Bombay High Court
John S/O. Peter Makasare And ... vs The State Of Maharashtra And Anr on 5 December, 2017
Bench: S.S. Shinde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION 4943 OF 2017
1] John s/o Peter Makasare
Age 59 years, Occu:Service
2] Savita w/o. John Makasare
Age : 50 years, Occu: Housewife
3] Namrata w/o Ashish Burla
Age 28 years, occu : Service
R/o Dattanagar, Parbhani
A/p. All Applicants Residing at
Sarfaraz Nagar, Parbhani
Tq. & Dist.Parbhani ... APPLICANTS
Versus
1] The State of Maharashtra,
Through Nanalpeth Police Station
Parbhani, Tq. & Dist.Parbhani
2] Alka W/o. Arunkumar Burla
Age 58 years, Occu : Service
R/o. Kabra Nagar, Nanded
Tq. & Dist.Nanded. ..Respondents
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Mr.M.V.Ghadge, Advocate for applicants.
Mr. D.R. Kale, APP for Respondent No. 1.
Mr.A.R.Borulkar h/f M.L.Wankhede,
Advocate for respondent No.2.
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CORAM : S.S.SHINDE &
MANGESH S. PATIL, JJ.
RESERVED ON : 27/11/ 2017.
PRONOUNCED ON :05/12/2017.
JUDGMENT ( PER MANGESH S. PATIL,J.) :
1] Rule. Rule is made returnable forthwith. Heard finally
with the consent of parties.
2] This is an application under Section 482 of Cr.P.C. The
applicants are seeking to quash FIR No.144/17 registered with
Nanalpeth Police Station, Parbhani for the offences punishable under
Sections 306, 323, 506 read with 34 of IPC.
3] Shortly stated, the allegations in the FIR are to the effect that
the deceased was the son of the respondent no.2-informant. He was
married to the applicant no.3. The applicants no.1 and 2 are his
parents-in-law. It is alleged that the applicants are residents of
Parbhani. The applicant no.3 is serving in a Government Hospital at
Parbhani as a Nurse. The deceased Ashish was in a private
employment in Aurangabad. Under the pretext that he had to
commute between Parbhani and Aurangabad, the applicants made
him to resign from the job and since then he was residing with the
applicants at Parbhani. However, all the applicants subjected him to
mental and physical harassment. They also threatened respondent
no.2 not to intervene or else they would falsely implicate her for
harassment/cruelty. It is then alleged that fed up with the mental and
physical harassment meted out to him, Ashish committed suicide by
hanging himself in the house of the applicants.
4] We have heard learned advocates for both sides and the
learned APP. We have also perused papers of investigation.
5] According to the learned advocate for the applicants, even
accepting the contents of the FIR at their face value, the ingredients
for offences with which the applicants are charged, cannot be made
out. In fact the applicants 1 and 2 were residing separately and the
deceased was residing separately alongwith his wife the applicant
no.3. The couple also have got twins out of the marriage. Since
after leaving the job at Aurangabad, the deceased Ashish was not
doing anything and was addicted to liquor. There used to be usual
quarrels since he was not supporting the family. There was also a
discord between him and his brother on account of two plots at
Aurangabad and Nanded. He went into depression because of such
discord. Except the matrimonial disagreements, there was no
harassment. No specific allegations can be found against any of the
applicants in the FIR. The contents are inherently improbable. The
complaint has been lodged out of vengeance. Thus applying the
principles in the case of Bhajanlal, the FIR deserves to be quashed.
6] The learned advocate for the applicants also pointed out that
the brother of the applicant no.3 and the maternal uncle of the
applicant no.3 were also roped in the same crime, however, this
Court by judgment and order dated 1/9/2017 to which one of us
(S.S.Shinde,J.) was a party in Criminal Applications No.3129/17 and
3130/17 has quashed the FIR to their extent. The learned advocate
persuaded us to take a similar view even in respect of the present
applicants.
7] The learned advocate for the respondent no.2 referring to her
affidavit in reply (page 32) and the documents annexed thereto,
submitted that the police papers apparently reveal that the deceased
Ashish was subjected to physical and mental harassment and in all
probabilities, that must have the reason for him to take the drastic
step. He also referred to the post mortem report which reads that
apart from the ligature marks around the neck, there were other
external injuries in the form of two imprint abrasions of circular shape
present over the back and the inquest panchanama also
corroborates by describing these marks as marks of bite.
8] The learned APP submitted that the investigation carried out
prima facie establishes a link between the suicide and the alleged
harassment and the evidence collected is sufficient to submit the
charge sheet.
9] It is necessary to note that the principles for quashing FIR
have been crystallized by various pronouncements of the Supreme
Court and the High Court. In the case of State of Haryana V/s
Bhajanlal; AIR 1992 S.C. 604 , some instances have been pointed out
wherein the inherent powers under Section 482 of Cr.P.C. can be
exercised suitably to quash the FIRs. These read as 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
of 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 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 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."
10] Bearing in mind these principles and after carefully going
through the papers of the investigation, it is apparent that though the
contents of the FIR are not very elaborate, the material collected by
the investigating officer clearly corroborates the allegations levelled
in the FIR. We indeed do not intend to express any final opinion as
we should not. However, presence of bite marks on the back of the
deceased Ashish may give a hint of he having been subjected to
some kind of physical torture. Inspite of he having committed suicide
at the residence of the applicants, it is not that any of them or their
relations have informed the respondent no.2 about the sad demise of
her son. No plausible explanation is available for such conduct of the
applicants. Instead, one Sharlet Taru, a neighbour has informed the
respondent no.2 about the incident. The statements of witnesses
with whom the investigating officer has made inquiry reveals that
there was a persistent harassment meted out to the deceased by the
applicants. It is necessary to bear in mind that the law does not
expect the FIR to be an encyclopedia and one needs to look into the
investigation carried out to ascertain whether the material collected
during it corroborates the allegations in the FIR.
11] Considering all these facts and applying the principles laid
down in the case of Bhajanlal, we do not see that the allegations are
inherently improbable or do not constitute the ingredients of the
offences viz. 306, 323 of IPC. Merely because some of the
applicants' relations have been set free, by quashing FIR to their
extent, we are of the view that, that would not compel us to take a
similar view. The case of the applicants stand on a different footing
and is based on the material collected by the investigating officer.
Under these circumstances, we are satisfied that this is not a fit case
to quash and set aside the FIR by invoking the powers under
Section 482 of Cr.P.C.
12] The Application is rejected. Rule is discharged.
( MANGESH S. PATIL,J.) (S.S.SHINDE ,J.)
umg/
