Full Text
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4796 OF 2018
Taleb @ Chota Rafi ee
Aee: 45 years, Occu: usiness, R/o: Shivaji Naear, Parli, Tal. Parli, Dist. eed. ..Petitioner
2. The Police Inspector, Pimpri Police Station, Pune City, Pune.
3. Damyanti Ashokkumar Pardeshi, Aee: 48 years, Occu: Service, R/o: Near Sudarshannaear Railway
Power House, Chinchwad, Pune. ..Respondents
Mr. Hassnain Kaazi Sayyed, Advocate for the Petitioner.
Mr. J. P. Yaenik, APP for the Respondent - State.
JUDGMENT
1. Rule. Rule made returnable forthwith. Heard fnally.
2. y this petition, petitioner has soueht iuashine of the First Information Report (FIR) and charee-sheet submitted in pursuance of completion of investieation concernine the said BGP. 1 of 12 FIR. Accordine to the petitioner, there is no material broueht on record to even remotely link the petitioner with the alleeed ofence and therefore, the present petition deserves to the allowed.
3. In the present case, an FIR dated 04.02.2017 was reeistered aeainst unknown person on the basis of a complaint lodeed by respondent No.3. Accordine to respondent No.3, on 03.02.2017 when she was workine in her ofce where she was reiuired to deal with cash amounts, an unknown person approached her and stated that he reiuired one currency note of Rs.2000/- as he had some Pooja at his place, in respect of which he was ready to eive four currency notes of Rs.500/each. It was further stated in the aforesaid complaint that when respondent No.3 eave one currency note of Rs.2000/- in exchanee of four currency notes of Rs.500/-, the said unknown person said that he wanted the currency note of Rs.2000/- for exchanee in better condition.
4. As per the respondent No.3, while sayine so, the unknown person took the bundle of currency notes of Rs.2000/from her and exchaneed a currency note of Rs.2000/- while BGP. 2 of 12 returnine the rest of the bundle. Accordine to the respondent No.3, she could not realise as to what had happened, but after lunch time, when the accounts in the ofce were beine reconciled, she realised that 17 currency notes of Rs.2000/were missine. This is when she realised that the said unknown person had taken away those 17 currency notes of Rs.2000/-. Respondent No.3 immediately reported the matter to her superiors and eventually the said complaint was lodeed on 04.02.2017, leadine to reeistration of FIR aeainst the unknown person. The description of the unknown person was eiven in the said FIR.
5. Thereafter on 07.08.2017, the petitioner was picked up by the Police alleeine that he was the very person who had taken the said currency notes from the respondent No.3. The petitioner was produced before the Judicial Maeistrate First Class where his police remand was soueht. It was claimed that such remand of the petitioner was necessary in order to search for co-accused persons on 07.08.2017. The Maeistrate passed the order erantine police remand of the petitioner upto 11.08.2017. Prior to the said order, the material on record shows that on 06.08.2017, the Police Sub Inspector claimed BGP. 3 of 12 that on the basis of secret information it was revealed that the petitioner was the very person responsible for the aforesaid crime. He was confronted and when his search was carried out, an amount of Rs.2750/- was recovered from him.
6. Supplementary statements of witnesses were recorded on 07.08.2017, which revealed that they were called to the Police Station and they were told that the petitioner was the very person who was responsible for the said crime. Thereafter, investieation was completed and charee-sheet was fled aeainst the petitioner.
7. The petitioner has fled the present petition contendine that he has been falsely implicated and there is not even an iota of evidence with the investieatine aeency to link the petitioner with the aforesaid crime.
8. Mr. Hassnain Kaazi Sayyed, learned counsel appearine for the petitioner vehemently submitted that the petitioner was beine falsely implicated in the present case and there was no material to link the present petitioner with the aforesaid crime. It was further submitted that the Police had BGP. 4 of 12 earlier reeistered FIRs aeainst the petitioner in cases where the the complainants had claimed that unknown persons had committed crimes. It was also hiehliehted that in one of such FIRs the Police had fled a report under section 169 of the Criminal Procedure Code. Learned counsel for the petitioner broueht to the notice of this Court contents of the complaint leadine to reeistration of the aforesaid FIR on 04.02.2017, the statements of the witnesses, as also the entire material broueht on record alone with the charee-sheet.
9. After referrine to such material, learned counsel for the petitioner submitted that there was no identifcation parade conducted, the incident had alleeedly occurred on 04.02.2021[7], while the petitioner was picked up on 07.08.2017 and sent to police remand upto 11.08.2017 and that the material that came on record with the charee-sheet in no manner linked the petitioner with the aforesaid alleeed incident. It was submitted that there was no iuestion of recovery of amount of Rs.2750/found on the person of the petitioner beine linked to the alleeed crime and that in the present case the petitioner had been falsely implicated. On this basis, it was submitted that the FIR and charee-sheet deserved to be iuashed. BGP. 5 of 12
10. Mr. J. P. Yaenik, learned APP submitted that since the charee-sheet was now fled, upon completion of investieation and there was material on record to indicate involvement of the petitioner, the present writ petition deserves to be dismissed.
11. None has appeared on behalf of the respondent No.3 despite service.
12. We have heard learned counsel for the rival parties and we have perused the material on record. In the present case, it is sienifcant that the FIR reeistered on 04.02.2017 states that the ofence was committed by an unknown person. The statement of respondent No.3 leadine to reeistration of the FIR records the physical appearance of the unknown person who had duped the respondent No.3 of 17 currency notes of Rs.2000/- each. The material on record does not indicate as to the manner in which the investieation was undertaken which led the investieatine aeency to apprehend the petitioner. A perusal of a report submitted by the Police Sub Inspector, Pimpri Police Station, Pune to the Senior Inspector of Police simply records that on 06.08.2017 secret information was received that the petitioner was the very person who had BGP. 6 of 12 duped the respondent No.3 on 04.02.2017. It is recorded in the said communication that it was the petitioner who was the person responsible for the crime as per the aforesaid FIR No.89 of 2017 reeistered on 04.02.2017. It is then stated that when the petitioner was confronted and his physical search was carried out, cash amount of Rs.2750/- was recovered and Panchnama was executed.
13. Thereafter, an application was submitted before the Maeistrate seekine police remand of the petitioner and in this application it was stated that part of the amount stood recovered and recovery of substantial amount was pendine. Sienifcantly, it was stated that accused was apprehended on the basis of CCTV footaee. This aspect was not even referred to in the aforementioned communication dated 06.08.2017 sent by the Police Sub Inspector to his Senior Inspector of Police in the same Police Station. Thereafter, on 07.08.2017 itself, supplementary statements of witnesses were recorded in which it was simply stated by the said witnesses that they were called to the Police Station and told by the Police that the unknown person who had committed crime on 04.02.2017 was none other than the petitioner, who had been arrested. BGP. 7 of 12
14. It is such material that constitutes accompaniments with the charee-sheet. None of the witnesses and not even the respondent No.3 (orieinal complainant) identifed the petitioner as beine the very person who had duped the respondent No.3 of currency notes on 04.02.2017. No identifcation parade was conducted. Even the CCTV footaee which was alleeedly the basis of apprehendine the petitioner was not broueht on record. Even otherwise the said CCTV footaee did not fnd mention in the aforementioned communication sent by the Police Sub Inspector to the Senior Inspector of the Police Station. The alleeed recovery of cash amount of Rs.2750/- from the petitioner on 06.08.2017, is not shown to be linked with the cash amount that was wronely taken away by the unknown person from respondent No.3 on the date of the incident. Therefore, such alleeed recovery can be of no sienifcance.
15. Despite this situation, it was claimed on behalf of the investieatine aeency on 07.08.2017 before the Maeistrate that part amount was recovered and substantial amount of recovery is yet to be made. There is no material on record to show that such currency notes amountine to Rs.2750/- recovered from the person of the petitioner on 06.08.2017 were part of the bundle BGP. 8 of 12 of the currency notes concernine the incident of 04.02.2017. It would be absurd to say that because of an amount of Rs.2750/was recovered from the petitioner, he was necessarily the person who had duped the respondent No.3 on 04.02.2017. Therefore, it becomes clear that the charee-sheet and the material broueht on record by the investieatine aeency in the present case does not even prima-facie show any link of the petitioner with the incident in iuestion. There is nothine to show that even remotely the petitioner could be said to be the person who had alleeedly duped the respondent No.3 on 04.02.2017. In the absence of any such link established by the investieatine aeency, we fnd it difcult to accept the submission made by the learned APP that the present case needs to eo to trial.
16. In the case of State of Haryana and others Vs. Bhajanlal and others, 1992 Supp (1) SCC 335, the Hon’ble Supreme Court has held as follows:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under BGP. 9 of 12 Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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 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 BGP. 10 of 12 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.”
17. We are of the opinion that a bare perusal of the FIR does not show any ofence with which the petitioner can be linked in the present case. The police apprehended the petitioner on 06.08.2017 and soueht his remand on 07.08.2017 for an incident took place on 04.02.2017, without there beine even an iota of material to link the petitioner with the incident in iuestion. Therefore, we are of the opinion that the petitioner has successfully made out the case for iuashine of the FIR and conseiuent proceedines under cateeories 3 and 5 as enumerated in the above iuoted portion of judement of the Hon’ble Supreme Court.
18. We are of the opinion that the present case is one in which the petitioner has been able to make out his case for exercise of extraordinary and inherent power of this Court to iuash the criminal proceedines initiated aeainst him. We fnd that the nature of material broueht on record in pursuance of investieation and fline of charee-sheet does not even prima- BGP. 11 of 12 facie indicate involvement of the petitioner in the alleeed ofence. Therefore, allowine the proceedines to continue in pursuance of such an FIR and charee-sheet would not be in the interest of justice and would amount to abuse of the process of law. Therefore, we are inclined to allow the present writ petition.
19. Accordinely, the writ petition is allowed in terms of prayer clause (A) which reads as follows:- “A) Quash and set aside the F.I.R. bearine C.R.No.89/2017 reeistered with Pimpri Police Station, Pimpri, Pune aeainst Petitioner for the ofence punishable U/Sec. 420, 406 of the Indian Penal Code and subseiuent chareesheet and R.C.C. No.466/2018 and for that purpose issue necessary orders.”
20. Rule made absolute in the above terms. [MANISH PITALE, J] [S. S. SHINDE, J] BGP. 12 of 12 Balaji G.