P.D. Kode, J.@mdashBoth the aforesaid proceedings connected with the events occurred in Criminal Case No. 99/SW/2008 of the 51st Court of learned Metropolitan Magistrate, Kurla, Mumbai heard together are disposed of by this common Judgment.
2. Criminal Application No. 514 of 2011 under Section 482 of Code of Criminal Procedure and Article 227 of the Constitution of India is preferred by three applicants, i.e. accused Nos. 1 to 3 in said Criminal Case No. 99/SW/2008. They have prayed for quashing the order dated 20-12-2008, passed issuing process against them under Sections 506 (II), 504, 323, 324, and 384 of the Indian Penal Code (for short, "IPC") upon a private complaint made by respondent Nos. 1 and 2 (hereinafter referred as "complainant No. 1 and 2") in said application.
3. The said complainant had made said complaint amongst other on the allegation that on 4-12-2008, at about 11:30 p.m., the accused No. 3 sent two goondas at their house at Dadar Parsi Colony. Upon complainant No. 2 opening the door of the house expecting his father-husband of complainant No. 1, one of the goondas slashed a knife upon the leg of complainant No. 2, causing contused lacerated wound of length 4". The same goonda thereafter hit him on the left side of chest causing two minor contused lacerated wounds with severe inflammation and immense pain. After complainant No. 2 cried loudly "mummy" and complainant No. 1 "police", said goondas ran away fast stating in Hindi that "if they do not withdraw the complaint filed against accused No. 1 and 3, they would kill them. They also stated that it was a warning assault and next time it would be murder". It was also alleged in said complaint that complaints had filed a complaint in Court a day prior to occurrence of said incident regarding threat given and assault made by accused No. 3 upon them on 28-11-2008 for which they had lodged NC No. 949/2008 at Matunga Police Station, Mumbai. The complainants also detailed out about earlier 35 incidents of assault/threats given reported by them to various police stations and the recording of first information report and/or NC cases about it. It is also alleged that accused Nos. 1 and 2 were the son or the grandson of Senior Police Inspector and were having family ties with the police and are also having links with underworld. The complainants thereon had prayed for passing an order under Section 156(3) of Cr. P.C. and/or punishing the accused persons. The said application has been admitted by a learned single Judge on 11-1-2012.
4. While the aforesaid Writ Petition No. 2737 of 2011 is preferred by complainant i.e. respondent No. 1 in the afore criminal application under Article 226 of the Constitution of India. In the said petition she has mainly contended the events occurred on 1st March, 2011 at 3, Industrial Estate, Narayan Nagar, Ghatkopar(w) when she had accompanied Police Constable Sachin Jaiswal (Buckle No. 41068) for executing a bailable warrant issued against accused No. 2 by the Metropolitan Magistrate, First Class, 51st Court in the Criminal Case No. 99/SW/2008. In short, it is her case for showing the place of accused No. 2 initially along with the said Constable she had been to his address at Worli and himself being not found at the said place, taken him to the place of his office at Ghatkopar. Complainant No. 1 had given detail account of events occurred thereafter in the petition. She has prayed thus:
"(a) I pray that this Hon''ble court may direct the Matunga police station to submit their report as per the order of the Hon''ble Magistrate dated 1.3.2011.
(b) That this Hon''ble court may direct the concerned Ghatkopar police station to file/register/record appropriate complaint & investigate at length.
(c) That this Hon''ble court may direct the immigration authorities of Mumbai to give a detail list of the entry & exit of Kaiwan Balsara from the country as a fake statement has been made by his father purposefully to conceive evidence from the court & hinder investigation as per annexure Ex-D where he submitted that the said Kaiwan Balsara has been out of the country since 8 years i.e. since the year 2003.
(d) That this Hon''ble Court may direct THE AIRPORT AUTHORITIES OF INDIA authorities from all India level to give a detail report of ravel, entry, exit of Respondent No. 2 Kaiwan Balsara in & out of India since the last 8 years as the corrupt police officers have taken the stamen of the father of Respondent No. 2 i.e. accused Cyrus Balsara that he has been out of the country & is residing in Dubai since the last 8 years as per Ex-D which I have challenged as I have eye witnessed & have documentary evidence showing the presence of Respondent No. 2 accused No. 2 in CC No. 99/SW/08 in Indian, Mumbai at several instances since the last 8 years as falsely mentioned by the father of the Respondent No. 2.
(e) I pray that Respondent No. 2 having family ties with the Police being extremely powerful, influential & concept ALL matters before the 51st Court, Kurla may be directed to be expedited and/or time bound as the accused therein & the Respondent No. 2 herein have family ties with the police, were extremely rich powerful, influential & corrupt are trying to either delay or deny proceedings before the Magistrate as they are aware of their guilt & if the matter would go on expeditiously, justice may be seeked during their life time.
(f) I pray that directions be given to initiate investigation & inquiry against Sr. P.I. Charudatta Zendekar & Officer Suresh Gaikwad, Ghatkopar Police Station.
(g) Any other order this Hon''ble Court deem fit & proper.
(h) I pray that Matunga police station Sr. P.I. may be instructed to make attempts to execute arrest warrant dated 28.2.11 against Kaiwan Balsara in CC No. 99/SW/08 as directed by the Hon''ble Magistrate 51st court. Further not only rely on a submission made by the co-accused Cyrus Balsara father of Respondent No. 2 herein in this matter that the Respondent No. 2 herein & the accused No. 2 therein Kaiwan Balsara is permanently residing abroad since the last 8 years.
I pray that the police authorities may be instructed to inquire or direct inquiry may be directed with regard to the immigration authorities of India to get details of entry & exit of the Respondent No. 2 Kaiwan Balsara details & execute this arrest warrant.
I further pray that this matter may be expedited as the complaint is filed on 5.12.08 & process is issued by the Hon''ble Magistrate on 20.12.08. The legal machinery cannot proceed in this complaint as the Respondent No. 2 abovenamed is dodging arrest."
5. The application is opposed by the complainant No. 1 by filing an (additional) affidavit in reply and annexing certain documents relied by her in support of the contentions taken. The Senior Police Inspector of Ghatkopar Police Station had filed an affidavit opposing the prayers made in the writ petition.
6. We have heard Mr. Niranjan Mundargi in support of the application preferred and the complainants opposing granting of prayers in the application and in support of the writ petition preferred by complainant No. 1. So also we have heard the learned APP Ms P.H. Kantharia for the State. We have also carefully perused the application, affidavit in reply, writ petition, documents annexed and the affidavit filed by the Senior Inspector of Police of Ghatkopar Police Station.
7. Before adverting to the submissions canvassed, it will be necessary to say that main contesting parties in the application are related with each other i.e. accused No. 1 is father of accused No. 2. Accused No. 1 is married with the sister of accused No. 3. Complainant No. 1 is daughter-in-law of accused No. 3, i.e., wife of the son of applicant No. 3. Complainant No. 2 is son of complainant No. 1 and grandson of applicant No. 3. The dispute has arisen in between the parties after the demise of husband of accused No. 3 on 19-9-2003 regarding the properties mentioned in paragraph No. 5 of the application said to be jointly owned by the said deceased, accused No. 3 and husband of respondent No. 1. Since we find that the details of the said dispute being wholly unnecessary for the purposes of deciding the present proceedings, instead of detailing it, it will be suffice to say that it is the case of accused No. 3 that her son-husband of complainant No. 1 and the complainant had prepared a fabricated Will of her deceased husband and had transferred all the properties in their names for sinister motive. Accused No. 3 after detecting it was forced to take up various proceedings against the husband of the complainant No. 1 and complainant No. 1 for enforcing her right regarding said properties. The husband of complainant No. 1 and complainant No. 1 being enraged due to it had committed several acts of omission and commission amounting to offence or otherwise for forcing her to give up the various proceedings taken by her.
Criminal Application No. 514 of 2011:
8. The prayers in the application being for quashing the order of issuing process and the complaint made by exercising the powers under Section 482 of Cr. P.C. and Article 227 of the Constitution of India, we find it necessary to state that the Apex Court in its various Judgments since the decision way back in the year 1960 in the case of
9. On the backdrop of such settled legal position we are unable to find any substance in the submissions canvassed by the learned counsel for the accused that series of complaints lodged by the complainant No. 1 or her husband or complainant No. 2 mentioned in the petition itself denote that the complainant are in habit of lodging false and frivolous complaints against the accused and the present complaint is also of such a nature and continuing same would be abuse of process of law. We are of such a view in spite of taking into consideration the number of the complaints to which our attention was drawn by learned counsel for accused for a simple reason of the learned counsel having not brought to our notice any decision having arrived of any of the said complaint being found to be false or frivolous by of the Court of law. Hence on the backdrop of existence of a dispute over the property in between the parties, merely because of pendency of such cases, we are unable to accept the submission canvassed of the present complaint being false and frivolous and entertaining the same amounts to abuse of process of law.
10. The learned counsel canvassed that accused No. 2 is not residing in India and has been residing at U.A.E. and has been intermittently coming to India for work and then only would be visiting his parents. It is canvassed that the complainants are well aware of the said fact but still showing his address at Worli in Mumbai, they had mischievously filed the complaint against all the accused. It is canvassed that the same indicates that on the day of the incident, in spite of applicant No. 2 or even as per the complaint none of the accused being present at the time of the incident, their implication in complaint is indicative of the false and frivolous complaint amounting to abuse of process of law being made by the complainant. It is urged hence it deserves to be quashed.
11. We are unable to accept the aforesaid submissions for want of any material being placed on the record in the shape of immigration papers, passport, etc., in support of said submission canvassed. As a matter of fact, considering the gravamen of the allegations in the complaint, we find it difficult to give any credence to said submission. Needless to add that the complainants have nowhere claimed of any of the applicants being present at the site of the incident and the matters in the complaint are restricted to the goondas assaulting respondent No. 2 having uttered that, "if they do not withdraw the complaint filed against the accused, they would kill them. They also stated that it was a warning assault and next time it would be murder". Needless to add, that the said allegation implies the case of the complainants being to the effect of complainant No. 2 being assaulted at the behest of the accused and not by the accused. Having regard to the same, we find no force in said submission canvassed. We further find it necessary to record that the even complainant has disputed the contention, that is accused No. 2 is not residing in India. As it is well-settled that no cognizance can be taken about disputed facts in the proceedings of present nature, the same would be another reason for not giving any credence to the said aspect pointed.
12. With regard to further submission canvassed that the utterances made by the said goondas, legally at the most would be in the nature of the confession made by the co-accused and user of such a confession being restricted as envisaged by Section 30 of the Evidence Act, the learned Magistrate erred in issuing process against the accused on the basis of such material, without there being any other material in the complaint about the role played by the accused also clearly appears to be devoid of merit.
13. We are of such a view as the provisions of Section 30 of the Evidence Act comes into play at the time of trial at not at the present premature stage. As observed earlier, at the present stage it is impermissible to ascertain probative value of the said recitals in the complaint, it is difficult to accept such submissions canvassed. As a matter of fact, at the stage of issuing the process the learned Magistrate being required to accept the recitals in the complaint at their face value would be another impediment to accept the submission that due to the provisions of Section 30 of the Evidence Act, such a material alone being incapable of resulting into the conviction, the learned Magistrate committed an error in issuing the process relying upon it. At the costs of repetition we add that the learned Magistrate being not required to ascertain probative value at the said stage, on the said count he could not have refused issuing the process.
14. In the same context we further add that the relevant allegations in the complaint being capable of showing the incident in question being outcome of a criminal conspiracy and/or an abetment at the behest of the accused and thus thereby prima facie revealing involvement of the accused in the commission of offences, issuing of the process, for such reason can neither be faulted nor the complaint can be said to be liable to be quashed upon settled parameters for exercising powers under Section 482 of the Cr. P.C.. We further add that the said recitals being in the nature of the utterances, exclamation made by the said goondas at the time of commission of the crime also may be covered under the caption of Res gestae and thereby implying the truth in the said utterances made would be another circumstance for not accepting the submission that the complaint made failed to reveal the role played by the applicants.
15. Similarly, since it is well known that the direct evidence regarding the offence of conspiracy being hardly available and the existence of conspiracy being always required to be inferred/determined by and large on the basis of the circumstantial evidence, that is, the circumstances capable of leading to sole inference of existence of a conspiracy would be another impediment for not accepting the submission canvassed that the complaint made failed to disclose the allegation of the offence of conspiracy or commission of offence in pursuance of the object of conspiracy. We are of such a view in view of the recital of the utterances contained in the complaint considered along with the other recitals denoting the occurrence of an incident of an assault, giving of threats, prima facie being capable of showing the involvement of the other members of the conspiracy in pursuance to which the said offences were committed. The said reasoning would be equally applicable even for the offences committed by an abettor, that is, for the offences committed in his absence but in pursuance of his abetment for commission of such offences.
16. In the context of the submissions canvassed of the learned Magistrate having not issued the process for offences under Section 120B of the IPC and/or of abetment and/or of common intention, and due to the same issuance of process against the applicants who were not present at the time of the incident being erroneous, we find it extremely difficult to accept the submission canvassed at the present early stage of the criminal prosecution. We are of such a view as the provisions pertaining to issuing of process in terms reveal that the Magistrates are required to issue process in event of themselves having taken cognizance of the offences committed/complained. The bare glance at the provisions of the Penal Code in terms reveal that every member of a criminal conspiracy and/or the person committing an abetment is liable for the offences committed in pursuance of conspiracy and/or the abetment made by him for commission of such offences committed by the others. Hence merely at the stage of taking cognizance of the offences committed, the learned Magistrate having not issued the process for offences under Sections 120B and 109 by itself cannot lead to the conclusion of any error being committed by him in nor the same would lead to the conclusion of the process for substantive offences issued by him against the accused would be erroneous.
17. We are of such a view because even glance at the provisions of the procedural law reveals that concrete stage of commencement of trial/case against the offender commences only after framing of charge and/or explaining the accusation depending upon the procedure required to be followed depending upon the offences involved in concerned case. The said provisions within itself reveals that the concerned accused are entitled to be heard in the matter before framing of charge and/or explaining the accusation. The said provisions makes it abundantly clear that in fit cases the accused are also required to be discharged. It also makes it clear that at the stage of framing of charge Court can frame suitable charges arising out the material surfaced in the case. Such a remedy being available to the applicants would be an another count for not granting the prayers in the application.
18. With regard to the submission canvassed by the learned counsel for the applicants that the alleged incident having occurred on 4-12-2008 at about 11.30 p.m. but the complaint having been filed by the respondents on 5-12-2008 reveals the delay in making the complaint and failure of the respondents to explain the delay in lodging the complaint and the learned Magistrate ignoring the said aspect while issuing process also indicates the complaint being false and frivolous, made as on after-thought for implicating the applicants and upon such a complaint ignoring the delay aspect while issuing process amounts to abuse of the process of law, we are afraid that any of the said submission is worthy of credence. Considering the day on which the incident had occurred, it is difficult to accept that there was any gross delay in making the complaint, much less such a delay capable of inferring concoction as urged.
19. Though the submissions were tried to be canvassed that the order of process has been mechanically passed, the application itself reveals, the learned Magistrate after having perused the complaint and the verification observed that prima facie case for issuing the process, as sought, being made out and there being no reason to disbelieve the complainant/respondents at the said stage, the order impugned was passed. We find it difficult to give any credence to the submission canvassed of the process being issued mechanically without application of mind. We add that as observed earlier, the complaint reveals the necessary ingredients of the offences for which the process was issued, the learned counsel for the applicants having not produced the verification statement, we are not in a position to accept the submission canvassed that the same failed to reveal the ingredients of such offences.
20. In the context of the application, though complainants have urged that since accused No. 2 is an absconding person, the application deserves to be dismissed only on the said count. We are unable to accept the said submission in view of no material has been brought to our notice of any Court having ruled declared that said accused No. 2 is an absconding accused. We hasten to add that non-serving of process upon accused No. 2 and himself being absconding are altogether different thing.
21. As a net result of the aforesaid discussion and predominantly the complaint made prima facie disclosing the ingredients of the offences for which the process is issued, taking of cognizance of such offences by the learned Magistrate being not barred due to any particular reason, including that of lack of territorial jurisdiction, the existence of an alternate remedy to the applicants, we are unable to find any merit in the prayer for quashing the complaint and the order issuing the process in the application preferred and hence dismiss the same. Rule stands discharged.
Criminal Writ Petition No. 2737 of 2011:
22. The bare perusal of prayer (a) of the petition reveals that the same pertains to giving a direction for submitting the report, as ordered by the learned Magistrate vide order dated 1-3-2011. The relevant order being passed by the Magistrate and himself being fully empowered to enforce his said order, we find it difficult to give any direction as sought.
23. Insofar as prayers (b) and (f) of the petition are concerned, the affidavit in reply filed by the Senior Inspector of Police of Ghatkopar Police Station in terms reveals that after the report dated 1-3-2011 was submitted by Police Constable Jaiswal regarding the incident in question, on the basis of the said report, LAC No. 405 of 2011 under Sections 110 and 117 of the Mumbai Police Act was registered against Mr. Kharidad Agapito Joes Fernandes, the Manager of P.K. Marketing Services, that is, the person involved in the relevant incident and the said person thereafter was fined Rs. 1200/- and he had paid the said fine amount and the said fact was informed by Ghatkopar Police to respondent No. 1 in response to query made by her under the Right to Information Act.
24. The further part of the said affidavit reveals that report filed by Police Constable Sachin Jaiswal reveal that after attempting to serve the bailable warrant upon the residential address of accused No. 2 and after finding that he was not at the said place, as per the information received from complainant No. 1 and her husband that the said accused might be available at the alternate address at 3, Industrial Estate, Nari Sena Sadan Marg, Narayan Nagar, Ghatkopar, Mumbai. The said Constable as per the direction of his superior officer had been to said place for serving the warrant upon accused No. 2. The complainant No. 1 and her husband had accompanied the said constable. The said constable after discussing with a person by name Munna at the said place along with him had entered the cabin and met above referred Mr. Fernandes present in the room and requested him to handover the bailable warrant to accused No. 2. Mr. Fernandes then removed copy of the said bailable warrant from the table and asked constable Jaiswal to do whatever he wanted to do. Mr. Fernandes thereafter questioned presence of the complainant No. 1 and her husband at said place and an altercation ensued in between them. The Constable for avoiding occurring of untoward incident gave a call to the Police Control Room on Phone No. 100.
25. The said affidavit further reveals that upon the representation dated 25-6-2011 made by complainant No. 1, an inquiry was ordered and during said inquiry it was revealed that the Constable Jaiswal without informing or taking aid of Ghatkopar Police Station had been for serving the bailable warrant. Accordingly, the report about the default committed by the Constable was submitted by the inquiry officer on 9-6-2011 to Senior Inspector of Police, Matunga Police Station at which Jaiswal was attached.
26. After carefully considering the said matters stated in the affidavit, we find it difficult to entertain prayer (b) as the said matters in terms reveals necessary action being already taken by Ghatkopar Police Station in accordance with law and Mr. Fernandes being already dealt in accordance with law and so the report regarding the default on the part of Constable Jaiswal for action being given to his superior officer. Similarly, after considering the said matters and the action taken, we do not find any case being made out for giving the direction to initiate investigation and inquiry as sought by prayer (f).
27. Since perusal of prayers (c) and (d) reveals that complainant No. 1 intents to use the process of this Court for collection of evidence in support of her contention, the same cannot be granted as complainant No. 1 can well collect the said information by approaching the concerned authorities and pursuing the said matter for obtaining such information.
28. Similarly after considering the prayer (e) pertaining to expediting the proceedings before the 51st Court, Kurla, we do not find any merit in the prayer on the count on which it is sought and particularly no material being placed before us in support of the allegation levelled against accused No. 2 therein. Needless to add, such a prayer cannot be entertained without there being any material before this Court regarding present pendency of cases in said Court. However, the respondents would be at liberty to apply to the said Court for such purposes.
29. With regard to prayer (h), the same being the combination of the prayers sought earlier in different words, we cannot grant it and reiterate that as observed earlier, the complainants can approach the appropriate authorities for such purposes.
30. Resultantly, we do not find any merit in the petition preferred and dismiss the same.
