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2020 DIGILAW 1282 (BOM)

Rahim v. State of Maharashtra

2020-11-02

SHRIKANT D.KULKARNI, T.V.NALAWADE

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JUDGMENT : SHRIKANT D. KULKARNI, J. 1. Rule. Rule made returnable forthwith. With the consent of the parties, the matter is taken up for final disposal at admission stage. 2. By this application filed under Section 482 of the Criminal Procedure Code, the applicants pray for quashing of First Information Report (In short ‘FIR”) bearing C.R. No. I/220/2019 registered with M.I.D.C. Police Station, Jalgaon, District Jalgaon circumscribing offence punishable under Sections 498-A, 323, 504, 506 read with Section 34 of Indian Penal Code (hereinafter referred to as “IPC” for short). 3. The relevant facts for the purpose of deciding this application may be summarized as under:- Tabassum Bi Danish Shah/Fakir (hereinafter referred to as respondent No. 2/First informant entered into wedlock with Danish Shah on 09.03.2017 according to Muslim religion. She was nicely treated by her husband and in-laws for initial period of two months. After a period of two months, mother-in-law and sister-in-law started finding of fault in the conduct of respondent No. 2 at the instigation of her husband-Danish Shah. Her husband used to assault her at the instigation of her in-laws. Her husband was insisting her to satisfy demand of Rs. 1,00,000/- to purchase one new Auto Rickshaw. The first informant was subjected to harassment and cruelty at the hands of applicants which are arraigned as accused in the FIR. 4. According to the first informant, the applicants came to her parental house at Tambapura on 13.03.2019 at about 5.00 p.m. and insisted to give divorce so that her husband may enter into another wedlock. The first informant raised strong objection when she was allegedly assaulted by her husband and in-laws. The first informant rushed to the Police Station on 14.03.2019 so as to lodge the FIR about the incident but her health was not good. As per medical memo, she went to civil hospital at Jalgaon where she was admitted for one day. After getting discharge from the hospital, she rushed to MIDC Police Station, Jalgaon and lodged the FIR against the applicants. The Investigating Officer concluded the investigation and filed the charge sheet against the applicants and husband of the first informant and same came to be registered vide RCC No. 567/2019 which is sub-judice before the Judicial Magistrate First Class at Jalgaon. 5. We have heard Mr. Naseem R. Shaikh, Advocate for the applicants, Mr. R.D. Sanap, learned A.P.P. for respondent No. 1/State, Mr. 5. We have heard Mr. Naseem R. Shaikh, Advocate for the applicants, Mr. R.D. Sanap, learned A.P.P. for respondent No. 1/State, Mr. R.D. Thorat and Mr. A.M. Walujkar, the learned Advocates for respondent No. 2. 6. The learned Counsel for the applicants seeks permission to withdraw the application to the extent of applicant Nos. 1 to 4. Accordingly, permission is granted. The application is proceeded further to the extent of applicant Nos. 5 to 13. 7. Before touching to the merits of the matter, let us have a glance on the relationship of parties. Applicant Nos. 1 and 2 are father and mother-in-laws, applicant Nos. 3 and 4 are brother-in-laws, and sister-in-law, applicant Nos. 5 to 8 are sister-in-laws and applicant Nos. 9 and 10 are the father-in-laws. Applicant No. 12 alleged to be second wife of Danish Shah (husband of the first informant). Applicant Nos. 11 and 13 are not related to respondent No. 2. 8. Learned Counsel for both the sides and the learned A.P.P. as well have invited our attention to the copy of the FIR vide C.R. No. I-220/2019 registered with MIDC Police Station, Jalgaon for the offence punishable under section 498-A, 323, 504, 506 read with Section 34 of Indian Penal Code. 9. According to the learned Counsel for the applicants, very vague allegations are made against applicant Nos. 5 to 13. Applicant Nos. 11 and 13 are not any way related with respondent Nos. 2/first informant. Even then, they have been arraigned as an accused in the FIR. The first informant has levelled allegations of demand of Rs. 1,00,000/- against husband and in-laws to purchase one new Auto Rickshaw, which is baseless and it has no foundation. No details are given when such demand was put-forth. 10. On the other hand, Mr. Walujkar, learned Counsel for respondent No. 2 vehemently submitted that there are specific allegations against the applicants in the FIR with their role. The Investigating Officer has found sufficient incriminating evidence against all the applicants and accordingly, a charge sheet came to be filed against them in the JMFC Court at Jalgaon. It is not a fit case to quash the FIR and the proceedings arising thereof. 11. Mr. R.D. Sanap, the learned A.P.P. for respondent No. 1/State echoed the argument advanced by Mr. Walujkar, learned Counsel appointed for respondent No. 2/first informant. 12. It is not a fit case to quash the FIR and the proceedings arising thereof. 11. Mr. R.D. Sanap, the learned A.P.P. for respondent No. 1/State echoed the argument advanced by Mr. Walujkar, learned Counsel appointed for respondent No. 2/first informant. 12. On careful scrutiny of the FIR lodged by the first informant/respondent No. 2, we noticed that the first informant has alleged in the FIR that she was subjected to harassment at the hands of her husband to bring Rs. 1,00,000/- to purchase one Auto Rickshaw. The first informant has not given details thereof. There is absolutely no averment in the FIR to support alleged demand of Rs. 1,00,000/- at the hands of her husband. On studying the aforesaid FIR, it is further noticed by us that petitioner Nos. 5 to 10, who are in-laws have been roped in as an accused without their prima facie involvement and role. General allegations seem to have made against applicant Nos. 5 to 13 regarding harassment and cruelty. 13. On perusing the statements of witnesses namely, Naseenbi Yunus Shaikh, Jarina Burhan Shaikh, Ainoorbi Muraj Shah, Shaikh Abid Shaikh Mohammad, none of them have corroborated the alleged incident of assault or harassment at the hands of applicant Nos. 5 to 13. The impugned FIR to the extent of applicant Nos. 5 to 13 appears to be product of imagination and exaggeration. The applicants have placed on record photo copies of Aadhar Cards pertaining to applicant Nos. 5 and 6 in order to show that both of them are resident of Nashirabad, District Jalgaon. They are not residing at Jalgaon. The same is the case of applicant Nos. 7 and 8, who are resident of Indira Nagar, Buldhana. There is no prima facie evidence to show that above said applicant Nos. 5 to 8 came from their respective places with common intention and after meeting with the husband of the first informant and her in-laws, they came to parental house of the first informant. 14. In case of Priti Gupta vs. State of Jharkhand, (2020) 7 SCC 667, it has been observed by the Hon'ble Supreme Court that there is tendency of implicating the immediate relatives of the husband. 15. In the present case, we also found that applicant Nos. 5 to 13 have been arraigned as accused in the FIR without their involvement in the alleged incident. 15. In the present case, we also found that applicant Nos. 5 to 13 have been arraigned as accused in the FIR without their involvement in the alleged incident. The allegations levelled against them are general in nature. Prima facie, no offence is made out even if the allegations levelled against them are accepted at their face value. 16. The Hon'ble Supreme Court in case of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 has laid down categories where FIR can be quashed. Following are the categories:- 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. 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. 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. In the facts and circumstances of the case on hand, it is found that casual reference to a large number of members of the husband's family without any allegation of active involvement have been arraigned as an accused. It would be an abuse of process of law if prosecution is allowed to continue. It is a fit case to exercise powers under Section 482 of Cr.P.C. to the extent of petitioner Nos. 5 to 13. 18. In the light of the discussion herein before, application needs to be allowed to the extent of applicant Nos. 5 to 13. Hence, we pass the following order:- ORDER: (i) The application for quashing of FIR and the proceedings arising vide R.C.C. No. 567/2019 pending before the Judicial Magistrate First Class at Jalgaon for the offence punishable under Sections 498-A, 323, 504, 506 read with Section 34 of Indian Penal Code is hereby allowed in terms of prayer clause (A) to the extent of applicant Nos. 5 to 13. (ii) The application is disposed of as withdrawn to the extent of applicant Nos. 1 to 4. (iii) Rule is made absolute in terms of prayer clause (A). (iv) The observations made hereinabove are prima facie in nature and confined to the adjudication of present application to the extent of applicant Nos. 5 to 13 only and the trial Court shall not get influenced by the said observations during the trial in respect of applicant Nos. 1 to 4 (accused). (v) The fees of Shri A.N. Walujkar, learned Advocate (appointed) for Respondent No. 2 is quantified at Rs. 4,000/- (Rupees Four Thousand). The Secretary, High Court Legal Services Sub Committee Bench at Aurangabad shall pay above said quantified fees to Shri A.N. Walujkar Advocate.