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TMI Blog2010 (8) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 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 offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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. 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 allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stream 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 to be exercised in invoking these powers. (Vide State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. R. Prasanna Kumar and Ors. AIR 1990 SC 494; Ganesh Narayan Hegde v. S. Bangarappa and Ors. (1995) 4 SCC 41; and M/s Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors. AIR 2005 SC 9). 17. In State of Orissa and Anr. v. Saroj Kumar Sahoo (2005) 13 SCC 540, it has been held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by this Court in State of Bihar and Anr. v. Shri P.P. Sharma and 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 there would be ultimate chances of conviction on the basis of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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