(Per : Vinay Joshi, J.)
1. Heard. Admit. The application is heard finally with the consent of the learned counsel for the parties.
2. This is an application to quash the First Information Report No.40 of 2018 registered with Police Station Chandur Bazar, Dist. Amravati Gramin for the offences punishable under Section 307, 120-B read with 34 of the Indian Penal Code.
3. Learned counsel appearing for the applicant would submit that lodgment of First Information Report is nothing but an effort of taking political revenge. It is submitted that applicant was sitting MLA of opposite party, whilst, the informant was Corporator of ruling party. In order to ruin the political career of applicant, existing false report has been lodged. Moreover, it is submitted that, the applicant was not present at the time of occurrence however, merely on suspicion, crime has been registered. The material collected during investigation does not make out prima facie case.
4. On the other hand, learned APP for the State as well as learned Advocate Mr.A.A.Dhawas appearing for non-applicant No.2 resisted this application by contending that the informant has specifically stated that at the behest of applicant, four assailants initially came to his house in his search and then while he was proceeding to Police Station, they tried to assault him by means of iron rod. Learned APP would submit that during course of investigation sufficient material has been collected and thus, the police are intending to file final report. The entire investigation papers have been produced for our perusal.
5. The political background of the parties is not in dispute. It is the informant’s case that on 07.02.2018, around 10.45 p.m. four assailants came to his house in his search. The informant's mother saw that all of them were holding iron rods hence, out of fear she stated that the informant (Gopal) is not in the house, on which they left. The informant was at upper floor at the relevant time. He came to know the things, on which he has informed his friend about the happenings. Then, the informant decided to report the matter to the police, hence, came out and inquired. Two persons namely, Akshay Ambadkar and Aakash Pande, were seated on the road near fire place, with whom the informant inquired and ascertained the names of four assailants.
6. The informant along with Aakash Pande by riding on his motor cycle proceeded towards police station to lodge the report. While, they were in the way, four assailants followed them by riding on two motor cycles. One of the motor cycle rider was accused Sagar, whilst Sunny Savle was pillion holding iron rod. The second motor cycle was rided by Shishir, whilst Vishal Band was pillion rider holding iron rod. They tried to accost informant at Kisan square, however, perceiving danger, informant did not stop but went ahead. At that time, assailant Sunny Savle tried to assault the informant however, the latter ducked and avoided a blow. Immediately, another assailant Vishal Band also tried to assault, but informant again avoided the blow. The informant reached to the Police Station and lodged the report.
7. The First Information Report also states that though on the very day report was lodged, however, he was in frightened condition hence, he could not give the details. The informant stated that though he has faced a murderous attack, however, police did not took cognizance. On the following day, in the evening, he again went to the Police Station and lodged the detailed report. The informant stated that in past on 28.12.2017, he has lodged a report against the applicant, who was sitting MLA of Achalplur constituency. In the said crime, the police investigated and filed the charge-sheet against the applicant. According to the informant, in order to take revenge, the applicant has deputed his volunteers on the job and thus the offence.
8. We have gone through the First Information Report as well as the investigation papers. The reading of entire First Information Report discloses that the alleged assault was made by four named persons. There is no dispute that the applicant was not present at the time of occurrence. Obviously the crime is registered against the applicant, with the aid of section 120-B of the Indian Penal Code. Since, it is the case of criminal conspiracy, we are well aware that direct evidence of conspiracy is seldom to have but on the basis of given facts and circumstances, the inference about the conspiracy is to be drawn.
9. In this regard, we have asked the learned APP as to what is the material on the basis of which the charge of criminal conspiracy has been levelled. At the time of hearing of this application on 13.03.2024, learned APP was able to point only three telephonic calls to establish the conspiracy. We are coming to the calls after short while. Since, there was no material besides calls, we have asked learned APP whether still the Police desires to file the charge-sheet. Today, learned APP upon instructions, made submission as well as filed the communication dated 18.03.2024 stating that after investigation Police came to the conclusion about sufficiency of material and they intend to file a charge-sheet. In order to impress that there is sufficient material today learned APP has attracted our attention to some statement of the witnesses recorded during the course of investigation.
10. Reverting to the First Information Report admittedly, the applicant was not present at the time of occurrence. Though, the informant stated that out of political rivalry, the applicant conspired with assailants, however, it is nothing but mere speculation. In order to establish the conspiracy, we have to look for the material which the investigating agency has relied. Coming to the call detailed recording, our attention has been invited to a telephonic call in between the applicant and one Munna Bhonde dated 02.02.2018. The alleged occurrence is dated 07.02.2018 meaning thereby the said isolated call was six days preceding to the occurrence. We failed to understand the nexus of said call made by applicant to Munna who we learnt that proposed to be made an accused. Even if the said call of applicant was with a co-accused still, it was six days preceding to the occurrence. At this juncture, learned APP submitted that there is one more call between the applicant and Munna Bhonde on 10.02.2018. Still, we are unable to connect those two calls with existing crime. To our mind, even if these two calls have been taken to be with assailants still it fells short as one call was prior to six days and another was after two days. It is informants own case that the assailants may be Munna Bhonde belongs to the party of applicant, therefore, a call by the leader of the party volunteer is quite natural which cannot be assumed to be an evidence of conspiracy. We could have considered those telephonic calls, if they are soon before the occurrence of assault dated 07.02.2018 or in proximity within few hours from the occurrence. Things are quite otherwise that there are no telephonic calls between the applicant and co-accused. We do not know who is Munna Bhonde since it is not explained and therefore, the prosecution cannot lay hand on the said telephonic calls.
11. Then, the prosecution has relied on two telephonic calls dated 07.02.2018 in between assailant Sunny with Vishal and Shishir with Sagar. Certainly those calls at the most could be considered as a nexus between the accused inter se, but how that could be connected with the applicant. It is a far fetching exercise to presume that the applicant has deputed them and as they had inter communication, it is a case of conspiracy. Such long drawn exercise would be nothing but flight of imagination which has no place in the eyes of law.
12. Coming to the statements, the State has relied on the statement of parents of informant namely, Pandurang and Shobha. Both have stated that the assailants came to their house and finally said that since, their son has filed a complaint against the applicant, for that reason, the applicant has sent the assailants to their house. It is purely own perception of the parents, which they thought on the basis of the past incident. One may think as he wish, but it should have some evidentiary value. Unless there is other material the mere suspicion expressed by parents is of no avail. The prosecution then took us through the statement of witness Amol and Vijay who have stated that informant was having political rivalry with the applicant. They perceived from the movements and heard in public discussion that assailants were looking for an opportunity to take revenge. Everything is a vague having no specification as to when and at what place there was such a talk and between whom. Moreover, we have taken a note that though alleged incident took place on 08.02.2018, these statements have been recorded after long two months. Less said is better about such belated vague statement, which cannot stand in any way to support the prosecution case.
13. Learned advocate appearing for the applicant has highlighted one other important aspect that on the date of occurrence, itself informant rushed to the police station for lodging report. The police have taken down the report, on the basis of which, registered non-cognizable offence in the proximity. We have gone through non-cognizable report, which was lodged within one hour from the occurrence. The report indicates that as per informant’s case on 07.02.2018 around 11.00 p.m, some assailants came to his house and while informant was proceeding to the Police Station, they abused and gave threats. There is no reference about so called attempted assault by means of iron road. The informant stated that since he was frightened at the relevant time, he has not seen as to what type of information was got recorded by the Police. Pertaining to note that the informant is a coprorator and well versed with legal proceedings. Admittedly, he did not sustain any hurt in the occurrence and still for next 24 hours, he never went to Police Station and thus a feeble attempt made to patch-up the first version is absolutely un reliable. Rather the said material creates a doubt about the entire episode as stated by informant in his Police report. Since, we are not dealing in this application about rests of the assailants we do not wish to delve merely on said aspects at great length.
14. It remains that the CDR on which the investigating agency tried to rely, is of absolute no help. The statement of informant and his parents is nothing but their own perception. Though, two statements have been recorded they are vague, general and recorded after two months. In the circumstances, in our view, there is no material to arrive on the conclusion that the material is sufficient to put the applicant on trial. Despite that today, it is expressed that the investigating agency, is of the view that the material is sufficient and desire to file charge-sheet. No doubt it is domain of Police authority to decide whether to file charge-sheet or to file final report. We expect that Police should act with sense of responsibility since, by filing of charge-sheet they are interfering in the personal rights of individual. Logically, if there is no material the Police have to take necessary steps as provided under law. One another aspect emerges that though there was no interim order of this Court still, during last five years charge-sheet has not been filed against the assailants named in the First Information Report. We could not see any explanation in that regard. All these circumstances persuade us to infer the possibility of taking action for the reasons which did not reflect in Police papers cannot be ruled out.
15. Having regard to the entire material, absolutely, no prima facie case is made out against the applicant and in the circumstances, continuation of prosecution amounts to abuse of the process of Court. This Court is vested with extra ordinary powers to save the uncalled prosecutions which are coloured with some ulterior motive.
16. In view of above, the Criminal Application is allowed. We, hereby quash and set aside the First Information Report No.40 of 2018 registered with police Station Chandur Bazar, Dist. Amravati Gramin for the offences punishable under Section 307, 120-B read with 34 of the Indian Penal Code as regards to applicant only.
