High Court · 2024

Legal Reasoning

cria-66.191 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.66 OF 2019Rajendra S/o Sopanrao Jagtap,Age-45 years, Occu:Service,R/o-Shirdi, Taluka-Rahata,District-Ahmednagar. ...APPLICANT VERSUS 1) The State of Maharashtra, Through: The Police Inspector, Shirdi Police Station, Shirdi, Taluka-Rahata, District-Ahmednagar,2) Smt. Sumantai Rajendra Wabhale, Age-47 years, Occu:Social Worker, R/o-Babhale Market, Rahata, Taluka-Rahata, District-Ahmednagar. ...RESPONDENTS ... Mr. V.D. Sapkal Senior Counsel i/by Mr. S.R. Sapkal Advocate for Applicant. Ms. R.P. Gour, A.P.P. for Respondent No.1 – State. Mr. S.S. Thombre Advocate h/f. Mr. A.S. Gandhi Advocate for Respondent No.2. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ.DATE OF RESERVING JUDGMENT : 3rd SEPTEMBER 2024DATE OF PRONOUNCING JUDGMENT : 17th OCTOBER 2024 cria-66.192JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Heard finally with the consent of the learned Advocates forthe rival parties. 2.Present Application has been filed under Section 482 of theCode of Criminal Procedure, initially, for quashing the FirstInformation Report (for short “the FIR”) vide Crime No.249 of2018, dated 16th November 2018 registered with Shirdi PoliceStation, Shirdi, Taluka-Rahata, District-Ahmednagar and later on,by way of amendment for quashing the the proceedings/charge-sheet arising out of the said FIR i.e. R.C.C. No.308 of 2022pending before the learned Judicial Magistrate, First Class,Rahata, for the offence punishable under Sections 354, 323,504, 506 of the Indian Penal Code.3.Heard learned Senior Counsel Mr. V.D. Sapkal instructed byMr. S.R. Sapkal Advocate for applicant, learned APP Ms. R.P.Gour, for respondent No.1 – State and learned Advocate Mr. S.S.Thombre holding for Mr. A.S. Gandhi Advocate for respondentNo.2. cria-66.1934.Learned Senior Counsel Mr. V.D. Sapkal instructed by Mr.S.R. Sapkal Advocate for the applicant vehemently submits thatthe perusal of the FIR and now the contents of the charge-sheetwould show that the FIR has been lodged with some ulteriormotive and there was absolutely no intention on the part of theapplicant to commit any such offence as alleged. The applicant isworking as employee of Shri Saibaba Sansthan, Shirdi and infact Shri Saibaba Sansthan Act, 2004 makes a provision that allthe employees of Sansthan are public servants within themeaning of Section 21 of the Indian Penal Code. By order dated1st December 2015, the administrative officer of Shri SaibabaSansthan had allocated the work to various employees ofSansthan and present applicant, who was head of water supplydepartment, was also given the charge of Superintendent ofTemple Department and therefore, he was concerned with thework inside the temple also. Respondent No.2, who lodged theFIR on 16th November 2018 in respect of incident dated 15thNovember 2018, states that around 8.00 p.m. she along withthe relatives came to temple for Darshan. Her relatives met heron gate No.3 and thereafter they all entered the inner circle ofthe temple. Another employee of the Sansthan, Mr. Balu Jejurkarwas giving instructions to the devotees who were coming for cria-66.194Darshan. He asked respondent No.2 to stand aside for a while.The informant - respondent No.2 says that the applicant camenear her at that time and asked her to go out of the temple. Hethen caught hold the hand of respondent No.2 and took heralong with her relative, out of the temple. It is then stated thatrespondent No.2 and her relative were threatened and insultedby the applicant. In fact there are CCTV cameras installed insideand outside the temple. If CCTV Footage of the particular timeand date is perused, it can be seen that no such incident asalleged by respondent No.2 had taken place. It appears that thestory that has been given by respondent No.2 is false andconcocted and the FIR has been lodged to wreak personalvengeance and out of political rivalry. There could not have beenany intention of the applicant to outrage the modesty ofrespondent No.2 and her relative, as she has not stated that atany earlier point of time there was any such incident betweenthe applicant and informant which would have then led for suchincident. The CCTV Footage was seized by drawing panchnamaon 22nd November 2018. Now the report has also been receivedfrom the Forensic Science Laboratory (for short “the F.S.L.”) thatno such incident has taken place and in view of order dated 28thSeptember 2022, this Court had directed the learned Judicial cria-66.195Magistrate First Class, Rahata (Court No.2) to prepare thetranscript and send it to this Court, which would have beenreceived by this Court. Since it is confidential, the applicant hadno occasion to go through the same but the F.S.L. report wouldbe then sufficient. Learned Senior Counsel also submitted thatthe CCTV Footage was seen by the Hon’ble Single Bench of thisCourt at the time when anticipatory bail application of thisapplicant was decided and there are observations to that effectthat no such incident could be seen. 5.Learned Senior Counsel Mr. Sapkal relies on the decision inSuryalakshmi Cotton Mills Ltd. vs. Rajvir Industries Ltd. andothers, 2008(13) SCC 2008, wherein it has been observed thatthe powers under Section 482 of the Code of Criminal Procedurehave to be dealt with caution and application of well known legalprinciples. It should be borne in mind that the criminalproceedings should not be encouraged when found mala fide orotherwise amount to abuse of the process of court. Ordinarily, adefence though, a plausible one, should not be considered at thisstage, nor the High Court could enter into disputed questions offact, but documents of unimpeachable character can beconsidered to find out whether continuance of criminalproceedings would amount to an abuse of the process of court or cria-66.196that the complaint is merely filed to harass the accused. Hefurther relies on the decision in Prashant Bharti vs. State of NCTof Delhi, 2013 AIR (SC) 2753, wherein reliance has been placedon Paragraph Nos. 22 and 23 of Rajiv Thapar and others vs.Madan Lal Kapoor, AIR 2013 (SC) (Cri) 659, which reads thus:-“ 22. The issue being examined in the instant case isthe jurisdiction of the High Court under Section 482 ofthe Cr.P.C., if it chooses to quash the initiation of theprosecution against an accused, at the stage of issuingprocess, or at the stage of committal, or even at thestage of framing of charges. These are all stages beforethe commencement of the actual trial. The sameparameters would naturally be available for later stagesas well. The power vested in the High Court underSection 482 of the Cr.P.C., at the stages referred toherein above, would have far reaching consequences, inas much as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determinationmust always be rendered with caution, care andcircumspection. To invoke its inherent jurisdiction underSection - 482 of the Cr.P.C. the High Court has to befully satisfied, that the material produced by theaccused is such, that would lead to the conclusion, thathis/their defence is based on sound, reasonable, andindubitable facts; the material produced is such, aswould rule out and displace the assertions contained inthe charges levelled against the accused; and thematerial produced is such, as would clearly reject and cria-66.197overrule the veracity of the allegations contained in theaccusations levelled by the prosecution/complainant. Itshould be sufficient to rule out, reject and discard theaccusations levelled by the prosecution/complainant,without the necessity of recording any evidence. Forthis the material relied upon by the defence should nothave been refuted, or alternatively, cannot be justifiablyrefuted, being material of sterling and impeccablequality. The material relied upon by the accused shouldbe such, as would persuade a reasonable person todismiss and condemn the actual basis of theaccusations as false. In such a situation, the judicialconscience of the High Court would persuade it toexercise its power under Section 482 of the Cr.P.C. toquash such criminal proceedings, for that would preventabuse of process of the court, and secure the ends ofjustice. 23. Based on the factors canvassed in the foregoingparagraphs, we would delineate the following steps todetermine the veracity of a prayer for quashing, raisedby an accused by invoking the power vested in the HighCourt under Section 482 of the Cr.P.C.:- (i) Step one, whether the material relied upon by theaccused is sound, reasonable, and indubitable, i.e., thematerial is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by theaccused, would rule out the assertions contained in thecharges levelled against the accused, i.e., the materialis sufficient to reject and overrule the factual assertions cria-66.198contained in the complaint, i.e., the material is such, aswould persuade a reasonable person to dismiss andcondemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by theaccused, has not been refuted by theprosecution/complainant; and/or the material is such,that it cannot be justifiably refuted by theprosecution/complainant? (iv) Step four, whether proceeding with the trial wouldresult in an abuse of process of the court, and wouldnot serve the ends of justice? If the answer to all the steps is in the affirmative,judicial conscience of the High Court should persuade itto quash such criminal - proceedings, in exercise ofpower vested in it under Section 482 of the Cr.P.C.Such exercise of power, besides doing justice to theaccused, would save precious court time, which wouldotherwise be wasted in holding such a trial (as well as,proceedings arising therefrom) specially when, it isclear that the same would not conclude in theconviction of the accused.” 6.Learned Senior Counsel therefore, submits that it would beunjust to ask the applicant to face the trial and hence not onlythe FIR but also the entire charge-sheet is to be quashed and setaside. cria-66.1997.Learned APP submits that the investigating officer APISambhaji Gopal Patil has filed affidavit-in-reply wherein he hasstated that initially the investigation was carried out by PSIVandana Sonune of Shirdi Police Station and she has seized theCCTV Footage and taken it on DVD. It took time to send the DVDto Forensic Laboratory, Nashik due to administrative constraintsin view of the fact that the investigating officer was required toget permission from Superintendent of Police, Ahmednagar forpurchase of blank hard disks. At the time of sending the DVDcontaining CCTV Footage, there appears that no transcript wasprepared. There is also an affidavit on record of AssistantDirector, Regional Forensic Science Laboratory, Nashik, Mr. VishalSubhash Pawade, who had given the details of pendency ofcases with them, in respect of Cyber Crime Division and TapeAuthentication and Speaker Identification (TASI) Division. Hesubmits that final analysis report in the present case was handedover to Shirdi Police Station on 21st September 2022. There isalso affidavit of then Superintendent of Police, Ahmednagar, Mr.Manoj Govind Patil regarding issuance of directions / circular inview of the decision in Criminal Appeal Nos. 549 of 2019 and 385of 2019 regarding how the CCTV Footage should be sent forforensic analysis. The circular especially includes direction to cria-66.1910prepare transcript of the footage as well as the recordedmaterial. Learned APP submits that every effort has been madeto place the evidence on record. There are statementssupporting the FIR and therefore, let the applicant to face thetrial. 8.Learned Advocate Mr. Thombre holding for Advocate Mr.Gandhi for respondent No.2 submits that when it is specificallystated in the FIR that without any reason the applicant hadcaught hold of the hands of respondent No.2 and her sister-in-law and dragged them out of the temple, it is for those ladies tosay that what was their feelings when such act was being donewith them. He relies on the decision in Rupan Deol Bajaj (Mrs)and another vs. Kanwar Pal Singh Gill and others, (1995) 6 SCC194, wherein it has been observed that the word ‘modesty’ hasnot been defined in the Indian Penal Code. From the dictionarymeaning of ‘modesty’ and interpretation given to that word bythe Supreme Court in State of Punjab vs. Major Singh, AIR 1967SC 63, it appears that the ultimate test for ascertaining whethermodesty has been outraged is the action of the offender such ascould be perceived as one which is capable of shocking the senseof decency of a woman. Therefore, learned Advocate forrespondent No.2 submits that when there is direct evidence in cria-66.1911the form of statement under Section 161 of the Code of CriminalProcedure of the informant as well as the other witnesses whowere in the queue, then interference in the form of powers underSection 482 of the Code of Criminal Procedure may not bejustified. 9.Learned Advocate for respondent No.2 also relies on thedecision in Kaluram Chaudhary vs. Union of India and others,2016 DGLS (Bom.) 1346, S.P.S. Rathore vs. Central Bureau ofInvestigation and another, 2017 (5) SCC 817, State ofMaharashtra and others vs. Arun Gulab Gawali and others, 2010(9) SCC 701 and Tarkeshwar Sahu vs. State of Bihar, (2006) 8SCC 560, in support of his submissions. All these cases are infact the Appeals those have been decided after appreciation ofthe entire evidence upon merits.10.Learned Advocate for respondent No.2 submits that F.S.L.report cannot be said to be against respondent No.2 as it isstated that as there was rush, it is not possible to identify theexact act. However, the said CCTV Footage definitely points outthe presence of respondent No.2 as well as the applicant at thesaid place. Therefore, when there is material against theapplicant, this may not be the fit case where this Court should cria-66.1912exercise powers under Section 482 of the Code of CriminalProcedure. 11.Before we consider the material in the charge-sheet, weare certainly taking note of the decision in Rajiv Thapar andothers vs. Madan Lal Kapoor (supra), Prashant Bharti vs. Stateof NCT of Delhi (supra), Suryalakshmi Cotton Mills Ltd. vs.Rajvir Industries Ltd. and others (supra) and Rupan Deol Bajaj(Mrs) and another vs. Kanwar Pal Singh Gill and others (supra).Here, independently the accused has not produced anydocumentary evidence. He submits that the CCTV Footage doesnot reveal the activity as alleged in the FIR. Though the incidentis stated to have taken place on 15th November 2018, the F.S.L.report appears to have been given after 20th September 2022.One report shows that the analysis of the same has started on15th February 2021 and completed on 9th March 2021 and thesaid report is dated 10th March 2021. However, it appears thatthere is another report of F.S.L. dated 12th September 2022,which appears to be in respect of 2 HDD’s of size 4 TB and it issaid that in those HDD’s, CCTV Footage for date 15th November2018 was not found. The said CCTV Footage or electronicevidence is of course subject to proof that can be adduced orrequired to be adduced at the time of trial. From the panchnama cria-66.1913of extraction of CCTV, it appears that one Ashok Baban Dabhade,claiming to be the person as CCTV operator of Shri Sai BabaSansthan has produced it and there is certificate under Section65-B(4) of the Indian Evidence Act, 1872. In respect of the saidCCTV Footage which was produced in DVD on 22nd November2018, no transcript appears to have been prepared by theinvestigating officer. The circular, which the Superintendent ofPolice, Ahmednagar was referring, is dated 26th September 2022.That means as on 22nd November 2018 the said circular wasneither in existence nor there is any other document produced toshow that the investigating officer was under obligation andknowledge to prepare the transcript on that day. In fact it is thecommon sense that only DVD need not be seized under thepretext that it contains some material. Unless the material isseen by the panchas, it is not required to be seized and it neednot even be sent for forensic analysis. The investigating officermust ensure that there is some material in the said electronicevidence which can lead to establishing connection between thecrime and the criminal, then only it should be sent to theforensic laboratory. We are constrained to observe, on the basisof our experience, that the investigating officers are rampantly,without preparing transcripts or ensuring that there is some cria-66.1914connection between the crime and the electronic evidence, aresending the devices / material to F.S.L. leading to hugependency. Due to the huge pendency and of course the otherproblems, it appears that there is delay in the reports. The dataregarding pendency is given in the affidavit of the employeeworking in F.S.L., Nashik, as aforesaid. 12.No doubt, the said F.S.L. report which is at present onrecord shows that, “after the video analysis and subsequent frameby frame visual analysis of video recordings marked as Ex-1 revealedthat the male and female person were observed in a video recordingsbut due to the crowd the case related activity could not be observedclearly and the details are given below.” At this stage, it will not beout of place to mention here that in view of our order dated 28thSeptember 2022, the learned Judicial Magistrate First Class,Rahata, was directed to prepare transcript and make it availablefor the perusal of this Court. The report has been submitted on7th October 2022. He has observed the video clips and in the nut-shell the report says as to what were the activities of theinformant at different places within the temple. It is stated thatone security guard by moving the railing, allowed the informantto come inside the Darshan Mandap. Thereafter two men andtwo women also seen coming with the informant. However, in cria-66.1915video clip No.16, it is stated that informant comes from the frontside of Palakhi to the other side and stands in the crowd. Thenaccused is seen nearby. Suddenly the movement of accused isseen to be increased, like speaking with someone and thenphysical movement of accused is seen to be increased. LearnedMagistrate also states that due to crowd it is not able toascertain with whom the accused was talking. But then he saysthat something is seen to be happened there and then theaccused leaves ahead. Thereafter the informant is also seengoing for Darshan. Thereafter also in video clip No.17, it isstated that informant was seen smiling with two ladies and shetakes Darshan. Thus, the prima facie evidence shows that it is infavour of the accused.13.In the FIR the informant says that the applicant – accusedenters into quarrel with devotees many times for petty reasons.Then she states about the incident around 8.00 p.m. of 15thNovember 2018. She says that she went along with her sister-in-law (brother-in-law’s wife) and nephew for Darshan. Then shemet to her friends from Shirdi and all of them then went fromGate No.3. One Balu Jejurkar, the employee of the Sansthanasked them to go to aside and therefore, they were standingthere. At that time the applicant came there and asked them, cria-66.1916why they are asked to stand there but they should be driven out.Then the applicant caught hold of the hands of the informant andher sister-in-law and dragged them out. They were asking him towait but the applicant did not listen. Then informant and hersister-in-law were driven out of Darshan Mandap (Gabhara of thetemple) and then applicant abused them by saying that:-“rqEgh FkMZ Dykl vkgkr rqeph eafnjkr ;k;ps dkgh,d dkj.kukgh eafnjkr vkyk rj ekj [kkrku” .English translation of the same reads as under:-“You third grade [people] . You have no reason to enterthe Temple. If you ever enter the Temple [again] you willbe beaten” (Translated by Senior Translator and Interpreter, High Court of Bombay, Bench at Aurangabad)14.Supplementary statement of the informant has beenrecorded on 22nd November 2018, wherein she has stated thatthe accused told them that:-“rqEgh FkMZDykl vkgkr rqeps eanhjkr ;k;ps dkgh,d dkj.kukgh- ijr eanhjkr vkykr rj ekj [kk.kkj- g~;k pdze cksxlck;dk vkgsr] iq#”kkae/;s ?kqlY;k rqEgkyk vDdy ukgh] ;k lkr cria-66.1917vkB ck;dk ;kaph ftjorks] ukyk;d ck;dk ;srkr d’kkykeanhjkr” .English translation of the said supplementary statementreads as under:-“You third grade [people]. You have no reason to enterthe Temple. If you come again in the Temple, you will bebeaten. These women are insane and bogus. Thesewomen, out of their minds, have broke into the queuefor men. I will teach them a lesson. Why these worthlesswomen come to the Temple?” (Translated by Senior Translator and Interpreter, High Court of Bombay, Bench at Aurangabad)15.Thus, it can be seen that there is no earlier dialoguebetween the informant and accused. If we consider thestatements of other witnesses i.e. sister-in-law of the informantand two of the friends, they have already stated which in thesupplementary statement the informant had stated at a laterpoint of time. Rest is almost copy-paste. Interestingly, statementof nephew of informant appears to have not been recorded.There are statements of one Rahul Mukundrao Sadaphal andAnwar Yunus Tamboli, which are supportive of the informant andother ladies, however, the timings are not supportive. Statement cria-66.1918of Balu Jejurkar, the employee of Sansthan has also beenrecorded, however he states that after he had asked the ladiesto be on one side, they listened to him and thereafter he wentahead in the temple.16.The spot panchnama shows that there is distance of about50 to 60 ft. covering Mandap i.e. Gabhara. However, the spothas been shown outside that Hall / Gabhara.17.After taking into consideration all these evidence, we couldsee that there are disputed facts and the evidence will have tobe adduced even for proving the CCTV Footage i.e. electronicevidence. Certainly, when the word ‘modesty’ has not beendefined in the Indian Penal Code and it depends upon thefeelings of the lady and also on the fact that there was nonecessity to catch hold of the hands of a lady, then it will dependupon the evidence as to how the act, if proved, to beinterpreted. Catching hold of the hands and dragging woulddefinitely be covered under the words “……. assaults or usescriminal force…..”, used in Section 354 of the Code of CriminalProcedure. cria-66.191918.In Rupan Deol Bajaj (Mrs) and another vs. Kanwar PalSingh Gill and others (supra), it has been observed that theculpable intention in the said offence under Section 354 of theIndian Penal Code has to be proved like other ingredients but inabsence of direct evidence, can be inferred from attendingcircumstances. When there is evidence requiring trial, we do notfind this to be a fit case where the FIR and the charge-sheetneeds to be quashed and set aside by using inherent powers ofthis Court under Section 482 of the Code of Criminal Procedureand therefore the Application deserves to be rejected.19.Accordingly, the Application stands rejected. [S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/OCT24