It is the contention of learned counsel for the Appellant that the
complainant has not named the Appellant in the First Information Report
and the complainant in her supplementary statement has named him with
a specific role. Therefore it is contended that adding his name
subsequently by the complainant is an after thought. In this background
we have scrutinized the First Information Report given by the complainant
and we find that it is true that the name of the Appellant does not figure in
the First Information Report. The First Information Report is dated 14
March 2012. However, it is pertinent to note here that in her
supplementary statement dated 16 March 2012 the complainant has
specifically stated that the Appellant pulled out the deceased i.e. Anwar
Shaikh, the husband of the complainant, from the car and inflicted blows
with sickle on him.
9. At this juncture, we may observe that it cannot be expected from a
witness who was hovering under the impact / shock of a ghastly incident,
to give each and every minute details when he or she is suffering from the
said trauma. It is only after the witness comes out of the trauma which
he / she has suffered, it is possible for him / her to recapitulate the details
of the incident and to give a detailed account of the incident. It is the
settled position of law that FIR is not an encyclopedia of all the facts
pertaining to a crime and therefore non-appearance of the name of one of
the accused persons at the time of lodging of FIR does not vitiate the
same, neither an inference can be drawn out of the said omission that the
said accused person had not participated at all in the crime. We,
therefore, do not find that the appearance of the name in the
supplementary statement is an after thought at the instance of the
complainant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.12 OF 2014
Farman Imran Shah @ Karu
versus
State of Maharashtra,
CORAM : P.V. HARDAS, AND
A.S. GADKARI, JJ.
Judgment pronounced on : 25 March 2014.
Read original judgment here;click here
This Appeal has been preferred by the Appellant under Section 12 of
the Maharashtra Control of Organized Crime Act, 1999 ('MCOC Act' for
brevity) thereby challenging the order passed by the Learned Special
Judge, Pune under the MCOC Act, below Exhibit 4 in MCOCA Special
Case No.7 of 2012, thereby rejecting his application preferred under
Section 227 of the Code of Criminal Procedure for discharge. The
Appellant questions the correctness of the said order dated 4 March 2013
passed below Exhibit 4 in Special case No.7 of 2012. The Appellant has
challenged the said order mainly on two grounds i.e. (i) that there is no
material at all on record for framing a charge against him and (ii) there is a
total non application of mind of the competent authorities while granting
prior approval as contemplated under Section 23(1)(a) and sanction as
contemplated under Section 23(2) of the MCOC Act.
2. It appears from the record that the complainant Smt. Parvin Anwar
Shaikh has lodged a First Information Report at Kondhwa Police Station
on 14 March 2012 stating that on 13 March 2012 at about 10.30 p.m.
when she was proceeding with her husband in a Santro car, accused
Matin Rafique Shaikh and Nadir Munir Sayyed obstructed their way on a
motorcycle on which the said accused persons were riding and at that time
other accused persons immediately came thereon and encircled their car.
One of the accused persons hurled a stone on the glass at the driver's
side, the other persons also damaged the car and the accused persons
opened the door of the car, pulled out her husband and severely assaulted
him. The complainant has further stated that because of the said incident,
she was frightened and started screaming. That when she was shouting
for the help, some of her relatives and her son came there and they took
the husband of the complainant i.e. Anwar Shaikh to Hospital wherein the
said Anwar Shaikh succumbed to the injuries while undergoing medical
treatment. It further appears from the record that initially an offence under
Sections 143, 147, 148, 149, 302, 341 and 427 of the Indian Penal Code
read with Sections 3(25) of the Indian Arms Act was registered bearing
CR. No.40 of 2012 dated 14 February 2012. It also appears from the
record that during the course of investigation it was revealed that the said
crime was committed by the Organized Crime Syndicate of Mohasin @
Guddu Anwar Shaikh and his associates. It further appears from the
record that on 22 May 2012 Deputy Inspector General of Police and
Additional Commissioner of Police, Southern region, Pune city granted
prior approval on the basis of the report submitted by the Senior Police
Inspector, Kondhwa Police Station for invoking the provisions of the
MCOC Act to be applied to CR No.40 of 2012 originally registered at
Kondhwa Police Station and the investigation of the said crime after
invoking the provisions of the MCOC Act, was handed over to Mr.V.T.
Pawar, Assistant Police Commissioner, Wanvadi Division. That after
completion of the investigation, the competent authority. i.e. the Additional
Director General of Police and the Commissioner of Police, Pune city
accorded sanction as contemplated under Section 23(2) of the MCOC Act
by his order dated 27 August 2012. That the Appellant is arraigned as an
accused No.12 in the said sanction order dated 27 August 2012 and
Mohasin @ Guddu Anwar Shaikh has been named as the head of the
crime syndicate as accused No.1. The said sanction has been accorded
against 13 persons and two absconding accused persons. It further
appears from the documents annexed to the present Appeal that a chargesheet
has been filed on 3 September 2012 before the Special Court under
the MCOC Act under Sections 302, 341, 427, 120(b), 143, 147, 148, 149
of the Indian Penal Code and under Sections 3, 4(25) of the Indian Arms
Act and under Section 3(1)(i), 3(1)(ii), 3(2), 3(4) of the MCOC Act.
3. The present Appellant who has been arraigned as accused No.12
as per the sanction order, had filed the application under Section 227 of
the Code of Criminal Procedure for his discharge from the present case,
below Exhibit 4 in MCOCA Special Case No.7 of 2012 on the grounds as
stated herein above i.e. that there was no material at all for framing the
charge against him and that the competent authorities as contemplated
under Section 23 of the MCOC Act failed to apply their mind while initially
granting prior approval and subsequently according sanction in the present
case.
4. Before we proceed to deal with the contentions raised by learned
counsel for the Appellant Mr. J. Shekhar and the learned Additional Public
Prosecutor, it would be useful to refer to the judgments of the Hon'ble
Supreme Court and our High Court in respect of the scope of the enquiry
to be conducted by the Court under Section 227 of the Code of Criminal
Procedure at the time of framing of charge.
5. A useful reference can be made to the judgment of the Hon’ble
Supreme Court in the case of Union of India v. Prafulla Kumar Samal,
reported in AIR 1979 SC 366. It is necessary and useful to refer to
paragraph 10 of the said judgment which reads as under :
“10.Thus, on a consideration of the authorities mentioned
above, the following principles emerge:
(1) That the Judge while considering the question of
framing the charges under section 227 of the Code has the
undoubted power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out:
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained the Court will be, fully justified in framing
a charge and proceeding with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is difficult
to lay down a rule of universal application. By and large
however if two views are equally possible and the Judge is
satisfied that the evidence produced before him while
giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his right to
discharge the accused.
(4) That in exercising his jurisdiction under section 227 of
the Code the Judge which under the present Code is a
senior and experienced Judge cannot act merely as a Post
office or a mouth-piece of the prosecution, but has to
consider the broad probabilities of the case, the total effect of
the evidence and the documents produced before the Court,
any basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.”
6. A useful reference can also be made to a judgment of the Division
Bench of this Court in the case of Govind Sakharam Ubhe v. State of
Maharashtra reported in 2009 ALL M.R. (Cri.) 1903 wherein at paragraph
25 the Division Bench of this Court has held thus :
“25. The principles laid down by the Supreme Court in the
above cases need to be summarized. It is settled law that at
the stage of Section 227 of the Code, the court has power to
sift the materials collected by the prosecution to find out
whether there is prima facie case against the accused or not.
The court has to be satisfied that there is ground for
presuming that the accused has committed the offence or that
there is no sufficient ground for proceeding against him. The
Court's enquiry must not be directed to find out whether the
case will end in conviction. However, though roving enquiry is
not permissible, the court can consider whether the material
collected by the prosecution if accepted as it is without being
subjected to cross-examination gives rise to strong and grave
suspicion for presuming that the accused has committed the
offence and that unrebutted material will lead to a conviction.
If at the stage of Section 227 or Section 228, the scales as to
the guilt or innocence of the accused are even then the court
must proceed to frame a charge. There is no question of
giving benefit of doubt to the accused and discharge the
accused at that stage because the scales are even. That can
be done only at the conclusion of trial. If there is a strong
suspicion which leads the court to think that there is a ground
for presuming that the accused has committed an offence,
then the court will proceed to frame the charge. But if two
views are possible and the court is satisfied that the evidence
gives rise to some suspicion but not grave suspicion against
the accused, the court will be within its right to discharge the
accused. Suspicion has to be strong and grave suspicion
leading the court to presume that the accused has committed
an offence. While basic infirmities and broad probabilities can
be considered, the court cannot make a roving enquiry into
the pros and cons of the matter and weigh the evidence as if it
is conducting a trial. Probative value of the material cannot be
gone into at that stage.”
7. It is necessary to mention here that while enumerating the settled
position of law as contemplated under Section 227 of the Criminal
Procedure Code, the Division Bench of this Court in the aforesaid
judgment, after taking into consideration the legal propositions laid down
by the Hon'ble Supreme Court in the case of Dilawar Balu Kurane v.
State of Maharashtra - (2002) 2 SCC 135, State of Bihar v. Ramesh
Singh - AIR 1977 SC 2010, State of Maharashtra v. Priya Sharan
Maharaj - (1997) 4 SCC 393, Union of India v. Prafulla Kumar Samal -
AIR 1979 SC 766, Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Anil Bhunja - AIR 1980 SC 52, Niranjan Singh Karam
Singh Punjabi v. Jitendra Bijja - AIR 1990 SC 1962 and State of
Maharashtra v. Som Nath Thapa - (1996) 4 SCC 659, has culled out the
aforesaid principles as mentioned in paragraph 25 in the case of Govind
Ubhe (supra). A further reference may also usefully be made to the
judgment of the Hon’ble Supreme Court in the case of State of
Maharashtra v. Som Nath Thapa - (1996) 4 SCC 659 wherein the
Supreme Court has held that if there is a ground for presuming that the
accused has committed the offence, it can be said that a prima facie case
has been made out against the accused. It has been further held that
even if the Court finds that the accused might have committed the
offence, it can frame the charges. The Supreme Court in the said case
has clarified that at the stage of framing of charge, probative value of the
materials on record cannot be gone into. In that background we propose
to deal with the material which has been produced and relied upon by the
prosecution against the Appellant.
8. It is the contention of learned counsel for the Appellant that the
complainant has not named the Appellant in the First Information Report
and the complainant in her supplementary statement has named him with
a specific role. Therefore it is contended that adding his name
subsequently by the complainant is an after thought. In this background
we have scrutinized the First Information Report given by the complainant
and we find that it is true that the name of the Appellant does not figure in
the First Information Report. The First Information Report is dated 14
March 2012. However, it is pertinent to note here that in her
supplementary statement dated 16 March 2012 the complainant has
specifically stated that the Appellant pulled out the deceased i.e. Anwar
Shaikh, the husband of the complainant, from the car and inflicted blows
with sickle on him.
9. At this juncture, we may observe that it cannot be expected from a
witness who was hovering under the impact / shock of a ghastly incident,
to give each and every minute details when he or she is suffering from the
said trauma. It is only after the witness comes out of the trauma which
he / she has suffered, it is possible for him / her to recapitulate the details
of the incident and to give a detailed account of the incident. It is the
settled position of law that FIR is not an encyclopedia of all the facts
pertaining to a crime and therefore non-appearance of the name of one of
the accused persons at the time of lodging of FIR does not vitiate the
same, neither an inference can be drawn out of the said omission that the
said accused person had not participated at all in the crime. We,
therefore, do not find that the appearance of the name in the
supplementary statement is an after thought at the instance of the
complainant.
10. This takes us to scrutinize the material in the form of statements of
witnesses available on record which describes the role played by the
Appellant in commission of the present crime. The witness at page No.
238 of the compilation (identity concealed) has stated that on 13 March
2012 at about 10.30 p.m., he was following car of deceased Anwar Shaikh
and his wife i.e. the complainant, who were passing through Knodhwa. At
that time speed of the santro car was lowered down because of the
speed breaker which was in front of Parmar Pawan. At the said time all of
a sudden, two motorcycles from both the sides of the said car overtook it,
when he observed that accused Matin Shaikh and Nadir Sayyed
obstructed / halted the said car by putting their motorcycles in front of it.
He has further stated that accused Anwar Shaikh, Rafiqe Shaikh, Imran
Chikki, Atul Pawar, Tausif Shaikh, Zuber Shaikh, Mohasin Shaikh,
Shanawaz Shaikh, Alim Jamadar, Farman Shah (i.e. the present
Appellant), Afzal Sayyed, Munir Sayyed and Khalid Sundke encircled the
said car. The said persons were holding sickles and choppers in their
hand. Accused Nadir Shaikh was having a pistol in his hand. That Tausif
Shaikh hurled a stone on the said car. That accused Nadir fired at the
direction of deceased Anwar Shaikh. He has further stated that the
present Appellant i.e. Farman Shah along with other accused persons
pulled out Anwar Shaikh from the car and the present Appellant along with
Mohasin Shaikh, Imran Shaikh, Shahnawaz Shaikh, Atul Pawar, Khalid
Sundke, Afzal Sayyed, Zuber Shaikh, Matin Shaikh, Tausif Shaikh,
Rafique Shaikh and Munir Sayyed gave blows of sickle and chopper on
deceased Anwar Shaikh. He has stated that accused Nadir fired a bullet
from his pistol and accused Alim lifted a stone lying near the electric pole
and hurled it on the head of deceased Anwar Shaikh.
11. The witnesses whose statements are recorded at pages 240, 242,
496 and 501 of the compilation (identity of the witnesses is concealed)
have stated about the fact of incident dated 13 March 2012, wherein
deceased Anwar Shaikh was brutally murdered by the Appellant along with
other persons, in the same or similar manner as has been stated by the
witness at page 238. The other four witnesses i.e. witnesses at page
Nos.240, 242, 498 and 501 have also in detail described the role played
by the Appellant in commission of the aforesaid crime.
12. Thus, the witness at page Nos.238, 240, 242, 498 and 501 have in
detail stated about the active role played by the Appellant while committing
the crime. From the material which is in the form of statements of the
various witnesses on record, prima facie, it is very clear that the Appellant
in commission of the present crime has played a vital role i.e. to say that
he had taken active part in pulling out the deceased from the car and
thereafter inflicting blows with sickle on him. Thus, in our considered
opinion, there is a strong prima facie case against the Appellant to frame a
charge as contemplated under Section 228 of the Code of Criminal
Procedure, under Sections 302, 341, 427, 120(b), 143, 147, 148, 149 of
the Indian Penal Code and under Sections 3, 4(25) of the Indian Arms Act
and under Section 3(1)(i), 3(1)(ii), 3(2), 3(4) of the MCOC Act.
13. Learned counsel for the Appellant has placed reliance on a catena
of judgments in support of his contentions, which are :
i] State of Bihar v. P.P. Sharma, IAS – (1992) Supp (1) SCC 222.
ii] Dilawar Balu Kurane v. State of Maharashtra – (2002) 2 SCC 135.
iii] Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra – (2008)
10 SCC 394.
iv] Amit Kapoor v. Ramesh Chander – (2012) 9 SCC 460.
v] Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra – (2005)
5 SCC 294.
vi] Sherbahadur Akram Khan v. State of Maharashtra – (2007) (1)
Bom.C.R. (Cri.) 26.
vii] State of Maharashtra v. Rahul Ramchandra Taru – Criminal Appeal
No.239 of 2011.
viii] State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya –
Criminal Appeal No.20 of 2011.
14. The aforesaid judgments relied upon by the learned counsel for the
Appellant can be classified into two broad categories i.e. scope of Section
227 of the Code of Criminal Procedure and the aspect of application of
mind by the competent authority while granting prior approval and
according sanction under Section 23 of the MCOC Act.
15. The learned Additional Public Prosecutor on the other hand has
placed reliance upon the judgments in case of Govind Sakharam Ubhe v.
State of Maharashtra reported in 2009 ALL M.R. (Cri.) 1903 and in case
of Anil Sadashiv Nanduskar v. State of Maharashtra reported in
2008(3) Mah LJ. (Cri.) 650 [2008(12) L.J.SOFT 156].
16. The Division Bench of this Court in the case of Govind Ubhe
(supra) after taking into consideration the law laid down by the Hon'ble
Supreme Court in the cases of Dilawar Balu Kurane v. State of
Maharashtra - (2002) 2 SCC 135 and Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra – 2005 ALL MR (Cri) 1538 so also in
the case of Union of India v. Prafulla Kumar Samal – AIR 1979 SC 366
has formulated the scope of Section 227 of the Code of Criminal
Procedure in its paragraph 25, as has been stated herein above.
17. This takes us to the second limb of the argument advanced by
learned counsel for the Appellant. It is contended by learned counsel for
the Appellant that the authorities while issuing prior approval and
subsequently granting sanction as contemplated under Sections 23(1)(a)
and 23(2) respectively of the MCOC Act, have not applied its mind
properly. That the sanction in the present case ought not to have been
granted at all. It was further contended that the application of the
provisions of the MCOC Act to the present case is unwarranted. Learned
counsel appearing for the Appellant in support of its contention has relied
on the authorities reported in case of State of Bihar v. P.P. Sharma
reported in (1992) Supp (1) SCC 222 and in case of Sherbahadur Akram
Khan v. State of Maharashtra reported in (2007) (1) Bom.C.R. (Cri) 26.
At this juncture, a useful reference can be made to a judgment delivered
by the Division Bench of this Court in case of Anil Nanduskar v. State of
Maharashtra – 2008 (12) LJSOFT 156.
18. The Division Bench of this Court in the case of Anil Nanduskar v.
State of Maharashtra – 2008(12) LJSOFT 156, after taking into
consideration the law laid down by the Hon’ble Supreme Court in case of
State of Bihar v. P.P.Sharma reported in (1992) Supp (1) SCC 222 and
after considering the judgment of the Division Bench of this Court in case
of Sherbahadur Akram Khan v. State of Maharashtra reported in
(2007) (1) Bom.C.R. (Cri) 26, has in paragraphs 13 and 24 observed
thus :
“ 13. The settled law by a catena of decisions of the Apex
Court is to the effect that it is desirable that every order
whether the approval or sanction it should speak for itself, i.e.
ex-facie it should disclose consideration of the materials
placed before it and application of mind thereto. However,
failure to reproduce or refer those recitals in the resolution or
order itself would not render the order of approval or sanction
to be invalid unless the prosecution fails to establish by
leading evidence that all the materials necessary for the grant
of approval or sanction were placed before the concerned
authority for due application of mind by such authority before
the grant of approval and or sanction. It apparently discloses
that question of validity of approval or sanction cannot be
decided unless the prosecution is afforded opportunity to lead
evidence in that regard. Undoubtedly, an accused desiring to
raise objection regarding the defects in such approval or
sanction, or grant, he can raise such objection; however, for
conclusive decision on the said point the accused has to wait
till the trial is complete and on that ground he cannot insist for
discharge unless the objection relates to inherent lack of
jurisdiction to the concerned authority to grant sanction or
approval and such issue can be decided on undisputed facts.
The law being well settled to the effect that the prosecution in
a case where sanction or the approval order does not ex-facie
show consideration of all the materials and/or application of
mind, is entitled to establish the same by leading necessary
evidence regarding production of materials before the
concerned authority, the question of discharge of accused
merely on the basis of such objection being raised cannot
arise. The decision on the point of defect, if any, in the order of
approval or sanction will have to be at the conclusion of the
trial.”
…....
“ 24. The contention that the order of approval or order of
sanction should disclose consideration of material qua each of
the accused sought to be prosecuted is devoid of substance.
That is not the import of section 23 of MCOC Act. Section
23(1)(a) as well as section 23(2) with reference to approval
and sanction speaks of commission of offence and
cognizance of the offence. In fact the law on this aspect is
also well settled and reiterated by the Apex Court in Dilawar
Singh’s case (supra) itself. It was held therein that, court
takes cognizance of offence and not of an offender when a
Magistrate takes cognizance of an offence, under Section 190
Cr.P.C. Undoubtedly, it was also held that it was necessary for
the Sanctioning Authority to take note of the persons against
whom the sanction is sought to be granted. However, those
were the requirement under Section 19 of the Prevention of
Corruption Act. The said section specifically requires sanction
with reference to a particular person. That is not the case
under section 23 either in relation to the approval or in relation
to the sanction. As already seen above section 23(1)(a) of
MCOC Act speaks of approval for recording of information
about commission of offence of organized crime under MCOC
Act, whereas sanction is for initiating proceeding for the
offence under MCOC Act. The sanction order or the approval
order on the face of it need not speak of the individual role of
each of the accused. Being so, contention that the order of
approval or sanction should reveal consideration of the overt
acts or otherwise of each of the accused while granting
approval or sanction is totally devoid of substance. Of course,
the involvement in organized crime of each of the persons
sought to be prosecuted should necessarily be considered by
the concerned authority before the grant of approval or
sanction, but need not be specifically stated in the order and
the consideration thereof can be established in the course of
trial.
19. We have perused the prior approval granted by the competent
authority under Section 23(1)(a) of the MCOC Act which is at page 60 of
the compilation, so also the order according sanction under Section 23(2)
of the MCOC Act which is at page No.26 of the compilation. We have
noticed that the competent authority has recorded its subjective
satisfaction while granting prior approval and according sanction in the
present matter. We therefore hereby, while following the ratio laid down in
the case of Anil Nanduskar (supra), hold that the prosecution has to be
afforded an opportunity to lead evidence with regard to the subjective
satisfaction recorded by the competent authority by leading evidence at
the time of trial. As has been held in the case of Anil Nanduskar (supra),
undoubtedly, an accused desiring to raise objection regarding the defects
in such approval or sanction, or grant, the accused can raise such
objection, however, for conclusive decision on the said point the accused
has to wait till the trial is complete and on that ground he cannot insist for
discharge unless the objection relates to inherent lack of jurisdiction of the
concerned authority to grant approval or sanction and such an issue can
be decided only on the undisputed facts on record. As has been held by us
in the foregoing paragraphs, we are satisfied that the concerned
authorities have recorded their subjective satisfaction while initially
granting prior approval and subsequently according sanction under
Section 23 of the MCOC Act in the present case and therefore the
contention of the Appellant is incorrect in that behalf.
20. After scrutinizing the entire material made available to us in the
present Appeal, we are of the firm opinion that the impugned order dated 4
March 2013 passed by the Learned Special Judge, Pune under the MCOC
Act, below Exhibit 4 in MCOCA Special Case No.7 of 2012, does not
suffer from any legal infirmity and no interference is called for with the
same. Thus, the present Appeal being sans of any merit is accordingly
dismissed with no order as to costs.
(P. V. Hardas, J.)
(A.S. Gadkari, J.)
Print Page
complainant has not named the Appellant in the First Information Report
and the complainant in her supplementary statement has named him with
a specific role. Therefore it is contended that adding his name
subsequently by the complainant is an after thought. In this background
we have scrutinized the First Information Report given by the complainant
and we find that it is true that the name of the Appellant does not figure in
the First Information Report. The First Information Report is dated 14
March 2012. However, it is pertinent to note here that in her
supplementary statement dated 16 March 2012 the complainant has
specifically stated that the Appellant pulled out the deceased i.e. Anwar
Shaikh, the husband of the complainant, from the car and inflicted blows
with sickle on him.
9. At this juncture, we may observe that it cannot be expected from a
witness who was hovering under the impact / shock of a ghastly incident,
to give each and every minute details when he or she is suffering from the
said trauma. It is only after the witness comes out of the trauma which
he / she has suffered, it is possible for him / her to recapitulate the details
of the incident and to give a detailed account of the incident. It is the
settled position of law that FIR is not an encyclopedia of all the facts
pertaining to a crime and therefore non-appearance of the name of one of
the accused persons at the time of lodging of FIR does not vitiate the
same, neither an inference can be drawn out of the said omission that the
said accused person had not participated at all in the crime. We,
therefore, do not find that the appearance of the name in the
supplementary statement is an after thought at the instance of the
complainant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.12 OF 2014
Farman Imran Shah @ Karu
versus
State of Maharashtra,
CORAM : P.V. HARDAS, AND
A.S. GADKARI, JJ.
Judgment pronounced on : 25 March 2014.
Read original judgment here;click here
This Appeal has been preferred by the Appellant under Section 12 of
the Maharashtra Control of Organized Crime Act, 1999 ('MCOC Act' for
brevity) thereby challenging the order passed by the Learned Special
Judge, Pune under the MCOC Act, below Exhibit 4 in MCOCA Special
Case No.7 of 2012, thereby rejecting his application preferred under
Section 227 of the Code of Criminal Procedure for discharge. The
Appellant questions the correctness of the said order dated 4 March 2013
passed below Exhibit 4 in Special case No.7 of 2012. The Appellant has
challenged the said order mainly on two grounds i.e. (i) that there is no
material at all on record for framing a charge against him and (ii) there is a
total non application of mind of the competent authorities while granting
prior approval as contemplated under Section 23(1)(a) and sanction as
contemplated under Section 23(2) of the MCOC Act.
2. It appears from the record that the complainant Smt. Parvin Anwar
Shaikh has lodged a First Information Report at Kondhwa Police Station
on 14 March 2012 stating that on 13 March 2012 at about 10.30 p.m.
when she was proceeding with her husband in a Santro car, accused
Matin Rafique Shaikh and Nadir Munir Sayyed obstructed their way on a
motorcycle on which the said accused persons were riding and at that time
other accused persons immediately came thereon and encircled their car.
One of the accused persons hurled a stone on the glass at the driver's
side, the other persons also damaged the car and the accused persons
opened the door of the car, pulled out her husband and severely assaulted
him. The complainant has further stated that because of the said incident,
she was frightened and started screaming. That when she was shouting
for the help, some of her relatives and her son came there and they took
the husband of the complainant i.e. Anwar Shaikh to Hospital wherein the
said Anwar Shaikh succumbed to the injuries while undergoing medical
treatment. It further appears from the record that initially an offence under
Sections 143, 147, 148, 149, 302, 341 and 427 of the Indian Penal Code
read with Sections 3(25) of the Indian Arms Act was registered bearing
CR. No.40 of 2012 dated 14 February 2012. It also appears from the
record that during the course of investigation it was revealed that the said
crime was committed by the Organized Crime Syndicate of Mohasin @
Guddu Anwar Shaikh and his associates. It further appears from the
record that on 22 May 2012 Deputy Inspector General of Police and
Additional Commissioner of Police, Southern region, Pune city granted
prior approval on the basis of the report submitted by the Senior Police
Inspector, Kondhwa Police Station for invoking the provisions of the
MCOC Act to be applied to CR No.40 of 2012 originally registered at
Kondhwa Police Station and the investigation of the said crime after
invoking the provisions of the MCOC Act, was handed over to Mr.V.T.
Pawar, Assistant Police Commissioner, Wanvadi Division. That after
completion of the investigation, the competent authority. i.e. the Additional
Director General of Police and the Commissioner of Police, Pune city
accorded sanction as contemplated under Section 23(2) of the MCOC Act
by his order dated 27 August 2012. That the Appellant is arraigned as an
accused No.12 in the said sanction order dated 27 August 2012 and
Mohasin @ Guddu Anwar Shaikh has been named as the head of the
crime syndicate as accused No.1. The said sanction has been accorded
against 13 persons and two absconding accused persons. It further
appears from the documents annexed to the present Appeal that a chargesheet
has been filed on 3 September 2012 before the Special Court under
the MCOC Act under Sections 302, 341, 427, 120(b), 143, 147, 148, 149
of the Indian Penal Code and under Sections 3, 4(25) of the Indian Arms
Act and under Section 3(1)(i), 3(1)(ii), 3(2), 3(4) of the MCOC Act.
3. The present Appellant who has been arraigned as accused No.12
as per the sanction order, had filed the application under Section 227 of
the Code of Criminal Procedure for his discharge from the present case,
below Exhibit 4 in MCOCA Special Case No.7 of 2012 on the grounds as
stated herein above i.e. that there was no material at all for framing the
charge against him and that the competent authorities as contemplated
under Section 23 of the MCOC Act failed to apply their mind while initially
granting prior approval and subsequently according sanction in the present
case.
4. Before we proceed to deal with the contentions raised by learned
counsel for the Appellant Mr. J. Shekhar and the learned Additional Public
Prosecutor, it would be useful to refer to the judgments of the Hon'ble
Supreme Court and our High Court in respect of the scope of the enquiry
to be conducted by the Court under Section 227 of the Code of Criminal
Procedure at the time of framing of charge.
5. A useful reference can be made to the judgment of the Hon’ble
Supreme Court in the case of Union of India v. Prafulla Kumar Samal,
reported in AIR 1979 SC 366. It is necessary and useful to refer to
paragraph 10 of the said judgment which reads as under :
“10.Thus, on a consideration of the authorities mentioned
above, the following principles emerge:
(1) That the Judge while considering the question of
framing the charges under section 227 of the Code has the
undoubted power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out:
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained the Court will be, fully justified in framing
a charge and proceeding with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is difficult
to lay down a rule of universal application. By and large
however if two views are equally possible and the Judge is
satisfied that the evidence produced before him while
giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his right to
discharge the accused.
(4) That in exercising his jurisdiction under section 227 of
the Code the Judge which under the present Code is a
senior and experienced Judge cannot act merely as a Post
office or a mouth-piece of the prosecution, but has to
consider the broad probabilities of the case, the total effect of
the evidence and the documents produced before the Court,
any basic infirmities appearing in the case and so on. This
however does not mean that the Judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.”
6. A useful reference can also be made to a judgment of the Division
Bench of this Court in the case of Govind Sakharam Ubhe v. State of
Maharashtra reported in 2009 ALL M.R. (Cri.) 1903 wherein at paragraph
25 the Division Bench of this Court has held thus :
“25. The principles laid down by the Supreme Court in the
above cases need to be summarized. It is settled law that at
the stage of Section 227 of the Code, the court has power to
sift the materials collected by the prosecution to find out
whether there is prima facie case against the accused or not.
The court has to be satisfied that there is ground for
presuming that the accused has committed the offence or that
there is no sufficient ground for proceeding against him. The
Court's enquiry must not be directed to find out whether the
case will end in conviction. However, though roving enquiry is
not permissible, the court can consider whether the material
collected by the prosecution if accepted as it is without being
subjected to cross-examination gives rise to strong and grave
suspicion for presuming that the accused has committed the
offence and that unrebutted material will lead to a conviction.
If at the stage of Section 227 or Section 228, the scales as to
the guilt or innocence of the accused are even then the court
must proceed to frame a charge. There is no question of
giving benefit of doubt to the accused and discharge the
accused at that stage because the scales are even. That can
be done only at the conclusion of trial. If there is a strong
suspicion which leads the court to think that there is a ground
for presuming that the accused has committed an offence,
then the court will proceed to frame the charge. But if two
views are possible and the court is satisfied that the evidence
gives rise to some suspicion but not grave suspicion against
the accused, the court will be within its right to discharge the
accused. Suspicion has to be strong and grave suspicion
leading the court to presume that the accused has committed
an offence. While basic infirmities and broad probabilities can
be considered, the court cannot make a roving enquiry into
the pros and cons of the matter and weigh the evidence as if it
is conducting a trial. Probative value of the material cannot be
gone into at that stage.”
7. It is necessary to mention here that while enumerating the settled
position of law as contemplated under Section 227 of the Criminal
Procedure Code, the Division Bench of this Court in the aforesaid
judgment, after taking into consideration the legal propositions laid down
by the Hon'ble Supreme Court in the case of Dilawar Balu Kurane v.
State of Maharashtra - (2002) 2 SCC 135, State of Bihar v. Ramesh
Singh - AIR 1977 SC 2010, State of Maharashtra v. Priya Sharan
Maharaj - (1997) 4 SCC 393, Union of India v. Prafulla Kumar Samal -
AIR 1979 SC 766, Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Anil Bhunja - AIR 1980 SC 52, Niranjan Singh Karam
Singh Punjabi v. Jitendra Bijja - AIR 1990 SC 1962 and State of
Maharashtra v. Som Nath Thapa - (1996) 4 SCC 659, has culled out the
aforesaid principles as mentioned in paragraph 25 in the case of Govind
Ubhe (supra). A further reference may also usefully be made to the
judgment of the Hon’ble Supreme Court in the case of State of
Maharashtra v. Som Nath Thapa - (1996) 4 SCC 659 wherein the
Supreme Court has held that if there is a ground for presuming that the
accused has committed the offence, it can be said that a prima facie case
has been made out against the accused. It has been further held that
even if the Court finds that the accused might have committed the
offence, it can frame the charges. The Supreme Court in the said case
has clarified that at the stage of framing of charge, probative value of the
materials on record cannot be gone into. In that background we propose
to deal with the material which has been produced and relied upon by the
prosecution against the Appellant.
8. It is the contention of learned counsel for the Appellant that the
complainant has not named the Appellant in the First Information Report
and the complainant in her supplementary statement has named him with
a specific role. Therefore it is contended that adding his name
subsequently by the complainant is an after thought. In this background
we have scrutinized the First Information Report given by the complainant
and we find that it is true that the name of the Appellant does not figure in
the First Information Report. The First Information Report is dated 14
March 2012. However, it is pertinent to note here that in her
supplementary statement dated 16 March 2012 the complainant has
specifically stated that the Appellant pulled out the deceased i.e. Anwar
Shaikh, the husband of the complainant, from the car and inflicted blows
with sickle on him.
9. At this juncture, we may observe that it cannot be expected from a
witness who was hovering under the impact / shock of a ghastly incident,
to give each and every minute details when he or she is suffering from the
said trauma. It is only after the witness comes out of the trauma which
he / she has suffered, it is possible for him / her to recapitulate the details
of the incident and to give a detailed account of the incident. It is the
settled position of law that FIR is not an encyclopedia of all the facts
pertaining to a crime and therefore non-appearance of the name of one of
the accused persons at the time of lodging of FIR does not vitiate the
same, neither an inference can be drawn out of the said omission that the
said accused person had not participated at all in the crime. We,
therefore, do not find that the appearance of the name in the
supplementary statement is an after thought at the instance of the
complainant.
10. This takes us to scrutinize the material in the form of statements of
witnesses available on record which describes the role played by the
Appellant in commission of the present crime. The witness at page No.
238 of the compilation (identity concealed) has stated that on 13 March
2012 at about 10.30 p.m., he was following car of deceased Anwar Shaikh
and his wife i.e. the complainant, who were passing through Knodhwa. At
that time speed of the santro car was lowered down because of the
speed breaker which was in front of Parmar Pawan. At the said time all of
a sudden, two motorcycles from both the sides of the said car overtook it,
when he observed that accused Matin Shaikh and Nadir Sayyed
obstructed / halted the said car by putting their motorcycles in front of it.
He has further stated that accused Anwar Shaikh, Rafiqe Shaikh, Imran
Chikki, Atul Pawar, Tausif Shaikh, Zuber Shaikh, Mohasin Shaikh,
Shanawaz Shaikh, Alim Jamadar, Farman Shah (i.e. the present
Appellant), Afzal Sayyed, Munir Sayyed and Khalid Sundke encircled the
said car. The said persons were holding sickles and choppers in their
hand. Accused Nadir Shaikh was having a pistol in his hand. That Tausif
Shaikh hurled a stone on the said car. That accused Nadir fired at the
direction of deceased Anwar Shaikh. He has further stated that the
present Appellant i.e. Farman Shah along with other accused persons
pulled out Anwar Shaikh from the car and the present Appellant along with
Mohasin Shaikh, Imran Shaikh, Shahnawaz Shaikh, Atul Pawar, Khalid
Sundke, Afzal Sayyed, Zuber Shaikh, Matin Shaikh, Tausif Shaikh,
Rafique Shaikh and Munir Sayyed gave blows of sickle and chopper on
deceased Anwar Shaikh. He has stated that accused Nadir fired a bullet
from his pistol and accused Alim lifted a stone lying near the electric pole
and hurled it on the head of deceased Anwar Shaikh.
11. The witnesses whose statements are recorded at pages 240, 242,
496 and 501 of the compilation (identity of the witnesses is concealed)
have stated about the fact of incident dated 13 March 2012, wherein
deceased Anwar Shaikh was brutally murdered by the Appellant along with
other persons, in the same or similar manner as has been stated by the
witness at page 238. The other four witnesses i.e. witnesses at page
Nos.240, 242, 498 and 501 have also in detail described the role played
by the Appellant in commission of the aforesaid crime.
12. Thus, the witness at page Nos.238, 240, 242, 498 and 501 have in
detail stated about the active role played by the Appellant while committing
the crime. From the material which is in the form of statements of the
various witnesses on record, prima facie, it is very clear that the Appellant
in commission of the present crime has played a vital role i.e. to say that
he had taken active part in pulling out the deceased from the car and
thereafter inflicting blows with sickle on him. Thus, in our considered
opinion, there is a strong prima facie case against the Appellant to frame a
charge as contemplated under Section 228 of the Code of Criminal
Procedure, under Sections 302, 341, 427, 120(b), 143, 147, 148, 149 of
the Indian Penal Code and under Sections 3, 4(25) of the Indian Arms Act
and under Section 3(1)(i), 3(1)(ii), 3(2), 3(4) of the MCOC Act.
13. Learned counsel for the Appellant has placed reliance on a catena
of judgments in support of his contentions, which are :
i] State of Bihar v. P.P. Sharma, IAS – (1992) Supp (1) SCC 222.
ii] Dilawar Balu Kurane v. State of Maharashtra – (2002) 2 SCC 135.
iii] Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra – (2008)
10 SCC 394.
iv] Amit Kapoor v. Ramesh Chander – (2012) 9 SCC 460.
v] Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra – (2005)
5 SCC 294.
vi] Sherbahadur Akram Khan v. State of Maharashtra – (2007) (1)
Bom.C.R. (Cri.) 26.
vii] State of Maharashtra v. Rahul Ramchandra Taru – Criminal Appeal
No.239 of 2011.
viii] State of Maharashtra v. Jagan Gagansingh Nepali @ Jagya –
Criminal Appeal No.20 of 2011.
14. The aforesaid judgments relied upon by the learned counsel for the
Appellant can be classified into two broad categories i.e. scope of Section
227 of the Code of Criminal Procedure and the aspect of application of
mind by the competent authority while granting prior approval and
according sanction under Section 23 of the MCOC Act.
15. The learned Additional Public Prosecutor on the other hand has
placed reliance upon the judgments in case of Govind Sakharam Ubhe v.
State of Maharashtra reported in 2009 ALL M.R. (Cri.) 1903 and in case
of Anil Sadashiv Nanduskar v. State of Maharashtra reported in
2008(3) Mah LJ. (Cri.) 650 [2008(12) L.J.SOFT 156].
16. The Division Bench of this Court in the case of Govind Ubhe
(supra) after taking into consideration the law laid down by the Hon'ble
Supreme Court in the cases of Dilawar Balu Kurane v. State of
Maharashtra - (2002) 2 SCC 135 and Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra – 2005 ALL MR (Cri) 1538 so also in
the case of Union of India v. Prafulla Kumar Samal – AIR 1979 SC 366
has formulated the scope of Section 227 of the Code of Criminal
Procedure in its paragraph 25, as has been stated herein above.
17. This takes us to the second limb of the argument advanced by
learned counsel for the Appellant. It is contended by learned counsel for
the Appellant that the authorities while issuing prior approval and
subsequently granting sanction as contemplated under Sections 23(1)(a)
and 23(2) respectively of the MCOC Act, have not applied its mind
properly. That the sanction in the present case ought not to have been
granted at all. It was further contended that the application of the
provisions of the MCOC Act to the present case is unwarranted. Learned
counsel appearing for the Appellant in support of its contention has relied
on the authorities reported in case of State of Bihar v. P.P. Sharma
reported in (1992) Supp (1) SCC 222 and in case of Sherbahadur Akram
Khan v. State of Maharashtra reported in (2007) (1) Bom.C.R. (Cri) 26.
At this juncture, a useful reference can be made to a judgment delivered
by the Division Bench of this Court in case of Anil Nanduskar v. State of
Maharashtra – 2008 (12) LJSOFT 156.
18. The Division Bench of this Court in the case of Anil Nanduskar v.
State of Maharashtra – 2008(12) LJSOFT 156, after taking into
consideration the law laid down by the Hon’ble Supreme Court in case of
State of Bihar v. P.P.Sharma reported in (1992) Supp (1) SCC 222 and
after considering the judgment of the Division Bench of this Court in case
of Sherbahadur Akram Khan v. State of Maharashtra reported in
(2007) (1) Bom.C.R. (Cri) 26, has in paragraphs 13 and 24 observed
thus :
“ 13. The settled law by a catena of decisions of the Apex
Court is to the effect that it is desirable that every order
whether the approval or sanction it should speak for itself, i.e.
ex-facie it should disclose consideration of the materials
placed before it and application of mind thereto. However,
failure to reproduce or refer those recitals in the resolution or
order itself would not render the order of approval or sanction
to be invalid unless the prosecution fails to establish by
leading evidence that all the materials necessary for the grant
of approval or sanction were placed before the concerned
authority for due application of mind by such authority before
the grant of approval and or sanction. It apparently discloses
that question of validity of approval or sanction cannot be
decided unless the prosecution is afforded opportunity to lead
evidence in that regard. Undoubtedly, an accused desiring to
raise objection regarding the defects in such approval or
sanction, or grant, he can raise such objection; however, for
conclusive decision on the said point the accused has to wait
till the trial is complete and on that ground he cannot insist for
discharge unless the objection relates to inherent lack of
jurisdiction to the concerned authority to grant sanction or
approval and such issue can be decided on undisputed facts.
The law being well settled to the effect that the prosecution in
a case where sanction or the approval order does not ex-facie
show consideration of all the materials and/or application of
mind, is entitled to establish the same by leading necessary
evidence regarding production of materials before the
concerned authority, the question of discharge of accused
merely on the basis of such objection being raised cannot
arise. The decision on the point of defect, if any, in the order of
approval or sanction will have to be at the conclusion of the
trial.”
…....
“ 24. The contention that the order of approval or order of
sanction should disclose consideration of material qua each of
the accused sought to be prosecuted is devoid of substance.
That is not the import of section 23 of MCOC Act. Section
23(1)(a) as well as section 23(2) with reference to approval
and sanction speaks of commission of offence and
cognizance of the offence. In fact the law on this aspect is
also well settled and reiterated by the Apex Court in Dilawar
Singh’s case (supra) itself. It was held therein that, court
takes cognizance of offence and not of an offender when a
Magistrate takes cognizance of an offence, under Section 190
Cr.P.C. Undoubtedly, it was also held that it was necessary for
the Sanctioning Authority to take note of the persons against
whom the sanction is sought to be granted. However, those
were the requirement under Section 19 of the Prevention of
Corruption Act. The said section specifically requires sanction
with reference to a particular person. That is not the case
under section 23 either in relation to the approval or in relation
to the sanction. As already seen above section 23(1)(a) of
MCOC Act speaks of approval for recording of information
about commission of offence of organized crime under MCOC
Act, whereas sanction is for initiating proceeding for the
offence under MCOC Act. The sanction order or the approval
order on the face of it need not speak of the individual role of
each of the accused. Being so, contention that the order of
approval or sanction should reveal consideration of the overt
acts or otherwise of each of the accused while granting
approval or sanction is totally devoid of substance. Of course,
the involvement in organized crime of each of the persons
sought to be prosecuted should necessarily be considered by
the concerned authority before the grant of approval or
sanction, but need not be specifically stated in the order and
the consideration thereof can be established in the course of
trial.
19. We have perused the prior approval granted by the competent
authority under Section 23(1)(a) of the MCOC Act which is at page 60 of
the compilation, so also the order according sanction under Section 23(2)
of the MCOC Act which is at page No.26 of the compilation. We have
noticed that the competent authority has recorded its subjective
satisfaction while granting prior approval and according sanction in the
present matter. We therefore hereby, while following the ratio laid down in
the case of Anil Nanduskar (supra), hold that the prosecution has to be
afforded an opportunity to lead evidence with regard to the subjective
satisfaction recorded by the competent authority by leading evidence at
the time of trial. As has been held in the case of Anil Nanduskar (supra),
undoubtedly, an accused desiring to raise objection regarding the defects
in such approval or sanction, or grant, the accused can raise such
objection, however, for conclusive decision on the said point the accused
has to wait till the trial is complete and on that ground he cannot insist for
discharge unless the objection relates to inherent lack of jurisdiction of the
concerned authority to grant approval or sanction and such an issue can
be decided only on the undisputed facts on record. As has been held by us
in the foregoing paragraphs, we are satisfied that the concerned
authorities have recorded their subjective satisfaction while initially
granting prior approval and subsequently according sanction under
Section 23 of the MCOC Act in the present case and therefore the
contention of the Appellant is incorrect in that behalf.
20. After scrutinizing the entire material made available to us in the
present Appeal, we are of the firm opinion that the impugned order dated 4
March 2013 passed by the Learned Special Judge, Pune under the MCOC
Act, below Exhibit 4 in MCOCA Special Case No.7 of 2012, does not
suffer from any legal infirmity and no interference is called for with the
same. Thus, the present Appeal being sans of any merit is accordingly
dismissed with no order as to costs.
(P. V. Hardas, J.)
(A.S. Gadkari, J.)
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