Piran S/O Onkar Salve And Others vs The State Of Mahrashtra And Anr
2017 Latest Caselaw 1429 Bom

                                                      3800.2016 Appln..odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.3800 OF 2016 

          1]       Piran s/o.Onkar Salve,  
                   Age: 65 years, Occ : Nil, 
                   R/o. Wadfalya, Tq. Aakrani,  
                   District Nandurbar 425 414

          2]       Ushabai w/o Piran Salve,  
                   Age: 60 years, Occ : Household,  
                   R/o. Wadfalya, Tq. Aakrani,  
                   District Nandurbar 425 414 

          3]       Hemraj s/o. Piran Salve,  
                   Age: 40 years, Occ : Education, 
                   R/o. Wadfalya, Tq. Aakrani,  
                   District Nandurbar 425 414 

          4]       Kokilabai w/o Hemraj Salve,  
                   Age: 36 years, Occ : Household,  
                   R/o. Wadfalya, Tq. Aakrani,  
                   District Nandurbar 425 414 

          5]       Sumitra d/o.Piran Salve,  
                   Age: 36 years, Occ : Service
                   R/o.Gaurinandan row house,  
                   Shahada, Tq. Shahada, 
                   District Nandurbar.  

          6]       Hansraj s/o.Piran Salve,  
                   Age: 32 years, Occ: Medical Practitioner,
                   R/o. At post Aarthe [Bk],  
                   Tq. Shirpur, District Dhule    APPLICANTS

                              VERSUS 

          1]       The State of Maharashtra
                   Through Police Station Officer,  
                   Shirpur Police Station, 
                   Shirpur, Tq. Shirpur, Dist Dhule. 




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          2]       Varsha w/o Hansraj Salve,  
                   Age: 30 years, Occ: Medical Practitioner,
                   R/o. At Post Gartad, Tq. Shirpur, 
                   District Dhule.               RESPONDENTS

                                  ...
          Mr.A.A.Mukhedkar, Advocate for the Applicants 
          Mr.P.G.Borade,   APP   for   the   Respondent   No.1/ 
          State
          Mr.P.S.Paranjape,Advocate for respondent No.2
                                  ...
                          CORAM:  S.S.SHINDE & 
                                    K.K.SONAWANE,JJ.     

Date: 4th April, 2017

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. This Criminal Application takes

exception to the charge sheet bearing Charge

Sheet No.71 of 2016 for the offences

punishable under Sections 498-A, 406, 323,

504, 506 r/w. 34 of the Indian Penal Code

filed in the Court of Judicial Magistrate

First Class at Shirpur, District Dhule.

3800.2016 Appln..odt

4. The learned counsel appearing for

the applicants invites our attention to the

allegations in the First Information Report,

and also the statements of the witnesses

recorded by the Investigation Officer during

the course of investigation, and submits

that, even if the allegations in the FIR are

taken at its face value and read in its

entirety, an ingredients of the alleged

offences have not been attracted. The

statements of the witnesses only reiterate

allegations made in the FIR, and their

version is hearsay. It is submitted that,

there are omnibus allegations against all the

applicants without attributing any specific

overt acts qua each of the applicants or

quoting any specific incident or date of such

alleged incident/incidents. He further

submits that, the Supreme Court in the case

of Preeti Gupta and Anr. v. State of

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Jharkhand and Anr.1 has taken a note that,

the tendency of over implication of the

relatives of the husband by making omnibus

allegations in the FIR / complaint is on

increase. In support of his submission that,

when there are omnibus allegations and no

specific overt acts are attributed qua the

applicants / accused, in that case the FIR /

charge-sheet deserves to be quashed, he

pressed into service exposition of law by the

Supreme Court in the case of Geeta Mehrotra

and Anr. Vs. State of U.P. and Anr.2. He

further invites our attention to the judgment

of the Division Bench of the Bombay High

Court, Bench at Aurangabad in the case of

Saleha Sadik Sayed and others Vs. State of

Maharashtra and another3, and also in the

case of Mohammad Ashfaque Ansari and others

Vs. State of Maharashtra and another4.

1 2010 AIR SCW 4975 2 AIR 2013 SC 181 3 2015 [4] Bom.C.R.[Cri.] 423 4 2015 All M.R.[Cri.] 2615

3800.2016 Appln..odt

Therefore, he submits that the application

deserves to be allowed.

5. On the other hand, the learned APP

appearing for respondent - State relying upon

the allegations in the FIR, and also the

statements of the witnesses submits that, the

Investigating Officer has collected

sufficient material, and on the basis of said

material the trial can proceed.

6. The learned counsel appearing for

respondent no.2 invites our attention to the

allegations in the FIR, and also the

statements of the witnesses and in particular

statement of one Mr. Himmat Eknath Naik and

Mr. Mangesh Shivram Koli, and submits that,

an allegation in the FIR will have to be

taken as it is, and if the offences are

disclosed, those allegations will have to be

tested only during the course of trial. He

also invites our attention to the averments

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in the affidavit-in-reply filed on behalf of

respondent no.2. He submits that the

applicants have opportunity to file

application for discharge before the

concerned Court. He invites our attention to

the judgment of the Supreme Court in the case

of Bhaskar Lal Sharma and Anr. Vs. Monica and

Ors.5 and submits that, the Supreme Court has

taken a view that, the facts, as alleged,

will have to be proved which only be done in

the course of a regular trial. Appreciation,

even in a summary manner, of the averments

made in a complaint petition or FIR would not

be permissible at the stage of quashing and

the facts stated will have to be accepted as

they appear on the very face of it. He

invites our attention to the judgment of the

Supreme Court in the case of Taramani Parakh

Vs. State of M.P. and Ors.6, and submits

that, in para 16 of the said judgment, the

5 [2014] 3 SCC 383 6 2015 Cri.L.J. 2031

3800.2016 Appln..odt

Supreme Court after discussing the facts of

the case of Neelu Chopra and Anr. Vs. Bharti7

and also in the case of Geeta Mehrota [cited

supra], observed that, the said cases neither

purport to nor can be read as laying down any

inflexible rule beyond the principles of

quashing which have been mentioned above and

applied to the facts of the cases therein

which are distinguishable. It is held that,

the question whether the appellant therein

had in fact been harassed and treated with

cruelty is a matter of trial and at the stage

of considering the prayer for quashing the

FIR, it cannot be said that no case is made

out. Thus, quashing of proceedings before the

trial is not permissible. He further pressed

into service the judgment of the Supreme

Court in the cases of Swapnil and ors. Vs.

State of Madhya Pradesh8, Amit Kapoor Vs.

Ramesh Chander and Anr.9, and the judgment of 7 [2009] 10 SCC 184 8 [2014] 13 SCC 567 9 [2012] 9 SCC 460

3800.2016 Appln..odt

the Bombay High Court, Bench at Aurangabad,

in the case of Sanjay s/o. Bhimrao Tathe and

others Vs. The State of Maharashtra and

another in Criminal Application No.5005 of

2016, decided on 6th January, 2017, and also

in the case of Ashabai w/o. Gangadhar Darade

and others Vs. The State of Maharashtra and

another in Criminal Application No. 1303 of

2015, decided on 9th December, 2016, in the

case of Arvind s/o. Pyarelal Jain and another

Vs. The State of Maharashtra and another in

Criminal Writ Petition No.438 of 2016,

decided on 20th October, 2016, in the case of

Sumit & Ors. Vs. The State of Maharashtra and

ors.10 and in the case of Muzhir Ahmed Itbar

Khan and Ors. Vs. The State of Maharashtra

and ors.11.

7. We have given careful consideration

to the submissions of the learned counsel

10 2016 All M.R. [Cri.] 600 11 2016 All M.R.[Cri.] 980

3800.2016 Appln..odt

appearing for the applicants, the learned APP

appearing for respondent - State, and the

learned counsel appearing for respondent

no.2. We have also carefully perused the

allegations in the FIR, the statements of the

witnesses, and also all other documents

placed on record. So far as applicant no.1-

Piran Onkar Salve, applicant no.2-Ushabai

Piran Salve, applicant no.4-Kokilabai Hemraj

Salve and applicant no.6 Hansraj Piran Salve

are concerned, there are specific allegations

in the FIR to the following effect:-

v'kk izdkjs eh lkljh ukanr vlrkuk] ek>s irh galjkt gs /kMxkao ;sFks oS|dh; O;olk; djhr gksrs- R;kauk oS|dh; O;olk;kr eh ns[khy enr d: ykxyh- ijarw ek>s lkljs&fiju] lklw&m"kkckbZ] tsB&gsejkt] o tsBk.kh&dksdhGkckbZ] u.kan&lqfe=k gs eyk okbZV okbZV cksyqu eyk ?kjhp cl.ksl lkaxr vls- ek>s irh] ek>h lklq o tsBk.khps ,sdwu ek>s pkjh«;koj la'k; ?ksr vls o R;kgh dkj.ks eyk irh o lklq] tsBk.kh gs gkrk cqDD;kauh ekjgk.k d:u ftos ekj.ksph /kedh nsr vls- rjh ns[khy eh vkt uk mn;k ek>s lkljps yksdkaps okx.ksr cny gksbZy o d/kh dkGh vkiyk lalkj lq[kkpk

3800.2016 Appln..odt

gksbZy ;k vk'ksoj eh] ek>s lkljps yksdkaiklwu gks.kkjk ojhy loZ =kl lgu d:u eh irhdMs ukanr gksrh- njE;ku eyk irh iklqu nql&;kank fnol vlrkauk eyk lklq] lkljs] tsBk.kh ;kauh izpaM HkkaM.k d:u] ek>s lklq lkljs o tsBk.kh ;kauh ek>s ojhy ueqn L=h/kukps yXukr p<foysys nkfxus dk<qu Bsoqu ?ksrys-?kjkps ckgsj dk<qu fnys Eg.kwu eh ek>s irh lkscr /kMxkao ;sFkhy Dyhuhd e/;s 4 & 5 fnol jkghyh- R;kuarj lnjph ckc eh ek>s vkbZ oMhykauk dGfoyh rsOgk ek>s vkbZ oMhykaph o ek>s lklq lkljs ;kaph cSBd gksoqu eh] ek>s irh lkscr osxGh [kksyh d:u jgkos vls Bjys o eh irh lkscr /kMxkao ;sFks :e d:u jkgq ykxyh- R;kosGh ns[khy ek>s oMhykauh ?kj lkekukP;k loZ OkLrq ?ksoqu fnY;kr Eg.kwu eh irh lkscr 6 & 7 eghus /kMxkao ;sFks jkghyh- ijarw ;k dkGkr ns[khy ek>s lkljps yksd irh] lklw] lkljs] tsB] tsBk.kh o u.kan ;kauh] eh ekgs:u iSls vk.kkos o eksB&eksB;k oLrq vk.kkO;kr Eg.kwu ekx.kh d: ykxys R;koj eh udkj fnyk vlrk] eyk ek>s lkljps yksd f'kohxkG d:u gkrk cqDD;kauh ekjgk.k d:u ekufld o 'kkfjjhd NG d:u =kl nsoq ykxys-

8. In addition to above, in later part

of the FIR, so far as applicant no.6 Hansraj

Piran Salve is concerned, there are serious

allegation against him of assaulting the

wife, abusing in filthy language, detaining

3800.2016 Appln..odt

in the house, giving threats to kill her, and

giving all sort of mental and physical

harassment. Therefore, keeping in view the

specific allegations in the FIR, which are

supported by the statement of the witnesses,

we are not inclined to entertain the

application of applicant no.1-Piran Onkar

Salve, applicant no.2-Ushabai Piran Salve,

applicant no.4-Kokilabai Hemraj Salve and

applicant no.6 Hansraj Piran Salve.

9. So far as applicant no.3 Hemraj s/o.

Piran Salve and applicant no.5 Sumitra d/o.

Piran Salve are concerned, we are of the

opinion that, the allegations as against them

are omnibus and general in nature. It appears

that, applicant no.5 Sumitra d/o.Piran Salve

is married sister of applicant no.6 Hansraj,

husband of the respondent no.2, and residing

since her marriage at Shahada.

10. Therefore, keeping in view the

3800.2016 Appln..odt

exposition of the Supreme Court in the case

of State of Haryana V/s Bhajan Lal12 wherein

it is held that, in those categories of the

case which are mentioned in para 108 of said

judgment, the High Court would be able to

quash the F.I.R.

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 12 AIR 1992 SC 604

3800.2016 Appln..odt

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 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

3800.2016 Appln..odt

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.

11. In the light of discussion in

foregoing paragraphs, in our opinion, the

cases of the applicant no.3 Hemraj s/o. Piran

Salve and applicant no.5 Sumitra d/o. Piran

Salve would be covered under category nos.1

and 5 of the above mentioned categories. In

the result, application of applicant no.3

Hemraj s/o. Piran Salve and applicant no.5

3800.2016 Appln..odt

Sumitra d/o. Piran Salve succeeds. Hence,

the light of following order:

ORDER

i] Application of applicant no.1-Piran

Onkar Salve, applicant no.2-Ushabai

Piran Salve, applicant no.4-

Kokilabai Hemraj Salve and applicant

no.6 Hansraj Piran Salve stands

rejected.

ii] Application of applicant no.3 Hemraj

s/o.Piran Salve and applicant no.5

Sumitra d/o.Piran Salve stands

allowed. The further proceedings, on

the basis of charge-sheet bearing

Charge Sheet No.71 of 2016 for the

offences punishable under Sections

498-A, 406, 323, 504, 506 r/w. 34 of

the Indian Penal Code, pending on

the file of Judicial Magistrate

First Class, Shirpur, qua applicant

3800.2016 Appln..odt

no.3 Hemraj and applicant no.5

Sumitra, stands quashed and set

aside.

iii] Rule is made absolute on above

terms.

iv] This order will not preclude

applicant nos.1, 2, 4 and 6 from

filing application for discharge

before the concerned Court, if they

are so advised.

v] The observations made hereinabove

are prima facie in nature and

confined to the adjudication of the

present application only.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC