Shaikh Hameduddin S/O. Shaikh ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 9715 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.2939 OF 2017 

          1.       Shaikh Hameduddin s/o.Shaikh 
                   Hamid Taba, 
                   Age: 28 years, Occ: Private Service, 
                   R/o.S.T.Colony, Fazilpura, 
                   Aurangabad.  

          2.       Shaikh Hamid Taba s/o.Fasiuddin,
                   Age: 60 years, Occ: Business, 
                   R/o. as above.  

          3.       Noorjaha w/o.Shaikh Hamid Taba,  
                   Age: 50 years, Occ: Household,  
                   R/o. as above.  

          4.       Seema Sultana w/o.Nazir Khan, 
                   Age : 35 years, Occ: Household,  
                   R/o. Bandra, Mumbai.  

          5.       Nazema Sultana d/o.Shaikh Hamid Taba, 
                   Age: 28 years, Occ: Student, 
                   R/o.S.T.Colony, Fazilpura, 
                   Aurangabad.  

          6.       Mohammad Parvez s/o.Shaikh Hamid Taba, 
                   Age: 25 Years, Occ: Student, 
                   R/o. as above.               APPLICANTS 

                       VERSUS 

          1.       The State of Maharashtra,  
                   Through Police Inspector, 
                   City Chowk Police Station,  
                   Aurangabad.  




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                                                      2939.2017 Cri.Appln.odt
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          2.   Afreenbano w/o.Shaikh Hameduddin, 
               Age: 23 years, Occ: Household, 
               C/o.Saleem Patel, Patel Nagar, 
               Naregaon, MIDC - CIDCO,  
               Aurangabad.                     RESPONDENTS
                                 ...
          Mr.Moinuddin   N.Shaikh,   Advocate   holding   for 
          Mr.S.S.Kazi, Advocate for the applicants. 
          Mrs.V.S.Chaudhari,         APP       for        the 
          Respondent/State
          Smt.Zainab   M.Surti   Wagh   [Appointed]   a/w 
          Mr.M.M.Khan, Advocate for respondent no.2.
                                 ...
                           CORAM:  S.S.SHINDE & 
                                   A.M.DHAVALE,JJ.      

Reserved on : 13.12.2017 Pronounced on : 18.12.2017

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

1] Heard. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

2] This Application is filed, praying

therein to quash the First Information Report

bearing Crime No.0188/2017 registered at City

Chowk Police Station, Aurangabad, for the

offences punishable under Sections 498A, 323,

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

Sections 3 and 4 of the Dowry Act, 1961.

2939.2017 Cri.Appln.odt

3] In view of the statement made by the

learned counsel appearing for the applicants

on 23.11.2017 before this Court, already

application to the extent of applicant nos.1

to 3 has been dismissed as not pressed.

Therefore, this Application survives only in

respect of applicant nos.4 to 6.

4] Learned counsel appearing for the

applicants submits that, applicant no.4 Seema

Sultana w/o.Nazir Khan is residing at Bandra,

Mumbai. He invites our attention to the

rejoinder to the affidavit-in-reply filed on

behalf of respondent no.2, and submits that

the copies of the documents annexed with the

said rejoinder show that, applicant no.4 is a

member of the Siddhivinayak SRA Co-operative

Housing Society at Bandra, Mumbai, and

therefore, the allegations in the First

Information Report [for short 'FIR'] in

respect of involvement of applicant no.4 are

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inherently improbable. The allegations are

vague, general in nature and the alleged

offences are not disclosed as against

applicant no.4. It is further submitted that,

applicant nos.5 and 6 are the students, and

they are prosecuting their studies, and

therefore, their involvement in the alleged

offences is completely ruled out. It is

submitted that, the allegations as against

applicant nos.5 and 6 are vague, general and

alleged offences are not disclosed, and

therefore, the FIR deserves to be quashed.

He further invites our attention to the

averments in the Application, grounds taken

therein, annexures thereto and prays that the

application may be allowed.

5] On the other hand, learned APP

appearing for respondent-State and learned

counsel appearing for respondent no.2,

relying upon the investigation papers and

also affidavit-in-reply filed by respondent

2939.2017 Cri.Appln.odt

no.2, jointly submit that, careful perusal of

the allegations in the FIR, the specific

overt act is attributed qua applicant no.4.

The role of applicant no.4, in causing

harassment and giving ill-treatment to

respondent no.2, was comparatively greater

vis-a-vis other accused, and she is residing

at Aurangabad, and not at Mumbai, as

contended by the learned counsel appearing

for the applicants. It is submitted that, all

the accused without disclosing that the

husband of respondent no.2, namely Shaikh

Hameduddin Shaikh Hamid Taba, is already

married, cheated respondent no.2, and

solemnized his second marriage with her. It

is submitted that, the allegations in the

FIR, will have to be read as it is, and

appreciation of such allegations, even in a

summary manner, is not permissible. It is

submitted that, even the statements of the

independent witnesses, who are residing

2939.2017 Cri.Appln.odt

nearby the house of the accused i.e.

matrimonial house, have been recorded by the

Investigating Officer.

6] We have given careful consideration

to the submissions of the learned counsel

appearing for the applicants, learned APP

appearing for respondent-State, and learned

counsel appearing for respondent no.2. With

their able assistance, we have perused the

averments in the Application, grounds taken

therein and annexures thereto, affidavit-in-

reply filed by respondent no.2, and also the

rejoinder to the affidavit in reply. Upon

careful perusal of the allegations in the

FIR, so far as applicant no.4 is concerned,

there are allegations that she along with her

mother assaulted respondent no.2. There are

allegations that, there was no disclosure

about first marriage of applicant no.1,

Shaikh Hameduddin Shaikh Hamid Taba, to the

informant or her parents. So far as applicant

2939.2017 Cri.Appln.odt

no.4 is concerned, there are specific

allegations against her in the FIR. The

contention of learned counsel appearing for

the applicants that, she is residing at

Mumbai, is not supported by placing on record

the documents of impeccable character. Upon

careful perusal of the statements of the

witnesses, who are residing in the

neighbourhood of the applicants; their

version lends support to the allegations in

the FIR, inasmuch as, they have stated about

frequent quarrel/quarrels in the matrimonial

home. Therefore, the application of applicant

no.4 deserves no consideration. Hence, the

application to the extent of applicant no.4

stands rejected.

7] So far as applicant nos.5 and 6 are

concerned, it is not in dispute that, they

are the students and prosecuting their

studies. If the allegations in the FIR as

against them are taken in its entirety, there

2939.2017 Cri.Appln.odt

is no any specific overt act attributed qua

them. There are vague and general allegations

against them. It is stated in the affidavit-

in-reply by respondent no.2 that applicant

nos.5 and 6 though prosecuting their studies,

never attended the college, cannot be

accepted as gospel truth. In that view of the

matter, so far as applicant nos.5 Nazema

Sultana d/o.Shaikh Hamid Taba and applicant

no.6 Mohammad Parvez s/o.Shaikh Hamid Taba

are concerned, if the investigation is

allowed to be continued against them, it

would unnecessarily cause hindrance in their

studies and also would affect on their

educational career, when there are no any

specific overt acts or role is attributed to

them.

8] The Supreme Court in the case of

Geeta Mehrotra and another Vs. State of Uttar

Pradesh and another1 in the facts of that

1 (2012) 10 SCC 741

2939.2017 Cri.Appln.odt

case held that casual reference to a large

number of members of the husband's family

without any allegation of active involvement

would not justify taking cognizance against

them and subjecting them to trial. In the

said judgment, there is also reference of the

judgment of the Supreme Court in the case of

G.V.Rao Vs.L.H.V. Prasad2 wherein in para 12

it is observed thus:

"12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being 2 (2000) 3 SCC 693

2939.2017 Cri.Appln.odt

arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their 'young' days in chasing their 'cases' in different courts."

9] The Supreme Court in the case of

State of Haryana V/s Bhajan Lal3 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.

Para 108 of the said judgment reads 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

3 AIR 1992 SC 604

2939.2017 Cri.Appln.odt

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 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

2939.2017 Cri.Appln.odt

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.

2939.2017 Cri.Appln.odt

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] The case of applicant nos.5 and 6

is squarely covered under category nos.1 and

2 of the afore-stated categories from the

judgment in the case of State of Haryana V/s

Bhajan Lal [cited supra].

11] Keeping in view the above-mentioned

reported judgments in the cases of Geeta

Mehrotra and another [supra] and State of

Haryana V/s Bhajan Lal [supra], and in the

peculiar facts and circumstances of this

case, we are inclined to allow this

application to the extent of applicant nos.5

and 6. Hence, the application to the extent

of applicant nos.5 and 6 is allowed. First

Information Report bearing Crime

2939.2017 Cri.Appln.odt

No.0188/2017, registered at City Chowk Police

Station, Aurangabad, for the offences

punishable under Sections 498-A, 323, 504,

506 r/w.34 of the Indian Penal Code and

Sections 3 and 4 of the Dowry Act,

stands quashed to the extent of applicant

nos.5 and 6. Rule is made absolute on above

terms.

12] The application to the extent of

applicant no.4 stands rejected.

13] The observations made herein above

are prima facie in nature and confined to the

adjudication of the present application only.

The rejection of this application would not

debar applicant no.4 from availing of an

appropriate remedy as available in law.

14] Since, Smt. Zainab M. Surti Wagh,

the learned counsel is appointed to prosecute

the cause of respondent no.2, she would be

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entitled for the fees, as per the schedule of

fees maintained by the High Court Legal

Services Sub-Committee, Aurangabad.

              [A.M.DHAVALE]              [S.S.SHINDE]
                  JUDGE                      JUDGE  
          DDC