Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION NO.51 2014
Smt. Umme Habiba Begum W/o
Jalil Ahmad Kha., Aged about 47
Years, Occupation Housewife,
R/o Millat Colony, Khamgaon,
Presently at Samata Colony,
Khamgaon, District Buldana. ..... Applicant.
ig :: VERSUS ::
1. Jamil Ahamad Khan Abdul
Hamid Khan, Aged about -
46 Years, Occupation Service,
R/o Abrar Colony, Paur,
District Akola.
2. Javed Ahamad Khan Abdul
Hamid Khan, Aged about
45 years, Occupation Labourer.
3. Jafar Ahamad Khan Abdul
Hamid Khan, Aged about-
37 years, Occupation Service,
R/o Undri, Taluka Chikhli, District
Buldana.
4. Jamshid Ahamad Khan
Abdul Hamid Khan, Aged
About 37 Years, Occupation Labourer
No.2 & 4 Residence of
Fattesingpura, Kirhadpura,
.....2/-
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Judgment
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Aurangabad, Taluka and District
Aurangabad.
5. State of Maharashtra,
Through P.S.O. P.S. Khamgaon,
Tahsil Khamgaon,
District Buldana. ..... Non-applicants..
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Shri Junaid Ahmed, Advocate for the Applicant.
Shri A.B. Mirza, Advocate for the Non-applicant Nos.1 to 4.
Shri N.B. Jawade, Addl. Public Prosecutor for the Non-applicant No.5.
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CORAM : Z.A. HAQ, J.
DATE : APRIL 28, 2016.
ORAL JUDGMENT.
1. Heard Shri Junaid Ahmed, Advocate for the applicant, Shri A.B. Mirza, Advocate for the non-applicant Nos.1 to 4 and Shri N.B. Jawade, Additional Public Prosecutor for the non-applicant No.5-State of Maharashtra.
2. Rule. Rule made returnable forthwith.
3. The applicant (wife) has filed this criminal revision application challenging the order passed by the learned .....3/-
::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 00:07:59 :::Judgment revn51.14 3 Additional Sessions Judge by which the criminal revision application filed by the non-applicant Nos.1 to 4 and Abdul Hamid Khan Abdul Karim Khan (father-in-law of the applicant) and Salma Khanam Abdul Hamid Khan (mother-in-law of the applicant) came to be decided. The Criminal Revision Application No.1 of 2012 is partly allowed. The learned Additional Sessions Judge granted the prayer of the non-
applicant Nos.1 to 4 and discharged them from the prosecution and rejected the prayer of Abdul Hamid Khan Abdul Karim Khan and Salma Khanam Abdul Hamid Khan for discharge from the prosecution for the charges under Sections 498-A, 504 and 506 read with Section 34 of the Indian Penal Code.
4. Abdul Hamid Khan Abdul Karim Khan and Salma Khanam Abdul Hamid Khan had filed Criminal Application (APL) No.97 of 2014 before this Court which is allowed by the judgment dated 30.4.2014 and Abdul Hamid Khan Abdul Karim Khan and Salma Khanam Abdul Hamid Khan are discharged .....4/-
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5. Shri Junaid Ahmed, Advocate for the applicant has submitted that the learned Magistrate considered the claim made by the non-applicant Nos.1 to 4 that they were not residing with the applicant and her husband and the documentary evidence placed on record by the non-applicant Nos.1 to 4 was assessed by the learned Magistrate and the learned Magistrate was, prima-facie not satisfied that the documentary evidence placed on record by the non-applicant Nos.1 to 4 is trustworthy and felt that the contentions of the non-applicant Nos.1 to 4 will have to be considered only after the evidence is recorded and accordingly the application under Section 227 of the Code of Criminal Procedure filed on behalf of the non-applicant Nos.1 to 4 came to be rejected. It is submitted that the Sessions Court has committed an error in setting aside the order passed by the learned Magistrate, concluding that the non-applicant Nos.1 to 4 cannot be discharged at this stage. Learned Advocate has .....5/-
::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 00:07:59 :::Judgment revn51.14 5 submitted that the learned Additional Sessions Judge has committed an error of jurisdiction by taking a different view, overlooking the fact that the view taken by the learned Magistrate was a possible view and it cannot be said that the findings recorded by the learned Magistrate were perverse and not possible in view of the material on record. It is prayed that the application be allowed and the order passed by the learned Additional Sessions Judge discharging the non-applicant Nos.1 to 4 be set aside.
6. Shri A.B. Mirza, Advocate for the non-applicant Nos.1 to 4 has submitted that the non-applicant Nos.1 to 4 are brothers of the husband of the applicant and they are falsely implicated in the crime. It is submitted that the non-applicant Nos.1 to 4 have been residing separately and in support of this, the documentary evidence is placed on record which was not properly considered by the learned Magistrate. The learned Advocate has submitted that the Sessions Court has rightly considered the allegations .....6/-
::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 00:07:59 :::Judgment revn51.14 6 made by the applicant and has found that the allegations are only against the husband of the applicant. It is pointed out that the learned Additional Sessions Judge has also rightly found that there are no allegations of ill-treatment to the applicant by the non-applicant Nos.1 to 4. The learned Advocate has argued that the conclusions of learned Additional Sessions Judge are in consonance with the principles laid down for prosecution under Section 498-A of the Code of Criminal Procedure. Reliance is placed on the judgment given in the case of Preeti Gupta and another ..vs.. State of Maharashtra and another, reported in (2010)7 SCC 667.
It is submitted that the falsity of the claim of the applicant is fortified by the conclusions of this Court recorded in the judgment delivered in Criminal Application (APL) No.97 of 2014 while discharging Abdul Hamid Khan and Salma Khanam.
It is prayed that the application be dismissed and the judgment passed by the learned Additional Sessions Judge .....7/-
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7. The proposition laid down in the judgment given in the case of Preeti Gupta and another ..vs.. State of Maharashtra and another, is well settled. However, in my view, it would not be relevant at this stage. In the present case, the point is whether the learned Additional Sessions Judge is right in re-
appreciating the material on record and taking a different view when it cannot be said that the view taken by the learned Magistrate was perverse and was not possible at all. It is well established that the revisional Court should be loathe in re-
appreciating the evidence, unless the order passed by the sub-
ordinate Court suffers from patent illegality and perversity. In the present case, the learned Magistrate applied his mind to the facts on record, considered the documentary evidence and recorded conclusions, which cannot be said to be patently illegal or perverse. The learned Additional Sessions Judge committed an error in re-appreciating the material on record and taking a .....8/-
::: Uploaded on - 12/05/2016 ::: Downloaded on - 30/07/2016 00:07:59 :::Judgment revn51.14 8 different view. Hence, the impugned order is unsustainable.
8. The impugned order is set aside. The order passed by the learned Magistrate on application (Exhibit No.61) on 30.9.2011 on the prayer of the non-applicant Nos.1 to 4 for discharging from the prosecution, is restored.
9. Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE !! BRW !! ...../-
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