Sayeeda Shabbir Mukadam v. The State of Maharashtra

16. A search for the absconding men was carried out in the surrounding hilly, forested terrain, but neither could be traced. A spot panchnama was prepared, and Criminal Case No. 01/2018 was registered under the Maharashtra Prohibition Act, 1949. As no lady constable was available in the raiding party, the Petitioner was not arrested at that time. Respondent No.6 sealed the Muddemal, i.e., the 26 boxes of Goa-made foreign liquor, on the spot. To save time, the Petitioner was directed to call her son to the nearby village. The Excise team took the Petitioner in their vehicle and dropped her at Lanja village, where her son was waiting. The Petitioner and her son were instructed to remain present at the Lanja Excise office on the next day for further investigation in the matter.

17. The Petitioner’s brother, Ismail Jafar Naik (Informant) reported the death to the police on 16th January 2018. The police visited the quarry, retrieved the body and immediately shifted the deceased to Civil Hospital, Rajapur, where he was declared dead by the Medical Officer. On 17th January 2018, ADR No.2/2018 was registered at Rajapur police station.

18. The post-mortem report records the cause of death as “haemorrhagic shock due to head injury and injury to the right knee joint.” There is nothing in it that shows any assault or force resulting in a death. The viscera analysis further revealed 94 mg and 76 mg of ethyl alcohol, confirming that the deceased was under the influence of liquor. Thus, it was specifically denied that the deceased had died in an encounter.

19. Ms. Ambekar submitted that statements of several persons have been recorded and relied upon the Respondent’s affidavits, to highlight contradictions in the accounts of various witnesses, including the Petitioner and Iqbal Sagwekar, regarding the precise sequence of events on the night of the incident. She contended that a false case has been pleaded to claim compensation for an accidental death. It was further pointed out that 11 cases are registered against the Petitioner at the Rajapur police station under Section 65(e) of the Maharashtra Prohibition Act, 1949. Accordingly, the present Petition, being devoid of merit, deserves dismissal. Reasons and findings:

20. The primary allegation in the Petition is that Respondent Nos. 4 to 6 are responsible for the encounter killing/murder of the Petitioner’s husband, Shabbir Mukadam. Some of the relevant portions are quoted: i. At paragraph 1 – “…He was brutally murdered by the Respondent No. 4 to 6 at Javalethar, Taluka – Rajapur, District Ratnagiri.” ii. At paragraph 2 – “…The Respondent No. 4 is the Superintendent, Ratnagiri State Excise Department. She was present nearby the spot where the said encounter was conducted and she has given direction to the Respondent No. 5 and 6 to conduct the said encounter.” iii. At paragraph 9 - “The Petitioner state that her husband has stopped the said vehicle i.e. Omni car 20 ft. away from the said quarry. It is requires to note here that the Petitioner and her husband frequently travel through the said Rajapur Javalethar Road as they use to commute on the said Road. The Petitioner and her husband are aware about the said quarry. Even if her husband fall in the said quarry it would be within visibility of the Petitioner. In fact the Respondent No. 5 & 6 and their associates chased her husband and he was running towards Kondoshi Dam road. The Kondoshi Dam is 300 ft. away from the spot towards the Northern side. They returned back after 30-45 minutes. When they returned back they have informed the Petitioner that they have unaware about her husband as he has ran away. It shows that he has been killed near Kondoshi Dam and then put in the stone quarry.” It is inter alia prayed that the police be directed to register an offence under Sections 302, 120-B, 201 read with Section 34 of the IPC against Respondent Nos. 4 to 6.

21. We have carefully examined the record and considered the submissions of the learned Counsel for both sides. For the reasons recorded below, we are of the view that the Petitioner has failed to establish a case for grant of the reliefs sought in this Petition.

22. We find that there are several inconsistencies and contradictions between the contemporaneous complaints filed by the Petitioner, her statements recorded before the police and the writ pleadings filed in this Court. Several facts have been glossed over / suppressed in the petition. These have been highlighted by the Respondents in their affidavit in reply to the writ petition. We are only referring to some of the relevant ones below. Notably, the Petitioner has not filed any rejoinder to the Respondents’ affidavits to address any of these issues / contradictions. No explanation is forthcoming for this glaring omission. The Petitioner prevaricates on their illegal business and misleads this Court

23. The Petitioner in her police complaint dated 3rd April 2018 through her advocate has inter alia stated: “1. …My client’s husband husband is having clean record to his credit and there is not a single case registered by any Police Station or the Excise Department under the Prohibition Act. 20 years ago, he used to engage himself in the country liquor business. But now, my client's husband used to lead a normal life and thereby no prohibition cases registered against him in the recent past. As he has leading his normal and social life, although he has constant threat from Excise Department for demand of money and to book him in the false cases.” This case is denied by the Respondents. It is further recorded in the Respondents affidavit that there were 11 cases pending at the Rajapur police station against the Petitioner under the Maharashtra Prohibition Act, 1949. There is no rejoinder denying this. Be that as it may, the Petitioner admits in the petition that during the intercept by Respondent Nos. 5 and 6 on 16th January 2018, 26 boxes of Goa-made foreign liquor were seized from the Petitioner’s vehicle. In our view, this demonstrates that the foundation of the Petitioner’s complaint to the police for registering a FIR against the Excise Officers itself is false. This false case is then repeated and propounded at page 7 of the writ petition as well. Thus, we find that the Petitioner has approached this Court with unclean hands.

24. The Petitioner admits in the Petition that in the past on multiple occasions, the Petitioner’s husband was warned to discontinue such illegal activities by Respondent No.5. This is mentioned for the first time in the Petition filed on 31st August 2018. There is no reference to this in the earlier police complaints of 17th January 2018 and 3rd April 2018. Be that as it may, the seizure of Muddemal proves that the illegal business of liquor was never stopped by the Petitioner or her husband. In our view, an edifice is sought to be built by the Petitioner to claim compensation from the Respondents.

25. The Petitioner’s allegation that Respondent No. 5 continued to demand bribes from her husband even after cessation of their illegal business is wholly untenable. Firstly, the claim of discontinuance of illegal business stands contradicted by the seizure of 26 boxes of liquor on 16th January 2018. Secondly, there is neither any material on record nor any prior complaint to substantiate harassment by Respondent No. 5. Thirdly, the Petitioner herself admits in paragraph 4 of the petition that her husband was repeatedly cautioned to desist from unlawful activities, an admission that directly indicates ongoing illegal trade. Furthermore, the Petitioner has deliberately suppressed the fact that several cases have been filed by both the police and the excise department against her and her husband. In our view, the allegation of bribe has been inserted as an afterthought to bolster an otherwise untenable case.

26. The Petitioner further alleges that her husband was murdered by the Excise team at the instance of rivals. This allegation is equally untenable and baseless. There is nothing on record to substantiate such a contention. Neither the Petitioner nor her deceased husband ever lodged a police complaint against any alleged or unnamed rivals. On the contrary, the police record/ pending complaints against the Petitioner and her husband itself belies these assertions. The incident of 16th January 2018 – another untenable case is propounded by the Petitioner.

27. It is undisputed that 16th January 2018 was a no-moon night. On that evening, the Petitioner, her deceased husband Shabbir Mukadam, and Iqbal Sagwekar were travelling in a Maruti Omni van bearing registration no. MH-07-H-1631 along the Javalethar–Rajapur road. In paragraph 5 of the petition, the Petitioner alleges that the interception by Respondent Nos. 5 and 6 occurred around 9:00 p.m., whereas Respondent Nos. 4 to 6, in their affidavits, state that the interception took place around 9:30 p.m. At that time, despite repeated calls by Respondent Nos. 5 and 6 to stop, the vehicle did not halt, leading to a chase. During the incident, the Petitioner’s husband and Iqbal Sagwekar, who were also occupants of the Petitioner’s Maruti van, fled in different directions and disappeared into the darkness. We are confronted with two competing versions of events as to what transpired thereafter. In our view, the Petitioner has failed to establish even a prima facie case of encounter killing by Respondent Nos. 5 and 6 that would warrant registration of an FIR against them. It is evident that Respondent Nos. 5 and 6, both government officers, were discharging their official duties on the night of 16th January 2018. The following circumstances, when assessed cumulatively, make it clear that the allegations of an encounter cannot be accepted: i. There is no eyewitness to the alleged incident. ii. No weapon was used, nor is there any evidence or statement suggesting a scuffle involving the Petitioner’s husband. iii. Neither the Petitioner nor any other person heard any sound or commotion, despite the stone quarry being barely 20 feet from the interception site. iv. If the quarry was indeed at such close proximity, the Petitioner has offered no explanation for why she simply waited near the interception point, instead of calling out to her husband or Iqbal Sagwekar. This conduct suggests she did not want them returning to the van, fearing their arrest by the Excise team. v. Despite recovering a large quantity of contraband, the Excise team refrained from arresting the Petitioner as no lady constable was present. Instead, she was instructed to call her son to a designated drop-off point in the nearby village and to report to the Excise office the following day for her statement. Such conduct is consistent with lawful and procedural adherence by Respondent Nos. 5 and 6 and not with any unlawful activity. vi. It is inconceivable, even prima facie, that Respondent Nos. 5 and 6 would have killed the Petitioner’s husband near Kondoshi Dam, dragged his body nearly 300 feet back to where the Petitioner is waiting / interception site, and then thrown it into the quarry, only about 20 feet from where the Petitioner herself was located. vii. The mere fact that Respondent Nos. 5 and 6 returned empty-handed to the interception point does not, by any stretch of imagination, support the allegation that they killed the Petitioner’s husband and disposed of his body in the quarry. viii. Significantly, the Petitioner’s own complaint dated 17th January 2018 is silent on any allegation of an encounter. ix. The post-mortem conducted at the Rural Hospital, Rajapur on 17th January 2018 records the cause of death as haemorrhagic shock due to a head injury and injury to the right knee joint. Crucially, it notes no homicidal injuries. x. The forensic examination of viscera samples by the Regional Forensic Science Laboratory, Kolhapur detected ethyl alcohol (94 mg and 76 mg per 100 grams in Exhibits 1 and 2), confirming that the deceased was under the influence of alcohol. In our view, these two independent reports are the most significant pieces of evidence, consistent only with an accidental fall and not with an alleged encounter involving a kill, drag, and disposing of the body. It is therefore evident that, while fleeing in the darkness, the deceased accidentally fell 40 feet into the stone quarry, sustained fatal injuries and could not be traced by the Excise team. There is no reason for the Excise team to engage in any encounter. We find that due process was followed by Respondent No.5 and Respondent No.6 in the search and seizure operation. Moreover, the Excise Department only had to apprehend the deceased on account of charge of indulging in transportation of illicit liquor. Hence, the allegation of encounter is not believable. Directing registration of an FIR on Petitioner’s allegations would demoralise the Excise department and hinder the fearless discharge of their duties in curbing bootlegging of liquor. There are further inconsistencies and contradictions in the Petitioner’s case on what happened after the incident.

28. The Petitioner’s case also suffers from material inconsistencies when compared with the account of her own accomplice and her own pleadings: a. In her first handwritten complaint dated 17th January 2018 (pages 29–31 of the petition), the Petitioner states that the body was found in the quarry by her relatives, who retrieved it and brought it onto the road. They attempted to revive the deceased by sprinkling water on him, but he could not be revived. Thereafter, the Rajapur police team arrived at the quarry, took custody of the body, and transported it to Rajapur. b. In contrast, Iqbal Sagwekar, in his statement recorded before the police on 11th April 2018 (pages 80–81 of the petition), states that after recovering the body, the relatives placed it in an Alto car and proceeded towards the Petitioner’s native village. When they reached near Kelavali village, about 20 km from the spot, they met the Petitioner’s brother Ismail Shaikh. After discussions with him, the Petitioner and her relatives returned with the body to the place of incident. c. Whereas at paragraph 6, page 10 of the petition filed on 31st August 2018, it is pleaded that “The Petitioner with the aid of her relatives removed the said dead body and brought the same to the Rajapur Police Station.” Thus, we find that the Petitioner has propounded diametrically opposite cases. Even if we were to ignore Iqbal Sagwekar’s statement, the Petitioner’s contradiction re-affirms the repeated supression of facts in this case. The inconsistencies are sufficient to disprove and discredit the Petitioner’s account in its entirety.

29. The requirement of full and fair disclosure of facts in writ petitions is well settled as held in K.D. Sharma v. SAIL, (2008) 12 SCC 481:

34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.

35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commrs.[3] in the following words: (KB p. 514) “… it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts—it says facts, not law. He must not misstate the law if he can help it—the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement.” (emphasis supplied)

36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, “We will not listen to your application because of what you have done.” The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.

37. In Kensington Income Tax Commrs. Viscount Reading, C.J. observed: (KB pp. 495-96) “… Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant’s affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.” (emphasis supplied)

38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because “the court knows law but not facts”.

39. If the primary object as highlighted in Kensington Income Tax Commrs. is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.

30. We further find that the allegations against Respondent No. 4 are wholly hearsay and devoid of substance. Notably, the Petitioner did not name Respondent No. 4 in her earlier complaints dated 17th January 2018 and 3rd April 2018, nor in any of her statements to the police. The belated impleadment of Respondent No. 4 appears to have been made only with a view to exert pressure for securing compensation. The allegations against the Respondents have been introduced as an afterthought with the intention of claiming compensation against the Respondents.

31. Mr. Patel’s reliance on the timings mentioned in the Excise FIR and the time of the incident does not alter the above conclusion. A mere discrepancy in timings cannot, by itself, establish any premeditated intent on the part of Respondent Nos. 4 to 6 to kill the Petitioner’s husband.

32. We have perused the statements of Iqbal Sagwekar, who was accompanying the Petitioner and her husband on 16th January 2018, as well as those of Respondent Nos. 5 and 6. They record that the Petitioner’s husband was driving recklessly and failed to halt despite clear signals from the Excise team. The forensic report records that the Petitioner’s husband was under the influence of alcohol. We find that the police acted with the promptness and diligence expected of them. An FIR was registered, post mortem and forensic reports have been obtained, statements were recorded and upon considering all relevant aspects, the investigation has concluded that the death was accidental of having fallen in the quarry in the darkness and succumbing to injuries.

33. We find no shortcomings in this investigation or the conclusion. There is no question of directing Respondent No.2 to hold an inquiry against Respondent No.3 for any dereliction of duty. To conclude, we find that there is no material or substance in the allegation of encounter killing against Respondent Nos. 4 to 6. On the other hand, there are glaring inconsistencies and contradictions in the Petitioner’s case. The Petitioner’s objective of compensation from Respondent Nos. 4 to 6 cannot be allowed.

34. The petition is devoid of merit and stands dismissed. Rule is discharged. There shall be no order as to costs. [ GAUTAM A. ANKHAD, J.] [RAVINDRA V. GHUGE, J.]