Shaikh Sadiq S/O Shaikh Baber And ... vs The State Of Maharashtra & Anr
2016 Latest Caselaw 5102 Bom

                                     1            CRI WP 1434.2015.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                                                      
               CRIMINAL WRIT PETITION NO. 1434 OF 2015




                                              
         1.      Shaikh Sadiq s/o Shaikh Baber,
                 age 31 years, Occ. Driver,
                 R/o Kokach Peer Mohalla,




                                             
                 Kanadi Road, Kaij, Dist. Beed.

         2.      Amina Begum w/o Shaikh Baber,
                 age 60 yrs, Occ. Household,
                 R/o Kokach Peer Mohalla,




                                    
                 Kanadi Road, Kaij, Dist. Beed.

         3.
                             
                 Shabana Begum w/o Shaikh Ajju,
                 age 25 years, Occ. Household, 
                 R/o At post Masajog, Tq. Kaij,
                            
                 Dist Beed.

         4.      Shaikh Ajju S/o Sk Shamshuddin,
                 age 28 yrs, Occ. Labour,
      


                 R/o Post Masajog, Tq. Kaij,
                 Dist Beed.
   



         5.      Shaikh Mushtaq s/o Shaikh Baber,
                 age 40 yrs, Occ. Business,
                 R/o at Post Shiradhon, Tq. Kallamb,





                 Dist Osmababad.

         6.      Shama Begum w/o Shaikh Mushtaq,
                 age 36 yrs, Occ. Household,
                 R/o at Post Shiradhon, Tq. Kalamb





                 Dist Osmanabad 413 528

         7.      Shaikh Parvez s/o Shaikh Baber,
                 age 30 yrs, Occ. Labour,
                 R/o at Post Kanadi Road East side,
                 Koki Pavir, Mukkam Kaij,
                 Tq. Kaij, Dist. Beed.                     Petitioners.




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                                          2               CRI WP 1434.2015.odt

                 VERSUS




                                                                             
         1.      The State of Maharashtra,
                 Through PI Shivaji Nagar, Police Station,




                                                    
                 Tq. & Dist Beed.
                 (Copy to be served on Public Prosecutor
                 High Court of Judicature of Bombay
                 at Aurangabad. )




                                                   
         2.      Rubina Begum w/o Shaikh Sadiq,
                 age 23 yrs, Occ. Household,
                 R/o Kokach Peer Mohalla,
                 Kanadi Road, Kaij, 




                                        
                 At present Beside Mansoor Shah School,
                 Shahunagar, Tq. & Dist Beed.
                              ig                   ..Respondents..

                                   ...
                Advocate for Petitioners : Mr Kazi S.S 
                            
                 APP for Respondents: Mr P G Borade
             Advocate for Respondent 2 : Mr M A Tandale  
                                   ...
                     CORAM : V.K. JADHAV, J.

Dated: August 31, 2016 ...

ORAL JUDGMENT :-

1. Rule. Rule made returnable forthwith. Heard

finally with the consent of the parties.

2. Being aggrieved by the order dated 8.4.2015 in

RCC No.175/2015 passed by the Judicial Magistrate

First Class, Beed issuing the process against the

petitioner-accused under section 498-A read with 34 of

the Indian Penal Code, and confirmed by the Additional

Sessions Judge, Beed by judgment and order dated

3 CRI WP 1434.2015.odt

9.102015 in Criminal Revision Application No.94/2015,

the original accused preferred this Writ Petition.

3. The learned counsel for the petitioners, at this

stage, has not pressed the Criminal Writ Petition for the

petitioner nos. 1 and 2. Thus, Writ Petition is disposed

of as against the petitioner nos. 1 and 2 as withdrawn.

4.

Brief facts, giving rise to the present writ petition,

are as under :-

It has alleged in the complaint that respondent

no.2 has filed a private complaint before the Judicial

Magistrate F.C., Beed alleging therein that her marriage

with original accused no.1 was solemnized on 23.8.2012

and thereafter she started cohabiting with him. She was

treated well for 5-6 months after the marriage and

thereafter subjected to ill-treatment. It has also alleged

in the complaint that accused no.1 husband used to

abuse her and insisted her to bring the amount of

Rs.20,000/- remained to be unpaid in the marriage.

On 1.8.2013 accused no.1 left her to her parents house

for delivery purpose and on 28.9.2013 the respondent-

4 CRI WP 1434.2015.odt

wife had delivered a male child, however, none of the

accused came to her parents house to see the newly

born baby. Even though, thereafter, the accused no.1

started demanding the said amount of Rs.20,000/-

which remained to be unpaid. It has also alleged in the

complaint that respondent-wife in fact was driven out

from the house. Thus, on 28.4.2014 respondent-wife

had lodged the complaint against all the petitioners-

accused however, on that day, the petitioner-original

accused came to the parents house of the respondent

wife and it has alleged in the complaint that accused

nos. 1 and 2 extended beating to her. It has also alleged

that all the accused extended beating to her. On the

basis of these allegations, the learned Magistrate has

called the report of the police as provided under section

202 of the Code of Criminal Procedure. On perusal of

the report and the complaint, the learned Magistrate by

its impugned order dated 8.4.2015 issued process

against all the accused persons for the offence

punishable u/s 498-A read with section 34 of the Indian

Penal Code. Being aggrieved by the same, the

petitioner-accused preferred criminal revision

5 CRI WP 1434.2015.odt

application No.94/2015 and the learned Additional

Sessions Judge, Beed, by its judgment and order dated

9.10.2015 confirmed the said order. Hence, this writ

petition.

5. The learned counsel for the petitioners submits

that, there are allegations mostly against the original

accused nos. 1 and 2 i.e. husband and mother- in-law.

Learned counsel submits that, the original accused no.3

is the married sister of accused no.1 and accused no.4

is her husband. Furthermore, the accused nos. 5 and 7

are the real brothers of accused no.1 and accused no.6

is the wife of accused no.5. Learned counsel submits

that, the brothers of accused no.1 resides separately

and they are doing their own business. The married

sister is also staying with her husband since long.

Learned counsel submits that there are general

allegations against them and no specific incidents have

been quoted nor specific roles are assigned to them.

6. Learned counsel for the petitioners in order to

substantiate his contentions places his reliance on the

6 CRI WP 1434.2015.odt

following Judgments:-

I] Preeti Gupta and another Vs. State of Jharkhand and another reported in

(2010) 7 Supreme Court Cases 667.

II] Geeta Mehrotra and another Vs. State of Uttar Pradesh and another reported

in (2012) 10 Supreme Court Cases 741.

7. Learned counsel for respondent no.2- wife submits

that the respondent no.2 wife was subjected to ill-

treatment on account of non-fulfillment of the unlawful

demand of unpaid dowry. Furthermore, respondent

no.2 wife has mentioned one specific incident occurred

on 28.4.2014. On that day all accused persons in

furtherance of their common intention came to her

parents house and accused nos. 1 and 2 extended

beating to her. It is also case of respondent no.2-wife

that at that time all the accused extended beating to

her. Learned counsel submits that on perusal of the

complaint as well as the report submitted by the police

u/s 202 of Cr.P.C. since prima facie case is made out,

the learned Magistrate has rightly issued process

against all he accused for the offence punishable under

section 498-A read with section 34 of the Indian Penal

7 CRI WP 1434.2015.odt

Code.

8. On perusal of the complaint, it appears that even

married sisters of accused no.1 husband and his real

brothers who are more than 30 years of age are not

spared. Even husband of the married sister is also

implicated. It further appears from the contents of the

complaint that no specific incident is quoted against

them. So far as incident dated 28.4.2014 as alleged in

the complaint is concerned, no specific role ascribed to

the original accused nos. 3 to 7. Though specific role

has been assigned to original accused nos. 1 and 2 i.e.

husband and mother in law of the respondent-

complainant, general allegations have been made

against the petitioners no. 3 to 7 to that effect that they

have also extended beating to her. It prima facie

appears from the contents of the complaint that, the

entire family of the accused is implicated in the case.

Even prima facie ingredients of section 498-A are not

attracted against them.

8 CRI WP 1434.2015.odt

9. In a case of Preeti Gupta and another Vs. State

of Jharkhand and another reported in (2010) 7

Supreme Court Cases 667 in paragraph no.35 of the

Judgment apex court has made following observations :-

35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth

is a herculean task in majority of these complaints. The tendency of implicating

husband and all his immediate relations is also not uncommon. At times, even after

the conclusion of criminal trial, it is difficult to ascertain the real truth. The

courts have to be extremely careful and cautious in dealing with these complaints

and must take pragmatic realities into consideration while dealing with

matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place

where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. "

9 CRI WP 1434.2015.odt

10. In a case of Geeta Mehrotra and another Vs.

State of Uttar Pradesh and another reported in

(2012) 10 Supreme Court Cases 741 the Supreme

Court in paragraph No.20 and 25 of the Judgment has

made following observations :-

20. "Coming to the facts of this case, when the

contents of the FIR are perused, it is

apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji

Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of

the family members in a matrimonial

dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking

the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic

quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

25. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if

10 CRI WP 1434.2015.odt

there are allegation of overt act indicating the complicity of the members of the family

named in the FIR in a given case,

cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not

disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial

bickering, it would be clear abuse of the

legal and judicial process to mechanically send the named accused in the FIR to

undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of

the offence alleged against the relatives of

the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is

the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an

offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law."

11. So, in view of the above, and in view of the ratio

laid down by the Supreme Court in the aforesaid two

11 CRI WP 1434.2015.odt

cases, I proceed to pass following order.

O R D E R

I. Criminal Writ Petition is hereby partly allowed in terms of prayer clause "B" and the complaint bearing RCC No.175/2015 stands

dismissed as against the petitioner-original accused nos. 3 to 7.

II. Writ Petition is accordingly disposed of. Rule

is made absolute in above terms.

sd/-

( V.K. JADHAV, J. )

.....

aaa/-