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2006 DIGILAW 231 (BOM)

GORAKH HANSRAJ NIKAM v. STATE OF MAHARASHTRA

2006-02-20

B.R.GAVAI

body2006
( 1 ) RULE. Rule made returnable forthwith. Heard finally by consent. ( 2 ) THIS is an application for quashing the Crime No. 36/2005 registered with Mehunbare Police Station, District : Jalgaon, to the extent of an offence punishable under section 302 read with 34 of the Indian Penal Code. ( 3 ) THE present application is filed by the father-in-law, mother-in-law and the husband of the deceased. ( 4 ) IT is the allegation of the prosecution that the applicants, along with another accused namely Chandrakant who is the son of applicant Nos. 1 and 2 and the brother of applicant No. 3, were ill-treating the deceased Manjushree. ( 5 ) IT is the prosecution case that the applicant No. 3 who is servant in the armed Forces was serving elsewhere and the rests of the accused used to illtreat the deceased. It is the case that due to such ill-treatment, the deceased wanted to go and reside with her husband. On expressing this desire, the rest of the accused started giving more ill-treatment to her. It is alleged that on 17th April, 2005 when the applicants No. 1 and 2 had gone to their field, there was a quarrel between the deceased and accused Chandrakant. It is the case that due to this quarrel Candrakant poured kerosene on the body of the deceased and put her on fire and went outside of the house. ( 6 ) WITH these allegations, the crime came to be registered for the offence punishable under sections 302, 307, 498-A, 504 read with 34 of the Indian Penal code. ( 7 ) HEARD Shri Joydeep Chatterji, learned counsel for the applicants and Shri pramod C. Patel, learned A. P. P. for the respondent. ( 8 ) SHRI Joydeep Chatterji, learned counsel submitted that taking the prosecution case to be true at its face value and even if the entire case proved, no offence under section 302 of the Indian Penal Code is made out and the F. I. R. under section 302 against the present applicants is not tenable. ( 8 ) SHRI Joydeep Chatterji, learned counsel submitted that taking the prosecution case to be true at its face value and even if the entire case proved, no offence under section 302 of the Indian Penal Code is made out and the F. I. R. under section 302 against the present applicants is not tenable. He submits that taking into consideration the various dying declarations of the deceased before the Magistrate so also the Police Authorities and her own oral dying declaration made to her mother, brother and sister, it can be seen that there is no material worth name sake to implicate the present applicants under section 302 of the indian Penal Code. ( 9 ) LEARNED counsel relied on the judgment of the Apex Court, in the case of :1) G. Sagar Suri and another vs. State of U. P. and another reported in 2000 (5) Bom. C. R. 694 2) M/s Pepsi Foods Ltd. and another vs. Special judicial Magistrate and others reported in 1998 (1) Mh. L. J. (SC) 599 - air 1998 SC 128. 3) K. R. Pueushothaman vs. State of Kerala reported in 2005 AIR. SCW 5436. and the judgment of the learned Single Judge of this Court in the case of - 4) Shri Srinivasa Cut Pieces Cloth Shop and another vs. State of maharashtra and another reported in 2005 (1) Bom. C. R. (Cri.) 465. ( 10 ) AS against, this, Shri Pramod C. Patel, learned A. P. P. has submitted that, the charge-sheet is already filed and the applicants can very well file an application for discharge before the learned Sessions Judge. He submits that this court in its inherent jurisdiction under section 482 of Code of Criminal procedure, would not go into the question of sufficiency or, otherwise of the material so as to establish complicity of the present applicants with the offence charged for. ( 11 ) INSOFAR as the first contention of the learned A. P. P. , regarding availability of alternative remedy is concerned, I am not inclined to accept the same. ( 11 ) INSOFAR as the first contention of the learned A. P. P. , regarding availability of alternative remedy is concerned, I am not inclined to accept the same. The Apex Court, in the case of M/s Pepsi Foods Ltd. and another (supra), has observed thus :"no doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under section 482 of the code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. " ( 12 ) THE Apex Court, in the case of G. Sagar Suri and another (supra), has further held that filing of an application for discharge does not preclude the Court in entertaining application under section 482 of Code of Criminal Procedure to prevent abuse of process. ( 13 ) THE material on which the prosecution relies is the three dying declarations made by the deceased to the Executive Magistrate and the Police authorities and three dying declarations made to her mother, brother and sister. The first dying declaration which is recorded on 17th April, 2005, the deceased has stated thus : The said dying declaration is recorded at 24 Hours on 17th April, 2005. In the dying declaration before the Police Sub-Inspector on 22nd April, 2005 she has stated thus : ( 14 ) IN another supplementary statement, which is recorded on 20th April, 2005, she has stated thus : In the statement of the mother Pushpabai recorded on 22nd April, 2005 the said Pushpabai stated that which was told by her daughter as under : To the said effect is a statement of Manoj the brother of deceased which is recorded on 22nd April, 2004 and Anita sister of the deceased. ( 15 ) THEREFORE, taking the allegations in the statement at its face value and taking it to be proved, the role for an offence punishable under section 302 of the indian Penal Code could be attributed only to accused Chandrakant. Insofar as accused No. 3 is concerned, he was not even present in the said village but was working at Banglore serving in the Armed Forces. Insofar as accused No. 3 is concerned, he was not even present in the said village but was working at Banglore serving in the Armed Forces. Therefore, there cannot be any material so as to implicate the said applicant for an offence punishable under section 302 of the Indian Penal Code. Insofar as accused Nos. 1 and 2 are concerned, it is the consistent version of the deceased that both applicants No. 1 and 2, the mother-in-law and father-in-law of the deceased had gone to the field. It is not even alleged by her that they had instigated accused Chandrakant. It is thus clear that their absence from the spot is clearly indicated in the consistent version given by the deceased. ( 16 ) THE Apex Court, in the case of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 , after surveying various provisions of Criminal Procedure Code and the earlier decisions of the Apex Court, has laid down following categories of cases, by way of illustration, wherein this Court, may exercise its extraordinary powers under Article 226 and inherent powers under section 482 of the Code, for quashing the proceedings :"1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the First Information Report and others materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under section 156 (1) of the Code except under an order of a Magistrate within the purview of section 155 (2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where, the allegations in the FIR do not constitute non-cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155 (2) of the Code. 4) Where, the allegations in the FIR do not constitute non-cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155 (2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. " ( 17 ) THE Apex Court, in the case of M/s Pepsi Food Ltd. and another (supra) and in the case of Union of India and another vs. Prakash P. Hinduja and another, 2003 (6) SCC 195 has also held that, when the complaint makes out no case against the accused, the complaint is liable to be quashed and set aside. This view is reiterated by the Apex Court, in various pronouncements, so also by this court. ( 18 ) IN the facts of the present case, from the uncontroverted material in support of prosecution, it cannot be said that there is any material so as to implicate the present applicant for the offence punishable under section 302 of the Indian Penal Code. Insofar as accused No. 3 is concerned, he was away at banglore and the entire episode is said to have taken place as soon as deceased expressed her desire to send her at the place of his work. Insofar as accused Nos. Insofar as accused No. 3 is concerned, he was away at banglore and the entire episode is said to have taken place as soon as deceased expressed her desire to send her at the place of his work. Insofar as accused Nos. 1 and 2 are concerned, it was consistently stated by the deceased in her dying declarations, so also in her statement and oral dying declarations, that at the time of the incident they were far away in the field and the accused Chandrakant had played the role of pouring the kerosene on her person and setting her on fire. ( 19 ) IN that view of the matter, I find that there is no material at all to connect the present applicants with an offence punishable under section 302 of the Indian Penal Code. ( 20 ) THE application is, therefore, allowed. i) The FIR registered vide Crime No. 36/2005 registered with Mehunbare police Station, Taluka Chalisgaon and the subsequent proceeding, insofar as they pertaining to the charge against present applicants for an offence punishable under section 302 of the Indian Penal Code are quashed and set aside. ii) It is made clear that the learned trial Judge would proceed further of the trial against accused Chandrakant s/o Gorakh Nikam for the offence punishable under section 302 of the Indian Penal Code and against the present applicants for the offences charged except the offence punishable under section 302 of the indian Penal Code. iii) Rule is made absolute in the aforesaid terms. Application allowed.