High Court
Facts
cran288.24-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPLICATION NO. 288 OF 2024Abdul Wakil s/o Abdul Bari,Age 62 years, Occ. Business,R/o. Madani Chowk, BaijipuraAurangabad ...Applicant versus 1.The State of MaharashtraThrough Police Inspector,Phulambri police stationTq. Phulambri, District Aurangabad2.Shekhar s/o Govindrao ShindeAge 48 years, Occ. Govt. servantR/o. Sara Vaibhav, HarsulAurangabad ...Respondents …..Mr. Shaikh Kayyum Najir, Advocate for the applicantMr. V.K. Kotecha, A.P.P. for the respondents ….. CORAM:SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ.DATED:1st APRIL, 2025 O R D E R (PER SANJAY A. DESHMUKH, J.) :- 1. The applicant is seeking quashment of the First InformationReport (for short “F.I.R.”) vide Crime No. 71 of 2022, dated 15.3.2022registered with Phulambri police station, District Aurangabad for theoffences punishable under Sections 379, 109, 120-B, 447 of IndianPenal Code, 1860 (for short “I.P.C.” and under sections 21(1), (2),(3), (4), (5), (6) of the Mines Act, 1952 and the consequential cran288.24-2- criminal case bearing R.C.C. No. 269 of 2022, pending before thelearned Judicial Magistrate, First Class, Phulambri, DistrictAurangabad.2.The informant -respondent No.2 averred in the report thatthe Revenue Circle Officer of Warud Kazi, Tq. and districtAurangabad lodged a report against the applicant and other accusedpersons, alleging that they have excavated and stolen the softstone/Murram illegally without having licence/ authority/ permissionfrom concerned authority of Gairan land having block Nos. 42 and 62,situated at village Sawangi, Tah. And District Aurangabad, ownedand possessed by the State Government.3.The informant further averred that those two blocks arehaving plenty of stones. The applicant and other 10 accused personsextracted those stones and Murram without making payment ofroyalty to the State Government. Thus, they have committed theft ofstones and Murum. They illegally by committing criminal trespass,entered in those two block numbers, which are the properties ownedby the State Government. They used the JCBs, Poclains, Hiwamachines and tractors and extracted stones and Murram from thesaid land since 2015 and sold it illegally. cran288.24-3- 4.Learned advocate for the applicant submitted that theapplicant is falsely implicated in the crime. He is 62 years old man,having no criminal antecedents. The report is lodged as per thedirections of Tahsildar for completion of target of revenue collection.There is no evidence against the applicant that he committed allegedtheft. If the applicant is compelled to face the trial, it would certainlybe an abuse of process of the court. He prayed to quash the reportand the criminal case lodged and filed against the applicant.5.The learned A.P.P. for the respondents strongly opposedthe application and submitted that the applicant and other accusedcommitted theft of stone and Murram from block Nos. 42 and 62situated at Sawangi, illegally without taking permission fromcompetent authority as provided in the Mines Act, 1952. Theapplicant and other accused acted against the nature and excavatedthe stones and Murram and stolen it from block Nos. 42 and 62.Therefore, the Tahsildar gave directions to the informant to lodge thereport against the applicant and others. He submitted that there isample evidence against the applicant. The applicant has committedcrime of a serious nature. Therefore, the application is liable to berejected.6.A reference can be made to the judgment of Hon’ble
Legal Reasoning
cran288.24-4- Supreme Court in the case of State of Haryana and Ors. vs.Bhajanlal and Ors: AIR 1992 SC 604. Paragraph No.102 of the saidjudgment reads as under:- “102. In the backdrop of the interpretation of thevarious relevant provisions of the Code under Chapter XIVand of the principles of law enunciated by this Court in aseries of decisions relating to the exercise of theextraordinary power under Article 226 or the inherentpowers under Section 482 of the Code which we haveextracted and reproduced above, we give the followingcategories of cases by way of illustration wherein suchpower could be exercised either to prevent abuse of theprocess of any court or otherwise to secure the ends ofjustice, though it may not be possible to lay down anyprecise, clearly defined and sufficiently channelised andinflexible guidelines or rigid formulae and to give anexhaustive list of myriad kinds of cases wherein suchpower should be exercised.(1) Where the allegations made in the firstinformation report or the complaint, even if they are takenat their face value and accepted in their entirety do notprima facie constitute any offence or make out a caseagainst the accused.(2) Where the allegations in the first informationreport and other materials, if any, accompanying the FIRdo not disclose a cognizable offence, justifying aninvestigation by police officers under Section 156(1) of theCode except under an order of a Magistrate within thepurview of Section 155(2) of the Code. cran288.24-5- (3) Where the uncontroverted allegations made inthe FIR or complaint and the evidence collected in supportof the same do not disclose the commission of anyoffence and make out a case against the accused.(4) Where, the allegations in the FIR do notconstitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by apolice officer without an order of a Magistrate ascontemplated under Section 155(2) of the Code.(5) Where the allegations made in the FIR orcomplaint are so absurd and inherently improbable on thebasis of which no prudent person can ever reach a justconclusion that there is sufficient ground for proceedingagainst the accused.(6) Where there is an express legal bar engraftedin any of the provisions of the Code or the concerned Act(under which a criminal proceeding is instituted) to theinstitution and continuance of the proceedings and/orwhere there is a specific provision in the Code or theconcerned Act, providing efficacious redress for thegrievance of the aggrieved party.(7) Where a criminal proceeding is manifestlyattended with mala fide and/or where the proceeding ismaliciously instituted with an ulterior motive for wreakingvengeance on the accused and with a view to spite himdue to private and personal grudge.” cran288.24-6- 7.The aforesaid case of State of Haryana and Ors. vs.Bhajanlal and Ors (supra) has been recently relied upon by theHon’ble Supreme Court in the case of Kim Wansoo Vs. State ofUttar Pradesh & Ors., reported in 2025 SCC Online SC 17. 8.We have perused the report and the charge sheet,particularly the statements of witnesses. During the course ofarguments, learned A.P.P. pointed out the Maharashtra MinorMineral Extraction (Development and Regulation) Rules, 2013. Hepointed out that Rule 3 states that stone and Murram are coveredunder the said Rules alongwith its price/rate card per brass Rs.400/-.There is no certainty as to how much/ quantity of stone and Murramhas been stolen away. On the contrary, in the letter dated 1.4.2022,addressed to the learned A.P.P. it is stated that how much stone andMurram were dug out and stolen is not stated in the panchanamadated 14.03.2022. No independent witness is stating that he saw theapplicant and other accused while digging and carrying out thestones and Murram from those properties. There are vagueallegations that since 2015 till filing of the report, theft of stones andMurram was committed. In the statement of Sandip Pundlik Ghuge,Talathi Saja Tuljapur and Punjaram Atmaram Birhare, Talathi of SajaSawangi, it is stated that they never noticed the applicant while cran288.24-7- committing theft of Stone and Murram. No notice was issued to theapplicant by them. The value i.e. amount of stolen stone and Murramis also not stated in the report or in the statements of witnesses.9.Considering all the above aspects, that there is not evenprima facie evidence to establish the alleged theft of stones andMurram on the part of the applicant, Therefore, considering the lawlaid down in the case of State of Haryana vs Bhajanlal (supra) andalso considering the vague and baseless allegations, if the applicantis compelled to face the trial, it would certainly be an abuse ofprocess of the court. Therefore, in the interest of justice and toprevent the abuse of process of the Court, we are inclined to exerciseour powers under Section 482 of the Cr.P.C. for quashing of thereport and the consequential criminal case. We, therefore, pass thefollowing order:- ORDER I.The application stands allowed.II.The F.I.R. vide Crime No. 71 of 2022 dated 15.3.2022registered with Phulambri police station, DistrictAurangabad for the offences punishable under Sections379, 109, 120-B, 447 of I.P.C. and under sections 21(1), cran288.24-8- (2), (3), (4), (5), (6) of the Mines Act, 1952 and theconsequential criminal case bearing R.C.C. No. 269 of2022 pending before the learned Judicial Magistrate, FirstClass, Phulambri, District Aurangabad, stand quashed tothe extent of this applicant. (SANJAY A. DESHMUKH, J.) (SMT. VIBHA KANKANWADI, J.)rlj/