w w w . L a w y e r S e r v i c e s . i n



Saddam Shah Khalil Shah Fakir v/s The State of Maharashtra Through its Principal Secretary, Home Department, Mantralaya, Mumbai & Others


Company & Directors' Information:- R J SHAH AND COMPANY LIMITED [Active] CIN = L45202MH1957PLC010986

Company & Directors' Information:- AT HOME INDIA PRIVATE LIMITED [Active] CIN = U17211DL2001PTC112255

Company & Directors' Information:- SHAH INDIA PVT LTD [Active] CIN = U51909WB1960PTC024535

Company & Directors' Information:- B. B. SHAH PRIVATE LIMITED [Active] CIN = U17117RJ1984PTC002922

Company & Directors' Information:- D M SHAH & COMPANY PVT LTD [Active] CIN = U29244WB1988PTC045183

Company & Directors' Information:- C. M. SHAH AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74140MH1971PTC015107

Company & Directors' Information:- V HOME PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109331

Company & Directors' Information:- G. P. HOME PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102MH2011PTC213056

Company & Directors' Information:- T M SHAH PRIVATE LIMITED [Strike Off] CIN = U10101UP1966PTC003139

Company & Directors' Information:- S B SHAH AND COMPANY PRIVATE LIMITED [Active] CIN = U51496DL1991PTC045040

Company & Directors' Information:- H B SHAH PRIVATE LIMITED [Active] CIN = U36100MH1947PTC005536

Company & Directors' Information:- M M SHAH PRIVATE LIMITED [Strike Off] CIN = U51311MH1962PTC012293

Company & Directors' Information:- D J SHAH AND CO PRIVATE LIMITED [Active] CIN = U74899DL1987PTC030169

Company & Directors' Information:- C C SHAH LTD. [Strike Off] CIN = U15421WB2000PLC007659

Company & Directors' Information:- A H SHAH AND CO PVT LTD [Active] CIN = U51311MH1949PTC007019

Company & Directors' Information:- SHAH AND SHAH PVT LTD [Strike Off] CIN = U33112WB1980PTC032838

Company & Directors' Information:- A D SHAH PVT LTD [Strike Off] CIN = U51909MH1972PTC015715

Company & Directors' Information:- B. SHAH AND COMPANY LIMITED [Dissolved] CIN = U99999MH1952PLC008789

    Criminal Writ Petition No. 816 of 2020

    Decided On, 13 October 2020

    At, In the High Court of Bombay at Aurangabad

    By, THE HONOURABLE MR. JUSTICE T.V. NALAWADE & THE HONOURABLE MR. JUSTICE M.G. SEWLIKAR

    For the Petitioner: R.N. Dhorde, Senior Advocate, i./by V.R. Dhorde, Advocate. For the Respondents: S.J. Salgare, Addl. Public Prosecutor.



Judgment Text

T.V. Nalawade, J.1. Rule. Rule made returnable forthwith. By consent, heard both the sides for final disposal.2. The present proceeding is filed to challenge the order of the learned Director General of Police, Maharashtra State, dated 5th October 2020 by which the sanction is refused for the prosecution of one Police Officer under the provisions of the Prevention of Corruption Act, 1988. Direction is also claimed against the respondents to accord the sanction.3. The submissions made and the record of the investigation which was made available by the Anti-Corruption Bureau alongwith its say show that Police Inspector Shri Baliram Hire, who was attached to Yaval Police Station District Jalgaon, was involved in one Anti-Corruption case and the sanction under section 19 of the Prevention of Corruption Act, 1988 was sought by the Anti Corruption Bureau, Jalgaon. Sanction was sought against two constables also, who were working under P.I. Hire. Sanction is given to prosecute these two Constables but it is refused in respect of P.I. Hire.4. The record shows that it is the contention of original complainant, present petitioner that P.I. Hire visited the residential place of the petitioner on 12/01/2017 and he took the petitioner to Police Station, Yaval by saying that one lady had given report against him. It is contended that when he entered the police station, he noticed that said lady and her parents were present in the police station. It is contended that P.I. Hire then told him in the police station that allegations were made by the lady against the petitioner that the petitioner had raped her, had committed the offence punishable under Section 376 of the Indian Penal Code.5. It is the contention of the petitioner that threat was given to him by P.I. Hire that crime will be registered for offence punishable U/S. 376 of I.P.C. against him on the basis of report of aforesaid lady if he does not give Rs. 5,00,000/- to P.I. Hire. It is the contention of the petitioner that he said that he cannot give such big amount and after negotiations, P.I. Hire agreed to accept Rs. 3,00,000/- to see that no crime is registered for offence of rape. It is the contention that from 12/01/2017 till the evening of 13/01/2017 he was detained by P.I. Hire and two Constables Kailas Ingle and Kiran Thakare. It is the contention that he was taken by Constables Ingale and Thakare to their residential quarter on 12/01/2017. It is his contention that he was taken to AXIS Bank, Jalgaon, from where the petitioner withdrew amount of Rs. 40,000/- and he gave it to these persons. It is contended that when he was brought by these three persons to Yawal police station, P.I. Hire took over his mobile handset and asked him to collect the remaining amount. It is contended that when he requested the two constables to return the mobile handset on 13/01/2017, the two Constables asked him to give Rs. 20,000/- for return of the mobile handset. It is contended that after that he was allowed to leave the police station but he was expected to collect the money to meet the demand of Rs. 3,00,000/- and also separate demand of Rs. 20,000/- made by the two Constables. It is contended that due to apprehension that he will be implicated in the case of rape, on 21/01/2017 he handed-over Rs. 80,000/- to Constable Ingale.6. It is the case of the complainant, petitioner that there was demand of Rs. 3,00,000/- from P.I. Hire for helping him and for not registering crime for offence of rape and there was demand of Rs. 20,000/- from Ingale and Thakare Constables and he was not having intention to give the remaining amount and as there was possibility of more harassment and then he approached the Anti- Corruption Bureau, Jalgaon. It is the contention that they had given threat to register the crime when he had not committed such crime. He informed to the Anti-Corruption Bureau that he was expected to visit the police station on 23/01/2017.7. Thus, on 23/01/2017, there was demand of Rs. 1,80,000/- from P.I. Hire and there was demand of Rs. 20,000/- from other-side-two Constables. It is the contention of the petitioner that the Anti-Corruption Bureau decided to first confirm that there was such demand and so he was sent to Yawal Police Station with two panchas. A digital voice recorder was kept in the pant pocket of petitioner for recording the conversation.8. It is the contention of the petitioner that when he and panch witness reached Yawal Police Station, he noticed that the two Constables were not present in the police station and so he contacted them on mobile phone. It is contended that these two Constables asked him to come to residential quarter which is situated in the vicinity of the police station. It is contended that when he reached the residential quarter of the Constables, they said to him that he should give them two mobiles worth Rs. 10,000/-, each, in place cash amount of Rs. 20,000/-. This conversation took place in the presence of panch witnesses and as already observed it was being recorded by using digital voice recorder. Then there was talk about the amount already paid and the amount which was remaining to be paid. These Constables then said that P.I. Hire had formed an impression that the petitioner had given entire amount and these Constables had kept the amount with them and they had not handedover the amount to P.I. Hire.9. When the aforesaid talk was going on, Constable Ingle suspected something and he then took personal search of the petitioner. Constable Ingle recovered digital voice recorder from the petitioner and then Constables Ingle and Thakare assaulted the petitioner with fist blows and kicks. They gave threat to the witness who was in the company of the petitioner and due to that threat and due to fear, the panch witness admitted that they were sent by the Anti-Corruption Bureau and it was action of the Anti-Corruption Bureau. After that, according to the petitioner, these two Constables took the petitioner and the panch witness to the police station. The panch witness was Nafis Ahmad. Nafis Ahmad was taken into the cabin of P.I. Hire and Hire was present in the cabin. After some time, Hire came out of the cabin and he said to the petitioner that he had taken wrong step and Hire left the police station. The two Constables came out of the cabin of Hire and they handedover digital voice recorder to the petitioner and they asked the petitioner to leave the police station. Warning was given not to disclose the incidents which had taken place in the past and also near the residential quarter of the Constables.10. At about 18.26 hours of 23/01/2017 when officers of the Anti Corruption Bureau contacted panch witness Nafis Ahmad on mobile phone, he informed that they were late due to aforesaid incident. The officers of the Anti-Corruption Bureau rushed to Yawal Police Station. At that time, neither Hire nor the two Constables were present there. The officers of the Anti Corruption Bureau took over the digital voice recorder and verified as to whether there was recorded conversation. During enquiry, the aforesaid incident was disclosed by panch witness to Anti Corruption Bureau officers but the officers noticed that the said conversation was already deleted.11. The A.C.B. officers made enquiry with Assistant P.S.I. Dhangar, who was available in the police station in respect of the record of complaint which was given by the lady. The file was shown to them and the file was taken over by the A.C.B. officer. The file contained various documents like complaint applications allegedly given by the lady and statements of the lady and her father. The file contained notice given U/S. 149 of the Criminal Procedure Code to the petitioner. This file was taken over and the panchnama of entire aforesaid incident starting from the verification panchnama of demand was prepared by the A.C.B. officers in the presence of panch witnesses.12. One written complaint of the lady shows that she had contended that she had become acquainted with present petitioner as she had joined face-book account of her girl friend and there the petitioner had already joined. It is the contention that by using the face-book account, the petitioner downloaded her photographs and manufactured some photographs to show that she was always in the company of the petitioner. It is contended that by using the manufactured photographs the petitioner had started blackmailing her. She has contended that about six months prior to the date of the application (date of application is 12/01/2017) by giving threat of defamation, of making photographs viral, the petitioner had called her to Jalgaon and she had gone to Jalgaon. It is contention that at Jalgaon the petitioner took his selfie photographs with her under threat. It is contention that after that visit to Jalgaon, the petitioner started giving more harassment to her and he started calling even her father. It is contention that on 31/12/2016 when she had gone to Pune, the petitioner had virtually followed her and her family. It is contended that the petitioner had started giving threat to her father that he should not arrange her marriage with other person as the petitioner had relationship with her. It is the contention that due to the threats given by the petitioner, she and her parents were under tremendous pressure and they started feeling danger to their life. It is the contention that the petitioner had said that he had good relations with police and nobody will take action against him. By making these allegations, the lady has requested to take action like deleting photographs from the mobile phone of the petitioner and give protection to her.13. In the file, there is one more written application but due to the nature of the application, it appears that it was not actually given by the lady. There is no police statement also containing allegations which are present in this application. In this application in addition to aforesaid allegations made in the written complaint which is signed by the lady, there is one more allegation that in Jalgaon, the petitioner had taken the lady to a lodge and there by giving threat and by using force, he had raped her. In this document it is mentioned that threat was given to finish her father and there was another threat to defame her by making the photographs viral. It is mentioned that due to various threats given by the petitioner, she did not disclose the incident of rape to others. It is mentioned that the petitioner was saying to her father that his contact with her had proved lucky to him as he had spoiled life of the Hindu lady and that is what is expected by Muslim religion.14. There is police statement dated 13/01/2017 of the aforesaid lady. In this statement she has stated that in her presence the aforesaid photographs were deleted by the petitioner in the police station and he had requested for forgiveness. It is mentioned that due to this deleting photographs and showing repentance by the petitioner she was withdrawing her complaint application given against the petitioner. There is similar police statement of her father dated 13/01/2017.15. There is statement of one Amanulla Manyar, who was aged about 45 years and who hails from the village of the petitioner. His statement dated 13/01/2017 shows that as per the notice given U/S. 149 of Cr.P.C., the petitioner was brought to the police station to make enquiry in respect of complaint dated 12/01/2017 and as he had deleted photographs and tendered apology, he was warned not to commit such offence again and the petitioner was handed-over to this witness.16. In the papers of investigation there are statements of panch witnesses, which are consistent with the aforesaid incident which had taken place on 23/01/2017 near the police quarters and in the police station. There is M.L.C. in respect of the petitioner dated 24/01/2017 showing that some simple injuries were found on his person which were caused by hard and blunt object. He had given history of assault by police officer on 23/01/2017 and the age of the injuries is mentioned as 76 hours, three days.17. The papers of investigation of the A.C.B. show that the conversation which was recorded in digital voice recorder was subsequently retrieved by sending the recorder to the Forensic Laboratory. There is a transcript of this conversation in the papers. This Court has gone through the transcript and that is consistent with the aforesaid conversations given in the statements by the petitioner and the panch witnesses.18. The record of investigation shows that CCTV footage of Yawal Police Station of 12/01/2017 and 13/01/2017 is collected by the A.C.B. There is transcript of this footage and the transcript shows that on 12/01/2017 at about 14.15 hours the petitioner was taken to the cabin of P.I. Hire and at that time the aforesaid lady and her family members were present in the police station. There is transcript of CCTV footage of 13/01/2017 and it shows that the petitioner was taken to the cabin of P.I. Hire at about 19.00 hours by the two Constables. It appears that some footage of CCTV of 23/01/2017 was not supplied to A.C.B. by contending that on 23/01/2017 and 24/01/2017 the system was not working as the pin of DVR was not properly connected, it was loose. However, the footage of CCTV from the evening of 23/01/2017 after 18.00 hours was made available and that is the time when ACB Officers entered the police station. This electronic record and other record is collected with the necessary certificates U/S. 65-B of the Evidence Act.19. The papers of investigation show that CCTV footage is collected from the system of AXIS Bank dated 13/01/2017. There is transcript of this CCTV footage and it shows that the aforesaid two Constables had taken the petitioner to this bank and even upto the Cashier for withdrawal of the money. The papers of investigation contain copy of account statement of the petitioner and it shows that on 13/01/2017 amount of Rs. 48000/- was withdrawn by the petitioner from that bank. This was done before evening. It needs to be kept in mind that the petitioner was released after evening of 13/01/2017 from the police station. The papers of investigation contain the statement of one Home-guard Chavan and it shows that he was taken with them by the two Constables to the bank when the petitioner was taken and his statement is consistent with the case of the petitioner.20. The aforesaid material shows that from the noon time of 12/01/2017 to the evening time of 13/01/2017 the petitioner was detained by the aforesaid two Constables and P.I. Hire. There are statements of Police Officers, Constables who were living in the police quarters at the relevant time like Quadir and they show that that on 12/01/2017 in the night time, the petitioner was taken to the police quarters. There is statement of a witness who was working in the police station that on 12/01/2017 the petitioner was kept for some time in lockup but no entry in that regard was made in lockup register. He was seen at the residential quarter of the Constables at about 9.00 to 9.30 pm on 12/01/2017. Vitthal Dhangar, the Police Officer was doing the guard duty and his statement shows that he had requested P.I. Hire to see that the entry was made in lockup register about the petitioner’s keeping in the lockup but such entry was not made. There are statements recorded U/S. 164 of Cr.P.C. of the petitioner and the Home-guard and they are consistent with other record.21. There is statement of Mannyar, a person of village of the petitioner and it shows that on 13/01/2017 at about 7.30 pm the petitioner was allowed to leave the police station. It also shows that his signature was obtained on one document to show that the petitioner was allowed to leave at that time.22. The aforesaid record is more than sufficient to primafacie show that the petitioner was detained by P.I. Hire and his two Constables from the noon time of 12/01/2017 till at least 7.30 pm of 13.01.2017. He was detained by saying that the lady had given complaint that she was raped by the petitioner. The record shows that the petitioner was taken to AXIS Bank on 12/01/2017 and also on 13/01/2017. On 12/01/2017 the petitioner could not withdraw the amount as the business hours were closed. It is the case of the petitioner that after 13/01/2017 also, he handed-over money to the aforesaid three persons. There is such mention in the recorded conversation also. There is allegation that there was demand of more amount and mobile handset of petitioner was also in the custody of the aforesaid two Constables and there was separate demand of money from them.23. The papers which were in the file and which were taken in the custody by the A.C.B. Officers, show that the record was created to show that the matter which was opened due to comploaint application of the lady, was closed on 13/01/2017. There is M.L.C. showing that on 24/01/2017 when the petitioner was examined injuries were found on his person and there is allegation that he was assaulted on 23/01/2017 as the Constables realized that it was action of the Anti-Corruption Bureau. All this record shows that P.I. Hire was very much involved in the incident. The circumstance that the police station did not handover the CCTV footage of 23/01/2017 in which P.I. Hire and the two constables were seen and P.I. Hire had said that wrong step was taken by the petitioner, needs to be kept in mind as there is clear probability that the said part of CCTV footage was deleted. Unfortunately, A.C.B. did not take steps to retrieve the said recording, CCTV footage. The reason given that the pin of DVR was loose , is not believable.24. There are statements of some Police Constables in the papers of investigation showing that it was informed to them that there was allegation of rape against the present petitioner and so he was brought to the police station. If there was merely complaint of rape given by the lady on 12/01/2017, in the ordinary course, P.I. Hire would have registered the crime for offence punishable U/S. 376 of I.P.C. The material collected shows that there was some objectionable material in the mobile phone of the petitioner and the lady was insisting to see that said material is deleted. Apparently, she had no other grievance but the record was created to show that she had made allegations of rape. It will be duty of the Trial Court to ascertain as to whether there was really allegation of rape but the fact remains that the matter was shown to be closed as per the papers which are available in the file and this circumstance can be used against P.I. Hire and two Constables. Extracting money from persons by giving threat of false implication is also an offence of extortion. Separate provision like provision of Section 388 of I.P.C. is there. It needs to be kept in mind that the two constables had no power to investigate the offence registered U/S. 376 of I.P.C. as per the procedure given in the Police Act and so P.I. Hire cannot come out of the aforesaid matter. At present, prima-facie, inference is easy that everything happened as per the instructions and desire of P.I. Hire. Further, if only two Constables were involved, in ordinary course, P.I. Hire would have immediately taken action against the two Constables and he would not have absconded.25. The Investigating Officer of ACB had also formed an opinion that there was more than sufficient material to make out prima-facie case for sanction against P.I. Hire. The record shows that P.I. Hire and the two Constables were not arrested for quite some time. P.I. Hire was granted anticipatory bail by the learned Addl. Sessions Judge/Special Court created under the Prevention of Corruption Act. The crime came to be registered on 06/11/2017, very late and it shows that for some time the Anti Corruption Bureau also tried to protect these persons. The Police Constables were arrested on 07/11/2017. All these circumstances show that there was positive attempt to give protection to these three persons. There is allegation of the petitioner that the police machinery was protecting the three persons. He had taken many steps and he had approached the other authorities. These circumstances also need to be kept in mind to ascertain as to why sanction is not given to prosecute P.I. Hire under the Prevention of Corruption Act.26. The order of refusal of the sanction is as under :“I have gone through the proposal sent by the A.C.B. with regard to grant of sanction to prosecute Baliram Vithal Hire, then Police Inspector, Kiran Pandurang Thakare, the Police Naik, B.No. 269 and Kailas Narayan Ingle, then Police Naik, B.No. 1439, then attached to P.S. Yaval Dist. Jalgaon, for an offence punishable u/s. 7 of the Prevention of Corruption Act, r/w section 201 of the I.P.C., r/w section 66 of the Information Technology Act.Having gone through the papers of investigation and after applying my mind it has transpired that:(a) During verification, there is no alleged demand of bribe amount and acceptance of it by the P.I. Hire(b) At the time of alleged demand of bribe amount, there is conversation of both P.Ns. Ingle and Thakare, but there is no such conversation of then P.I. Hire.(c) Alleged demand of bribe amount was made by both the P.Ns. at the residence of P.N. Ingle.(d) A.C.B. had sent voice sample of both the P.Ns. to the F.S.L., and report shows it is matching. A.C.B. did not send voice of then P.I. Hire to the F.S.L.(e) Date of complaint is 23.1.2017 and F.I.R. has been registered on 6.11.17, there is no reason given for inordinate delay in registration of F.I.R.In the light of above mentioned factual position, in my view prima facie there is inadequate evidence, for grant of sanction in respect of the P.I. Hire, hence sanction in respect of P.I. Hire is declined, ……”The aforesaid order of sanction shows that the material mentioned by this Court in this decision is not at at all touched by the learned Director General of Police. Surprisingly, circumstance of late registration of the crime is considered in favour of P.I. Hire when everybody was trying to protect all these three persons.27. The learned Senior Counsel for the petitioner placed reliance on the observations made by the Apex Court in various cases. He submitted that order of rejection of sanction needs to be set aside as there is more than sufficient material to make out prima-facie case against P.I. Hire. He submitted that when the offence punishable under the Indian Penal Code is also committed there was no reason for not taking further action. He submitted that it appears that some false record was also created and that offence also can be considered under the Provisions of the Indian Penal Code. He submitted that in view of the nature of the offence committed under the Indian Penal Code, there was no necessity of sanction U/S. 197 of the Criminal Procedure Code and this point is not touched by the competent authority. He placed reliance on the observations made by the Apex Court in the following cases:1. Mansukhlal Vithaldas Chauhan Vs. State of Gujarat {(1997) 7 Supreme Court Cases 6222. Union of India and another Vs. S.B. Vohra and others {(2004) 2 Supreme Court Cases 150}3. Guruviah Vs. State r

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eprsented by Inspector of Police{(2019) 8 Supreme Court Cases 396}4. Inspector of Police and another Vs. Battenapatla Venkata Ratnam and another {(2015) 13 Supreme Court Cases 87}5. Essar Teleholdings Ltd. V. Delhi High Court {(2013) 8 SCC 1}6. S. Satyanarayana Vs, Energo Masch Power Engineering and Consulting Private Limited and others {(2015) 13 Supreme Court Cases 1, and7. HCL Infosystem Limited Vs. Central Bureau of Investigation {(2016) 9 Supreme Court Cases 281}28. The aforesaid material shows that there is sufficient material for going against P.I. Hire for offence punishable U/S. 7 of the Prevention of Corruption Act. Even if it is presumed that subsequently there was no work pending with P.I. Hire, the provision of section 13(1)(b) read with Section 13(2) of the P.C. Act can be used. The same authority gave sanction to prosecute two Constables and due to the material mentioned above it is difficult to digest that P.I. Hire was not involved in the said matter. No other reasons are given for refusal of sanction. This Court holds that when there is refusal of sanction, the order needs to be reasoned one. If reasons are not given, society will loose faith in the judicial system. In view of the nature of the powers which are required to be exercised by the competent authority, which is a statutory, this Court holds that this Court has jurisdiction to set aside the order under challenge. It needs to be kept in mind that the authority is expected to act upon the material and if the material makes out prima facie case, giving of sanction cannot be avoided. It also needs to be kept in mind that the sanction and its procedure is not there to shield the guilty. This Court holds that the matter needs to be remanded back to the authority as only after remitting the matter back, the authority will realize as to what it has done. The authority needs to consider the provisions of the Evidence Act for considering the material. If the authority is not in a position to ascertain which provisions of the Evidence Act are applicable, it is always open to the authority to take legal advice. In the result, the following order.ORDERI. The petition is allowed. Relief of Prayer Clause for quashing and setting aside the order dated 5th October 2020 of Sanctioning Authority – the Director General Police, by which the sanction is refused by him to prosecute Police Inspector Hire, is hereby granted. The matter is remanded back to the Director General of Police for reconsideration for according the sanction to prosecute P.I. Hire.II. Rule made absolute in those terms.
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