2757.2017 Cri.Appln..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2757 OF 2017
Premdas s/o. Yashudas Bedare,
Age: 37 Years, Occ. Service,
R/o. Gokul Nagar Chourasta,
Taluka & District Nanded. APPLICANT
VERSUS
1. The State of Maharashtra,
Through the Police Sub-Inspector,
Vazirabad Police Station,
Tq. & Dist. Nanded.
2. Priti w/o. Prashant Bedare
[Khatgaonkar],
Age: 31 Years, Occ. Household,
R/o. Isaac Khatgoankar,
[D.S.] Methoist Charch,
Prakashalya Kamalnagar,
Tq.Aurad & Dist.Bidar
[Karnataka] RESPONDENTS
...
Mr.Shivsamb N.Janakwade, Advocate for the
applicant.
Mr.S.P.Deshmukh, APP for Respondent-State
Mr.S.P.Karkare, Advocate for respondent no.2
...
CORAM: S.S.SHINDE &
A.M.DHAVALE,JJ.
Date: 11.08.2017 ORAL JUDGMENT: [Per S.S.Shinde,J.] 1] Heard. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties.
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2757.2017 Cri.Appln..odt 2 2] This Application is filed praying therein for quashing and setting aside R.C.C. No.410/2017 pending before the Chief Judicial Magistrate, Nanded and First Information Report bearing Crime No.197/2015, dated 17th December, 2016, registered at Vazirabad Police Station, Nanded, and charge-sheet filed by respondent no.1 dated 3rd July, 2017 to the extent of present applicant for the offence punishable under Sections 498-A, 323, 324, 504, 506 r/w.34 of the Indian Penal Code.
3] Learned counsel appearing for the applicant invites our attention to the contents of the First Information Report [for short 'FIR'], and also the charge-sheet and accompaniments of the charge-sheet. He submits that so far allegations against the applicant, who is brother-in-law of respondent no.2 i.e. informant, are ::: Uploaded on - 18/08/2017 ::: Downloaded on - 19/08/2017 00:06:44 ::: 2757.2017 Cri.Appln..odt 3 concerned, same are general in nature, vague, and without mentioning any specific date and time of such alleged incident. He invites our attention to the Page 30 of the compilation of the Criminal Application, and submits that the applicant is residing separately at Nanded City with his family. He submits that further continuation of the proceedings as against the present applicant on the basis of Crime No.197/2015 registered at Vazirabad Police Station, Nanded, for the offences punishable under Sections 498A, 323, 324, 504, 506 r/w.34 of the Indian Penal Code would be exercise in futility, and therefore, the application may be allowed. 4] On the other hand, learned APP appearing for respondent-State, and learned counsel appearing for respondent no.2, relying upon the allegations in the FIR, and also the statements of the witnesses submit ::: Uploaded on - 18/08/2017 ::: Downloaded on - 19/08/2017 00:06:44 ::: 2757.2017 Cri.Appln..odt 4 that along with other accused, there are specific allegations against the applicant; the applicant is residing at Nanded. 5] Upon hearing the learned counsel appearing for the applicant, learned APP appearing for respondent-State, and learned counsel appearing for respondent no.2, and upon careful perusal of the allegations in the FIR, charge-sheet and accompaniments of the charge-sheet, and the statements of the witnesses, it appears that, there is allegation in respect of demand of Rs.50,000/- against the members of the matrimonial house of the informant, and it is alleged against the applicant that he instigated the husband of respondent no.2 i.e. informant to beat/assault the informant in such a way that, she cannot tell or show other people about such beating. The relevant portion of the allegations in FIR as against ::: Uploaded on - 18/08/2017 ::: Downloaded on - 19/08/2017 00:06:44 ::: 2757.2017 Cri.Appln..odt 5 the applicant is as under:
Hkk;k izsenkl csnjs Eg.kkyk dh] fryk vklk ekj ns dh] yksdkauk nk[kfork ;s.kkj ukgh vls Eg.kwu vaxkoj /kkowu vkyk-
6] As already observed, upon careful perusal of the allegations in the FIR, and the statements of the witnesses, there is no mention of specific date of incident. There is no denial to the fact that the applicant is separately residing in Gorakshan Gokul Nagar, Chaurasta at Nanded. Upon perusal of the contents of the FIR, it appears that, the applicant and his wife tried to mediate and convince the informant to go for cohabitation.
7] In that view of the matter, keeping in view the exposition of law by the Supreme Court in the case of State of Haryana V/s Bhajan Lal1 wherein in para 108 it is held as 1 AIR 1992 SC 604 ::: Uploaded on - 18/08/2017 ::: Downloaded on - 19/08/2017 00:06:44 ::: 2757.2017 Cri.Appln..odt 6 under:
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 extra- ordinary 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 ::: Uploaded on - 18/08/2017 ::: Downloaded on - 19/08/2017 00:06:44 ::: 2757.2017 Cri.Appln..odt 7 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 ::: Uploaded on - 18/08/2017 ::: Downloaded on - 19/08/2017 00:06:44 ::: 2757.2017 Cri.Appln..odt 8 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.
8] The case of the applicant is squarely covered in category no.1 of the aforesaid categories. In that view of the matter, further continuation of the proceedings as against the applicant will tantamount to abuse of process of the Court and exercise in futility, since chances of conviction are bleak.
9] In the light of the discussion in the foregoing paragraphs, Criminal Application succeeds. The Application is ::: Uploaded on - 18/08/2017 ::: Downloaded on - 19/08/2017 00:06:44 ::: 2757.2017 Cri.Appln..odt 9 allowed in terms of prayer clause-A, however, restricted to applicant only. Rule is made absolute in above terms, to the extent of the present applicant only. The Application stands disposed of accordingly. 10] Needless to observe that the trial Court can proceed against other accused.
[A.M.DHAVALE] [S.S.SHINDE]
JUDGE JUDGE
DDC
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