Bombay High Court
Satish S/O Mahadeorao Uke vs The State Of Maharashtra, Thr. Deputy ... on 21 August, 2021
Author: Amit B. Borkar
Bench: V.M. Deshpande, Amit B. Borkar
Judgment 1 wp597.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 597/2021
Satish S/o Mahadeorao Uke,
Aged about 45 years, Occ. Legal Practitioner,
R/o. Parvatinagar, Nagpur
Nagpur
.... PETITIONER
// VERSUS //
1] State of Maharashtra,
Through Deputy Commissioner of Police,
Zone-4, Nagpur
2] The Police Station Officer,
Police Station, Ajni, Nagpur
.... RESPONDENT(S)
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Shri Satish M. Uke - Petitioner-in-person
Shri T.A. Mirza, APP for the respondents/State
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CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.
AUGUST 21, 2021
JUDGMENT :(PER:- AMIT B. BORKAR, J.) 1] RULE. Rule made returnable forthwith.
2] By this petition under Article 226 of the Constitution of India, the petitioner is seeking a direction to the respondents to take a complaint dated 10/08/2021 into consideration as early as possible as per the provisions of the Code of Criminal Procedure. The petitioner is a resident of Nagpur and ANSARI ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 12:31:04 ::: Judgment 2 wp597.21.odt is working as Legal Practitioner. The case of the petitioner is that he on 10/08/2021 filed a complaint before the respondents disclosing cognizable offence alleging that Shri Devendra Fadnavis team stole the digital copy of the Criminal Writ Petition No. 350/2021 and its annexures from the mobile phone of the petitioner by using Israel Spyware Technology and on the said basis prepared the Intervention Application No. 82/2021 in Criminal Writ Petition No. 350/2021 and filed before this Court. It is stated that the stolen copy of the Criminal Writ Petition No. 350/2021 is available with them in various forms and on the basis of the said evidence, investigation can be done by use of reverse engineering technique. It is stated that the respondents have not taken any action on the complaint filed by the petitioner on 10/08/2021. The petitioner has stated in his petition that though in the complaint dated 10/08/2021 he has referred to the earlier complaints dated 23/05/2021 and 29/07/2021 but those complaints are not the issue in the instant petition and are submitted only to explain the background circumstances for occurrence of the incident alleged in the present petition regarding illegal use of Israel Spyware Technology.
3] At this stage, it is necessary to mention that the petitioner had earlier filed Criminal Writ Petition No. 482/2021 seeking a direction to investigate into the complaint filed by him on 05/07/2021 against Shri Devendra Fadnavis and his associates on the ground that Shri Devendra Fadnavis and his associates had obtained photo copy of Criminal Writ Petition ANSARI ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 12:31:04 ::: Judgment 3 wp597.21.odt No. 350/2021 from the Office of Public Prosecutor, High Court of Bombay, Bench at Nagpur. This Court while dismissing the said petition had culled out the gist of allegations in the complaint of the petitioner dated 05/07/2021 which are as under :-
"a) Petitioner had supplied four copies of Criminal W.P. No. 350/2021 in the Office of Government Pleader, Bombay High Court, Bench Nagpur for respondents in the said petition.
b) The intervention applicant through his secret agent got information about the said copies and thereafter intervention applicant sent his agent to the person giving information about those copies and illegally sought copies of the said documents by committing theft or sought scanned copy of the petition or sought photographs on mobile and said that the copies were supplied to the intervention applicant by secret supporter by committing theft.
c) By using the said copies of petition, the intervention applicant has filed Criminal Application No. 82/2021 in Criminal W.P. No. 350/2021 seeking permission to intervene in the said proceedings before this court.
d) The above facts show that the intervention applicant has committed theft.
e) It is therefore necessary to investigate role of the intervention applicant and his associates as to how they got copies of the above documents."
4] This Court while dismissing the said petition held that the petitioner had not alleged that there was a wrongful gain to the intervention applicant nor wrongful loss to the petitioner or the Office of Government Pleader to fulfill the ingredients of theft under Section 378 of the Indian Penal ANSARI ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 12:31:04 ::: Judgment 4 wp597.21.odt Code. It is also held that the only allegation of the petitioner is that the documents were unauthorizedly obtained from the Office of Government Pleader. It is also held that merely because the intervention applicant had used the copies of the documents in judicial proceedings, it cannot be said that the intervention applicant has removed the documents with dishonest intention. It is also held that the copies of the documents are produced in support of the case of the intervention applicant to enable the Court to effectively adjudicate the rights of the intervention applicant in a judicial proceedings involving alleged commission of the offence, and therefore in absence of dishonest intention on the part of the intervention applicant causing wrongful loss to the petitioner or to the Office of Government Pleader and getting wrongful gain to himself, the essential ingredients of offence of theft are not fulfilled. This Court therefore held that the complaint dated 05/07/2021 filed by the petitioner does not disclose any cognizable offence nor there is necessity of conducting any enquiry to ascertain whether the cognizable offence is disclosed or not. It appears that after passing the order of dismissal of the petition filed by the petitioner, the respondent no. 2 on 02/08/2021disposed of the complaint of the petitioner referred above.
5] The petitioner thereafter filed the application under the provisions of the Right To Information Act in the Office of Government Pleader, High Court of Bombay, Bench at Nagpur and the Office of Deputy Commissioner of Police, Zone - 1, Nagpur. Both the Authorities by ANSARI ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 12:31:04 ::: Judgment 5 wp597.21.odt communications dated 30/07/2021 and 07/08/2021 communicated to the petitioner that they have not supplied the copy of the Criminal Writ Petition No. 350/2021 either to Shri Devendra Fadnavis or his associates. 6] The petitioner has now filed an information under Section 154 of the Code of Criminal Procedure which is annexed to the present petition at Annexure - 4. The said information is received by the respondent no. 2 on 10/08/2021. The petitioner in the said information has referred to his complaints dated 23/05/2021 and 29/07/2021 as a historical fact. The substance of the complaint dated 10/08/2021 filed by the petitioner is to the effect that Shri Devendra Fadnavis team by using Israel Spyware Technology has committed theft of copy of Criminal Writ Petition No. 350/2021 from the mobile phone of the petitioner. It is stated that the said fact is clear in view of the reply provided by the Office of Government Pleader and the Office of Deputy Commissioner of Police, Zone - 1, Nagpur. The petitioner has also prayed for investigation into the information provided by the petitioner under Section 154 of the Code of Criminal Procedure. It is alleged that in view of inaction on the part of respondents to take cognizance of the aforesaid information, the petitioner has filed present petition. 7] We have carefully scrutinized the averments in the present petition and the annexures of it including Annexure - 4. Undisputedly, the petitioner on 05/07/2021 had made similar allegations against Shri Devendra ANSARI ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 12:31:04 ::: Judgment 6 wp597.21.odt Fadnavis and his associates save and except the difference that in the present complaint, the petitioner has alleged that Shri Devendra Fadnavis team has committed theft of copy of Criminal Writ Petition No. 350/2021 by using Israel Spyware Technology but in the complaint dated 05/07/2021, it was alleged that Shri Devendra Fadnavis and his associates had obtained copy of Criminal Writ Petition No. 350/2021 from the Office of Public Prosecutor, High Court of Bombay, Bench at Nagpur.
8] The issue which arises for consideration for this Court in the present case is whether second complaint by the same complainant against the same accused is maintainable in view of the fact that the earlier complaint was dismissed on merits by this Court on the ground that it doesn't disclose cognizable offence. To decide the issue involved, it is necessary to consider the provisions of Section 154 of the Code of Criminal Procedure which reads as under :-
"154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
ANSARI ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 12:31:04 ::: Judgment 7 wp597.21.odt (2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant. (3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."
9] On plain reading of Sections 154 of the Code of Criminal Procedure, it is clear that there cannot be more than one first information report about an incident. The opening words of Section 154 of the Code of Criminal Procedure indicate that every information in relation to commission of cognizable offence shall be reduced into writing by the Officer-in-Charge of the Police Station. It means that there has to be first information report about an incident which constitute a cognizable offence. At this stage, it is necessary to consider the judgment of the Hon'ble Supreme Court in the case of T.T. Antony vs. State of Kerala reported in (2001) 6 SCC 181 wherein the Hon'ble Supreme Court has held that the second complaint in regard to the same incident by giving different version is not maintainable. It is held that the Officer-In-Charge of the Police Station has to commence investigation as ANSARI ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 12:31:04 ::: Judgment 8 wp597.21.odt provided under Section 156 or 157 of the Code of Criminal Procedure on the basis of entry of first information report and on completion of the investigation and on the basis of evidence collected, the Investigating Officer has to form opinion under Section 169 or 170 of the Code of Criminal Procedure. It is held that even after filing of the report under Section 173(2) of the Code of Criminal Procedure, if the Investigating Officer comes into possession of further information or material, he need not register a fresh first information report, but he is obliged to forward the same under Sub-Section (8) of Section 173 of the Code of Criminal Procedure. It would clearly be beyond the purview of Sections 154 and 156 of the Code of Criminal Procedure, nay, a case of abuse of the statutory power of investigation in a given case. It is held that a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Code of Criminal Procedure or under Articles 226/227 of the Constitution of India.
10] On examination of the ingredients of the complaint dated 05/07/2021 and complaint dated 10/08/2021, it appears that second complaint dated 10/08/2021 is about the same incident based upon same facts ANSARI ::: Uploaded on - 25/08/2021 ::: Downloaded on - 08/10/2021 12:31:04 ::: Judgment 9 wp597.21.odt with only difference regarding procurement of copy of Criminal Writ Petition No. 350/2021. This Court while dismissing the Criminal Writ Petition No. 482/2021 has adjudicated on merits that the ingredients of information under Section 154 of the Code of Criminal Procedure contained in complaint dated 05/07/2021 does not disclose cognizable offence. It is undisputed that the information contained in the complaint dated 10/08/2021 is in relation to the same incident alleged in the complaint dated 05/07/2021. Therefore, in our view, the petitioner has no right to seek investigation into the information under Section 154 filed by him by complaint dated 10/08/2021 by changing the manner of obtaining the copy since the ingredients of the complaint dated 05/07/2021 are similar arising out of same incident. The finding of absence of wrongful gain to the intervention applicant therein and wrongful loss to the petitioner will still apply with full force. Therefore, in our opinion, as alleged in the information dated 10/08/2021 under Section 154 of the Code of Criminal Procedure, the ingredients of the offence under Section 378 of the Indian Penal Code are not fulfilled. We therefore are of the view that there is no necessity of holding enquiry into the complaint dated 10/08/2021 filed by the petitioner.
11] There is no merit in the petition and the same is dismissed. Rule is discharged. Pending application(s), if any, stand(s) disposed of.
(JUDGE) (JUDGE)
ANSARI
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