant. The presence of the applicant, Respondent No.2 and other office bearers, including Mrs. Khanvilkar, at the time and place of the occurrence, appears rather incontestable. At the heart of the matter is the events which allegedly unfolded after the meeting of the political party was over. What the first informant reported at the first instance, assumes critical salience.

10. On 12 March 2024, under two hours of the alleged occurrence, the first informant approached Kasturba Marg Police Station and reported that, while the first informant was relating grievance to Mrs. Khanvilkar, the Applicant approached her; manhandled and assaulted her and threatened her with dire consequences.

11. Evidently, the first informant did not report about the assault or use of criminal force by the applicant with intention or knowledge of outraging her modesty. It was not reported that the Applicant had pushed the first informant back by touching her chest. Thus, the Police recorded NC report for the offences punishable under Sections 506 and 323 of the Penal Code. The omission to make the allegations in relation to outraging the modesty of the first informant on the day of occurrence, especially when the matter was reported to the Police under two hours thereof, cannot be said to be inconsequential or immaterial. The act attributed to the applicant in the FIR was such a notorious fact that the first informant could not have missed to state the same at the first possible opportunity. The omission to make the allegations of outraging the modesty in the report lodged immediately after the occurrence, renders the subsequent act by lodging report susceptible to attack on the ground that those allegations were creature of after-thought and malafide.

12. The registration of NC report for the offences punishable under Sections 506 and 323 of the Penal Code, has legal implications. In view of the provisions contained in Section 155(2) of the Code, 1973, the IO cannot enter upon investigation without obtaining the permission from the jurisdictional Magistrate. The use of the word ‘shall’ in sub-section (2) of Section 155 emphasises the negative import that the police officer shall not investigate the non-cognizable case without obtaining orders from the Magistrate having power to try such case.

13. A profitable reference in this context can be made to a Division Bench judgment of this Court in the case of Shoeb Arif Memon and Ors. V/s. The State of Maharashtra and Anr.2, wherein in somewhat identical factsituation, wherein initially non-cognizable case was registered for the offences punishable under Sections 323, 504, 506 of the Penal Code, and, after 28 days, the first informant alleged commission of the offence punishable under Section 354 also, the Division Bench of this Court was persuaded to quash 2 2021 ALL MR (Cri) 1864 the proceedings opining that the mandate contained in Section 155(2) of the Code, 1973, was not adhered to. The observations of the Division Bench in paragraph Nos.12 to 14 are material and, hence, extracted below: