Dismissed

Sandeep S/O Sadashiv Bhalerao v. the State of Maharashtra and Anr.

Bombay HC1 Sept 2017APPLN/306/2017

Case brief

AI extract

What is this about?

The High Court dismissed the Criminal Application seeking to quash a theft case registered against the applicant. The Court held that the FIR prima facie disclosed an offence of theft regarding illegal storage of sand and that the applicant's contentions regarding malice or procedural defect did not justify quashing the proceedings under Section 482 CrPC.

What did the court decide?

The Criminal Application to quash the crime was dismissed. The interim relief granted during pendency is vacated.

Sandeep S/O Sadashiv Bhalerao Vs the State of Maharashtra and… — Bail and Remand | Bombay HC (2017)

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( 1 ) criapln306.17

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.306 OF 2017

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Sandeep Sadashiv Bhalerao,..Applicant
Age-32 years, Occu-Agriclture,
R/o. Basmat Road, Parbhani,
Dist. Parbhani

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Versus

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1. State of Maharashtra .. Respondents Through Police Station Bori, Tq. & Dist. Parbhani

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2. Dattatraya S/o. Sakharam Nakode, Age-57 years, Occu-Service, R/o. Somvar Peth Vasmat, Tq. Vasmat, Dist. Hingoli

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Mr.P.R. Katneshwarkar, Advocate h/f Mr.V.P. Kadam,
Advocate for the appellant

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Mr.M.M. Nerlikar, APP for the respondent/State

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CORAM : S.S.SHINDE &

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S.M. GAVHANE, JJ.

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RESERVED ON : 26.07.2017

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PRONOUNCED ON : 01.09.2017

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J U D G M E N T [PER:S.M. GAVHANE, J.]

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.The applicant who is arrayed as accused No.8
against whom and 11 others Crime No.100/2016 for the
offence punishable unde Section 379 r/w 34 of the Indian

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( 2 ) criapln306.17

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Penal Code (for short the IPC) has been registered in
Police Station Hatta, Tq. Vasmat, Dist. Hingoli has filed
this application under Section 482 of the Code of
Criminal Procedure to quash and set aside the said crime
against him.

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2.The facts giving rise to this application, in
short, are as under:-

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A.Respondent No.2 the Circle Officer of Hatta, Tq.
Vasmatn, Dist. Hingoli has lodged the complaint/First
Information Report on 09.12.2016 in Police Station Hatta,
alleging that on 25.11.2016 he received instructions from
the Tahasildar, Vasmat for collecting information
regarding illegal stock of sand made within the area of
Tahasil, Vasmat. On the basis of said information he made
inspection of different sites. He noticed that the
accused persons had shifted illegally collected sand from
one place to another place without permission of the
competent authority. The accused had committed theft of
Government property. It is alleged that in the year
2014-2015 sand to the extent of 100 brass was stored by
the applicant-accused illegally in the field Gut No.443
of village Hatta of one Maruti Ramaji Dhage. When the
said fact was noticed by the Revenue Officer charge was
created over the said land Gut No.443 to the extent Rs.

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( 3 ) criapln306.17

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1,03,900/- as per the mutation entry No.4383 dated
07.08.2015. On the basis of above FIR aforesaid crime was
registered against the applicant and 11 others.

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B.According to the applicant the land Gut No.443
is in the name of Maruti Ramaji Dhage and it is situated
at village Hatta not at village Karanjala. On 14.12.2016
he has deposited an amount of Rs.1,03,900/- i.e. an
amount of charge created on the above said land and then
he filed an application to Tahasildar, Vasmat and pointed
out that the stock of sand i.e. 100 brass is of the year
2014-2015. According to the applicant no details are
given in the FIR as and when the sand was shifted for
storing. The sand is still lying in the field of Maruti
Ramaji Dhage. It is mentioned in the FIR that the said
sand is of the year 2016-2017 but actually it is of the
year 2014-2015. As such the authorities have prepared
panchanama of the said sand twice and it is shown that it
is of the year 2016-2017. Thus, according to the
applicant the FIR under Section 379 of the IPC against
him is nothing but abuse of process of law. The offence
under Section 379 of the IPC is not made out against him.
On the above grounds, he has prayed to quash and set
aside the crime against him.

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3.Learned counsel for the applicant has made

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( 4 ) criapln306.17

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submissions in the light of above referred grounds and
more particularly on submitting that the FIR/complaint
lodged against applicant is absolutely false and
concocted and even if entire allegations in the FIR are
taken as it is without adding or subtracting anything
prima facie case is not made out against him for the
offence under Section 379 r/w 34 of the IPC and claimed
to quash and set aside the crime No.100/2016 registered
in Police Station Hatta, Tq. Vasmat, Dist. Nanded against
the applicant.

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4.On the other hand learned APP appearing for
respondent/State submitted that on the basis of
allegations in the FIR and statements of witnesses and
panchanama of spot of incident prepared by the Circle
Inspector Hatta ingredients of offence under Section 379
of the IPC regarding theft of 100 brass sand and
illegally storing the same in the land Gut No.443 of
Maruti Ramaji Dhage are prima facie attracted and that
the investigation in the said crime is in progress. It is
further submitted that it is not the case that the FIR
and other materials collected by the Investigating
Officer do not disclose the commission of any offence and
make out a case against applicant so as to quash and set
aside the crime registered against the applicant. Thus,
learned APP has claimed to dismiss the application.

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( 5 ) criapln306.17

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5.We have carefully considered the submissions
made on behalf of the applicant and the respondent/State
so also we have perused the copies of investigation
papers submitted alongwith report of the Investigating
Officer stating that there is sufficient evidence against
the applicant and requesting to allow to file the charge-
sheet against the applicant.

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6.Before adverting to the FIR and other materials
collected by the Investigating Officer to see, whether
applicant's request to quash and set aside the crime
against him is to be granted or otherwise by invoking the
provision of Section 482 of the Code of Criminal
Procedure, it is necessary to refer the law laid down by
the Hon'ble Supreme Court in the Case of State of
Hariyana Vs Bhajanlal, AIR 1992 SC 604. The Hon'ble
Supreme Court in Para No.102 held thus:

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"102.In the backdrop of the interpretation
of the various relevant provisions of the Code under
Ch. XIV and of the principles of law enunciated by
this Court in a series of decisions relating to the
exercise of the extraordinary power under Article
226 or the inherent powers under S. 482 of the Code

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( 6 ) criapln306.17

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of 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 channelised and
inflexible guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of cases wherein
such power should be exercised.

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1.Whether the allegations made in the
FIR 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;

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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 Magistrate within
the purview of Section 155(2) of the Code;

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3.Where the controverted allegations

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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 applicant;

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4.Where the allegations in the FIR do
not constitute a cognizable offence, no
investigation is permitted by a police officer
without an order of Magistrate as contemplated
under Section 155(2) of the Code;

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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.

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6.Where there is an express legal bar
engrafted in any of the provisions of the Code
or the concerned Act, (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provisions in the Code of
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.

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( 8 ) criapln306.17

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7.Where a criminal proceeding is

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manifestly attended with malafide 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."

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7.Bearing in mind the law laid down by the Hon'ble
Supreme Court in the above decision we shall proceed to
consider the aspect whether there is prima facie case or
otherwise against the applicant for the offence of theft.
On careful perusal of the FIR dated 09.12.2016 lodged by
the informant/respondent No.2 it discloses that on
directions of Tahasildar, Vasmat in respect of illegal
excavation of the sand from pond of the Purna river in
the year 2016-2017 the informant who is Circle Inspector
of Tahasil Office, Vasmat visited the different spots. He
found illegal storage of the sand of all the twelve
accused and particularly 100 brass sand of the applicant
was found illegally stored in the field Gut No.443 of
Maruti Dhage situated at Karanjala, worth Rs.2,86,100/-.
Panchanama in this respect prepared by respondent No.2
also reflects that illegal storage of 100 brass sand of
the applicant. The statements of witnesses recorded by
the Investigating Officer also disclosed the same. It is

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( 9 ) criapln306.17

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pertinent to note that some of the statements of the
witnesses confirmed that 100 brass sand as above was of
the applicant. Another aspect to be noted is that as per
the case of the applicant he paid an amount of Rs.
01,03,900/- of charge on the land Gut No. 443, which
indicates his concern to the 100 brass sand which was
allegedly found in the field Gut No. 443 of Maruti Ramaji
Dhage. Thus, above referred materials prima facie
disclosed the offence of theft of sand against the
applicant. It is not the case that the allegations in the
FIR 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 the case against the
accused. So also, it is not the case that 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 accused in the light of law
laid down by the Hon'ble Supreme Court in the case of
State of Hariyana (Supra) so as to say that the crime
registered against the applicant for the offence under
Section 379 is liable to be quashed and set aside.

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8.In view of the above discussion the arguments
advanced by the learned counsel appearing for the
applicant and the ground taken by the applicant in the
application that the sand mentioned in the FIR is

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( 10 ) criapln306.17

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actually of the year 2015-2016 and the same sand has been
shown of the year 2016-2017 as per panchanama and
therefore investigation of the allegations in the FIR in
respect of theft of the said sand is nothing but abuse of
process of law, is not acceptable at this stage. For the
reasons discussed above we hold that no case is made out
by the applicant to quash and set aside the crime No.
100/2016 for the offence under Section 379 r/w 34 of the
IPC registered against him and others at Police Station
Hatta, Tq. Vasmat, Dist. Hingoli. Therefore, application
is liable to be dismissed.

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9.The observations made herein above are prima
facie in nature and confined to the adjudication of this
application and learned trial Judge shall not in any
manner get influenced by the said observations during
trial of the case, which may be filed on the basis of
crime registered against the applicant and others.

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10.The application stands dismissed accordingly. In
view of the dismissal of the application, the interim
relief granted during the pendency of this application
stands vacated.

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[S.M. GAVHANE, J.]

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[S.S. SHINDE, J.]

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VishalK/ criapln306.17

Sandeep S/O Sadashiv Bhalerao v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Sandeep S/O Sadashiv Bhalerao v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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