Smt. Umme Habiba Begum W/O Jalil ... vs Jamil Ahamad Khan Abdul Hamid Khan ...
2016 Latest Caselaw 2004 Bom

    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..
    ==============================================
           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.
    ==============================================
                              
                                    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/-

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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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from the prosecution.

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/-

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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/-

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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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discharging the non-applicant Nos.1 to 4, be maintained.

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/-

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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 !!

...../-