Case Note & Summary
The petitioner, a sitting Member of the Goa Legislative Assembly, filed a criminal writ petition seeking to quash FIR No. 18/2020 and charge sheet No. 101/2020 registered at Porvorim Police Station for offences under Sections 323, 341 and 506 of the Indian Penal Code, 1860. The case originated from an incident on 5 February 2020, when the petitioner allegedly assaulted the third respondent, a spokesperson of the Bharatiya Janata Party (BJP), by gripping his hand and threatening him outside the Assembly hall. The complaint was lodged by the respondent with the Speaker of the Assembly at 9:58 p.m. for an incident that allegedly occurred at 6:45 p.m. The FIR was initially registered under Sections 323 and 341 IPC; later, Section 506 IPC was added in the charge sheet. The petitioner was arrested on 6 February 2020 and released on bail. The petitioner contended that the complaint was politically motivated and stemmed from a press conference earlier that day where the respondent raised questions about the petitioner's properties and business, and that the alleged handshake was mischaracterized as assault. The petitioner argued that the FIR was registered mechanically without application of mind, that none of the essential ingredients of the alleged offences were disclosed, and that the investigation was malafide. It was pointed out that the hurt certificate showed only tenderness with no injury, indicating that the hurt offence under Section 323 IPC, even if prima facie made out, was non-cognizable, yet no prior permission of the Magistrate was obtained for investigation. The petitioner also highlighted that statements of witnesses recorded under Section 164 of the Code of Criminal Procedure, 1973 were taken belatedly and their names were not mentioned in the original complaint or statement. The petitioner's counsel submitted that the entire criminal proceedings were an abuse of process and sought quashing of the FIR and charge sheet. The court heard the arguments and reserved judgment on 8 December 2021, pronouncing it on 21 December 2021. The provided judgment excerpt, however, does not include the court's analysis, findings, or final decision. Hence, the outcome of the petition remains undisclosed in the available text.
Issue of Consideration
Whether the FIR and charge sheet under Sections 323, 341 and 506 IPC are liable to be quashed for non-disclosure of ingredients of the offences and for being mechanically registered and malafide?
Case Details
2021 LawText (BOM) (12) 118
CRIMINAL WRIT PETITION NO. 59 OF 2020
Revati Mohite Dere, M.S. Jawalkar
For Petitioner: S.S. Kantak (Senior Advocate) with Ryan Menezes, Preetam Talaulikar, Nigel Fernandes, Gina Almeida, Saicha Desai; For Respondents 1 and 2: Devidas J. Pangam (Advocate General) with Pravin Faldesai (Additional Public Prosecutor); For Respondent 3: Ashwin D. Bhobe with Kalpa Govenkar, Annelise Fernandes
The State of Goa (through Police Inspector, Porvorim Police Station), The Police Inspector, Porvorim Police Station, Premanand Mahambre
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Nature of Litigation
Criminal writ petition seeking quashing of FIR and charge sheet.
Remedy Sought
Quashing of FIR No. 18/2020 and charge sheet No. 101/2020, and all consequential proceedings in C.C. No. 455/S/2020/A pending before the Judicial Magistrate First Class, Mapusa.
Filing Reason
The petitioner claimed that the FIR was registered mechanically without application of mind, that the essential ingredients of the alleged offences were not disclosed, and that the investigation was politically motivated and malafide.
Issues
Whether the FIR and charge sheet disclose the essential ingredients of the offences under Sections 323, 341 and 506 of the Indian Penal Code, 1860?
Whether the registration of the FIR and the subsequent investigation were conducted mechanically and without application of mind, amounting to an abuse of process of law?
Whether the criminal proceedings were initiated malafide and with political motivation, vitiating the investigation and prosecution?
Whether the investigation into the non-cognizable offence under Section 323 of the Indian Penal Code was conducted without the requisite permission from the Jurisdictional Magistrate?
Submissions/Arguments
The FIR and charge sheet do not disclose the sine qua non ingredients of the offences defined in Sections 319, 339 and 506 of the IPC punishable under Sections 323, 341 and 506 respectively.
The complaint was lodged at 9:58 p.m. for an incident alleged at 6:45 p.m., indicating delay and afterthought.
The statement under Section 164 CrPC was recorded on 10.07.2020, and thereafter statements of witnesses were recorded whose names were not mentioned in the complaint or the complainant's statement, suggesting fabrication.
The hurt certificate showed only tenderness with no swelling and full range of movement, thus no injury amounting to hurt; even if hurt was present, the offence under Section 323 IPC is non-cognizable and no permission was obtained from the Magistrate before investigation.
The FIR and investigation were actuated from malafides and maliciously instituted with ulterior motive, amounting to abuse of criminal process.
Section 506 IPC was added as an afterthought; the complainant had made no statement alleging threat to life or property, and the threat was merely his perception.
Judgment Excerpts
It is the case of the petitioner that on 05.02.2019, respondent no.3 being the spokesperson for BJP addressed a press conference... raised questions qua the properties and business of the petitioner and his family. (Para 5)
the complaint came to be filed on 05.02.2020 to the Speaker alleging incident of assault at 6:45 p.m., whereas the complaint was lodged at 9:58 p.m. (Para 8)
none of the sine qua non ingredients of the offences defined in Sections 319 and 339 of IPC punishable under Sections 323 and 341 respectively and Section 506 of IPC are even remotely made out (Para 9)
the police recorded the statements of Vithoji @Rajan Rane and Dayanand Karbotkar, whose names are neither reflecting in the complaint nor in the statement of the complainant under Section 164 of Cr.P.C. disclosing their presence on the spot. (Para 10)
the impugned FIR was registered without there being any application of mind, irrespective of whether, any of the offences under Section 319 and Section 339 punishable under Section 341 and Section 323 respectively and Section 506 of IPC are made out. (Para 12)
Procedural History
On 05.02.2020, an alleged incident of assault occurred outside the Goa Legislative Assembly hall. Respondent No.3 filed a complaint with the Speaker, which was forwarded to Porvorim Police Station and registered as FIR No. 18/2020 under Sections 323 and 341 IPC. The petitioner was arrested on 06.02.2020 and released on bail. During investigation, Section 506 IPC was added. Charge sheet No. 101/2020 was filed, and the case was registered as C.C. No. 455/S/2020/A before the JMFC, Mapusa. The petitioner filed Criminal Writ Petition No. 59 of 2020 before the High Court of Bombay at Goa. The petition was heard on 08.12.2021 and judgment pronounced on 21.12.2021.
Acts & Sections
- Indian Penal Code, 1860: 319, 323, 339, 341, 506
- Code of Criminal Procedure, 1973: 164
