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Judgment
Shrikant D. Kulkarni, J
Rule. Rule made returnable forthwith. By consent, heard both sides for final disposal.
The applicant/the District Health Officer, Aurangabad is seeking relief to quash the First Information Report registered against him vide
No.0158/2020 at Badnapur Police Station, District Jalna, by taking aid of section 482 of the Criminal Procedure Code.
The factual scenario giving rise to this application, in short, is as under:
According to the applicant, he is working as District Health officer with Zilla Parishad, Aurangabad. On 18.04.2020, he was on duty to fight against
Covid-19 pandemic and had planned to visit spots for inspection. The applicant’s father is an agriculturist who has received an amount of
Rs.6,50,000/- in cash towards sale proceeds of agricultural produce. The father of the applicant has kept that amount of Rs.6,50,000/- with the
applicant. His father has informed him to handover that amount to one Mr Shivaji Shoudar in relation to purchase of agricultural land. It was planned
to meet father at check post coming from other side and handover things to him. The applicant has valid licence to purchase, carry and consume
liquor, issued by the State Excise Department. The applicant can carry 12 units of foreign liquor in view of the conditions mentioned in the said
licence.
On 18.04.2020, the applicant left his house for duty with an amount of Rs.6,50,000/- and two units of foreign liquor. He had planned to handover the
said amount and foreign liquor units to his father at the check post on Aurangabad-Jalna Highway. The applicant’s father was arriving at the
check post so as to collect the cash amount and liquor units. The applicant’s father has also valid licence to purchase, carry and consume the
liquor.
According to the applicant, there is marital discord between the applicant and his wife. His wife, who had fled divorce proceedings, gave tip to the
police that a Car is coming with an amount of Havala. The applicant reached the check post near Noor Hospital on Jalna- Aurangabad Highway by
his private Car bearing Registration No. MH-20CU-0353. His driver was driving the said Car. The Car of the applicant was intercepted at the check
post within the jurisdiction of Badnapur Police Station, Dist. Jalna. The police officer took search of the Car of the applicant and found cash amount of
Rs.6,70,000/- and two units of foreign liquor. The applicant had informed the Police officer on duty at check post that he was on duty as District
Health officer, Zilla Parishad Aurangabad and he had intended to visit certain spots regarding presence of health workers appointed by him for Covid-
19 pandemic. The applicant had also informed to the police officer that the said amount belongs to his father and his father was just arriving to collect
the amount and two units of the foreign liquor. Cash amount and two units of foreign liquor came to be seized by the police officials and registered
First Information Report being Crime No. 0158/2020 against the applicant under section 188 of the Indian Penal Code, Section 124 of the Maharashtra
Police Act, 1951, Section 65(a) and 65(e) of the Maharashtra Prohibition Act, 1949 and section 51(b) of the Disaster Management Act, 2005 with
Badnapur Police Station, District Jalna.
According to the applicant, he was on duty and travelling to supervise the work of health workers in the pandemic situation. As such, no permission
was necessary. He had not crossed check post. He had given explanation about the cash amount of Rs.6,50,000/- and possession of two units of
foreign liquor in view of licence issued by the State Excise Department. Even then, the police officials had initiated criminal action against him.
In the above background, the applicant has rushed to this and prayed to quash the First information report registered against him.
Heard Mr. Sambhaji Tope, learned Advocate for the applicant and Mr. Avinash Deshmuksh, learned A.P.P. for the respondents/State at length.
During the course of argument, Mr. Tope, learned counsel for the applicant invited our attention to the photocopy of the licence issued in favour of
the applicant by the State Excise Department permitting him to purchase, carry and consume foreign/country liquor. The learned counsel also invited
our attention to the photocopies of the receipts issued by the Agricultural Produce Market Committee, Lonar, District Buldhana, which are in the name
of father of the applicant, in order to show that applicant’s father had received an amount of Rs.6,50,000/- towards the sale proceeds of
agricultural produce. The photocopy of identity card of the applicant issued by the Zilla Parishad, Aurangabad is also produced on record.
Mr. Tope, the leaned counsel for the applicant vehemently argued that the applicant had not crossed the check post or the boundary. The
applicant’s father was arriving at the check post near Noor Hospital on Aurangabad Jalna Highway at Badnapur so as to collect the cash amount
of Rs.6,50,000/- and two foreign liquor units. The applicant was on duty as District Health officer to supervise the duties of health workers appointed
by him. Mr. Tope, the learned counsel argued that there is marital discord between the applicant and his wife. The wife had given tip to the police
officer against the applicant informing the police about carrying cash amount allegedly belonging to Havala racket, which is false. The learned counsel
submitted that the applicant was carrying the above said amount so as to handover the same to his father in relation to one land purchase transaction
and he had given satisfactory explanation to the police officer, but the police officer did not listen and unnecessarily registered the first information
report against the applicant.
Mr. Tope, the learned counsel for the applicant submitted that section 188 of the Indian Penal Code and Section 124 of the Maharashtra Police
Act, 1951 do not attract in this case in view of the above facts. Even Section 65(a)and 65(e) of the Maharashtra Prohibition Act, 1949 do not attract in
view of the licence produced on record which is standing in the name of the applicant. The learned counsel further highlighted that section 51(b) of the
Disaster Management Act, 2005 is unnecessarily slapped against the applicant when he was on duty as a District Health officer. The learned counsel
submitted that it is an abuse of process of law. The applicant is a Class-I Gazetted officer, working as District Health officer with Zilla Parishad,
Aurangabad and he has no antecedents. Therefore, Mr. Tope, the learned counsel urged to quash the First information registered against the applicant
at Badnapur Police Station, District Jalna.
While combating the argument advanced by the learned Advocate for the applicant, Mr. Deshmukh, learned A.P.P. submitted that at this stage,
the defence tried to be put forth by the learned advocate for the applicant cannot be considered. It is not a ft case to exercise provisions of section 482
of the Criminal Procedure Code. The applicant was not traveling by officer Car/assigned Car. If the applicant was really discharging official duty then
why he was using his private Car. The learned A.P.P. submitted that the applicant had crossed the Aurangabad District boarder and entered into
Jalna District without necessary permit/pass from the competent authority and violated various prohibitary orders. Learned A.P.P. vehemently argued
that investigation needs to be conducted having regard to the seizure of huge cash amount of Rs.6,70,000/- coupled with other facts. Learned A.P.P.
submitted that it is not a ft case to quash the first information report when investigation is still going on.
Having regard to the argument advanced by both the sides, it is necessary to focus on the admitted scenario:
(i) On 18.04.2020, the applicant was travelling in a private Car bearing registration No. MH-20 CU 0353at 1,30 p.m.;
(ii) The Car was intercepted at the check post near Noor Hospital on Aurangabad Jalna Highway at Badnapur, District Jalna. The Police officer took
search of the vehicle and found that the applicant was possessing amount of Rs.6,70,000/- and two foreign liquor units of 750 ml.; and
(iii) The applicant was not having any permit/pass to enter into Jalna District.
The law on quashing of first information report is settled in view of the landmark decision of the Hon’ble Supreme Court in the case of State
of Haryana Vs. Bhajan Lal and others reported in AIR 1992 SC 604. The Hon’ble Supreme Court has set out the categories of cases in which
the inherent powers under section 482 of the Criminal Procedure Code can be exercised. In this regard, Para 102 of the Judgment is important, which
reads thus:
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a serious of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein
such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and sufficiently channelized inflexible guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be exercised.
(1) Whether the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,
justifying an investigation by police officer under section 156(1) of the Code except under an order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate, as contemplated under section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceedings is
instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing
effcacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fde and/or where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.â€
In case of the State of Karnataka Vs. L. Muniswami, reported in (1997) 2 SCC 699, it is held by the Hon’ble Supreme Court that-
“7. … 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 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.â€
Now coming back to the admitted scenario in order to consider the prayer for quashing of the F.I.R. made by the applicant. The applicant was
travelling in private vehicle bearing Registration No. MH- 20UV 0353. When his vehicle was intercepted at check post near Noor Hospital on
Aurangabad Jalna Highway at Badnapur, the first informant took search of the Car and found that applicant was possessing cash amount of
Rs.6,70,000/- and two units of foreign liquor of 750 ml. each. The applicant was not possessing any valid permit or pass so as to enter into the Jalna
District on that day. The question comes, if the applicant was on duty on that day why he did not use his official Car/assigned vehicle. The District
Health Officer is a Class- I Gazetted post and provided with official Car/Staff Car with chauffeur and no explanation is coming forth from the
applicant to that effect. Though it is contended by the applicant that he was on duty to supervise the work of the health workers appointed by him at
various places. So far as possession of huge cash amount of Rs.6,50,000/- is concerned, the photocopies of the receipts issued by the Agricultural
Produce Market Committee Lonar, District Buldhana are produced by the applicant in order to show the source of money. The applicant has also
produced photocopy of the licence issued by the State Excise Department to purchase, carry and consume foreign and country liquor. However, at
this stage, the defence tried to be put forth by the applicant cannot be entertained when investigation is at crucial stage. The investigation needs to be
completed in the background of the above said admitted scenario. It is difficult to accept the argument advanced by the learned advocate for the
applicant that the proceedings in question is an abuse of process.
If the allegations made in the first information report against the applicant even if they are taken at their face value and accepted in their entirety
prima facie constitute cognizable offences against the applicant. As such, the investigation by the Police officer under section 156(1) of the Cr.P.C. is
necessary. There seems to be sufficient ground against the applicant to initiate criminal proceeding. There is no material which may speak that
criminal proceeding initiated against the applicant is malafide and/or proceeding is maliciously instituted with an ulterior motive for wrecking vengeance
on the applicant with a personal grudge. The exercise of power under Section 482 of Cr. P.C. is an exception and not the rule. Power should be
exercised ex debito justitae to prevent the abuse of the process of the Court but not to stifle legitimate prosecution.
Having regard to the above reasons and legal position in the case of State of Haryana and others Vs. Bhajan Lala (Supra), it is not a ft case for
quashing of the first information report registered against the applicant at Badnapur Police Station. As such we are not inclined to quash the first
information report.
In view of the foregoing reasons, we proceed to pass the following order:
ORDER
(1) The Criminal application stands dismissed.
(2) Rule is accordingly discharged. No order as to costs.