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2013 Supreme(Bom) 1643
In the High Court of Bombay at Aurangabad
A.H. JOSHI & SUNIL P. DESHMUKH, JJ.
Rajeshwarrao s/o. Vishwanathrao Patil & Others
Versus
The State of Maharashtra & Others
Criminal Writ Petition No.507 of 2013
Decided on : 22-08-2013
For the Petitioners:R.N. Dhorde, i/b. V.G. Sakolkar, Advocates.
For the Respondents:Mrs. V.A. Shinde, AGP, R3, V.D. Salunke, Advocate.
Headnote:Criminal Procedure Code, 1973 - Section 154 - FIR. - FIR regarding offence of cheating, not describing acts of cheating, cannot be relied on to take cognizance of offence. - Moreover, facts described in the FIR which are emphasized by underlining and supplying emphasis, do not conform to the description of narrating as to how fabrication has occurred and as to how the State and/or Assistant Charity Commissioner is cheated. In the background that it may at the most turn out to be offence purported to be committed before the competent Court, no cognizance would be competent by the police in absence of report by the public servant concerned.
In spite of the fact that the opinion was sought by the police as to registration of offence from Deputy Director of prosecution and that the offence was registered thereafter, does not excuse the police from application of mind on their own before registration of offence.
The act of the police officer taking cognizance is thus, bad not only due to non-application of mind, but it is bad even if application of mind is presumed. Impugned registration of FIR is vitiated by reason of jurisdictional error of failing to note that there does not exist description of commission of any offence in the FIR and hence, cognizance of the report lodged by respondent No. 3 is wholly unjust and is not tenable in law and is required to be quashed and set aside.
A.H. Joshi, J.
1. Jagat Jagruti Shikshan Prasarak Mandal, at Chakur is a Trust running educational institutions. Petitioners are trustees of the said trust.
2. Respondent No.3 is the first informant. Respondent No.3 had sent a letter dated 2/2/2013 to the Police Inspector – Respondent No.2, by R.P.A.D. It was intended to report commission of an offence by the petitioners herein. However, the envelope containing the report was received back undelivered. Therefore, the respondent No.3 sought direction from the higher authorities. It appears that the police had secured opinion of the advisor/Deputy Director of Prosecution before registering the FIR. Ultimately, based on said report, and the opinion, the Crime No. 63 of 2013 dated 22nd March, 2013 was registered in Chakur Police Station for the offence under Sections 420, 468, 471, 120B of IPC, against various accused named therein, who are present petitioners.
3. The petitioners have moved this court by filing present petition for quashing FIR and Crime No. 63 of 2013 registered with Police Station Chakur.
4. The case of petitioners, espoused before us, can be condensed and stated as follows:
[a] Father of respondent No.3, he himself and other relatives have been in association with the Trust in various capacities since many years in past.
[b] Respondent No.3, his father and other family members have been associated with the Trust in question, for many years. The respondent No.3 desired that Sushant Manmath Swami, who is complainant's brother be given employment in the educational institution. Said request of the respondent No.3 was not conceded to by petitioners.
[c] Due to said discontent and sheerly to vindicate said grievance, the respondent no.3 has filed subject matter FIR, and he is keen and out to leave no stone unturned against the petitioners.
[d] Even if the text of the complaint, even on the face may be considered to contain truth, and even without waiting to have those proved, those do not constitute description of commission of offence whatsoever, and hence, the prayer for quashing the FIR is made.
[e] It is contended that at this stage even one word contained in the FIR, is not sought to be disputed as a ground of challenge, still, the description contained in the report falls short even of bare description of offences (Sections of IPC) whichever are alleged or mentioned while registering the FIR.
5. In support of the challenge, learned Advocate for the petitioners have relied upon following reported judgments:
[a] Madhavrao Jiwaji Rao Scindia and another Vs. Sambhajirao Chadrojirao Angre and others. (AIR 1988 SC, 709).
[b] GHCL Employees Stock Option Trust Vs. India Infoline Limited. (2013)4 SCC 505;
[c] Suneet Gupta Vs. Anil Triloknath Sharma and others. (2008) 11 SCC 670.
[d] Devendra and others Vs. State of Uttar Pradesh and another. (2009)7 SCC 495.
6. In the course of hearing, learned Advocate for the respondent no.3, has put forth the following points :
[a] That the FIR is not an encyclopedia and, therefore, at this stage any scrutiny as regards adequacy of averments in FIR is not permissible.
[b] The Police is within its competence to take cognizance of when commission of a cognizable offence is reported.
[c] The contents of FIR do adequately describe commission of offences of Cheating, fabrication of records etc and, therefore, it is a fit case where investigation should not be hindered.
[d] Petitioners have umpteen number of remedies at every stage, namely:
- Showing the truth to the Investigating Officer.
- In the event, charge sheet is filed, they can challenge it.
- In the event, charges are framed, they can apply for discharge, etc.
- Ultimately, they can face the trial, and prove their innocence.
[e] At this stage when investigation has not begun, throttling of investigation would hinder the process of administration of justice and, therefore, writ petition should be dismissed.
7. In support of above submissions, reliance is placed on followi
