Bombay High Court

Chhabubai W/O Ankush Patkal vs The State Of Maharashtra And Anr on 27 April, 2017

Bench: S.S. Shinde

                                                                 cwp1429.16
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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


             CRIMINAL WRIT PETITION NO.1429 OF 2016

 Chhabubai w/o Ankush Patkal,
 Age-70 years, Occu:Household,
 R/o-Jayakwadi, Tq-Paithan,
 Dist-Aurangabad.
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,
    Through Police Station M.I.D.C.,
    Paithan, Dist-Aurangabad,

 2) Janabai w/o Pandurang Kachare,
    Age-25 years, Occu:Household,
    R/o-Jayakwadi, M.I.D.C., Paithan,
    Tq-Paithan, Dist-Aurangabad.   
                                 ...RESPONDENTS

                      ...
    Mr.P.P. Dawalkar Advocate h/f. Mr. C.S.
    Deshmukh Advocate for  Petitioner.
    Mr.S.J. Salgare, A.P.P. for Respondent No.1.
    Mr.S.B. Choudhari Advocate for Respondent No.2. 
                      ...

               CORAM:   S.S. SHINDE AND
                        K.K. SONAWANE, JJ.

               DATE :   27TH APRIL 2017 

 ORDER  :

1. Rule. Rule made returnable forthwith and

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heard finally with the consent of the learned

counsel appearing for the parties.

2. Learned counsel appearing for the

Petitioner submits that the Petitioner is a 70

years old lady suffering from several ailments for

last ten years. The Petitioner needs help of

family members for walking and doing other day to

day activities. He submits that even if the

allegations in the First Information Report are

taken at its face value and read in its entirety,

alleged offences are not disclosed. It is submitted

that even if the statements of the witnesses/

accompaniments of the charge-sheet are considered,

in that case also there are no any specific overt

acts attributed qua the Petitioner. He submits

that in absence of any specific incident, date of

incident and overt act attributed as against the

Petitioner, on the basis of the allegations in the

First Information Report an alleged offences are

not disclosed. Therefore, keeping in view the

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guidelines laid down in the case of State of

Haryana V/s Bhajan Lal1 and in particular

guideline Nos.1 and 5, the Petition deserves to be

allowed. Learned counsel also placed reliance upon

the Judgment of this Court in the case of Rupali @

Jyoti w/o Ganesh Kakade and others vs. State of

Maharashtra (Criminal Application No.2622 of 2016)

decided on 11th January, 2017. In support of his

submissions, learned counsel also placed reliance

upon the Judgments of the Supreme Court in the

case of Chandralekha and others vs. State of

Rajasthan and another2, and Preeti Gupta and

another vs. Stte of Jharkhand and another3.

3. On the other hand, learned A.P.P.

appearing for the State relying upon the

investigation papers and accompaniments of the

charge-sheet, submits that the Petitioner is named

in the First Information Report, and along with 1 AIR 1992 SC 604

2 (2013) 4 S.C.C. 374 3 (2010) 7 S.C.C. 667

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other accused overt act is also attributed to the

Petitioner.

4. Learned counsel appearing for Respondent

No.2 relying upon the allegations in the First

Information Report and also the statement of Kisan

Sakharam Jawale recorded during the course of

investigation, submits that the Petitioner played

role along with the co-accused in instigating the

husband and in turn the husband used to assault

Respondent No.2. It is submitted that the

Petitioner is residing along with the family

members of accused in matrimonial home. Therefore,

he submits that the Petition may be rejected.

5. We have given anxious consideration to

the submissions of the counsel appearing for the

parties, with their able assistance perused the

averments in the Petition, grounds taken therein

and also the allegations in the First Information

Report, charge-sheet and the accompaniments of the

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charge-sheet. For the purpose of deciding present

Petition, it would be relevant to reproduce the

following allegations from the First Information

Report:

"uarj R;kauh ts'khih ?ks.;klkBh rw>s vkbZ&oMhykadMwu iSls

vku vls eyk lkaxs o uojk lklw lkljs R;kaps

lkax.;ko:u eyk f'kO;k nsowu ekjgku djr vls- eh

vkbZ ofMykauk HksVk;yk vkY;koj o ekgsjh xsY;koj

lkljyksd ts'khch ?ks.;klkBh 1- ikaMwjax jkefdlu dpjs]

¼irh½] 2- eankckbZ jkefdlu dpjs] ¼lklw½]

3- Kkus'ojh v'kksd dpjs ¼tko½] 4- jkefdlu dpjs

¼lkljk½] 5- v'kksd jkefdlu dpjs ¼Hkk;k½] 6- NcwckbZ

vadw'k ikrdG ¼ekol lklw½] loZ jk- ikMGh ft- v-uxj

loZ ,d= ;k;ps o jk=h cs jk=h ek>s uo&;kyk ,dkps nksu

lkaxwu uojk ikaMwjax gk eyk f'kO;k n;k;pk eh lklw]

lkljk] tko] Hkk;k] ekol tko ;kauk lkaxk;ps rs i.k

R;kpsp vkys o loZ eyk f'kO;k nsr o uojk dsl /k:u

cqD;kus ekjgku djr o ts'khch ?ks.;klkBh ikp yk[k :-

ekgsjgwu ?ksowu ;s ek>s vaxkojhy loZ lksU;kps nkfxus

dk<wu ?ksrys eyk mik'khiksVh ?kjkckgsj gdywu fnys eh

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vkbZ oMhy ;kauk cksykowu ?ksowu o e/;Lrh djukjs 'ks"kjko

lq;ZHkku xkoans jk- rqGtkiwj rk-iSB.k ;kauk ek>s vkbZ

oMhykalg c&;kp osGk letksrk dsyk ijarw R;kaps okxusr

Qjd iMyk ukgh-"

6. Upon careful perusal of the statement of

Kisan Sakharam Jawale recorded by the

Investigating Officer during the course of

investigation, even in his statement there is no

any overt act attributed to the Petitioner or no

any specific incident has been quoted. In that

view of the matter when the ingredients of the

alleged offences are not attracted and

consequently alleged offences are not disclosed,

in that case continuation of further proceedings

bearing R.C.C. No.543 of 2016 initiated on the

basis of Crime bearing No.123 of 2016 dated 1st

June, 2016 registered at M.I.D.C., Paithan Police

Station, under Sections 498-A, 323, 504 read with

34 of the Indian Penal Code and Charge Sheet

bearing No.106 of 2016 which is pending before 3rd

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J.M.F.C., Paithan, so far as present Petitioner is

concerned, will be abuse of process of Court and

would be exercise in futility when there are no

chances of conviction of the Petitioner.

7. The Supreme Court in the case of "State

of Haryana V/s Bhajan Lal, supra, held that, in

following categories the Court would be able to

quash the F.I.R. :-

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

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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 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

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spite him due to private and personal grudge.

5. The case of the Petitioner is squarely

covered under Category No. 1 of the Categories

laid down by the Supreme Court in the case of

State of Haryana V/s Bhajan Lal (supra).

8. For the reasons aforesaid, the Writ

Petition is allowed. The further proceedings

bearing R.C.C. No.543 of 2016 initiated on the

basis of Crime bearing No.123 of 2016 dated 1st

June, 2016 registered at M.I.D.C., Paithan Police

Station, under Sections 498-A, 323, 504 read with

34 of the Indian Penal Code and Charge Sheet

bearing No.106 of 2016 which is pending before 3rd