2014 ALL MR (Cri) 5028
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. KHANWILKAR AND R.Y. GANOO, JJ.
Sanjeev Bishnudev Mishra Vs. State of Maharashtra & Ors.
Writ Petition No.1681 of 2012
31st October, 2012
Petitioner Counsel: Mr. SUBHASH JHA
Respondent Counsel: Ms. P.H. KANTHARIA, Ms. SEEMA RAWDE
(A) Criminal P.C. (1973), Ss.154, 177, 186 - FIR - Place of registration - Principal offence of octroi evasion committed within jurisdiction of Police Station 'A' - However, incriminating materials such as forged documents and seal found within jurisdiction of Police Station 'B' - Forgery of documents is not only a means to commit offence but that itself is an offence - Therefore, Police Station 'B' would have jurisdiction to register the offence and conduct investigation. (Paras 7, 8, 33)
(B) Constitution of India, Art.22(2) - Criminal P.C. (1973), Ss.57, 100(5) - Illegal detention and misappropriation of money - Allegation against Police Officers - Proof - Petitioner alleged that on 9.2.12 he was asked by Police to deposit Rs.11, 25000/- on pretext that he would be made prosecution witness - Petitioner alleged that no receipt was given to him for said deposit, he was made to wait for whole night and next day he was shown as arrested - However, mobile call record of petitioner does not establish that he was in police custody after midnight of 9.2.12 - On the contrary, it was revealed during investigation that petitioner withdrew Rs.11, 25000/- on 9.2.12 and deposited the same in some other account and thus attempted to create a false case - That apart, petitioner belatedly complained about misappropriation only after a period of 1½ months - Police Officer as named by petitioner to whom money was entrusted, did not exist - Police Officer against whom allegations made by petitioner, was on duty at some other place as revealed from his mobile call record - Theory propounded by petitioners is false and vexatious and aimed at confusing and derailing investigation - Plea of petitioner liable to be rejected. (Paras 15, 17, 21, 22, 23, 25, 30, 34, 36)
(C) Criminal P.C. (1973), S.156 - Investigation - Challenge - Ground that Police Officer lodging FIR had himself conducted investigation - Record reveals that informant officer was a party to raid and signed seizure and arrest panchanama - Held, for said reason informant officer cannot be called as Investigating Officer - Investigation was entrusted to some other officer - Investigation therefore, not vitiated. (1996) 11 SCC 709, (1998) Supp. SCC 482 Disting. (Paras 26, 27)
Y.Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & anr, 2004 ALL MR (Cri) 3400 (S.C.)=(2004) 8 SCC 368 [Para 6,33]
Munshi Singh Gautam (dead) & Ors.Vs. State of U.P., 2005 ALL MR (Cri) 554 (S.C.) =(2005) 9 SCC 631 [Para 24]
Bhagwan Singh Vs. State of Rajasthan, (1976) 1 SCC 15 [Para 28]
Megha Singh Vs. State of Haryana, (1996) 11 SCC 709 [Para 29]
Kashmeri Devi Vs. Delhi Administration & Ors., (1998) Supp. SCC 482 [Para 29]
State of Haryana Vs. Ch.Bhajan Lal & Ors., 2013 ALL SCR (O.C.C.) 1 =AIR 1992 SC 604 [Para 31]
Ramesh & Ors. Vs. State of Tamil Nadu, 2005 ALL MR (Cri) 1795 (S.C.)=(2005) 3 SCC 507 [Para 33]
Sajjan Kumar Vs. CBI, 2011 ALL SCR 24 =(2010) 9 SCC 368 [Para 35]
A. M. KHANWILKAR, J. :- By this Writ petition under Article 226 of the Constitution of India, the petitioner prays for a direction that an investigating agency like Central Bureau of Investigation or CID be appointed to properly investigate the C.R. No.I-22/2012 registered with Navghar Police Station, Bhayander, District Thane. It is also prayed that such investigating agency be directed to enquire into the circumstances leading to the registration of FIR by Navghar Police Station, Bhayander and also about the illegal arrest/detention of the petitioner. The petitioner further prays for direction to the Director General of Police / Superintendent of Police, Thane (Rural) to hold departmental enquiry against Respondent Nos.4 & 5 and other police personnel responsible for registration of C.R. No.I-22/2012 by the Navghar Police Station, Bhayander, Thane and also for effecting illegal arrest of the petitioner and extorting / misappropriating amount of '11,25,000/- from the petitioner on 9.2.2012. The petitioner also prays that the said extorted amount of '11,25,000/- which has been misappropriated by respondent Nos.4 & 5 on 9.2.2012 be recovered from them and to be made over to the petitioner. The petitioner also prays that a direction be issued to Respondent Nos.1 & 2 to evolve a mechanism to avoid recurrence of such high handed action of the police personnel. The petitioner also prays for compensation of '20 lacs for his illegal detention in connection with C.R. No.I-22/2012 with Navghar Police Station from 9.2.2012 to 10.4.2012. Lastly, the petitioner prays that after receipt of investigation report from the independent investigating agency, that agency may be directed to delete the name of the petitioner from the array of accused in the case registered as C.R. No.I-22/2012.
2. Notably, the petitioner has been named as accused in connection with C.R. No.I-22/2012. He has prayed for abovementioned diverse reliefs. However, the principal relief is not for quashing of FIR or chargesheet, even though the chargesheet has already been filed, on 28.3.2012, in the concerned Court naming the petitioner as an accused in the commission of alleged offence alongwith others, on the basis of material collected during the investigation indicating his involvement. Further, during the arguments, Counsel for the petitioner submitted that he was not pressing the relief of deletion of the petitioner's name from the FIR but the petitioner was more concerned with the other reliefs, in particular, of transferring the investigation of the case to independent agency and for enquiring into the allegation of illegal arrest and detention of the petitioner in connection with the alleged offence and more particularly, about the misappropriation and / or extortion of amount of '11,25,000/- from the petitioner by Respondent Nos.4 & 5, who are police officials of Bhayander Police Station where the offence has been registered against the petitioner.
3. As regards the principal relief of transferring the investigation of the criminal case to independent investigating agency, that relief has been worked out during the pendency of this petition. In that, the Department, on its own, because of the complexity of the case, has decided to entrust the further investigation of the case pertaining to municipal octroi evasion to a specialised agency, namely, Economic Offences Wing, Thane. Further, the Department has decided to entrust the investigation to high official not below the rank of Deputy Superintendent of Police to obviate any apprehensions about proper investigation. The fact remains that the further investigation of the case has now been transferred to an independent agency - other than the police officials of Bhayander Police Station against whom allegations of malafide and colourable exercise of power has been made by the petitioner. Nevertheless, those allegations will have to be considered in the context of the other reliefs claimed by the petitioner on the assertion that he was illegally arrested and detained between 9.2.2012 till 10.4.2012. In other words, we are left to decide the allegation of illegal arrest and detention of the petitioner on and from 9.2.2012 till 10.4.2012.
4. The real grievance is about the police officials of Bhayander police station having misrepresented the petitioner and / or extorting and misappropriation of amount of '11,25,000/- received from the petitioner, which was entrusted by him to the police officials of Bhayander Police Station under bonafide belief that the said amount will be treated as crime property recovered and the petitioner would be examined as one of the prosecution witnesses to establish that fact.
5. Indeed, the Counsel for the petitioner argued that initiation of the criminal case is without authority of law. In that, the alleged principal offence has not been committed within the jurisdiction of the Bhayander police station. Thus, Bhayander Police Station has had no authority to register the FIR much less to investigate the criminal case or for that matter to file the chargesheet. That argument, however, would have been relevant only if the petitioner were to press the relief of deletion of his name from the FIR as accused - which the petitioner has given up during arguments.
6. Be that as it may, the argument proceeds that the Navghar Police Station, at Bhayander, has registered the FIR because of the alleged recovery of incriminating material such as rubber stamps, seals, etc. of Mumbai Municipal Corporation, forged and fabricated documents used for evasion of municipal octroi charges, thereby causing huge loss of revenue to Mumbai Municipal Corporation, from the residence of principal accused Gorakhnath Balwant Pawar at Bhayander. However, that per se cannot empower the police officials of Navghar Police Station to proceed in the matter or to register the FIR at Navghar Police Station. Inasmuch as, the principal offence of evasion of octroi charges is committed within the local jurisdiction of Mumbai police at Dahisar. To buttress this submission, reliance is placed on the provisions contained in Chapter XIII of the Cr.P.C. dealing with jurisdiction of the criminal Courts in inquiries and trials; and on the decision of the Apex Court in the case of Y.Abraham Ajith & Ors. vs. Inspector of Police, Chennai & anr (2004) 8 SCC 368 : [2004 ALL MR (Cri) 3400 (S.C.)]. In the case before the Apex Court, the offence complained of was u/s 498A and 406 of the IPC. The Court answered the question on the finding that no part of the cause of action had arisen in Chennai where the offence was registered. For that, the Court considered the meaning of the word "ordinarily" and the expression "cause of action". Relying on its earlier decisions, the Court proceeded to consider the matter. It held that the crucial question whether any part of the cause of action arose within the jurisdiction of the Court concerned as per section 177 of the Code, is the place where the offence was committed.
7. In the present case, the Bhayander police registered the FIR u/s 154 of the Code after receiving information relating to the commission of cognizable offence. On the basis of that information, the police officials proceeded to the residence of the principal accused and found incriminating material at his residence as well as office premises situated within the jurisdiction of the Navghar Police Station. No doubt, the said incriminating material was only a means to commit offence of octroi evasion. That does not mean that the activities of the principal accused and his associates within the jurisdiction of Navghar Police Station, did not constitute any offence at all. Forgery and fabrication of official documents and seals and preparation thereof itself is also an offence which undoubtedly was committed within the jurisdiction of the Navghar Police Station. The offence of octroi evasion in one sense can also be said to have been committed within the jurisdiction of Navghar Police Station. For, it is only upon payment of octroi charges, entry of the vehicle in question is allowed in the city of Mumbai. The act of offering payment of octroi charges, obviously, takes place within the jurisdiction of the Navghar Police Station. Even if it were to be a case of uncertainty of several local areas, the Navghar Police Station would be justified in taking cognizance of the offence which was committed partly in its area and partly in another and also when it is a continuing offence and continues to be committed in more local areas than one. It can be a case of several acts done in different local areas. Considering the expansive provisions contained in sections 177 and 186 of the Code, it is unfathomable to countenance that the Navghar Police Station could not have registered the offence and / or investigated the same. Further, the issue of jurisdiction is a mixed question of fact and law, which can be dealt with at the trial. Suffice it to hold that it is not a case of bar of jurisdiction or inherent lack of jurisdiction of the Navghar Police Station as such.
8. Indeed, the petitioner, at best, may be justified in contending that considering the complexity of the case, the police authorities ought to have entrusted the investigation to independent and specialised agency. That has already been done by the Department on its own. Suffice it to observe that the issue of jurisdiction of the Navghar police raised by the petitioner is devoid of merits.
9. Reverting to the core question about the alleged illegal detention of the Petitioner between 9th February, 2012 till 10th April, 2012, in the reply affidavit filed by Respondent No. 4, it is stated that after registration of C.R.No. 22/2012 on 2nd February, 2012, under Sections 420, 465, 466, 467, 468, 471, 473, 474, 475, 484, 170, 171, 120(B) of Indian Penal Code, during the course of investigation, it transpired that petitioner had transacted with accused No. 1 Gorakhnath Pawar on 29th January, 2012 for octroi duty payment in respect of two vehicles. Therefore, the petitioner was called for the purpose of investigation on 3rd February, 2012 along with necessary documents containing records of the said transactions. He was again called on 8th February, 2012 when he submitted photocopies of DD No. 092687 dated 29th January, 2012, octroi receipt No.RC/1112/290112 1553/000000 499686 of '5,61,307/-, DD No. 032477 dated 29th January, 2012 and octroi receipt No. RC/1112/2901121553/000000 499688 of '5,63,623/- (two receipts and 2 DDs). Since the Petitioner failed to submit documents with respect to all transactions, he was given notice under Section 160 of the Code to remain present at the police station on 9th February, 2012 along with the original relevant documents. The Petitioner, accordingly visited the police station on 9th February, 2012 and requested for more time to collect the relevant papers and left the police station in the evening.
10. It is further stated that on 9th February, 2012, when Respondent No. 5 and other staff had gone to Eastern Express Highway Octroi Post, Mulund with DD numbers mentioned on receipts collected from the house of Gorakhnath Pawar (accused No. 1), they were informed by the office of Deputy Assessor and Collector, Octroi, at Eastern Express Octroi Post, Mulund, that amongst the DDs, DD No. 031536, Axis Bank, and DD No.254656 of Union Bank of India, were used by Seema Octroi Agency, which was given to them by the Petitioner. The said agency also told the police officials that they had paid the amount of DD to the Petitioner from time to time since October, 2010 through Seema Octroi Agency. It is stated that this position was reported to Respondent No. 4 by Respondent No.5. He, therefore, asked the Proprietor of Seema Octroi Agency to visit the police station on 10th February, 2012, along with necessary documents. It is further stated that since the Petitioner had already left the police station, in the evening on 9th February, 2012, by issuing notice under Section 160 of the Code, he was asked to remain present in the police station on 10th February, 2012. The Petitioner, accordingly, attended the police station on 10th February, 2012. At that time, the Proprietor of Seema Octroi Agency, namely, Naresh Mulani was also present along with Daily Book Register of year 2010-11 and 2011-12. The DDs received from the Petitioner were noted in the said Register. The Petitioner, who was present in the police station, was interrogated, when he admitted that he had used the DDs received from accused No. 1 Gorakhnath Pawar, through Seema Octroi Agency and other octroi clearing agencies.
11. It is only after confirming the involvement and participation of the Petitioner, in the offence under investigation, he came to be arrested on 10th February, 2012 and was produced before the JMFC, within 24 hours from the time of his arrest, on 11th February, 2012. The Petitioner was remanded to Police Custody till 14th February, 2012 and thereafter till 20th February, 2012.
12. The version narrated by the Petitioner, however, is completely different. The Petitioner asserts that he was called to the police station on 2nd February, 2012 and 3rd February, 2012 and again on 8th February, 2012. The Petitioner informed the factual position to the police that he had already made payment of the drafts, which were made available to him by Gorakhnath Pawar. The police had informed the Petitioner that a cheque of '11,24,930/-, issued by him was found in the drawer of Gorakhnath Pawar. Since the said cheque has been seized by the police, the same was not encashed. The Petitioner was told that, to show his bonafides, he must deposit the amount referred to in the said cheque. He was further told that if the Petitioner pays that amount, he would be made a prosecution witness in the case. The Petitioner further asserts that as suggested by the police, the Petitioner, on the next day i.e. on 9th February, 2012, visited ICICI Bank, Mulund (W) Branch between 2.00 p.m. to 3.00 p.m. and withdrew sum of '8,50,000/- (in the denomination of '1000 X 800 and '500 X 100) from Account No. 623805025216 of M/s. Sanjeev Octroi Company and '2,50,000/- (in the denomination of '500 X 500) from Account No. 124405000080 of M/s. Manjiri Octroi Services. He then added '25,000/- (in the denomination of '500 X 50) from his office to make it as round figure of '11,25,000/-. He then handed over the said amount to Respondent No. 4, who is incharge of Navghar Police Station, Bhayander, Dist. Thane, through his writer Mr.Kore, on 9th February, 2012 itself. The Petitioner further asserts that the police official, who accepted the amount, did not give any receipt to him nor made any panchanama therefor. Instead, the Petitioner was made to wait in the police station the whole night on 9th February, 2012 and on the following day i.e. on 10th February, 2012, was shown arrested in C.R. No. 22/2012 and was produced before the JMFC at Thane, on 11th February, 2012. In other words, the Petitioner alleges that he was in illegal detention/custody from 9th February, 2012 to 10th February, 2012 and was purposely shown as arrested only on 10th February, 2012. This, according to the Petitioner, was in complete disregard of the mandate of Section 57 and 100(5) of the Criminal Procedure Code and Article 22(2) of the Constitution of India.
13. The Petitioner, with a view to buttress the stand that he was illegally detained, without his formal arrest and production before the Court within 24 hours, has relied on his mobile call record, which has been "produced along with the rejoinder affidavit". The Petitioner asserts that the mobile call record, prima facie, supports the claim of the Petitioner that he was in the police station from the evening of 9th February, 2012 till 10th February, 2012, without being formally arrested.
14. We would consider the efficacy of this document, in the first place. The document is exhibited as Exhibit - III to the rejoinder affidavit, at Page 256 and 257 of the Paper Book. It is in the form of a chart. It does not contain any seal, nor is issued on the Letterhead of the Mobile Service Provider, unlike the document at page 258 and 259 pertaining to the local call record from 31st January, 2012 till 6th February, 2012. Thus, this document cannot be taken into account. In any case, the document belies the claim of the Petitioner that after he reported to the police station on 9th February, 2012, he was detained and his mobile phone was taken away from him. Further, the last communication he could send was SMS to his friend Pankaj Jha and Pravin Victor Rodrigues and the call made to his father at around 00.41 a.m. on 10th February, 2012 to inform about his arrest by Navghar Police Station.
15. From the chart purported to be the call record of the Petitioner, it cannot be established that the Petitioner was in-fact in Navghar Police Station, during the relevant time. Secondly, the chart itself discloses that the mobile phone was operated at some intervals from 19.05 hours on 9th February, 2012 until 2.01 a.m. on 10th February, 2012. The call made by the Petitioner, purportedly to his father, at 0.41 hours on 10th February, 2012 lasted for 23.6 duration. Just before that at 0.26 hours, some call was made, details whereof are not found, was of 950 duration and before that at 0.24 hours of 171 duration, without any call details. Suffice it to observe that if the Petitioner was detained or arrested by the police, soon after he visited the police station in the evening of 9th February, 2012, it is unfathomable that he would be allowed to use his mobile phone in the police station, in spite of his detention or arrest.
16. On the other hand, the facts asserted by the Respondent No.4, on affidavit, are supported by the entries made in the police record contemporaneously. Even in the inquiry conducted by the Additional Superintendent of Police, Thane (Gramin), in the wake of allegations made by the Petitioner about his illegal arrest/detention and of extortion and misappropriation of amount of '11,25,000/- by Respondent No. 4 and 5, it is found that the allegations made by the Petitioner against the police officials of Bhayander police station are untenable. We had called upon the Learned APP to produce the original inquiry papers. It was noticed that during the enquiry the Additional Superintendent of Police not only recorded the statement of the Petitioner but also of his friend Pankaj Jha. Even statements of the concerned police officials, attached to Navghar Police Station, were also recorded. Considering the version of these persons and the police record, the Additional, Superintendent of Police, in his report dated 6th August, 2012, has found that the allegations made by the Petitioner are unfounded. We make it clear that we are not deciding the allegations made by the petitioner in this petition on the basis of the said enquiry report, but independently.
17. On analysing the pleadings and material on record in this petition, in our opinion, it is unfathomable that the Petitioner can insist for recording of FIR against the said police officials for alleged offence of extortion and misappropriation by them. We shall elaborate this while dealing with the other allegations of the Petitioner. For the time being, we would confine the discussion with regard to illegal arrest and detention of the Petitioner. As regards that allegation, taking over all view of the matter, the same appears to be figment of imagination of the Petitioner to subserve his ulterior purpose. It is only bare word of the Petitioner. As a matter of fact, the Petitioner has approached this Court with a specific stand that he entrusted the amount of '11,25,000/-, in cash, to the Writer Mr. Kore, in the evening of 9th February, 2012. After the Respondent No. 4 filed reply affidavit denying the said allegations and offered explanation that at the relevant time he was not present in the police station and in fact was on field duty, away from the police station in connection with investigation, coupled with the fact that there was no one named Mr.Kore in Navghar Police Station, much-less working as Writer, under him, the Petitioner has now in the rejoinder affidavit asserted that he had mentioned the name of Mr. Kore under mistaken belief.
18. The Learned APP has rightly contended that the theory propounded by the Petitioner is nothing short of his figment of imagination and in fact an attempt to confuse and subvert the investigation of a serious crime, in which he is involved. It is unfathomable that the police officer would call upon the Petitioner to handover the amount consisting of over 1400 currency notes, in the denomination of '1000 and '500 and accept it in open and in public view on the table and that the officer would start counting the same in public gaze and under CCTV surveillance camera, if he had any ill intention.
19. Indeed, the Petitioner called upon the Respondents to disclose and produce the CCTV footage of the CCTV camera deployed in Navghar Police Station. In response to that requisition, it has been stated on affidavit that the CCTV camera has been installed in December, 2009, which, however, does not have the facility of recording but, is only used for keeping surveillance by the Superior Officers. If there is no recording facility, no adverse inference can be drawn due to non production of CCTV footage. The fact that CCTV recording facility is not available, does not warrant any inference that there is amiss in the police station complex, which is open to public and the officers are sitting in open and are always under public gaze. It is not the case of the Petitioner that the police station is located at an isolated place and no outsider except the police officers were seen in the police station, when he allegedly handed over the currency notes to the so called Writer of the Respondent No. 4.
20. Counsel for the petitioner faintly argued that installation of CCTV without recording facility by the police authorities serves no purpose. If recording facility was to be provided, the acts of commission and omission of the concerned police officials could have been exposed. He submits that it is high time that the State should forthwith provide for compulsory CCTV facility in all the police stations with recording facility so that no untoward situation' takes place in the police stations. Suffice it to observe that this argument does not take the case of the petitioner any further. In any case, merely because recording facility of CCTV footage is not provided in the police station, it does not per se warrant an adverse inference against Respondent Nos.4 and 5 or any other police official in the Navghar Police Station.
21. Reverting to the theory propounded by the Petitioner that he went to the police station on 9th February, 2012 along with the currency notes of amount of '11,25,000/-, after withdrawing the same from the Bank, is his figment of imagination. This theory has been, now, during the investigation, found to be a preplanned design of the Petitioner to create a cloud of suspicion, so as to derail and confuse the investigation and instead, put the police officials in the dock. It has now come to the notice of the Bhayandar Police Station that on 9th February, 2012, the Petitioner did visit the ICICI Bank but, on that date, what he did was to withdraw certain amounts from one Account and instantly redeposit the same in his another Account in the same Branch, which amount was equivalent to around '11 lacs. This, obviously, has been done with a view to create evidence against the police official to browbeat them, who were investigating the offence of octroi evasion. This information now gathered, if correct, and established during the trial by the prosecution, would be a serious matter and would militate against the petitioner. We refrain from expressing any final view one way or the other except to record that the petitioner has only created cloud of suspicion and has failed to substantiate the factum of having handed over amount of '11,25,000/- in cash to Respondent No.4 and 5 or any other police official in the Navghar Police Station at Bhayander.
22. The circumstances of mobile call record and of withdrawal of amount from the bank, as discussed above, appears to be false and figment of imagination of the Petitioner. No adverse inference can be drawn against the police officials of having demanded or accepted the cash as alleged. In other words, the fact that the petitioner was present in the police station after the evening of 9.2.2012 and was taken into custody, has not been established by the petitioner. That fact cannot be established on the basis of the call records which are produced in the present proceedings, which gives no indication as to the precise location where the petitioner was sitting or moving. The generic description given in the said chart militates against the petitioner. If the stand of the petitioner that he was waiting or moving outside the police station on his own for quite some time was to be accepted as it is, then the petitioner cannot be permitted to take advantage of the call records pertaining to the same period to pursue his allegation that he was inside the police station or was illegally arrested and detained.
23. We have already noticed that the petitioner has relied on the affidavit of his friend which, in our opinion, is vague and in any case, cannot substantiate the fact that the petitioner was in fact arrested or detained on 9.2.2012 in his presence and was kept in police lock-up in the police station. If the plea taken by the petitioner is considered in the context of the fact now unravelled, namely, that on 9.2.2012, the petitioner had gone to his bank where he withdrew the amount equivalent to around '11,00,000/- from his one account in the branch and then redeposited the same in another account in the same branch, speaks volumes and belies his claim that he had taken that amount to the Police Station for offering it to Respondent No.4. The learned APP has produced the original record, which, prima facie, substantiates the above stand taken by the respondents. It is a strong circumstance, which alone should be sufficient to negative the claim of the petitioner of illegal arrest or for that matter, demand of amount of '11,25,000/- made by Respondent No.4 and its misappropriation.
24. Counsel for the petitioner relied on the decision of the Apex Court in the case of Munshi Singh Gautam (dead) & Ors. vs. State of U.P. (2005) 9 SCC 631 : [2005 ALL MR (Cri) 554 (S.C.)]. Emphasis was placed on observations in paragraph 6 and 7 of this decision wherein the Apex Court noted that the Courts must deal with the atrocities or death in police custody in an illegal manner and that the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of the judiciary itself, which if it happens, will be a sad day for anyone to reckon with. The case on hand, is not a case of atrocities committed by the police whilst the petitioner was in police custody. The grievance is about his illegal arrest by the officers of the local police station and more importantly of misrepresenting the petitioner to deposit the amount of '11,25,000/- so that the same would be seized as crime money and the petitioner would be examined as a prosecution witness. As regards the illegal arrest, we have elaborately dealt with that contention and have held that the petitioner has failed to establish that he was in fact taken into custody or detained on 9.2.2012. On the other hand, credence ought to be given to the contemporaneous police record considering the fact that the petitioner did not make any such grievance before the Magistrate's Court where he was produced for remand at the earliest opportunity. The grievance about illegal arrest, demand of amount of misappropriation has been made for the first time on 29.3.2012 only after filing of the chargesheet against the petitioner on 28.3.2012. The explanation offered by the petitioner for the delay and failure to raise the issue at the earliest opportunity, to say the least, is after- thought and appears to be a lame excuse to make reckless, frivolous and vexatious allegations against the concerned police officials of Bhayander Police Station; which, it is also fairly accepted, is on the basis of legal advise given by the advocate.
25. As regards the delay in making complaint about the demand of amount and its misappropriation by the police officials, the explanation offered is that the petitioner was under mistaken belief that entry in the official record was made after the payment made by the petitioner to the concerned police official on duty in the police station. This explanation is clearly after-thought. On the one hand, the petitioner asserts that he immediately enquired with the concerned police official to issue receipt or make Panchanama about receipt of amount but he was asked to wait. It is the case of the petitioner that he reported the matter to his friend and thereafter waited outside the police station for the arrival of Respondent No.4. On the other hand, before this Court, he pleads that he was under an impression that entry of receipt was made promptly and therefore did not make grievance about that for almost more than one and a half months until the filing of the chargesheet. That explanation is unacceptable.
26. We may now deal with the argument of the petitioner that the investigation done by the police officials of Navghar Police Station is vitiated and the registration of the case by the said Police Station itself is malafide. To buttress this argument, the petitioner relied on the circumstances noted in the FIR that the period of commission of offence was between 2007 and 2011. Moreover, the investigation has been done by the informant himself, who was none other than the police official of Navghar police station i.e. Respondent No.5. No doubt, the FIR has been registered on the basis of complaint of Respondent No.5 which was made by him after information regarding commission of offence came to his notice. It is also noticed that Respondent No.5 has put his initials on the Panchanama drawn at the residence of accused No.1 as well as the search Panchanama and Memoranda. According to the petitioner, the Respondent No.5 also appeared at the time of remand of the petitioner before. None of the above, in our opinion, lead to an irresistible inference that Respondent No.5 was the Investigating Officer. The investigation of the case has been entrusted to Respondent No.4 Dinkar Pingle, who is the Police Inspector working in the Navghar Police Station. The fact that Respondent No.5 has signed the Panchanamas and Memoranda, does not mean that he was the Investigating Officer. No legal provision has been brought to our notice which prohibits the informant or person, at whose instance, the FIR has been registered, to be witness in the search or seizure and arrest Panchanama if the situation so demands. If the police official working in the same police station is part of the raiding party, that does not make him the Investigating Officer or for that matter, Incharge of the investigation.
27. As regards the appearance of Respondent No.5 before the Magistrate during the remand of petitioner, that has been refuted by the respondents. It is asserted by the respondents that all the remand applications qua the petitioner were moved before the Magistrate under the signature of the Investigating Officer and not the Respondent No.5 as alleged. There is substance in this stand of the respondents. By virtue of his office, Respondent No.5 has discharged the role of informant as well as being member of the raiding party or as witness to the concerned panchanamas. Thus understood, no inference can be deduced that Respondent No.5 has acted against the petitioner with vengeance or otherwise. Nor it is possible to hold that the entire investigation done by the Navghar Police Station is vitiated.
28. Counsel for the petitioner relied on the decision of the Apex Court in the case of Bhagwan Singh vs. State of Rajasthan (1976) 1 SCC 15, wherein it is held that the investigation by the complainant Head Constable himself of offence of offering bribe was improper. In that case, the complainant was the Head Constable and he himself undertook the investigation of the case. He made search memo signed by the policemen accompanying him and not by independent witness. In the first place, the exposition in this judgment was in a matter considered after a full-fledged trial on the basis of evidence before the Court. Secondly, the Investigating Officer in the present case, is other than the complainant. The fact as to why Respondent No.5 was made to sign the search memo and Panchanamas as witness, will be matter of evidence at the trial. Thirdly, as is noticed earlier, the further investigation has now been entrusted to an independent agency who is specialised in investigating economic offences such as octroi evasions. In the circumstances, it is not necessary to dilate on this aspect any further except to observe that the decision pressed into service will be of no avail to the petitioner much less, to hold that he was illegally arrested or detained or that he was misled to pay the amount and that he acted on that representation and offered the amount which was misappropriated by the police officials.
29. Reliance is then placed on another decision in the case of Megha Singh vs. State of Haryana (1996) 11 SCC 709 and Kashmeri Devi vs. Delhi Administration & Ors. (1998) Supp. SCC 482 Even in this case, the investigation was done by the very police officer who lodged the complaint. As found earlier, the fact situation in the present case is different. Hence, this judgment will be of no avail to the petitioner.
30. Reverting back to the efficacy of the call records, the fact that no call record is noticed after midnight of 9.2.2012, does not necessarily mean that the petitioner was taken in custody by the Navghar Police Station. That is a fact which will have to be established at the trial. On the other hand, the office record supports the stand of the respondents that on 10.2.2012, the petitioner was called upon to produce certain documents and the petitioner has acknowledged the communication so received by him. If the petitioner was already in custody, there was no need to serve the petitioner with such communication, to remain present on 10.2.2012 in the police station, alongwith the relevant records. The version of the respondents is that after the petitioner arrived in the police station alongwith the records and when it became clear that he was also involved in the crime, he was taken into custody on 10.2.2012. It is possible that the petitioner may have on his own chosen to keep the mobile phone switched off; just as he planned to withdraw the amount from one account of his bank in the same branch and redeposit that amount in another account of the same branch to hoodwink the investigation and then make reckless and vexatious allegations against the police officials. This possibility cannot be ruled out. May be, it was intended to create suspicious circumstance to support the allegation of having paid the amount to the police official equivalent to the amount mentioned in his cheque which was seized by the Investigating Officer. The Petitioner must have done that advisedly - either to take it as defence or to make vexatious allegations against the Investigating Officer so as to confuse the investigation.
31. Counsel for the petitioner had relied on the decision of the Apex Court in the case of State of Haryana vs. Ch.Bhajan Lal & Ors. AIR 1992 SC 604 : [2013 ALL SCR (O.C.C.) 1], to contend that there is no choice but it is the duty of the police officer to register FIR u/s 154 of the Code as soon as the allegations regarding commission of cognisable offence is made out. That indeed, is a rule but the Apex Court itself has observed that in excepted categories, while dealing with the allegations against the government officials, it is open to undertake preliminary enquiry before rushing to register FIR, to ascertain whether the allegation is genuine or vexatious. If it is vexatious, there is no need to register the FIR. In the present case also, similar procedure has been followed and upon noticing that the allegations made by the petitioner are false and vexatious, the same were ignored.
32. To get over this position, Counsel for the petitioner was at pains to submit that the petitioner has, prima facie, supported the allegations by relying on call records and in that case, there would be hardly any choice to the police officer but to register the FIR u/s 154 of the Code. For the reasons already recorded hitherto, while dealing with the efficacy of call records relied by the petitioners, this argument does not take the matter any further for the petitioner.
33. Counsel for the petitioner then relied on the decision of the Apex Court in the case Ramesh & Ors. vs. State of Tamil Nadu (2005) 3 SCC 507 : [2005 ALL MR (Cri) 1795 (S.C.)], and the decision in the case of Y.Abraham Ajith & Ors. vs. Inspector of Police, Chennai & anr., [2004 ALL MR (Cri) 3400 (S.C.)] (supra) to contend that FIR could not have been registered at Navghar Police Station as the principal offence of octroi evasion has been committed against the Mumbai Municipal Corporation. We have already dealt with this contention and have held that the preparation of false seals, documents, etc. which were used in the commission of offence was done within the jurisdiction of Navghar Police Station. The false documents were used and presented within the jurisdiction of Navghar Police Station. In that case, the Navghar Police Station would also have jurisdiction to take cognisance of the offence and register FIR on that basis even though the act may result in defrauding the Mumbai Municipal Corporation. Suffice it to observe that registration of FIR by the Navghar Police Station cannot be said to be fatal at all much less to hold that the whole action has vitiated.
34. The next argument of the petitioner is that merely because the petitioner reported the matter belatedly on 29.3.2012 to the DIG, about the acts of commission and omission of the police officials of the Navghar Police Station, at Bhayander, can be no ground for discarding the complaint. In the first place, the petitioner's complaint has not been discarded merely because it was made after lapse of almost one and a half months. But, on examination of relevant aspects, the Enquiry Officer has formed opinion that the allegations made by the petitioner were false and vexatious to the knowledge of the petitioner. That opinion is supported by the contemporaneous record including the further revelations made during the investigation about the act of the petitioner in withdrawing the amount equivalent to the cheque amount from one account of his bank and immediately redepositing the self-same amount in his other account in the same branch on 9.2.2012. That position has been certified by the concerned Bank. Suffice it to observe that the petitioner is not being non-suited because there is delay in reporting the matter to the superior authority, but even otherwise the fact situation of the case does not warrant any interference at the instance of this petitioner.
35. Counsel for the petitioner relies on the decision of the Apex Court in the case of Sajjan Kumar vs. CBI (2010) 9 SCC 368 : [2011 ALL SCR 24]. Emphasis has been based on the dictum of the Court in paragraphs 31 to 37. For the reasons already noted, the exposition in this decision will be of no avail to the petitioner. Moreover, the dictum of the Apex Court is in the context of the fact situation of that case.
36. The respondents have relied on the call records of Respondent No.4 which indicates that at the relevant time, when the petitioner claims to have visited the Navghar Police Station, the said officer was on duty at some other place away from the Police Station. This call record belies the assertion of the petitioner that Respondent No.4 was instrumental in impressing upon the petitioner to bring amount equivalent to the cheque amount much less to make him deposit the same with the concerned police officer on duty in the police station. As a matter of fact, in the petition, the petitioner has given the name of the officer with whom he had allegedly deposited the amount but after reply affidavit, realising that his plea will have to be rejected as there was no officer by that name, has come out with explanation that he committed mistake by mentioning incorrect name. Suffice it to observe that the theory propounded by the petitioner is not only after-thought but false, frivolous and vexatious so as to embroil the Investigating Officer with such accusations and to confuse and derail the investigation of the case against him.
37. The respondents in the reply affidavit have given the circumstances in which the petitioner has been arrested. There is no reason to doubt the said version in the present proceedings. The stand taken by the respondents is supported by the contemporaneous official record. Therefore, the plea of the petitioner that he was illegally arrested or detained deserves to be stated to be rejected.