Athar Khan S/O. Waheed Khan And ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 9137 Bom

                                               4741.2017 Cri.Appln.odt
                                    1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                   CRIMINAL APPLICATION NO.4741 OF 2017


          1.       Athar Khan s/o. Waheed Khan 
                   Age: 38 Years, Occupation Labour, 
                   R/o. Railway Station Road, Jalna.  

          2.       Waheed Khan s/o.Mastan Pathan
                   Age: 73 Years, Occupation Nil 

          3.       Meharunnisa @ Mehrunbi w/o. Waheed Khan 
                   Age: 68 Years, Occupation: Household 

                   Respondent no.2 & 3 
                   R/o. Shantinath Nagar, 
                   Aurangabad Road, Jalna, 
                   Taluka and District Jalna 

          4.       Azhar Khan s/o. Waheed Khan 
                   Age: 24 Years, Occupation: Student 
                   R/o. Aurangabad.  

          5.       Maksood Ahmed s/o. Moinuddin 
                   Age: 39 Years, Occupation Service 
                   R/o. Near G.P.T. Transport, 
                   Kadrabad Plots, Parbhani 
                   District Parbhani 

          6.       Ishrat w/o.Maksood Ahmed 
                   Age: 30 Years, Occupation Household 
                   R/o.Kadrabad Plots, Parbhani 
                   Taluka and District Parbhani 

          7.       Farhat w/o. Sheikh Mohsin 
                   Age: 28 years, Occupation : Household 
                   R/o. Baji Umrad Tanda, Tq. Jalna 
                   Dist : Jalna. 




::: Uploaded on - 05/12/2017             ::: Downloaded on - 06/12/2017 01:12:48 :::
                                                     4741.2017 Cri.Appln.odt
                                         2


          8.       Asiya @ Shanno w/o. Sameer Pathan 
                   Age: 26 Years, Occupation : Household 
                   R/o. Survey No.18, Flat No.7,  
                   Rathi Complex, Sukhsagar Nagar,  
                   Opposite Ambika Sweet,
                   Katraj, Pune.                APPLICANTS

                           VERSUS 

          1.       The State of Maharashtra 
                   Through Superintendent of Police 
                   Parbhani, District Parbhani 
                   and through its Mondha Police Station, 
                   Parbhani, District Parbhani.  

          2.   Sultanabi w/o. Athar Khan, 
               Age: 31 years, Occupation: Household, 
               R/o. At post Karegaon, Mondha 
               Taluka and District Parbhani.  
                                            RESPONDENTS
                                ...
          Mr.Swapnil   S.Patunkar,   Advocate   for   the 
          applicants.
          Mr.V.M.Kagne, APP for the Respondent/State
          Mr.E.P.Sawant,   Advocate   holding   for 
          Mr.M.P.Kale, Advocate for respondent no.2.  
                                ...

                          CORAM:  S.S.SHINDE & 
                                  MANGESH S.PATIL,JJ. 

Date: 29.11.2017

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

1. Heard. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

4741.2017 Cri.Appln.odt

2. This Application is filed praying

therein to quash and set aside the First

Information Report vide Crime No.73/2017

registered at New Mondha Police Station,

Parbhani, for the offences punishable under

Sections 323, 494, 498-A, 504, 506 r/w.34 of

the Indian Penal Code.

3. The application to the extent of

application nos.1 to 3 has already been

rejected as not pressed, by order dated

05.10.2017. Therefore, we are deciding the

application to the extent of applicant nos. 4

to 8 only.

4. Learned counsel appearing for the

applicants submits that, even if the

allegations in the First Information Report

[for short 'FIR'] are taken at their face

value and read in their entirety, the alleged

offences are not disclosed. Even if the

allegations in the FIR are read as it is, no

4741.2017 Cri.Appln.odt

role is attributed as against the applicant

nos.4 to 8, on the contrary, there are

general and vague allegations made against

the applicant nos.4 to 8. He further submits

that, there is inordinate delay in lodging

the FIR, which has not been explained by the

informant at all. He further submits that,

applicant no.4 is residing at Aurangabad;

applicant nos.5 and 6 are residing at

Parbhani, applicant 7 is residing at Jalna

separately and applicant no.8 is residing at

Pune. He further submits that, the

allegations are made against the applicants

in respect of the incident of the Year 2013

and and FIR is lodged in the year 2017. The

allegations are vague and general in nature.

Therefore, he submits that, the application

may be allowed.

5. He further submits that, respondent

no.2 has lodged the FIR bearing No.279/2013

against the applicants on the same set of

4741.2017 Cri.Appln.odt

allegations. Therefore, as per the settlement

between the parties, this Court on 29.09.2014

in Criminal Application No.6759/2013 [Athar

Khan s/o. Waheed Khan & others Vs.The State

of Maharashtra & another] has quashed the

said FIR. He further submits that, respondent

no.2 has lodged another FIR bearing Crime

No.59/2015 against the applicants on the same

set of allegations. Therefore, this Court on

26.11.2015 in Criminal Application

No.3361/2015 [Athar Khan s/o.Waheed Khan &

others Vs.The State of Maharashtra & another]

has also quashed the said FIR. Therefore, he

submits that, the present FIR bearing Crime

No.73/2017 has been lodged on the same set of

facts and deserves to be quashed and set

aside.

6. On the other hand, learned APP

appearing for the respondent-State, relying

upon the contents of the FIR and the

investigation papers, submits that, there are

4741.2017 Cri.Appln.odt

specific allegations against the applicants

in the FIR. Therefore, he submits that, the

further investigation in the FIR is necessary

as the alleged offences have been disclosed.

7. Learned counsel appearing for

respondent no.2 submits that, upon perusal of

the allegations in the FIR, there are

allegations against the applicants. They have

ill-treated and harassed respondent no.2.

There are allegations of demand of money.

Therefore, he submits that, the application

may be rejected.

8. We have given careful consideration

to the submissions of the learned counsel

appearing for the applicants, learned APP

appearing for the respondent-State and

learned counsel appearing for respondent

no.2. With their able assistance, we have

perused the contents of the FIR, the

averments in the Application and annexures

4741.2017 Cri.Appln.odt

thereto. There are general and vague

allegations as against applicant nos.4 to 8.

There are casual references as against

applicant nos.4 to 8. It appears that, two

FIRs have been lodged by respondent no.2 on

the same set of facts against the applicants.

Earlier two FIRs have been quashed by this

Court. About incident in question compromise

had taken place. Since 2014, the informant is

residing with her parents in their house. The

specific incident quoted in the FIR as

against applicant nos.4 to 8 is dated 8th

February, 2013. However, it is relevant to

mention that, after the said incident, there

was amicable settlement between the parties

and as a result of such settlement,

respondent no.2 returned to matrimonial home

for cohabitation. Therefore, on the same set

of allegations, which were already there in

the earlier FIRs and prior to settlement

between respondent no.2 and the accused,

4741.2017 Cri.Appln.odt

there cannot be second investigation. These

allegations relate back to four years prior

to registration of the FIR. After resuming

the cohabitation, again respondent no.2 left

matrimonial home in the year 2014 and present

FIR has been lodged on 21st February, 2017.

There is inordinate delay in lodging the

present FIR.

9. The Supreme Court in the case of

Geeta Mehrotra and another Vs. State of Uttar

Pradesh and another1 in the facts of that 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 to 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:

1 (2012) 10 SCC 741 2 (2000) 3 SCC 693

4741.2017 Cri.Appln.odt

"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 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."

4741.2017 Cri.Appln.odt

10. The Supreme Court in the case of

State of Haryana V/s Bhajan Lal3 held that,

in following categories the 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 an exhaustive list of myriad kinds of cases wherein such power should be exercised.

3 AIR 1992 SC 604

4741.2017 Cri.Appln.odt

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.

4741.2017 Cri.Appln.odt

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. 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.4

to 8. The application to the extent of

applicant nos.4 to 8 is allowed. The First

Information Report vide Crime No.73/2017

4741.2017 Cri.Appln.odt

registered at New Mondha Police Station,

Parbhani, for the offence punishable under

Sections 323, 494, 498-A, 504, 506 r/w.34 of

the IPC stands quashed to the extent of

applicant nos.4 to 8.

12. Rule is made absolute on above

terms. The Application stands disposed of

accordingly.

13. We make it clear that, the

Investigating Officer can proceed against

applicant nos.1 to 3 and to take necessary

steps depending upon the outcome of the

investigation whether to file charge-sheet or

otherwise.

            [MANGESH S.PATIL]            [S.S.SHINDE]
                JUDGE                        JUDGE  

          DDC