State of
Maharashtra & Ors Vs. Arun Gulab Gawali & Ors. [2010] INSC 673 (27
August 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 590
of 2007 State of Maharashtra & Ors. ...Appellants Versus Arun Gulab Gawali
& Ors. ...Respondents
Dr. B.S.
CHAUHAN, J.
1.
This appeal has been preferred against the Judgment and Order
dated 27.07.2006 in Criminal Writ Petition No.3169/2005 with Criminal Writ
Petition Nos. 874 and 878 of 2006, passed by the High Court of Judicature at
Bombay, allowing the said petitions filed by the respondents and quashing the
Criminal Complaint/FIR.
2.
Facts and circumstances giving rise to the present appeal are that
Mohd. Qureshi, one of the respondents, lodged a complaint dated 8.11.2005 with
Deputy Commissioner of Police, CID (Unit III) against the Arun Gulab Gawali
gang. The said complaint was forwarded to Agripada Police Station.
Accordingly,
CR No. 241/2005 under Sections 384, 386, 506(ii), 120, 34 of Indian Penal Code,
1860 (in short, "IPC") was registered against Arun Gulab Gawali, MLA,
respondent herein, and members of his gang, namely, Sunil Gathe, Sadanand
Panchal, Rajendra Sadvirkar and Sanjay Girkar. After taking over of the investigation
by DCB, CID, Mumbai, CR No. 135/05 was registered.
3.
According to the said complaint, there was a commercial
transaction in December, 2002, between one Mr. Doshi and Mohd. Qureshi in
respect of the purchase of Hotel Pritam International at Ambernath in
partnership and certain payments had also been made, but there was a dispute
between the parties. An advertisement was issued for sale of the hotel, but the
said hotel could not be sold for two years and the differences between them
continued. On 15th March, 2005, the complainant 2 received a telephone call
from an unknown person, who used very vulgar and indecent language and told the
complainant to come to Dagadi Chawl for settlement of the dispute of Hotel
Pritam. Dagadi Chawl is the residential place of respondent, Arun Gulab Gawali,
and he also has an office in that Chawl. The complainant became scared and went
to Dagadi Chawl on 18th March, 2005. On reaching there the complainant met one
person by the name Sanjay Girkar, who abused him. Sanjay Girkar contacted Mr.
Doshi on his mobile and spoke with him in vulgar language and asked him to come
to Dagadi Chawl for settlement of the case of Hotel Pritam. The complainant and
Mr. Doshi visited Dagadi Chawl a number of times along with other persons. The
accomplices of Arun Gulab Gawali gave threats to them and directed them to act
according to their instructions.
Due to
fear of threats of the members of the said gang, Mr. Doshi and the complainant
agreed to pay the extortion money.
The
complainant was instructed to pay a sum of Rs. 15 lakhs to Shiv Shambhu Trust,
which is managed by Arun Gulab Gawali.
The
complainant paid the amount of Rs.15 lakhs to the said 3 Trust under the threat
that if this amount was not paid, then his life would be in danger. The complainant
also learnt that Mr. Doshi had already paid Rs. 25 lakhs to the said gang under
threat. Subsequently, the accomplices of Arun Gulab Gawali made telephone calls
to the complainant to pay Rs. 3 lakhs more and the said amount was also paid.
They also forced the complainant to sign certain papers.
4.
Mohd. Qureshi, the complainant/respondent, filed application dated
14.11.2005 before the Court of Metropolitan Magistrate (46th Court), Mazgaon,
Mumbai stating that he did not want to proceed with the complaint. The court
rejected the said application vide order dated 17.11.2005.
5.
Mohd. Qureshi and his wife Ayesha Qureshi, respondents, filed Writ
Petition No. 2906/2005 on 29.11.2005, before the High Court alleging harassment
by the police and seeking the direction of removal of surveillance by police,
as police had been posted with them under the garb of protection, and asking
for the 4 initiation of a judicial inquiry against the police alleging that
Mohd. Qureshi was forced by the police itself to lodge the complaint dated
8.11.2005 against the Arun Gulab Gawali gang and also forced to write an
application seeking protection, though they never sought any such protection.
6.
The High Court disposed of the said Writ Petition vide order dated
21.12.2005, recording the statement of the petitioners' counsel that police
protection had already been withdrawn and giving liberty to the said
petitioners to make their grievances before the Commissioner of Police, Mumbai.
The Commissioner of Police was directed that in case, such a complaint is
filed, it should be decided expeditiously in accordance with law.
7.
Mohd. Qureshi filed Criminal Writ Petition No. 874/2006 before the
High Court of Bombay for quashing the CR No. 241/2005. Arun Gulab Gawali also
preferred Writ Petition No. 3169/05 seeking quashing of FIR 241/2005 at
Agripada Police Station, and Writ Petition No. 878/2006 for quashing of CR No. 5
135 of 2005. All the said Writ Petitions were clubbed and heard together. The
appellants herein contested the said Petitions by filing Counter Affidavits.
8.
In the meanwhile, Arun Gulab Gawali was granted anticipatory bail
by the Sessions Court vide order dated 3.12.2005. The High Court cancelled the
anticipatory bail of Arun Gulab Gawali vide Order dated 21.02.2006 and remanded
the case to the Sessions Court to consider it afresh. During the pendency of
the reconsideration of the said application, proceedings under Maharashtra
Control of Organised Crime Act, 1999 (MCOCA) against Arun Gulab Gawali were
initiated vide order dated 14.04.2006.
The High
Court allowed all the said Writ Petitions quashing the C.R.No.241/2005, and
C.R. No.135/2005. Hence, this appeal.
9.
Sh. Arun R. Pednekar, learned counsel for the appellants, has
submitted that the High Court has committed a grave error in 6 quashing the
FIR/complaint. Mohd. Qureshi, respondent, had filed a complaint against the
Arun Gulab Gawali gang on the basis of which a case was registered. If for
certain reasons or under threat by the Arun Gulab Gawali gang, Mohd. Qureshi
did not want to pursue the matter further, such a course could not be a ground
for quashing the proceedings. More so, the High Court reached the conclusion
that if the proceedings were permitted to continue, there was no possibility of
conviction after conclusion of the trial. The Court, in exercise of its
inherent power, is not competent to take a decision at the preliminary stage
and determine as to whether there is a possibility of conviction.
Thus, the
impugned Judgment and order of the High Court is liable to be set aside.
10.
Per contra, Mr. S.B. Sanyal, learned senior counsel for Respondent
Nos. 2 & 3 and Mr. Makarand D. Adkar, learned counsel for the respondent
No.1, have vehemently opposed the appeal contending that the Court had examined
the facts and taken note of various proceedings initiated by the respondents in
7 the meantime to the effect that the police officials had been harassing Mohd.
Qureshi and his family and it was the police who forced the complainant to
lodge the complaint against the Arun Gulab Gawali gang and, he was forced to
take police protection labeling him as a complainant against the Arun Gulab
Gawali gang. Ayesha Qureshi filed the appropriate application before the
Metropolitan Magistrate on 9.11.2005 and approached the State Human Rights
Commission on 11.11.2005 against the atrocities of the police. The High Court
decided the matter after considering all the aspects. The Judgment and order of
the High Court does not warrant any interference. The appeal lacks merit and is
liable to be dismissed.
11.
We have considered the rival submissions made by learned counsel
for the parties and perused the record.
12.
The power of quashing criminal proceedings has to be exercised
very sparingly and with circumspection and that 8 too in the rarest of rare
cases and the Court cannot be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of allegations made in the
F.I.R./Complaint, unless the allegations are so patently absurd and inherently
improbable so that no prudent person can ever reach such a conclusion.
The
extraordinary and inherent powers of the Court do not confer an arbitrary
jurisdiction on the Court to act according to its whims or caprice. However,
the Court, under its inherent powers, can neither intervene at an uncalled for
stage nor it can `soft-pedal the course of justice' at a crucial stage of
investigation/ proceedings. The provisions of Articles 226, 227 of the
Constitution of India and Section 482 of the Code of Criminal Procedure, 1973
(hereinafter called as `Cr.P.C.') are a device to advance justice and not to
frustrate it. The power of judicial review is discretionary, however, it must
be exercised to prevent the miscarriage of justice and for correcting some
grave errors and to ensure that esteem of administration of justice remains
clean and pure. However, there are no limits of power of the Court, but the more
the power, the more due care and caution is 9 to be exercised in invoking these
powers. (Vide State of West State of M.P. & Ors. AIR 2003 SC 1069).
Court
laid down the following principles :- (I) Where institution/continuance of
criminal proceedings against an accused may amount to the abuse of the process
of the court or that the quashing of the impugned proceedings would secure the
ends of justice;
(II)
where it manifestly appears that there is a legal bar against the institution
or continuance of the said proceeding, e.g. want of sanction;
(III)
where the allegations in the First Information Report or the complaint taken at
their face value and accepted in their entirety, do not constitute the offence
alleged;
and 10
(IV) where the allegations constitute an offence alleged but there is either no
legal evidence adduced or evidence adduced clearly or manifestly fails to prove
the charge.
AIR 1992
SC 604, this Court laid down the similar guidelines for exercising the inherent
power, giving types of cases where the Court may exercise its inherent power to
quash the criminal proceedings. However, the types of cases mentioned therein
do not constitute an exhaustive list, rather the cases are merely illustrative.
SC 1489,
this Court held as under :- "In the exercise of this wholesome power, the
High Court is entitled to quash a proceeding if it comes to the conclusion that
allowing the proceeding to continue would be an abuse of the process of the
Court or that the ends of justice require that the proceeding ought to be
quashed. The saving of the High Court's inherent powers, both in civil and
criminal matters is designed to achieve a salutary public purpose which is that
a court proceeding ought not to be permitted to degenerate 11 into a weapon of
harassment or persecution. In a criminal case, the veiled object behind a lame
prosecution, the very nature of the material on which the structure of the
prosecution rests and the like would justify the High Court in quashing the
proceeding in the interest of justice. The ends of justice are higher than the
ends of mere law though justice has got to be administered according to laws
made by the legislature. The compelling necessity for making these observations
is that without a proper realisation of the object and purpose of the provision
which seeks to save the inherent powers of the High Court to do justice between
the State and its subjects it would be impossible to appreciate the width and
contours of that salient jurisdiction." (Emphasis added).
16. The
inherent power is to be exercised ex debito justitiae, to do real and
substantial justice, for administration of which alone Courts exist. Wherever
any attempt is made to abuse that authority so as to produce injustice, the
Court has power to prevent the abuse. It is, however, not necessary that at
this stage there should be a meticulous analysis of the case before the trial
to find out whether the case ends in conviction or Bangarappa & Ors. (1995)
4 SCC 41; and M/s Zandu 12 Ors. AIR 2005 SC 9).
13 SCC
540, it has been held that probabilities of the prosecution version can not be
analysed at this stage. Likewise the allegations of mala fides of the informant
are of secondary importance. The relevant passage reads thus:
"It
would not be proper for the High Court to analyse the case of the complainant
in the light of all probabilities in order to determine whether a conviction
would be sustainable and on such premises arrive at a conclusion that the
proceedings are to be quashed. It would be erroneous to assess the material
before it and conclude that the complaint cannot be proceeded with."
(Emphasis added).
2003 SC
1386, this Court held that inherent power must be utilised with the sole
purpose of preventing the abuse of the process of the court or to otherwise
serve the ends of justice. In 13 exercise of inherent powers, proper scrutiny
of facts and circumstances of the case concerned are absolutely imperative.
Sambhajirao
Chandrojirao Angre & Ors. AIR 1988 SC 709, this court held as under :-
"The legal position is well-settled that when a prosecution at the initial
stage is asked to be quashed, the test to be applied by the court is as to
whether the uncontroverted allegations as made prima facie establish the
offence. It is also for the court to take into consideration any special
features which appear in a particular case to consider whether it is expedient
and in the interest of justice to permit a prosecution to continue. This is so
on the basis that the court cannot be utilised for any oblique purpose and
where in the opinion of the court chances of an ultimate conviction is bleak
and, therefore, no useful purpose is likely to be served by allowing a criminal
prosecution to continue, the court may while taking into consideration the
special facts of a case also quash the proceeding even though it may be at a
preliminary stage."
(Emphasis
added).
20. This
Court, while reconsidering the Judgment in Madhavrao Jiwaji Rao Scindia
(supra), consistently observed 14 that where matters are also of civil nature
i.e. matrimonial, family disputes, etc., the Court may consider "special
facts", "special features" and quash the criminal proceedings to
encourage genuine settlement of disputes between the parties.
21. The
said Judgment was reconsidered and explained by this AIR 1991 SC 1260, as under
:
"Madhaorao
J. Scindhia v. Sambhaji Rao AIR 1988 SC 709, also does not help the
respondents. In that case the allegations constituted civil wrong as the
trustees created tenancy of Trust property to favour the third party. A private
complaint was laid for the offence under Section 467 read with Section 34 and
Section 120B I.P.C. which the High Court refused to quash under Section 482.
This Court allowed the appeal and quashed the proceedings on the ground that
even on its own contentions in the complaint, it would be a case of breach of
trust or a civil wrong but no ingredients of criminal offences were made out.
On those facts and also due to the relation of the settler, the mother, the
appellant and his wife, as the son and daughter-in-law, this Court interfered
and allowed the appeal.........Therefore, the ratio therein is of no assistance
to the facts in this case. It cannot be considered that this Court laid down as
a proposition of law that in every case the court would examine at the
preliminary stage whether 15 there would be ultimate chances of conviction on
the basis of allegation and exercise of the power under Section 482 or Article
226 to quash the proceedings or the charge-sheet." (Emphasis added).
SC 1226,
this Court explained the ratio of the Judgment in Madhavrao Jiwaji Rao Scindia
(supra), that law laid down therein would only apply where it is a question of
a civil wrong, which may or may not amount to a criminal offence. Madhavrao
Jiwaji Rao Scindia (supra) was the case involving a trust where proceedings
were initiated by some of the trustees against other trustees. This Court,
after coming to the conclusion, that the dispute was predominantly civil in
nature and that the parties were willing to compromise, quashed the
proceedings.
this
Court again explained the Judgment in Madhavrao Jiwaji Rao Scindia (supra) in a
similar manner.
24. Thus,
the judgment in Madhavrao Jiwaji Rao Scindia (supra) does not lay down a law of
universal application. Even as per the law laid down therein the court can not
examine the facts/evidence etc. in every case to find out as to whether there
is sufficient material on the basis of which the case would end in conviction.
The ratio of the said Judgment is applicable in limited cases where the Court
finds that the dispute involved therein is predominantly civil in nature and
that the parties should be given a chance to reach a compromise e.g.
matrimonial, property and family disputes etc. etc. The Superior Courts have
been given inherent powers to prevent the abuse of the process of Court where
the Court finds that the ends of justice may be met by quashing the
proceedings, it may quash the proceedings, as the end of achieving justice is
higher than the end of merely following the law. It is not necessary for the
court to hold a full- fledged inquiry or to appreciate the evidence, collected
by the Investigating Agency, if any to find out whether the case would end in
conviction or acquittal.
25. The
instant case is required to be examined in the light of the aforesaid settled
legal propositions.
The High
Court proceeded on the perception that as the complainant himself was not
supporting the complaint, he would not support the case of the prosecution and
there would be no chance of conviction, thus the trial itself would be a futile
exercise. Quashing of FIR/Complaint on such a ground cannot be held to be
justified in law. Ordinarily, the Court of Sessions is empowered to discharge
an accused under Section 227 Cr.P.C.
even before
initiating the trial. The accused can, therefore, move the Trial Court itself
for such a relief and the Trial Court would be in a better position to analyse
and pass an order as it is possessed of all the powers and the material to do
so. It is, therefore, not necessary to invoke the jurisdiction under Section
482 Cr.P.C. for the quashing of a prosecution in such a case.
The
reliance on affidavits by the High Court would be a weak, hazy and unreliable
source for adjudication on the fate of a trial.
The
presumption that an accused would never be convicted on 18 the material
available is too risky a proposition to be accepted readily, particularly in
heinous offences like extortion.
A claim
founded on a denial by the complainant even before the trial commences coupled
with an allegation that the police had compelled the lodging of a false FIR, is
a matter which requires further investigation as the charge is levelled against
the police. If the prosecution is quashed, then neither the Trial Court nor the
Investigating Agency has any opportunity to go into this question, which may
require consideration. The State is the prosecutor and all prosecution is the
social and legal responsibility of the State. An offence committed is a crime
against a society and not against a victim alone. The victim under undue
pressure or influence of the accused or under any threat or compulsion may
resile back but that would not absolve the State from bringing the accused to
book, who has committed an offence and has violated the law of the land.
Thus,
while exercising such power the court has to act cautiously before proceeding
to quash a prosecution in respect of an offence which hits and affects the
society at large. It should 19 be a case where no other view is possible nor
any investigation or inquiry is further required. There cannot be a general
proposition of law, so as to fit in as a straitjacket formula for the exercise
of such power. Each case will have to be judged on its own merit and the facts
warranting exercise of such power.
More so,
it was not a case of civil nature where there could be a possibility of
compromise or involving an offence which may be compoundable under Section 320
Cr.P.C., where the Court could apply the ratio of the case in Madhavrao Jiwaji
Rao Scindia (supra).
Thus, it
is a fit case where the impugned Judgment should be set aside and the case be
remitted for deciding afresh. As the matter is old and we have gone through the
entire material on record, we have taken this task upon ourselves and examined
whether the FIR could have been quashed on other grounds.
The
complainant has submitted before the High Court as well as before us on oath
that he was in police custody/police protection from 7.11.2005 to 9.11.2005 and
he was forced to write the complaint against the Arun Gulab Gawali gang on
8.11.2005.
20 Ayesha
Qureshi, wife of the complainant, made an application on 9.11.2005 before the
Metropolitan Magistrate (37th Court) at Esplanade for issuing direction to the
police to release her husband or produce him before the court. Immediately
after filing of the said application, Mohd. Qureshi stood released. Again on
11.11.2005, Ayesha Qureshi sent a complaint to the State Human Rights
Commission stating that her husband had been confined in police custody,
tortured and was forcibly made to sign some papers. On 12.11.2005, Mohd.
Qureshi made an application before Additional Chief Metropolitan Magistrate to
drop the proceedings in the FIR/Complaint. Again on 14.11.2005, Mohd. Qureshi
made an application before Metropolitan Magistrate submitting that he did not
want to proceed with the said complaint. The said application was rejected by
the Metropolitan Magistrate vide order dated 17.11.2005. Mohd. Qureshi and his
wife filed the writ petition before the High Court on 29.11.2005 for the
withdrawal of the so- called police protection and for a judicial inquiry on
the issue of forcing the complainant to lodge an FIR/Complaint against the 21
Arun Gulab Gawali gang.
26. The
matter was heard by the High Court and disposed of, issuing a direction that
there shall be no police personnel around Mohd. Qureshi, his wife and other
family members and further directing the Police Commissioner to redress their
grievances in respect of their allegation that Mohd. Qureshi had been forced by
the police to lodge a complaint against the Arun Gulab Gawali gang. The other
writ petitions for quashing of FIR/complaint were filed by Mohd. Qureshi, his
wife Ayesha Qureshi and Arun Gulab Gawali at a later stage i.e. in April, 2006
and the said petitions, after contest, had been allowed vide Judgment and order
dated 27.7.2006. If the aforesaid facts are examined in correct perspective, it
is evident that all possible steps had been taken by Ayesha Qureshi in a very
close proximity to the date of lodging the complaint. At the cost of
repetition, we mention again that the complaint was lodged on 8.11.2005 and
application was moved by Ayesha Qureshi before the Chief Metropolitan
Magistrate for release of Mohd. Qureshi from police custody or 22 his production
before the court on 9.11.2005. She approached the State Human Rights Commission
on 11.11.2005 and all other steps have also been taken with due diligence and
promptness. Therefore, it cannot be said that such complaints had been made by
Ayesha Qureshi under any threat or that the complainant did not want to support
the case of the prosecution for some other reason. There has been a persistent
stand taken by Ayesha Qureshi that the complaint was not made voluntarily and
her husband and other family members had been subjected to great deal of
harassment and persecution by the police for no fault of theirs. In such a
fact-situation, the possibility that the allegations made by Mohd. Qureshi and
Ayesha Qureshi in their complaints/applications/writ petitions may be true,
cannot be ruled out. Thus, it was a fit case, where in order to meet the ends
of justice and to prevent the miscarriage of criminal justice, the inherent
powers of the Court to quash the FIR/complaint could have been exercised.
27. Thus,
the complaint dated 8.11.2005 lodged by Mohd.
Qureshi
against the Arun Gulab Gawali gang was liable to be quashed, though for
different reasons, as recorded hereinabove.
28. In
view of the above, the Criminal Appeal stands dismissed.
...........................J. (P. SATHASIVAM)
..........................J. (Dr. B.S. CHAUHAN)
New Delhi,
August 27, 2010.
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