State Of Maharashtra & Ors vs Arun Gulab Gawali & Ors

State of Maharashtra & Ors. ...Appellants

Versus

Arun Gulab Gawali & Ors. ...Respondents

JUDGMENT

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

Bengal & Ors. Vs. Swapan Kumar Guha & Ors. AIR 1982 SC

949; M/s. Pepsi Foods Ltd. & Anr. Vs. Special Judicial

Magistrate & Ors. AIR 1998 SC 128; G. Sagar Suri & Anr. Vs.

State of U.P. & Ors. AIR 2000 SC 754; and Ajay Mitra Vs.

State of M.P. & Ors. AIR 2003 SC 1069).

13. In R.P. Kapur Vs. State of Punjab AIR 1960 SC 866, this

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.

14. In State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors.

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.

15. In State of Karnataka Vs. L.Muniswamy & Ors. AIR 1977

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

acquittal. (Vide Mrs. Dhanalakshmi Vs. R. Prasanna Kumar &

Ors. AIR 1990 SC 494; Ganesh Narayan Hegde Vs. S.

Bangarappa & Ors. (1995) 4 SCC 41; and M/s Zandu

12 Pharmaceutical Works Ltd. & Ors. Vs. Md. Sharaful Haque &

Ors. AIR 2005 SC 9).

17. In State of Orissa & Anr. Vs. Saroj Kumar Sahoo (2005)

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).

18. In B.S. Joshi & Ors. Vs. State of Haryana & Anr. AIR

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.

19. In Madhavrao Jiwaji Rao Scindia & Anr. Vs.

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

Court in State of Bihar & Anr. Vs. Shri P.P. Sharma & Anr.

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).

22. In Alpic Finance Ltd. Vs. P. Sadasivan & Anr. AIR 2001

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.

23. In M.N.Damani Vs. S.K. Sinha & Ors. AIR 2001 SC 2037,

this Court again explained the Judgment in Madhavrao Jiwaji

Rao Scindia (supra) in a similar manner.

16

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.

17

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.

23

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.

24 25