2003 ALL MR (Cri) 1460
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.G. CHITRE, J.

Madhavrao Gajanan Deshpande Vs. State Of Maharashtra & Anr.

Criminal Writ Petition No.837 of 1997

17th October, 2002


Respondent Counsel: Shri. SHRINGARPURE

Criminal P.C. (1973), S.156 - Police report - Mechanical acceptance of Police report or complaint and issuance of process in pursuance thereof is not the function of the Court - Court cannot allow itself to accept such Police report without scrutiny.

Whenever a complaint has been filed by the police after completing the investigation, the Court is bound to make a scrutiny of the material placed before it for the purpose of coming to a prima facie conclusion whether the offence indicated by such police report are prima facie made out or not. The Court cannot allow itself to accept such police report without scrutiny and to take cognizance of the complaint indicated the view. Judicial application of mind is very much necessary for the purpose of finding out whether the Court can take cognizance of such report as indicated by provisions of Code of Criminal Procedure. Mechanical acceptance of such report or complaint and issuance of process in pursuance thereof is not the function of the Court, keeping in view the relevant provisions of Code of Criminal Procedure. Failure in that context would definitely result in miscarriage of justice. Mechanical acceptance of the police report and issuance of the summons to the present petitioner has resulted in miscarriage of justice and therefore, the said illegal act is to be corrected by issuing a Writ of Certiorari in favour of the present petitioner. The said prosecution is to be quashed. [Para 7,8]

JUDGMENT

JUDGMENT :- This petition has been mentioned in the board, as fixed for final hearing. It pertains to year 1997. Hence, this petition is being decided on merit in the absence of petitioner. The Criminal Case, which has been challenged is on police report. Shri. Shringarpure, Additional Public prosecutor for State of Maharashtra, is heard. Hence, it is also not necessary to wait for the presence of respondent No.2, who has been served with the notice of hearing of this petition.

2. The petitioner has assailed the prosecution, which he is facing in the Court of J.M.F.C. (Railway) V.T. for offences punishable under Sections 451, 504 and 506(I) of Indian Penal Code. The said prosecution is based on a complaint, which was filed with the police by respondent No.2 alleging that on 3/2/1995 at 2 P.M. the petitioner entered in his office and abused him in filthy language, threatened him and asked him to transmit the fax massage to given address. When respondent No.2 refused to do so, it has been alleged that, the petitioner abused him in filthy language and threatened him. On the said complaint the investigation started and the petitioner was prosecuted in the above mentioned Courts. The said prosecution bears Criminal Case No.207/P/1995.

3. Section 504 of Indian Penal Code Provides:

"Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".

Section 506 of Indian Penal Code provides:

"Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".

So also Section 451 of Indian Penal Code provides:

"Whoever commits house trespass in order to the committing of any offence punishable with imprisonment, shall be punishable with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years".

4. The provisions of Section 504 indicate that the offender should intentionally insult the complainant and thereby should give provocation to any person, intending or knowing it to be likely that such provocation should cause him to break the public peace, or to commit any other offence. For the purpose of coming to a prima facie conclusion, whether offence has been made out or not, the abuses uttered or alleged to have been uttered should have been mentioned in the complaint or in the chargesheet. When those abuses are mentioned, it would give an idea to the Court whether by said abuses, the person to whom the abuses have been addressed would get provoked and to such an extent that thereby he would commit breach of peace, or commit any other offence. It is a matter of common experience that in the society some abuses are being uttered without meaning anything thereby. What Section 504 requires is that there has to be an intention to insult a person by uttering said abuses or bad words. Therefore, failure in quoting those abuses would lead to the conclusion that no offence has been prima facie made out.

5. Section 506(I) of Indian Penal Code provides punishment for criminal intimidation, which has been defined by Section 503 of Indian Penal Code. For bringing home the offence which has been indicated by Section 503 of Indian Penal Code, the allegations should indicate prima facie but specifically to the extent that the person against whom the prosecution has been initiated did an act with the intention of causing alarm to that person or that was sufficient enough to cause that person to do an act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, for avoiding the result of such threat. In the present case, the complainant does not make out a case, as indicated by provisions of Section 503 of Indian Penal Code. Therefore, on this count also prosecution has failed to make out a case for the Court to take cognizance and to proceed with it.

6. Section 451 deals with an offence of house tresspass, which has been committed in order to commit any offence punishable with imprisonment. When the complainant did not make out a case that in order to commit the offence punishable with imprisonment the house tresspass has been committed prosecution fails to make out a case for Court to take cognizance. On that count also the prosecution fails.

7. Whenever a complaint has been filed by the police after completing the investigation, the Court is bound to make a scrutiny of the material placed before it for the purpose of coming to a prima facie conclusion whether the offence indicated by such police report are prima facie made out or not. The Court cannot allow itself to accept such police report without scrutiny and to take cognizance of the complaint indicated the view. Judicial application of mind is very much necessary for the purpose of finding out whether the Court can take cognizance of such report as indicated by provisions of Code of Criminal Procedure. Mechanical acceptance of such report or complaint and issuance of process in pursuance thereof is not the function of the Court, keeping in view the relevant provisions of Code of Criminal Procedure. Failure in that context would definitely result in miscarriage of justice.

8. Mechanical acceptance of the police report and issuance of the summons to the present petitioner has resulted in miscarriage of justice and therefore, the said illegal act is to be corrected by issuing a Writ of Certiorari in favour of the present petitioner. The said prosecution is to be quashed. Thus, the petition is allowed. Said prosecution stands quashed. The bail bond or P.R. bond, if any, furnished by the petitioner stands cancelled. The petitioner stands discharged of the said prosecution. Rule made absolute.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.

Petition allowed.