The High Court dismissed an application to quash criminal proceedings, holding it liable for dismissal due to lack of police report. The court rejected arguments based on unproven fraud and alibi, stating the trial is the proper venue for such inquiries.
Application dismissed; Rule discharged; Interim relief vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
FARAD CONTINUATION SHEET NO.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPLICATION NO.3534 OF 1997
1) |
Madhav Mishra ) |
|---|---|
aged 38 yrs. S/o.Shrikant Mishra ) |
|
2) |
Sonelal Shri Narayan Mishra )aged 27 yrs. ) |
3) |
Pawankumar Pratap Narayan Mishra )aged 32 years ) |
4) |
Gulab Mishra, aged 47 years ) |
5) |
Lalan Mishra, aged 27 years )S/o Bachulal Mishra ) |
6) |
Chandrashekar Bhagwat Narayan )Mishra, aged 34 years ) |
7) |
Ramanandan Asarfi Yadav )aged 42 years )..Applicants |
Versus |
|
1) |
The State of Maharashtra ) |
2) |
Shri Shivanand S/o Yendunandan Jha)aged about 54 years, residing at )Vaishnav R.M.Mandir, Near Western )Express Highway, Janata Colony )Jogeshwari (E), Mumbai-400 060. )..Respondents---- |
Mr |
.Subhash Jha for the applicants. |
Mrno |
.Manoj Singh h/for Mr.Diwakar Dwvedi for Respondent.2. |
Mr |
.P.S.Hingorani APP for the State.---- |
Coram : R.S.Mohite,JDate : 15.6.2006. |
: 2 :
Judgment :-
1. This is an application for quashing the proceedings
in Criminal Case No.163/S/94 pending in the Court of
the Metropolitan Magistrate, 44th Court Andheri, Mumbai
and for further quashing and setting aside issuance of
process in the said case vide order dated 13.12.1994
passed by the concerned Magistrate.
2. I have heard both sides at length. It appears that
the said criminal case was filed by the present
respondent no.2 on 2.8.1993. The verification of the
complaint was effected on 9.11.1999. It appears that
police enquiry was directed under Section 202 of the
Cr.P.C. and after the police report was received and
perused by the Metropolitan Magistrate on 15.12.1994,
process was issued for the offence under Sections 323,
504, 506-II and 357 of IPC.
3. The present application has been filed without
enclosing the statements recorded by the police or the
police report which are the documents upon which the
impugned order was inter alia based. On making
enquiry, the Advocate for the applicants fairly stated
that no attempt has been made to obtain certified copy
of the statement recorded by the police or of the
police report which was one of the documents on the
: 3 :
basis of which the impugned order was passed. On this
ground alone, the application is liable to be
dismissed.
4. Apart from this, with regard to the Complaint, it
relates to two incidents which have allegedly occurred
on 20.7.1993 & 24.7.1993. It was sought to be
contended that the Complaint was false because on
22.7.1993, accused no.3 Pawankumar Mishra was arrested
and produced before a Court in Bihar. Similarly
accused no.2-Sonelal Mishra, accused no.3-Fanainath
Mishra, accused no.4-Gulab Mishra and accused no.5
Lalan Mishra were also arrested and produced before a
Bihar Court on 24.9.1993. In short, it was contended
that accused nos.2, 3, 4 & 5 had an cast iron alibi
because they were in a Bihar Court on 24.7.1993. On
the basis of this, it was sought to be contended that
the complaint must be held to be fraudulent and false.
In order to show that accused nos.2, 3, 4 & 5 were in
Bihar, reliance was placed on document at Exhibit-D.
This document appears to be a zerox copy of a roznama
with hand written notes in the heading thereof. The
document shows that the signatures of various persons
who have signed the entries purported to be that of a
Court officer, Bihar Court are illegible. It must be
remember that alibi is a permitted defence but the same
is required to be proved. It was sought to be
contended that the document at Exhibit-D which purports
to be a roznama is a public document and can be proved
: 4 :
by certified copy. Exhibit-D is clearly not a
certified copy. It is a zerox copy of some document.
The original of this could not be produced. The
defence of alibi will have to be proved at the trial
after giving sufficient opportunity to the Complainant
to meet this defence. The Advocate for the applicants
produced a compilation of judgments in order to
buttress contention that fraud would vitiate all
proceedings and orders passed there on. The
compilation has been taken on record and the citations
are given in the said compilation. I have no quarrel
with the proposition as propounded but needless to say
that fraud must first be proved. In the present case
the stage of proof has not been reached. I cannot make
any observation at this stage relating to the genuiness
of the roznama. This is a matter which will have to be
tested in the trial. In one of the cases contained in
the compilation and strongly relied upon by the
applicant i.e. the case of Manohar M.Gilani Vs. Ashok
N.Advani & Anr. reported in (1999) 8 SCC 737 there
were serious allegations about the judicial magistrate
issuing warrant illegally against people holding high
public office. On the basis of facts of this case it
was sought to be argued that fraud need not be proved
and if the Court prima facie forms an impression that
there might be a fraud, an enquiry can be initiated
without complete proof. The facts of that case before
the Apex Court were different. Counsel for both sides
agreed before the Apex Court that there was a fraud and
: 5 :
both sides agreed that the impugned order ought to be
set aside. Further the said case involved fraud by a
judicial officer. In the present case only process has
been issued. If ultimately complaint is found to be
false or frivolous then the law provides for legal
action which can be taken against the Complainant. In
the circumstances, not a fit case to interfere with.
Hence, application is dismissed. Rule stands
discharged. Interim relief stands vacated.
(R.S.Mohite,J)
3 issues framed by the court
Whether a criminal application for quashing proceedings can be decided without the police report or recorded statements.
Whether the alleged fraud and alibi defence are sufficient to quash criminal proceedings before the stage of proof is reached.
Whether fraud by a judicial officer can be inferred prima facie to set aside an order issuing process.
Colour shows how this judgement treated each authority
Manohar M. Gilani vs. Ashok N. Advani & Anr.Referred¶16
Manohar M.Gilani Vs. Ashok N.Advani & Anr. reported in (1999) 8 SCC 737 · Who else cites this
3 provisions across 3 enactments
Madhav Mishra and others
The State of Maharashtra
Shri Shivanand Jha
R.S. Mohite
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court