Criminal Application No. 317 of 2010

5th August, 2011

Petitioner Counsel: Shri.P.C. Madkholkar
Respondent Counsel: Shri. A.S. Parihar

Cases Cited:
Vijay Dinkarrao Kulkarni Vs. State of Maharashtra and Ors., 2009 ALL MR (Cri) 2713=2009 B.C.J. 254 [Para 11]
Preeti Gupta and another Vs. State of Jharkhand and another, 2010 ALL MR (Cri) 2947 (S.C.)=(2010) 7 SCC 667 [Para 12]
State of Haryana and Ors. Vs. Bhajanlal and Ors., AIR 1992 SC 604 [Para 14]

JUDGMENT

JUDGMENT :- Heard Shri.P.C.Madkholkar, Adv. for the Applicants and Shri. A.S.Parihar, A.P.P. for Respondent/State.

2. ADMIT.

3. Shri. A.S.Parihar, A.P.P. waives service on behalf of Respondent/State.

4. By this application u/s.482 of the Code of Criminal Procedure r/w. Article 226 of the Constitution of India, the applicants have prayed for quashing and setting aside the Charge sheet No.151 of 2009 for the alleged offences punishable under Sections 147, 148, 149, 436, 427, 325, 324, 504 and 506 of the Indian Penal Code. It appears that, after this application was filed, on 25.10.2010, on the basis of an affidavit dt. 23.4.2010, sworn in by Mr.Parmeshwar Rambalk Rai, PSI Mangrulpur, this Court noted the contents of para 5 of the affidavit in the said order as follows :

" that so far as the allegations against the applicant nos. 1 to 3 are concerned, the non-applicant fairly admits that there is no case nor investigating Officer was able to collect material against the applicant nos. 1 to 3. "

5. Under these circumstances, the learned A.P.P. was called upon to produce relevant papers in connection with F.I.R.Nos.3 of 2009 and 4 of 2009. On the same day, the A.P.P. had sought time to produce the relevant papers and also to file additional affidavit. He again sought time on 31st March, 2011. On 27.4.2011 again time was sought to file additional affidavit. Time was granted by way of last chance. But the affidavit was not filed.

6. It is the case of the applicants that they are deliberately and falsely implicated in the matter without any acceptable evidence against them. The material which is sought to be relied upon in the charge sheet, on the face value of the same, appears to be nugatory. The names of the applicants did not really figure in the statements of so-called eye witnesses and although names of some persons were mentioned, the full names of applicants did not figure anywhere, as mentioned in the cause title of the application. Furthermore, the investigating Officer did not bother to hold test identification parade to ensure as to whether investigation done was on the correct lines or not, although serious accusations were made against the applicants.

7. The learned Counsel for the applicants took me through the material collected during the investigation and argued that names of none of the applicants really figured in the evidence of alleged eye witnesses nor any test identification parade was held.

8. The application was replied on behalf of respondent/State first on 23.4.2010 when Mr.Parmeshwar Rai, P.S.I. sworn in affidavit-in-reply dt.23.4.2010 admitting that there was no case nor the investigating Officer was able to collect material against applicant nos. 1 to 3. However, by making reference to statements of about seven witnesses, it was claimed that, as against applicant nos. 4 and 5, there is ample evidence. According to the Investigating Officer, the hockey stick was recovered from Mohd. Iftequar Mohd. Jabbar/ applicant no.4 as, according to him, the complainant had stated about the incident of snatching pan shop by the accused who were carrying hockey stick and who had also abused and beaten the complainant. By another affidavit-inreply dt.3.5.2010, the Investigating Officer Mr.Parmeshwar Rai, who sworn in additional affidavit, tried to clarify that applicant no.4 was present at the Police Station and had lodged the F.I.R. Crime No.3 of 2009 regarding homicidal death of Naiem Abdul and after that, present applicant left the spot i.e. Police Station and thereafter, another report at Crime No.4 of 2009 was registered on the basis of complaint filed by Mohd. Khan Gaur Khan at about 21.40 hours. It is how according to the Investigating Officer the names of the applicants were disclosed. Further, according to the Investigating Officer, after lodging the F.I.R. No.3 of 2009, the applicants had absconded. It is further contended that the names of the applicants were mentioned in the statements of witnesses including the first informant in Crime No.4 of 2009. No further affidavit in reply was filed, although time was sought to file additional affidavit to explain as to why test identification parade was not held.

9. The learned Counsel for the applicants took me through the material collected during the investigation. He criticised the investigation on the ground that, in the FIR, u/s. 154 of the Code of Criminal Procedure, proforma was used which was in fact written on reverse side by PSI Titled as "Nakkal Jabani Report". The proforma appears to have been signed by the first informant in Column Nos. 13 and 14. While statement of the first informant Mohd. Khan Gaur Khan appears to have been recorded separately. The first informant, while narrating the incident which is alleged to have occurred on 16.1.2009, had, at about 14.30 hours, alleged that, while he was attending his pan shop, persons namely Abdul Javed Abdul Jahura, Abdul Aziz Abdul Jahura, Babbu Abdul Jahura, Abdul Rashid, Abdul Salam, Mohd. Rafique Abdul Salam, Abdul Kalam Abdul Mannan, Abdul AlimAbdul Mannan, Abdul Sattar Abdul Jabbar and Abdul Hippu Abdul Jabbar and 5 to 7 persons more whose names were not known, came by auto and by Indica Car of Javed Khan at the pan shop of said Mohd. Khan and abused him and assaulted him by means of hockey sticks. Due to this, he received injuries on his left hand as also on the back. Light of the pan shop was damaged. The pan shop was also damaged. The first informant had ran away and was hiding in the house of one Manoj. According to the first informant, Dinesh Haq, Mohd. Shafique Mohd. Afsar, Guddu Khan Mumtaz Alikhan were present at the time of incident. Regarding this description of the incident in the course of investigation, the police went on to record some more statements on the following day i.e. on 17.1.2009. On 17.1.2009, another statement of Mohd. Khan Gaur Khan was recorded, which is criticised as improved statement and an after thought version. One more statement came to be recorded on 22.1.2009 so as to improve the version of the first informant further. The story of the prosecution is, thus, rendered inherently improbable.

10. Be that as it may, the names which were mentioned as names of offenders did not tally with the full names of the applicant nos.4 and 5 since, admittedly, according to the Investigating Officer there was no case against applicant nos. 1 to 3. The statement of one alleged eye witness Khairunissa Yusufkhan came to be recorded on 21.1.2009, who also did not mention names of applicant nos. 4 and 5 as appearing in the cause title of the petition. Same is the case with other alleged eye witnesses namely Jaitun B. Gawar Khan and Guddu Khan whose statement was recorded on 25.2.2009. Admittedly, no Test Identification Parade was held in the course of investigation which could have assured the Investigating Officer that he is proceeding on the correct lines in investigation for to charge- sheet the real culprits or offenders. Under these circumstances, the learned Advocate for the applicants pointed out that, accepting the material collected during the investigation as it is, in the absence of any support or collecting material in the nature of Test Identification Parade at any time during the investigation or before the charge sheet is filed, it would be impossible for the prosecution to obtain conviction in such case.

11. The learned Counsel for the applicants made a reference to the ruling in the case of Vijay Dinkarrao Kulkarni Vs. State of Maharashtra and Ors. reported in 2009 B.C.J. 254 : [2009 ALL MR (Cri) 2713]. In the said case, this Court had observed about the duties of Investigating Officer in the following words.

" It is not only duty of the Investigating Officer to book a real culprit, but it is also duty of Investigating Officer to protect one who is innocent and give assurance to a common man that there will be no unnecessary harassment to him. The practice of filing charge sheet in a slipshod manner is deprecated by this Court."

12. Reliance is also placed upon the ruling in the case of Preeti Gupta and another vs. State of Jharkhand and another reported in (2010) 7 SCC 667 : [2010 ALL MR (Cri) 2947 (S.C.)], wherein the Apex Court has observed in para 36 thus :

" Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful. "

13. The Apex Court was dealing with the question regarding justification of exercise inherent powers u/s.482 of the Code of Criminal Procedure. It is observed in para 14 thus :

" This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent the abuse of process of court. Inherent power under Section 482 CrPC can be exercised :

(I) to give effect to an order under the Code;

(II) to prevent the abuse of process of court; and

(III) to otherwise secure the ends of justice.

14. Reference is also made to the ruling in the case of State of Haryana and Ors. vs. Bhajanlal and Ors. reported in AIR 1992 SC 604, in which the Apex Court has laid down seven categories of cases in para 108 of the ruling thus :

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 F.I.R. 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 F.I.R. 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 proceedings 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 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."

15. The learned Counsel for the applicants submitted that if the allegations made in the F.I.R. or the complaint, even if they are accepted at their face value in their entirety, does not make out a prima facie case against the accused and when the allegations are so absurd and inherently improbable, on the basis of which no prudent person can reach just conclusion about sufficient material to proceed further against the accused and where the proceedings appear maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private or personal grudge, then, in such cases if the Court do not exercise inherent powers; this would amount to failure in its duty by the Court to do justice as, in such cases, there are no chances of conviction and continuation of the proceedings would only amount to harassment of the accused as they will be go through rigors of criminal trial without any possibility of conviction resulting in waste of public time and money.

16. The learned A.P.P. submitted that the eye witnesses had named the offenders, but, the names of the applicant nos. 4 and 5 as appearing in the cause title were not fully mentioned. But, according to him, short names were mentioned as for example name of applicant no.4 is mentioned as Mohd. Ifteqar s/o. Abdul Jabbar which, in the statement of the first informant, is mentioned as A. Sattar A.Jabbar. The name of Abdul Rafiq Abdul Salam (applicant no.5) is mentioned as Mohd. Rafique A. Salam. In the identical manner, according to him, the investigating Officers have mentioned the names in the statements of other alleged eye witnesses also. However, unfortunately, the names of applicant nos. 4 and 5, as they appear in the cause title of the application, if seen in juxtaposition with the statements of eye witnesses cited before me including the statements of first informant, would not lead to assuring their identity as offenders. Unfortunately, the investigating Officer did not bother to hold Test Identification Parade so as to make out a prima facie case against accused nos. 4 and 5, If, according to him, no case was made out against applicant nos. 1 to 3. Under these circumstances, the prosecution, even if it is allowed to be continued in the absence of prima facie evidence as to identity of applicant nos. 4 and 5 as offenders named by eye witnesses, can have no chance to succeed. No material could be pointed out from the investigation so as to pinpoint identity of the accused nos. 4 and 5 as offenders named by the alleged eye witnesses.

17. For all the above reasons, this is a fit case wherein the inherent power is required to be exercised as it would be a futile exercise to proceed against the applicants on the basis of suspicion or slipshod material collected during the course of investigation. For all these reasons, the rule is made absolute in terms of prayer clause (B) of the instant Criminal Application. No order as to costs.

Application allowed.