High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.300 OF 2024Hemantkumar Prabhakar Patil,Age 51 yrs., Occ. Serviceas Police Inspector, at present Control Room, Nandurbar. … Applicant… Versus …1The State of MaharashtraThrough Police Inspector,Police Station, Devpur,Dist. Dhule. 2XYZ, Informant.… Respondents...Mr. V.D. Salunke, Advocate h/f Mr. M.V. Salunke, Advocate for applicantMr. A.V. Lavte, APP for respondent No.1Mr. S.A. Kulkarni, Advocate for respondent No.2...CORAM :SMT. VIBHA KANKANWADI &ROHIT W. JOSHI, JJ.RESERVED ON : 17th DECEMBER, 2024PRONOUNCED ON : 20th DECEMBER, 2024 2Cri.Appln_300_2024ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed invoking the inherent powersof this Court for quashing First Information Report vide Crime No.281/2023dated 11.11.2023 registered with Devpur Police Station, Dist. Dhule, for theoffence punishable under Section 376(1), 354-A, 354-B, 354-D, 509, 506read with Section 34 of the Indian Penal Code, 1860 and under Sections 67and 67(A) of the Information Technology Act, 2000; and also for quashingCharge Sheet No.17/2024 dated 26.02.2024, for the offence punishableunder Section 376(1), 354-A, 354-B, 354-D, 509 and 506 of the Indian PenalCode, 1860. 2Present applicant is serving as a Police Inspector. Presently he isattached to Control Room, Nandurbar. 3Learned Advocate for the applicant after taking us through theFirst Information Report and charge sheet submits that the contents of FirstInformation Report are as vague as they are possible. There are no detailsabout the incident, but it is stated to have taken place since 2022. If that istaken as it is, then there is huge delay of two years in lodging the report. Atthe time of First Information Report there were no allegations about offenceunder Section 376 of the Indian Penal Code. Those allegations are made for 3Cri.Appln_300_2024the first time in her statement under Section 164 of the Code of CriminalProcedure. At the time of First Information Report the Investigating Officerhas dropped the offences under Information Technology Act. In fact, theapplicant had given hand loan to his superior Mr. Sanjay Barkund, who wasthe then Superintendent of Police, however, Mr. Barkund had not returnedthe amount. The applicant has produced on record the WhatsApp chatsbetween himself and Mr. Barkund to show that he had demanded the amounton so many occasions. It appears that Mr. Barkund has then felt annoyed andthen managed to lodge the First Information Report with the help ofrespondent No.2. Even if we consider the case of informant as it is, in fact,informant herself used to give messages on WhatsApp of the applicant. Shewas consistently inviting the applicant for WhatsApp chats. She had madeunnecessary advances towards the applicant by sending objectionablevideos/photos to the applicant. The informant had refused to produce hermobile phone for investigation. She had also refused to undergo the medicalexamination. If she has not co-operated to the investigation, applicantcannot be harassed to face the trial. The WhatsApp chats of the informantwould disclose that she was inviting the applicant whenever her husbandused to go out of the house. The applicant was avoiding her. The informantused to give threat that she would come to office of the applicant. There isno corroborative evidence to support the contentions of the informant in the 4Cri.Appln_300_2024First Information Report. 4After the learned Advocate for applicant was heard on07.10.2024, wherein submission was made that certain documents wereproduced by applicant before the Investigating Officer, we had adjourned thematter and directed the learned APP to take instructions in respect ofmaterial which is stated to have been produced by applicant before theInvestigating Officer. In the meantime, the additional affidavit was filed byapplicant and along with said affidavit he has produced certificate underSection 65-B of the Indian Evidence Act to show that whatever electronicevidence the applicant is possessing has been got audited/checked throughan expert, which is in the nature of WhatsApp chats and the videos. LearnedAdvocate for applicant then submits that when query was raised by this Courtas to what is the authenticity regarding the material with the applicant, theapplicant in order to show bona fides has got the material checked from theexpert. The expert has then given the certificate under Section 65-B of theIndian Evidence Act. It would be then unjust to ask the applicant to face thetrial, when there is clear evidence that the applicant has been falselyimplicated at the behest of the then Superintendent of Police Mr. SanjayBarkund. 5Cri.Appln_300_20245Per contra, the learned APP representing State and learnedAdvocate for respondent No.2 – informant strongly opposed the applicationand submitted that the evidence with the applicant cannot be considered atthis stage. The delay in lodging the First Information Report can beexplained and it is in fact tried to be explained by the informant, taking intoconsideration the fact that the applicant was a high rank Police Officer and hewas working in the same district, where respondent No.2 is residing. After hewas transferred out of district, she has lodged the report. For every delay shehas tried to give explanation at the appropriate stage. The electronicevidence is required to be proved. The informant is accepting that there wastalk/chat between herself and applicant, but according to her, it was initiatedby the applicant and not by her. The informant cannot be condemned at theinitial stage. She has also right to put her case and lead evidence. Now, thecharge sheet is filed and, therefore, let there be the trial. 6At the outset, we would like to say that we are considering thecase where the application is filed under Section 482 of the Code of CriminalProcedure and, therefore, the scope of the Section will have to be borne inmind. This Court has limitation and cannot go deep into the appreciationpart. Of course, unless it is proved or that much material is produced toshow that the applicant has been implicated or the action has been taken 6Cri.Appln_300_2024against the applicant with an vindictive attitude as laid down in State ofHaryana and others vs. Chh. Bhajan Lal and others [AIR 1992 SC 604], thisCourt will not have jurisdiction or cannot quash and set aside theproceedings including First Information Report under Section 482 of theCode of Criminal Procedure. Perusal of the First Information Report wouldshow that the informant has stated that she does not remember the date, butshe is giving the incident. First Information Report is not an encyclopediaand in the present case then there are two supplementary statements of theinformant as well as a statement under Section 164 of the Code of CriminalProcedure. If we consider this, there appears to be prima facie case. 7The applicant has prayed for the quashment of the proceedingsalso on the ground that he is having material to show that he has been falselyimplicated and according to him, the present informant has acted as directedby the then Superintendent of Police to whom the applicant is stated to haveadvanced hand loan. As regards electronic evidence, in which there arestated to be WhatsApp chats and sending of the videos by the informant, thatis required to be proved by the applicant. Mere submission of certificateunder Section 65-B of the Indian Evidence Act will not be sufficient.Acceptance of such evidence at the stage of application under Section 482 ofthe Code of Criminal Procedure would amount to accepting evidence of a 7Cri.Appln_300_2024party without giving chance to the other party to rebut the same or crossexamine the necessary witnesses. In that case it would be beyond the scopeof Section 482 of the Code of Criminal Procedure. As regards second reasonregarding the hand loan, except the WhatsApp chats there is nothing andaccording to the applicant, he had given hand loan of Rs.75,00,000/- to thethen Superintendent of Police. The details of the persons from whom he hadcollected that amount has not been stated in any of the chats nor thosenames have been revealed in the present application. Another fact is that thesaid Superintendent of Police is not a party before this Court and even thatevidence of WhatsApp chats would be required to be proved. The entiredefence cannot be considered in the present case. 8Taking into consideration the contents of the First Information,supplementary statements, statement under Section 164 of the Code ofCriminal Procedure and the other evidence on record, no case is made out forexercise of powers under Section 482 of the Code of Criminal Procedure.The facts which are disputed cannot be gone into, when it requires proof.Hence, the application stands rejected. ( ROHIT W. JOSHI, J. )( SMT. VIBHA KANKANWADI, J. )agd