Captain Baliram Bhaskarrao Shinde v. The State of Maharashtra

6) Learned Senior Counsel Mr. Manoj Mohite, appearing on behalf of the Petitioner, submitted that:

6.1) The present FIR as lodged against the Petitioner is nothing but an abuse of process of law. The Petitioner is 73 years old, retired Army Officer suffering from acute macular degeneration and other physical ailments and lives with his wife and then 85 years old mother-in-law.

6.2) That, a bare perusal of the FIR, makes it clear, that the acts of the Petitioner were in self defence to save his family, himself and property and nothing more. The incident took place in the middle of the night, the intruder was aggressive and destructive. The Petitioner had rightly acted in self defence. The response and reaction of the Petitioner was proportionate and measured.

6.3) The Petitioner called his nephew for help, who in turn called police and with the help of the other members of the public broke open the locked gate and caught hold of the unknown person.

6.4) The intruder was handed over to the police and since then was in police custody. The Petitioner did not even venture out, when the intruder was caught and handed over to the police, as is evident from the CCTV footage nor did he participate in the assault.

6.5) On inquiry made by the police, it was later revealed that, the intruders name was Ramkishan Devidas Surwase, who was a resident of Latur and that he had allegedly been suffering from mental illness for which he was undergoing treatment. That, the Petitioner and his family were also called to the Police Station, where the Petitioner was convinced by the Police to not lodge an FIR on the ground that, the said person was mentally ill. Later that morning, the Petitioner felt it necessary to lodge a complaint, however only a N.C. was lodged by the police.

6.6) All along i.e. from 1.18 am, on 20th August 2020, the said intruder was in the custody of the police authorities at the Chandan Nagar Police Station.

6.7) It is an admitted and uncontroverted position that, though the mother of the said person asked the Police to put him on a bus to Latur, the Police instead of doing so, carelessly left him on the road, on the pretext that, he was vomiting. Later that morning, the said person’s body was discovered in a 25 ft. deep well, within the jurisdiction of the Mundhwa Police Station.

6.8) In order to cover up their mishandling of the case, and after 44 days, the Chandan Nagar Police, on 4th October, 2020 registered the FIR bearing C.R.No.1264/2020, for the offence punishable under Section 304 (Part II) of the Indian Penal Code (“IPC”), against the Petitioner.

6.9) The Petitioner made a written complaint to the Commissioner of Police on 4th October, 2020, giving the entire sequence of the incident along with the relevant screenshots of the CCTV footage. The said footage has also been seized by the Investigating Officer.

6.10) The CCTV footage, is now also seen by learned APP appearing for the State. The footage reveals that, the assault on the deceased was made by the members of the public and the Police themselves.

6.11) It is quite possible that, the said person sustained injuries due to the fall in the 25ft deep well where his body was found. That, the well (spot where deceased body was found) is in the jurisdiction of Mundhwa Police Station, whereas the house of the Petitioner is in the jurisdiction of the Chandan Nagar Police Station.

6.12) The offence punishable under Section 304 (Part II) of the IPC is not made out against the Petitioner and that, he has been falsely implicated. Apart from pushing the intruder, with a help of a bamboo stick, which was done through the window grill, the Petitioner was not involved in any of assault on the intruder. In fact the neighbours and police had assaulted the deceased.

6.13) On 20th August, 2020 at about 1.18 am, the intruder was taken to police station and thereafter was in the police custody. From the time the deceased was handed over to the Police by the mob, Petitioner had no contact nor any connection with the deceased.

6.14) The Police were informed or got knowledge of the fact that, the intruder was suffering from mental illness, but failed to provide treatment or verify the said contentions of the mother. At the request of the mother of intruder and the Police, the present Petitioner did not file the police complaint.

6.15) The Police were taking the deceased to be dropped at the bus stand to put him on the bus to Latur, however they left him on the Mundhwa Bridge. The body of the intruder, was found in the well, in Kirtane Baug which is in the jurisdiction of the Mundhwa Police Station. No injuries were seen in the Inquest Report on his body. The cause of death as per Advanced Certificate is “death due to multiple injuries.” 6.16) As per Spot Panchnama, the deceased was found in deep water in well in Mundhwa. Further there is drop of about 25 ft between service road and well. At the first instance, Mundhwa Police Station registered accidental death being AD No. 66/2020.

6.17) At the instance of Petitioner, a NC was already lodged at Chandan Nagar Police Station against deceased for the offences punishable under Section 323, 427 and 504 of the Indian Penal Code.

6.18) If the Police, believed and were convinced that the deceased was suffering with a mental condition, i.e he was suffering from hallucination and treated for his mental condition at Prerana Psychiatric Hospital at Latur they ought to have verified the same with the assistance of the doctor and treated the deceased accordingly. Despite this, the police took a decision to drop the deceased at the bus stand and instead dropped him on the Mundhwa bridge when he allegedly started vomiting. All this was during the time when deceased was in custody of the Police.

6.19) The Petitioner has already submitted DVR of the CCTV footage taken in his house as early as on 19th October, 2020. The Petitioner made written complaint to the Commissioner of Police on 4th December, 2020 seeking Departmental Action against defaulters for being falsely implicated in the present FIR. No action has been taken.

6.20) The FIR is totally false, concocted and a dishonest and malafide afterthought, filed only to cover the inaction and negligence of the Police Authorities. On this ground alone, the FIR be quashed and set aside. No case is made out against the Petitioner.

7) Ms. Mhatre, learned APP for the State submits that:

7.2) Allegations in the FIR are well corroborated with the the Inquest Panchanama dated 20th August, 2020, the Post Mortem Notes and Doctor’s opinion dated 17th September, 2020.

7.3) On a perusal of the Post Mortem Notes, the injuries mentioned in the column Nos.17, 19, 20 and 21 it is clear that, said injuries are possible by the assault as described in FIR. That, the Doctor has opined that, injuries Nos. 17, 19, 20 and 21 are not possible by the fall in the well and that time of death is also corroborated to the Doctor’s opinion.

7.5) Offence is made out and the Petitioner has failed to make out any cause for quashing the crime under section 482 of the Cr.P.C. She prayed that, present Petition be dismissed.

8) We have minutely and with care gone through the FIR under challenge and documents annexed to the Petition. We have perused the investigation papers such as the Post Mortem Notes, Panchanamas, Injury Certificate etc. In our opinion, this is classic case, which demonstrates the high handed attitude of the police authorities. It is a clear case of misuse of the rights and powers vested in the Investigating Authorities by filing untenable and false prosecutions against law abiding innocent citizens. The motive for doing so appears to be clear i.e to divert attention from the fact that the deceased was in the custody of the police Authorities was let off at the Mundhwa Bridge, in an unwell condition and to cover up the lapses and failure of duty, the present FIR has been lodged against the Petitioner. This in our opinion is a sheer abuse and misuse of authority, power and a clear abdication from performing ones duty and carrying out ones responsibilities.

9) In the aforesaid facts we are required to consider whether the Petitioner has made out a case before this Court to quash the FIR under section 482 of the Cr.P.C.

10) Before we discuss and consider the facts of the case in hand, we deem it appropriate to refer to some of the pronouncements of the Supreme Court and this Court in respect of the scope and exercise of power under section 482 of Cr.P,C.

10.1) The Supreme Court in the matter of State of Karnataka V/s L Muniswamy reported in (1977) 2SCC 699 in paragraph 7 has observed that: “7. …. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.”

10.2) The Supreme Court in the case of Mrs. Dhanalakshmi V/s R. Prasanna Kumar reported in 1990 SC 494 has observed that, in exceptional cases, to prevent the abuse of the powers of the Court, the High Court might in exercise of its inherent powers under section 482 of Cr.P.C. quash criminal proceedings. However interference would only be justified when complaint did not disclose any offence, or was patently frivolous, vexatious or oppressive.

10.3) The Supreme Court in case of State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426, at paragraph 102, laid down illustrative categories where quashing of proceedings is justified. These are: “(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 FIR 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 FIR 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 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. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) 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.”

10.4) The Supreme Court in the case of Monica Kumar (Dr) V/s State of Uttar Pradesh reported in (2008) 8 SCC 781, has observed that inherent jurisdiction under section 482 of the Cr.PC has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the test specifically laid down in the section itself.

10.5) In the case of Directorate of Revenue and Another V/s Mohammed Nisar Holia, (2008) 2 SCC 370, the Supreme Court has explicitly recognized the right to not to be disturbed without sufficient grounds as one of the underlined mandates, of Article 21 of the Constitution. Thus, the requirement and need to balance the law enforcement power and protection of citizens from injustice and harassment must be maintained. It goes without saying that the State owes a duty to ensure that no crime goes unpunished but at the same time it also owes a duty to ensure that none of its subjects are unnecessarily harassed.

10.6) The Supreme Court in the case of Ramesh Chandra Gupta V/s State of Uttar Pradesh (2022)18 SCC 706 in para 16 has reiterated with confirmation the principles enunciated in the case of State of Haryana V/s Bhajan Lal (Supra). The Supreme Court has laid down sufficiently channelized guidelines as stated in State of Haryana and Others v. Bhajan Lal ( Supra) wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice.

11) We are aware of the fact that the guidelines provided in Bhajan Lal (Supra) are illustrative and not exhaustive. By the said guidelines, guiding principles are made available to balance two important consideration/aspects (i) preventing abuse of process of law, and (ii) ensuring that criminal proceedings are not stifled at the threshold on disputed questions of fact. The general principle of law which emerges is that, a court while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 or Section 528 of the BNSS should be very careful, cautious and the same must be exercised sparingly. It is the paramount duty of this Court to intervene in matter when extraordinary circumstances arise, or a clear case of an abuse of the process of law is made out or when disputes of pure civil nature are given a colour of a criminal offence and there is no criminal intent in the said case. Further, it is also required that on analysis in appropriate matters to see if the necessary ingredients are at all present or made out to attract the offences as alleged or if the act was committed with the intention and purpose that is envisaged under the particular provision/section. The criminality and the nature of intention and knowledge which is attributed to the offender or of the act involved and its consequences is required to be examined. We shall, in the light of the aforesaid pronouncements now examine the facts of the present case to see if an offence under section 304 (Part II) is at all made out.

12) The present FIR dated 4th October, 2020 is filed by Mr. Rajendra Ghatge, Police Sub-Inspector attached to the Mundhwa Police Station, Pune. The FIR is filed against the Petitioner, an retired army officer who along with his family resides at Kedar Bunglow, Bombay Sappers Colony, Survey No.46, Vadgaon Sheri, District-Pune. On 20th August, 2020 at about 00.45 hours Ramkrishna Surwase (intruder) entered into compound of the Petitioner’s bungalow and started banging on the main door and in a loud voice (shouting) saying that, there are certain persons following him in Innova vehicle with intention to kill him and that, he should be saved. The intruder was trying to enter the residential house of the Petitioner at night. The Petitioner, reacted as a normal prudent person and resisted the entry of the said intruder by blocking the said door. The intruder on realizing that, he could not enter through the said door, went to the veranda of the bungalow and by standing on two seater sofa picked up the decorative brass trumpet and broke the kitchen window of the Petitioner’s bungalow. The intruder had, clearly become aggressive. The Petitioner, considering the prevalent situation and the time of the incident, was rightly under the impression that, possibly the intruder was a thief who was forcefully trying to enter/break into the Petitioner’s residential house at night. The Petitioner, to ensure that, the intruder does not enter his house and to protect his property, family and himself, he with the help of a bamboo stick tried to push away the intruder by pushing stick through the gaps available in the window grill. The public who had gathered outside the bungalow of the Petitioner, opened the compound gates, caught hold of the intruder and handed him over to the police. It is uncontroverted position, that the statements of the wife of Petitioner Arti Shinde and nephew of the Petitioner Ajay Shinde, were recorded and Spot Panchanama was drawn up. The bamboo stick has been recovered. It is also on record that, Mr Ajay Shinde, the nephew of the Petitioner had provided CCTV footage to the police. The recording done by one Sachin Vilas Khandke, who was staying in the vicinity, has also been submitted to and taken by the Investigating Authorities. The record reveals that, deceased had bump on his forehead and some blackish blue bruises and blood stains on the clothes.

12.1) We have also noted the fact that, on enquiries by the police authorities, the mother of the intruder had informed the police authorities that, the intruder was suffering from a mental ailment and taking psychiatric treatment at Prerana Psychiatric Hospital at Latur. The Chandan Nagar Police have not re-verified the same or made arrangements to get the intruder examined by a doctor. The opinion of Doctor of Sasoon Hospital, suggest that the injuries on the person are possible by a bamboo and not by falling in the well. On these facts that offence punishable under Section 304 (Part II) has been registered against the Petitioner.

13) We have noted that, the incident has taken place at 00.45 hrs i.e in the night. The attempt to intrude is at night and that of a residential premises. At that time, the Petitioner a senior citizen himself was residing with his wife and mother in law. The only overt act attributed to the Petitioner who is senior citizen is that, the Petitioner with an object and intention to save himself, his family and property, while resisting the entry of the intruder by holding on to the door with one hand, used a bamboo stick with the other hand to push away the intruder. The said act of pushing away the intruder was done apparently with one hand and the bamboo stick was pushed through a window grill. We have taken note of the circumstances and position under which the Petitioner has acted and undertaken this act. Perusal of the FIR, makes it clear that this is the only act attributed to the Petitioner. In other words, there is no other overt act attributed to the Petitioner in the entire FIR. We have also noted the fact that, as per the record it indicates that, the intruder was assaulted by the general public who had gathered outside and by the police themselves. The Petitioner had no participation in the assault, of whatsoever nature. This position has been confirmed even during the course of the arguments.

14) We have also noted, that the Police had arrived at about 1.18 a.m. to 1.23 a.m. on 20th August 2020. The intruder was handed over to the Police by the public and taken to the Chandan Nagar Police Station. Since that time i.e. 1.18 a.m to 1.23 a.m, the intruder was in police custody and control. Further, the police contacted the mother of the intruder, who informed them that, he was suffering from mental illness and therefore requested that, no complaint be made against him. The police persuaded the Petitioner not to file an FIR against the intruder as he was supposed to be suffering from a mental condition. At the request of the police, the Petitioner did not register the complaint and only a Station Diary Entry was effected.

15) The intruder remained in the custody of the police. The police then, went to drop of the intruder at the bus stand, but when the intruder started vomiting, they left him near the Mundhwa bridge. This is evident from the statement of Police Sub-Inspector Mr. Bhujbal. The fact that, the deceased vomited is supposed to be captured in CCTV footage at the junction of Mundhwa bridge. As per the Post Mortem Report, the intruder was declared dead at 11.45 a.m. on 20th August, 2020 i.e nearly 11 hours after the attempted intrusion into the petitioner house. It is pertinent to note that, during the said 11 hours the intruder was in the custody of the Police and not in contact with the Petitioner. We are of the opinion that, it was the duty of the police to either have the intruder medically examined or in the alternative call his mother and/or relatives and hand him over. We say this, because the police persuaded the petitioner to not file a FIR on the ground that the intruder was suffering from a mental condition and at the same time left the intruder without any medical treatment or assistance. This was a complete dereliction of duty and case of sheer negligence and failure to perform duties by the Police.

16) In the FIR, it is alleged that the Petitioner, through a window grill pushed the intruder with the help of a bamboo stick. There is no allegation of any other assault. We are unable to comprehend as to how an act of pushing a intruder with a bamboo stick when he is trying to intrude into the ones house can become a offence under section 304 (Part II) of the Indian Penal Code.

17) Perusal of the post mortem report reveals that, the intruder had the following external injuries i.e (i) Contusion present over forehead on left side, of size 06cm x 04 cm, (ii) red and abrasion over base of 4th metacarpal of right hand, dorsally, of size 1.[5] cm x 01cm,red. The cause of death is “Death due to multiple injuries”.

18) We note that the injuries on the forehead and hand, both of which do not corroborate with the allegations in the FIR against the Petitioner. Further from about 1.18 am on 20th August 2020, the intruder was in the custody of the police from the Chandan Nagar Police Station. One more intruding aspect of the matter is that the Inquest Report does not indicate any injuries on the body of the Petitioner, when as per the Spot Panchanama, the intruder was found dead in knee deep water in a well near the service road at Survey No. 51/4, Kirtane Baug, Kodrevasti, Mundhwa, Pune. A perusal of the FIR itself reveals that, there is drop of 25 ft between service road and the well where the deceased intruder was found. The aforesaid facts, clearly indicate that the present FIR is a clear afterthought lodged to cover up the negligent acts of the police authorities.

19) At the first instance an accidental death being A.D. No.66/2020 was registered with Mundhwa Police Station. We have also perused the complaint which came to be lodged with the Chandan Nagar Police Station at the behest of the Petitioner and against the deceased for the offences punishable under Section 323, 504, 427 of the Indian Penal Code. Most pertinent to note that, it is an admitted fact that, from 1.18 am on 20th August, 2020, the deceased was in the custody of the Chandan Nagar Police. The said fact is also informed to the Mundhwa Police Station. On 31st August, 2020, after about 11 days, the Mundhwa Police recorded statement of Petitioner, his wife Arti Shinde and his nephew Ajay Shinde, which are annexed to the petition. On 11th September, 2020 Chandan Nagar Police Station summoned the Petitioner to remain present on 13th September, 2020. On 13th September, 2020 statement of the Petitioner has been recorded by the Chandan Nagar Police Station. We have also perused the same. The contents of the statement of the Petitioner as recorded by the Mundhwa police on 31st August, 2020 and statement recorded by the Chandan Nagar police on 13th September 2020 are same. On 19th October, 2020 Chandan Nagar Police Station asked the Petitioner to present DVR which was taken at his house which was promptly submitted by the Petitioner. We note that from the record it is clear that the police authorities are by now aware of the facts of the Petitioners case. They were also aware that the intruder was not assaulted by the Petitioner, but in fact assaulted by the general public and the police themselves. Pursuant to the complaint dated 1st October, 2020 lodged by Rajendra Ghatge, present FIR came to be registered on 4th October, 2020 for the offence punishable under Section 304 (Part II) of the Indian Penal Code. This was only against the Petitioner and nobody else. No enquiry is done with the general public who were admittedly present there. One needs to keep in mind that admittedly the intruder was assaulted by the general public and the police, for which there is neither an enquiry nor is anybody else made an accused. This is when the CCTV footage is available with the Police. The Petitioner, had to apply for and secure Anticipatory Bail from this Court on 4th November, 2020. The Petitioner then made written complaint seeking Departmental Inquiry, there has been no action thereon.

20) Based on the aforesaid facts, we are at a loss to understand as to how an offence under Section 304 (Part II) could have been registered against the Petitioner or is even made out. In our considered opinion the present case is a clear case of the right to private defence and the acts of a normal prudent person would do to defend himself, his family and property. We also note, that the Petitioners reaction in such an adverse and life threatening situation has been measured and apt. This conduct of the Petitioner may attributable to his army background, army training and discipline. The conduct of the Petitioner, in not lodging the FIR, when the police informed him of the alleged mental condition of the intruder demonstrates the impeccable character of the Petitioner.

21) The incident of attempted house breaking offence has taken place at 00.45 hours on 20th August, 2020. The reaction of the Petitioner in protecting himself, his family, his house and trying to shoo away the intruder is natural reaction. In fact, according to us, the act of the deceased would be an act of house breaking in night or that of criminal trespass or an attempted theft by night. We say this, because the fact that, the deceased had a alleged mental condition became known to the police and the petitioner only after the incident. When the incident took place nobody was aware of the alleged mental condition of the intruder. In such cases it is possible that the shouting by the intruder was only to gain an entry in the house. In view thereof, the act of the Petitioner, would be covered under Section 96 of the Indian Penal Code i.e. things done in private defence. We are of the opinion, that the act would also to be covered under Section 97 and 98 of the Indian Penal Code. Section 97 refers to Right of private defence of body and property subject to restrictions contains in Section 99 to defend once own body and body of another person against any offence affecting human body and also to defend property i.e. movable and immovable property of himself against any act which is the offence falling under definition of theft, mischief, robbery and criminal trespass or which is an attempt to commit the theft, mischief, robbery or criminal trespass. Further under Section 98 of the Indian Penal Code the person has right to private defence against the act of the person of unsound mind. It stipulates when an act which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence. The Indian Penal Code also provides under Section 99 extent to which the right may be exercised i.e. it should not inflicted more harm than it is necessary to inflict for the purpose of defence. We have also noted Section 100 of the Indian Penal Code which provides for 7 situations under which the right of the private defence of the body extends to causing death. On perusal of the said 7 situations the present case would clearly falls under Description of 1 or 2. Description 1 deals with such an assault as may reasonably cause the apprehension that death will otherwise be the consequences of such assault. Description 2 deals with such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequences of such assault.

22) The aforesaid observation is made keeping in mind the fact that, the Petitioner, a 73 years old retired Army Officer, suffering from acute macular degeneration and other physical ailments, on the day of incident i.e. 20th August, 2020 was residing in individual bungalow along with his wife and his then 85 years old mother-in-law. The incident had occurred at 00.45 a.m. at night. We also note that, the Prosecution’s case is that, the Petitioner on realizing that, there is the person banging at his door and that, the bolt or latch of the door had already loosened or broken, the Petitioner at the first instance tried to restrain the intruder and subsequently on realizing that, intruder was making attempts to enter from kitchen window tried only to push him away with the help of bamboo stick lying in the house. This is the exact case of the Prosecution. In these circumstances, it can never be said that, Petitioner exceeded right of private defence much less he committed an offence punishable under Section 304 (Part II) of the Indian Penal Code.

23) It is also on record that, the deceased was taken away from door by the neighbors, who had gathered there and handed over to the police. There is CCTV footage (which has also been viewed by the learned Counsel appearing for the Petitioner and learned APP for the Respondent) wherein it can be seen that, people including Police Officers present there had assaulted the deceased. We note that, it is not even the case of the prosecution that, Petitioner after coming out of his house assaulted the deceased. Admittedly, the deceased was handed over to and was in the custody of the Chandan Nagar Police Officers at least from 1.18 a.m. on 20th August, 2020. At the information and request of the officers of the Chandan Nagar Police Station, and on being informed that, the deceased had a mental condition, the Petitioner, who had gone to lodge the complaint, did not lodge the complaint. What is attributed to the Petitioner is only his attempt to ward off the deceased from entering into the Petitioner’s house with the help of the bamboo stick and no more. This can by no stretch of imagination be an offence under section 304 (Part II) of the Indian Penal Code.

24) Considering the above position and the FIR, the facts which emerge are as under:

(i) The Petitioner, a 73 years old, retired Army Officer was residing in his bungalow along with his wife and then 85 years old mother-in-law.

(ii) On 20th August, 2020, at about 00.45 a.m. the intruder came running and was banging the door of the Petitioner’s house and shouting that, there are people following him in Innova Car and wanted to kill him.

(iii) On his entry being resisted/restricted by the Petitioner, he became aggressive and attempted to break open kitchen window and enter the house.

(iv) The Petitioner,whilst restricting the entry of the deceased, tried to ward him off with one hand by pushing him with bamboo stick.

(v) The neighbours jumped over the gates of the bungalow, caught hold of the intruder and handed him to the Police. The Public and Police assaulted the intruder. The intruder, was thereafter, at all times in the custody of the Police. The Petitioner had no contact with him.

(vi) Upon enquiry by the police it was recorded that, the intruder had a mental illness and recently came to Pune.

(vii) At the insistence and persuasion of the Chandan Nagar Police Station, the Petitioner did not insist and pursue his legal rights of filling complaint. Only an NC was filed.

(viii) When the Petitioner left the Police Station, the intruder was well, in the custody of the police and was to be dropped at the bus stand to catch the bus to Latur.

(ix) The Petitioner, had no concern with or knowledge of the intruder thereafter.

25) In view of the aforesaid facts and the legal provisions cited above, it is clear that, no offence against Petitioner can be made out much less the offence under Section 304 (Part II). A bare perusal of the FIR, allegations made therein do not make out any case against Petitioner even if the entire allegations in the FIR are accepted on the face value and treated to be true, still the case under Section 304 (Part II) cannot be made out against the Petitioner.

26) According to us, the present case falls within the categories stated by the Supreme Court in the matter of State of Haryana V/s Bhajan Lal (Supra). We are of the firm opinion that the allegations made in the present FIR, even if 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 Petitioner. We are clear in our minds that, the uncontroverted allegations made in the FIR and the evidence collected in support of the same do not disclose the commission of any offence nor is any case make out against the accused. We are of the opinion, that the allegations made against the Petitioner in the FIR are untenable, baseless, absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is any offence made out or that there is sufficient ground for proceeding against the Petitioner. The acts and conduct of the Petitioner, is clearly an act of private defence, the same is proportionate, measured, apt and in no event can be said to extend to inflict more than necessary harm that is required to be inflicted for the purpose of private defence. Considering the facts of the present case, we are of the prima facie opinion that the present criminal proceeding are manifestly attended with mala fide or where the proceeding is maliciously instituted with an ulterior motives.

27) The matter was adjourned on two occasions. When the matter was heard on 26th September, 2025, the learned APP, on instructions, informed us that, no steps have been taken against the other persons from the mob who assaulted the deceased. That, there was no investigation in that regard and that the investigation is completed and the Police are ready to file chargesheet only against the Petitioner. This is the conduct of the investigating agency. In the facts and circumstances of the present case, to say the least, is shocking. We have also been informed from the learned Senior Counsel appearing for the Petitioner that a Departmental Inquiry was conducted against two Officers, but the outcome is not known. The investigation and status of the Petitioner’s complaint dated 4th December, 2020 and the action taken against the erring Police Officer is not known. This is nothing but the harassment at the hands of the investigating agencies and abuse of the power and authority. It is a misuse of the power, which is meant to protect and secure the citizens.

28) In our view, the FIR does not disclose the commission of any offences at the hands of the Petitioner, much less a cognizable offence. There is no participation of the Petitioner nor does any act or conduct of the Petitioner make out any offence or wrongdoing. It is well settled that this Court is entitled and it is expected that this Court, if it concludes that the proceeding is malafide vexatious or that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed it should be done. Considering the facts of the present case, we are of the opinion that there is no case made out against the Petitioner. The Petitioner has been falsely implicated by the police in attempting to cover up their own lapses and abdication of duty. We are surprised at the fact that the investigation agency has failed take into consideration the fact that, the right of private defence is available to the Petitioner. The incident was that of a house intrusion by night. Further it is most pertinent to note that, the deceased was in police custody and that at the request of the Police Officer then present Petitioner had not filed any complaint.

29) Considering the aforesaid facts and circumstances, we pass the following order:-

(i) C.R. No. 1264 of 2020 registered by the Chandan Nagar Police

(ii) Petition is accordingly allowed.

(iii) Rule is made absolute in the above terms.