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Judgment
Twenty nine applicants seek quashing of F.I.R. lodged by
respondent no.3 Yousufkhan Noorkhan on 1.6.2017 against them on
the basis of which crime at C.R.No.65/2017 is registered at Yawal
Police Station for offences punishable under Sections 436, 143, 504,
506 of the Indian Penal Code.
Brief facts for deciding this application may be stated as follows:
The applicants are accused belonging to one party and residing
at Sakali, Taluka Yawal, District Jalgaon. As per the F.I.R., the
informant Yusufkhan (respondent no.3) was agriculturist residing in
the same village and is also having plastic factory, which is looked
after by him and his son Mohd. Faizankhan. On 13.1.2016 (almost one
year earlier) at 9.00 p.m., while he was at his residence at Yawal,
Syed Liyaqat, applicant no.1 and his accomplice had thrown stones at
his house, assaulted him and his relatives, abused them and
threatened to kill them. He had lodged F.I.R. dated 15.6.2016 about
the said assault. That time, he and his family members were also
prosecuted for attempt to commit murder and rioting. He and his family members had gone to hospital for taking treatment. On
14.6.2016, taking advantage of absence of him and his family
members from the village, somebody set his factory on fire and
caused loss to the tune of Rs.25 lakhs. His son Abu Sufiyan had
reported the matter to the police on 15.6.2016, as abrupt firing. He
and his family members were arrested and were released in the
month of November on bail. That time, several persons told him that
on account of the earlier incident or rioting and attempt to commit
murder, the applicants herein had set on fire his plastic factory.
Applicants no.1 to 3 were carrying cans containing combustible
material and they were instigating others and other accused set the
factory on fire.
The applicants claim quashing of the F.I.R. on following grounds:
(I) On 13.6.2016, the applicants were assaulted by respondent
no.3 and members of his party and they attempted to commit murder
and committed rioting and other offences and crime at
C.R.No.67/2016 was registered against respondent no.3 and others.
(II) Respondent no.2''s son has lodged report of accidental fire on
15.6.2016.
(III) There is inordinate delay of almost one year in lodging the F.I.R.
Attempt is made to rely upon some observations in the orders
for granting bail, which are not relevant for deciding this application.
Respondent no.3 has filed affidavit-in-reply dated 6.11.2017. He
opposed the application and claimed that there was attempt to lodge
F.I.R., but the police were not recording the F.I.R. and therefore, there
was delay. Respondent no.3 had approached the Superintendent of
Police, Jalgaon and thereafter to this Court by way of filing Criminal
Writ Petition No. 625 of 2017 and after issuance of notices, the F.I.R.
was recorded. This material fact has been suppressed.
In respect of incident dated 14.6.2017, respondent no.3''s son
had lodged report registered at C.R.No.68 of 2016 against the
applicants and their presence on the spot cannot be disputed.
The respondents are in minority in the village, whereas the
applicants are in majority. Respondent no.3 and his family members,
due to fear were constrained to take shelter elsewhere. Even police
bandobast was required to be deployed for maintaining law and order.
The police were hand in gloves with the applicants. The respondent
no.3 had approached the Superintendent of Police on 4.3.2017 and
this Court has passed orders on 28.5.2017 and 6.6.2017.
The applicants have filed additional affidavit dated 20.11.2017.
Learned A.P.P. has produced the papers of investigation and has
opposed the application.
We have carefully heard the learned Advocate for the applicants
and learned A.P.P. for the State and learned Advocate for respondent
no.3 and gone through the papers of investigation and documents on
record.
The first incident took placed on 13.6.2016 at 21.00 hours.
Applicant no.1 Sayyed Liyaqat alias Raju Sayyed has filed F.I.R. at
C.R.No.67/2016 in which respondent no.3 is shown as accused no.1.
There are serious allegations showing that he was leader of the team,
which indulged in assaulting. The F.I.R. shows that there was some
dispute over collection of water from tube well and thereafter
respondent no.3 Yusufkhan slapped the informant - applicant no.1.
Accused no.3 Wasimkhan gave a blow of bat on chest of his son Syed
Abu Sufiyan. There was assault by others with hockey stick, bat on
skull and attempted to commit murder of Syed Daud. The papers
show that members of applicant no.1''s party have sustained grievous
injuries and were hospitalised. In respect of the same incident, on the
next day, Abu Sufiyan and Yusufkhan from the party of respondent
no.3 lodged F.I.R. registered at C.R.No.68/2016 in which some of the
present applicants were shown as accused. There were allegations
about commission of offences under Sections 147, 148, 324, 323, 504
and 506 of Indian Penal Code. This incident took place at 9.00 p.m.
The incident of setting the factory on fire took place on next day
i.e. on 14.6.2016 at 23.30 hours.
In respect of this, as per impugned F.I.R. itself report was lodged
by son of respondent no.3 by name Abu Sufiyan at Yawal police
station on 15.6.2016. As per the said report, it was against unknown
person. It is obvious that respondent no.3''s son or his closed relatives
or neighbours had not seen who had set the factory on fire, otherwise
their names would have been disclosed in the said report. Thereafter,
the accused persons were arrested and were with police for a long
time. Even during that period, no F.I.R. was lodged against the
applicants or no statements were given disclosing the names of the
applicants. There is extreme delay in lodging the F.I.R. It is true that
respondent no.3 had earlier approached the Superintendent of Police,
but according to respondent no.3, it was also quite late. The specific
date has not been given nor the copy of the said application at
annexure ''R-2'' discloses the date but Criminal Writ Petition no. 625 of
2017 was filed in the month of April 2017 and it shows that the report
was submitted to the Superintendent of Police on 4.3.2017. It is about
nine months after the incident. Considering the relations between the
parties if anybody had seen the incident of setting the plastic factory
of respondent no.3 on fire, there would have been immediate
reporting of the same to respondent no.3 or his neighbours and
friends and there would have been immediate F.I.R. Delay of more
than nine months in approaching the Superintendent of Police and
delay of one year in lodging the F.I.R. cannot be explained on any
hypothesis than that it must be a false F.I.R. Considering the previous
incident between the parties, injured condition of some of the accused
persons and considering the fact that son of respondent no.3 had
lodged a report of accidental fire, it is apparent that the F.I.R. dated
14.6.2017 is after thought and not appeallable to the conscious. In
this case, there is extreme delay in recording the statements of the
witnesses.
Besides, if Abu Sufiyan had filed a report of setting the plastic
factory on fire by unknown persons, it would be a F.I.R. and the
present F.I.R. would be second F.I.R. It is well settled that second F.I.R.
is not permissible. If some statements are recorded in respect of the
incident disclosed in the first F.I.R., there cannot be second F.I.R., but
statements can be recorded in the same.
In this case, no other material except statements of witnesses
has been brought on record to show the complicity of the applicants in
the crime. We find that in prosecution on the basis of such F.I.R.,
chances of conviction are bleak. We find that this F.I.R. is filed as a
counter blast to the crime registered by applicant no.1 against
respondent no.3 and others. The story in the said F.I.R. is totally
untrustworthy and appears to be concocted. Allowing the prosecution
on the basis of such F.I.R. will be abuse of the process of Court. Story
is inherently improbable. We rely on "State of Haryana V/s
Bhajanlal" AIR 1992 SC 604 in which it is inter alia held :
" In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 channelised and inflexible guide- kinds of cases wherein such power should be exercised:
(a) where 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;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2)of the Code ;
(e) 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;
(g) where a criminal proceeding is manifestly attended with mala fide 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. In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence on and this case does not call for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself.
In Amit Kapoor Vs. Ramesh Chander, (2012) 8 SCC 460, it
is held :
"27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.15 Coupled with any or all of the above, where the Courts finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist."
In our opinion, this is a fit case for quashing of the F.I.R. Hence,
we pass the following order:
- ORDER -
(I) Criminal Application is allowed.
(II) The F.I.R. registered at Yawal police station at C.R.No.65/2017
dated 1.6.2017 against the applicants under Sections 436, 143, 504,
506 of Indian Penal Code is hereby quashed and set aside.
(III) Rule is made absolute in above terms.