The court emphasized the power to exercise the provision under 482 of Code of Criminal Procedure when there is an abuse of process of any Court or securing the end of justice, and the different roles played by the accused in the commission of the offence.

JUDGMENT

S.M. Modak, J. - In this Petition, we are required to decide the prayer for quashing of FIR made by the Petitioner/accused who is yet not arrested. "The averments "in the FIR" are the only criterios or whatever "material collected during investigation" is the relevant criterio for quashing" is the predominant issue to be addressed in this Petition.

2. The Petitioner filed an application for grant of protection from arrest in connection with an offence registered at C.R. No.512 of 2021 under Sections 307, 324, 323, 509, 504, 506(2), 143 144, 147, 148, 149 of Indian Penal Code and Sections 4, 25 of Arms Act along with Sections 37(1) read with Section 135 of Bombay Police Act lodged at Mankhurd Police Station. It was registered on the complaint of Sunil Muralidhar Sathe. Apprehending arrest, the Petitioner approached the City Civil Court, Mumbai. Initially, he could got interim protection from arrest as per Order dated 26 Augsut 2021. However, he was not successful in securing an Order of confirmation for the reason that Additional Commissioner of Police Mumbai have granted approval under Section 23 of the provisions of Maharashtra Control of Organized Crime Act, 1999 (MCOC Act).

3. That is how the Petitioner approached this Court. He made prayer thereby challenging constitutional validity of Section 21(3) of the said Act and also made a prayer for setting aside the Order dated 28 September 2021. However, when this Court has raised serious doubt about those prayers in the Order dated 21 December 2021, the Petitioner deleted those prayers and inserted prayer for quashing of FIR and quashing of approval dated 28 September 2021. On this background, we have heard Mr.Girish Kulkarni, learned Counsel for the Petitioner and Mr. J.P. Yagnik, learned APP for Respondent No.1-State.

4. The parameters for quashing of FIR are well settled. FIR can be quashed in an extra ordinary jurisdiction, if averments in the FIR does not show commission of an offence or it can be quashed, if material collected during the investigation does not suggest commission of an offence or if there are technical defects, for example, not obtaining sanction to prosecute. The purpose of this provision is not to compel the accused person to face an ordeal of trial. When either there is an abuse of process of any Court or securing the end of justice, the power under 482 of Code of Criminal Procedure can be exercised. That is to say when either of the party has abused the process of Court in order to harass any party by way of vengence, such power can be exercised or it can be exercised when criminal law is set in motion in a good faith, but during the investigation, no material is collected to disclose the involvement of the accused.

5. In the case before us, the charge-sheet is filed against in all four persons before the Special Court under MCOC Act. It is true that police have not arrested the present Petitioner and they could not get opportunity to interrogate him. So as on today, we are supposed to deal with the grievances of the Petitioner on the basis of materials collected and which is part of a charge-sheet filed against other accused persons.

6. The grievance of the Petitioner is two fold :

(i) the averment in the FIR has not referred to the Petitioner as an accused, and

(ii) so far as the grant of approval under MCOC Act is concerned, it nowhere discloses commission of any of the offence under the provisions of MCOC Act.

7. It is also submitted that at the most the Petitioner can be blamed for harbouring the main assailants by giving them shelter in his house at Phaltan, District Satara. There is a contention raised on behalf of the Petitioner that when police realized interim protection granted to the Petitioner will be confirmed, the police hurriedly obtained approval on 28 August 2021 to invoke MCOC Act. It is also contended that there is no nexus/link between the Petitioner and gang leader. It is also contended that the on the basis of offences mentioned