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2017 DIGILAW 668 (BOM)

Piran s/o. Onkar Salve v. State of Maharashtra

2017-04-04

K.K.SONAWANE, S.S.SHINDE

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JUDGMENT : S.S. Shinde, J. 1. Heard. 2. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties. 3. This Criminal Application takes exception to the charge sheet bearing Charge Sheet No.71 of 2016 for the offences punishable under Sections 498A, 406, 323, 504, 506 r/w. 34 of the Indian Penal Code filed in the Court of Judicial Magistrate First Class at Shirpur, District Dhule. 4. The learned counsel appearing for the applicants invites our attention to the allegations in the First Information Report, and also the statements of the witnesses recorded by the Investigation Officer during the course of investigation, and submits that, even if the allegations in the FIR are taken at its face value and read in its entirety, an ingredients of the alleged offences have not been attracted. The statements of the witnesses only reiterate allegations made in the FIR, and their version is hearsay. It is submitted that, there are omnibus allegations against all the applicants without attributing any specific overt acts qua each of the applicants or quoting any specific incident or date of such alleged incident/incidents. He further submits that, the Supreme Court in the case of Preeti Gupta and Anr. v. State of Jharkhand and Anr., 2010 AIR SCW 4975 has taken a note that, the tendency of over implication of the relatives of the husband by making omnibus allegations in the FIR/complaint is on increase. In support of his submission that, when there are omnibus allegations and no specific overt acts are attributed qua the applicants/accused, in that case the FIR/chargesheet deserves to be quashed, he pressed into service exposition of law by the Supreme Court in the case of Geeta Mehrotra and Anr. Vs. State of U.P. and Anr., AIR 2013 SC 181 . He further invites our attention to the judgment of the Division Bench of the Bombay High Court, Bench at Aurangabad in the case of Saleha Sadik Sayed and others Vs. State of Maharashtra and another, 2015 [4] Bom.C.R.[Cri.] 423 and also in the case of Mohammad Ashfaque Ansari and others Vs. State of Maharashtra and another, 2015 AllMR[Cri.] 2615. Therefore, he submits that the application deserves to be allowed. 5. State of Maharashtra and another, 2015 [4] Bom.C.R.[Cri.] 423 and also in the case of Mohammad Ashfaque Ansari and others Vs. State of Maharashtra and another, 2015 AllMR[Cri.] 2615. Therefore, he submits that the application deserves to be allowed. 5. On the other hand, the learned APP appearing for respondent – State relying upon the allegations in the FIR, and also the statements of the witnesses submits that, the Investigating Officer has collected sufficient material, and on the basis of said material the trial can proceed. 6. The learned counsel appearing for respondent no.2 invites our attention to the allegations in the FIR, and also the statements of the witnesses and in particular statement of one Mr. Himmat Eknath Naik and Mr. Mangesh Shivram Koli, and submits that, an allegation in the FIR will have to be taken as it is, and if the offences are disclosed, those allegations will have to be tested only during the course of trial. He also invites our attention to the averments in the affidavit-in-reply filed on behalf of respondent no.2. He submits that the applicants have opportunity to file application for discharge before the concerned Court. He invites our attention to the judgment of the Supreme Court in the case of Bhaskar Lal Sharma and Anr. Vs. Monica and Ors., [2014] 3 SCC 383 and submits that, the Supreme Court has taken a view that, the facts, as alleged, will have to be proved which only be done in the course of a regular trial. Appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. He invites our attention to the judgment of the Supreme Court in the case of Taramani Parakh Vs. State of M.P. and Ors., 2015 Cri.L.J. 2031 and submits that, in para 16 of the said judgment, the Supreme Court after discussing the facts of the case of Neelu Chopra and Anr. Vs. He invites our attention to the judgment of the Supreme Court in the case of Taramani Parakh Vs. State of M.P. and Ors., 2015 Cri.L.J. 2031 and submits that, in para 16 of the said judgment, the Supreme Court after discussing the facts of the case of Neelu Chopra and Anr. Vs. Bharti, [2009] 10 SCC 184 and also in the case of Geeta Mehrota [cited supra], observed that, the said cases neither purport to nor can be read as laying down any inflexible rule beyond the principles of quashing which have been mentioned above and applied to the facts of the cases therein which are distinguishable. It is held that, the question whether the appellant therein had in fact been harassed and treated with cruelty is a matter of trial and at the stage of considering the prayer for quashing the FIR, it cannot be said that no case is made out. Thus, quashing of proceedings before the trial is not permissible. He further pressed into service the judgment of the Supreme Court in the cases of Swapnil and ors. Vs. State of Madhya Pradesh, [2014] 13 SCC 567 Amit Kapoor Vs. Ramesh Chander and Anr., [2012] 9 SCC 460 and the judgment of the Bombay High Court, Bench at Aurangabad, in the case of Sanjay s/o. Bhimrao Tathe and others Vs. The State of Maharashtra and another in Criminal Application No.5005 of 2016, decided on 6th January, 2017, and also in the case of Ashabai w/o. Gangadhar Darade and others Vs. The State of Maharashtra and another in Criminal Application No. 1303 of 2015, decided on 9th December, 2016, in the case of Arvind s/o. Pyarelal Jain and another Vs. The State of Maharashtra and another in Criminal Writ Petition No.438 of 2016, decided on 20th October, 2016, in the case of Sumit & Ors. Vs. The State of Maharashtra and ors., 2016 AllMR[Cri.] 600 and in the case of Muzhir Ahmed Itbar Khan and Ors. Vs. The State of Maharashtra and ors., 2016 AllMR[Cri.] 980. 7. We have given careful consideration to the submissions of the learned counsel appearing for the applicants, the learned APP appearing for respondent-State, and the learned counsel appearing for respondent no.2. We have also carefully perused the allegations in the FIR, the statements of the witnesses, and also all other documents placed on record. 7. We have given careful consideration to the submissions of the learned counsel appearing for the applicants, the learned APP appearing for respondent-State, and the learned counsel appearing for respondent no.2. We have also carefully perused the allegations in the FIR, the statements of the witnesses, and also all other documents placed on record. So far as applicant no.1Piran Onkar Salve, applicant no.2 Ushabai Piran Salve, applicant no.4 Kokilabai Hemraj Salve and applicant no.6 Hansraj Piran Salve are concerned, there are specific allegations in the FIR to the following effect:- “XXXXXXXXXX” 8. In addition to above, in later part of the FIR, so far as applicant no.6 Hansraj Piran Salve is concerned, there are serious allegation against him of assaulting the wife, abusing in filthy language, detaining in the house, giving threats to kill her, and giving all sort of mental and physical harassment. Therefore, keeping in view the specific allegations in the FIR, which are supported by the statement of the witnesses, we are not inclined to entertain the application of applicant no.1 Piran Onkar Salve, applicant no.2 Ushabai Piran Salve, applicant no.4 Kokilabai Hemraj Salve and applicant no.6 Hansraj Piran Salve. 9. So far as applicant no.3 Hemraj s/o. Piran Salve and applicant no.5 Sumitra d/o. Piran Salve are concerned, we are of the opinion that, the allegations as against them are omnibus and general in nature. It appears that, applicant no.5 Sumitra d/o.Piran Salve is married sister of applicant no.6 Hansraj, husband of the respondent no.2, and residing since her marriage at Shahada. 10. Therefore, keeping in view the exposition of the Supreme Court in the case of State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604 wherein it is held that, in those categories of the case which are mentioned in para 108 of said judgment, the High Court would be able to quash the F.I.R. 108. 10. Therefore, keeping in view the exposition of the Supreme Court in the case of State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604 wherein it is held that, in those categories of the case which are mentioned in para 108 of said judgment, the High Court would be able to quash the F.I.R. 108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 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 other 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 F.I.R. do not constitute a 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. 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. 11. In the light of discussion in foregoing paragraphs, in our opinion, the cases of the applicant no.3 Hemraj s/o. Piran Salve and applicant no.5 Sumitra d/o. Piran Salve would be covered under category nos.1 and 5 of the above mentioned categories. In the result, application of applicant no.3 Hemraj s/o. Piran Salve and applicant no.5 Sumitra d/o. Piran Salve succeeds. Hence, the light of following order:- ORDER i. Application of applicant no.1Piran Onkar Salve, applicant no.2Ushabai Piran Salve, applicant no.4Kokilabai Hemraj Salve and applicant no.6 Hansraj Piran Salve stands rejected. ii. Application of applicant no.3 Hemraj s/o. Piran Salve and applicant no.5 Sumitra d/o. Piran Salve stands allowed. The further proceedings, on the basis of chargesheet bearing Charge Sheet No.71 of 2016 for the offences punishable under Sections 498A, 406, 323, 504, 506 r/w. 34 of the Indian Penal Code, pending on the file of Judicial Magistrate First Class, Shirpur, qua applicant no.3 Hemraj and applicant no.5 Sumitra, stands quashed and set aside. iii. Rule is made absolute on above terms. iv. This order will not preclude applicant nos.1, 2, 4 and 6 from filing application for discharge before the concerned Court, if they are so advised. v. The observations made hereinabove are prima facie in nature and confined to the adjudication of the present application only.