Bombay High Court

Madan S/O Shankar Bhivsane And ... vs The State Of Maharashtra And Anr on 29 November, 2017

Bench: S.S. Shinde

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                CRIMINAL APPLICATION NO.905 OF 2017


 1) Madan s/o Shankar Bhivsane,
    Age-62 years, Occu:Pensioner,
    R/o-Building No.6, Flat No.5,
    Bhagatsingh Nagar, Pisa Devi Road,
    Harsool, Aurangabad,
    Tq. & Dist-Aurangabad,

 2) Vimalbai w/o Madan Bhivsane,
    Age-58 years, Occu:Household,
    R/o-As Above,

 3) Sow. Meenakshi w/o Deepak Wagh,
    Age-Major, Occu:Service,
    R/o-House of Meshram Near SBOA,
    Public School Hudco, Aurangabad,
    Tq. & Dist-Aurangabad,

 4) Vaishali w/o Siddharth Wanjarwadekar,
    Age-Major, Occu:Service,
    R/o-C/o-Mahendrasingh Sitaramsing Khatwar,
    Kaka Chowk, Civil Line Gondiya,
    Tq. & Dist-Gondiya,

 5) Ku. Jyotsna d/o Madan Bhivsane,
    Age-Major, Occu:Education,
    R/o-Building No.6, Flat No.5,
    Bhagatsingh Nagar, Pisa Devi Road,
    Harsool, Aurangabad,
    Tq. & Dist-Aurangabad,

 6) Harsha s/o Madan Bhivsane,
    Age-Major, Occu:Nil,
    R/o-As above.
                                 ...APPLICANTS 

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        VERSUS             

 1) The State of Maharashtra,
    Through: Police Inspector,
    Police Station, Cidco, Aurangabad,
    Tq. & Dist-Aurangabad,

 2) Sow. Shashirekha w/o Deepak Bhivsane,
    Age-Major, Occu:Household,
    R/o-J-30, Rathi Sansar, Pisadevi Road,
    Near Vaishali Dhaba, Jadhavwadi,
    Harsool, Aurangabad,
    Tq. & Dist-Aurangabad.   
                                 ...RESPONDENTS

                      ...
   Mr. Milind K. Deshpande Advocate for
   Applicants.
   Mr. V.M. Kagne, A.P.P. for Respondent No.1.
   Mr. R.O. Awasarmol Advocate for Respondent No.2. 
                      ...

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

DATE OF RESERVING JUDGMENT : 23RD NOVEMBER, 2017

DATE OF PRONOUNCING JUDGMENT: 29TH NOVEMBER, 2017

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. This Application is filed with following

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prayer:

C] The Hon'ble Court may be pleased to issue appropriate order for quashing and setting aside the F.I.R. bearing No.1001/2016 registered with Cidco Police Station Aurangabad on 8.12.2016 against the applicants No.1 to 6 for the offences punishable U/s. 498-A, 323, 504, 506, 34 of I.P.C.

3. Learned counsel appearing for Applicants

invites our attention to the allegations in the

First Information Report (for short "F.I.R.") and

submits that there are general allegations without

mentioning any specific incident or overt act qua

Applicants. Applicant Nos.1 and 2 are father-in-

law and mother-in law of Respondent No.2.

Applicant Nos.3 and 4 are married sister-in-laws

of Respondent No.2 and both of them are residing

separately at their matrimonial places. Applicant

No.5 is unmarried sister-in-law of Respondent

No.2, residing separately. It is further submitted

that Respondent No.2 wanted to grab the house

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property of Applicant No.1 and in order to

pressurize Applicant No.1 to give share in the

house property, present F.I.R. has been lodged. It

is submitted that even if the allegations in the

F.I.R. are taken at its face value and read in its

entirety, an alleged offences are not disclosed.

The allegations in the F.I.R. are inherently

improbable in as much as, even as per the

allegations of Respondent No.2, she along with her

husband, since 13th November, 2011 till 23rd

December, 2015, were residing at Rajhans society,

M-2 Road, N-9 CIDCO, Aurangbad, separately from

Applicant Nos.1 and 2. It is submitted that though

the alleged harassment/ill-treatment is from 13th

November, 2012, however the F.I.R. has been

belatedly lodged in the month of December, 2016.

4. Learned counsel further submitted that

since Applicant Nos.3 and 4 are married sisters of

husband of Respondent No.2 and residing separately

at their matrimonial houses, the allegations

against them are false. Learned counsel further

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submitted that as Respondent No.2 used to harass

Applicant No.1 and used to demand share in the

house property at Rathi Sansar, Applicant No.1 was

compelled to file complaint with police

authorities. It is further submitted that on 22nd

December, 2016, Applicant No.1 has filed Regular

Civil Suit against Respondent No.2 and her

husband, in the Court of Civil Judge, Senior

Division, Aurangabad, being Regular Civil Suit

No.529 of 2016 and prayed for mandatory

injunction, thereby seeking direction against them

to leave the suit house forthwith and also prayed

for perpetual injunction. It is submitted that the

F.I.R. is filed only with a view to pressurize the

Applicants and therefore it is prayed that the

F.I.R. may be quashed and set aside.

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

appearing for the State invites our attention to

the allegations made against the Applicants in the

First Information Report and the statement of

witnesses, and submits that upon careful perusal

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of the allegations in the First Information

Report, it is abundantly clear that the

ingredients of the alleged offences have been

disclosed and therefore needs further

investigation so as to take those allegations to

the logical end. It is submitted that the

allegations in the First Information Report will

have to be read as they appear and can be tested

only during the trial and hence the Application be

rejected.

6. Learned counsel appearing for Respondent

No.2 invites our attention to the the allegations

in the F.I.R., statement of the witnesses and

affidavit-in-reply filed by Respondent No.2 and

and submits that merely because Applicant Nos. 3

and 4 are residing separately at their matrimonial

houses, is no ground to quash the F.I.R. There

are specific allegations against all the

Applicants. All the Applicants have physically and

mentally harassed the informant. There are also

allegations of demand and instigation. Learned

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counsel further invites our attention to the

statements of the witnesses and submits that

contents of the said statement would clearly

demonstrate the involvement of the Applicants in

the alleged offences.

7. We have given careful consideration to

the submissions of the learned counsel appearing

for the respective parties. With their able

assistance, we have perused the grounds taken in

the Application, annexures thereto, allegations in

the F.I.R. and also statement of witnesses and

other documents placed on record along with

investigation papers. Upon careful perusal of the

contents in the F.I.R., it appears that alleged

ill-treatment is for the period from 23rd

November, 2012 till 1st June, 2016, however the

F.I.R. was lodged on 8th December, 2016.

Therefore, we find considerable force in the

arguments of learned counsel appearing for the

Applicants that there is considerable delay in

lodging the F.I.R.

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8. Upon careful perusal of the allegations

in the F.I.R., at the highest allegations against

Applicant Nos.3 and 4 can be said to be

instigation for the alleged commission of offence

by other Applicants. Applicant Nos.3 and 4 are

married sisters of husband of Respondent No.2.

There are casual references to their names and the

allegations are general in nature. Upon careful

perusal of the allegations in the F.I.R. and also

the statement of witnesses, in our opinion, the

alleged offences are not disclosed as against any

of the Applicants. As rightly submitted by

learned counsel appearing for the Applicants, upon

perusal of the documents placed on record, it

reveals that civil dispute is pending between

Respondent No.2 and Applicant No.1 in respect of

the house property. Prima facie, it reveals from

the perusal of the documents placed on record that

even Applicant No.1 approached the police

authorities and filed complaints against

Respondent No.2 - daughter-in-law, complaining

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that she is harassing Applicant No.1 on the count

of share in house property. Upon careful perusal

of the allegations as against the Applicants,

neither any specific date of incident nor any

specific allegation qua each of the Applicant have

been mentioned. There are general allegations that

all the Applicants have physically and mentally

harassed Respondent No.2. It is pertinent to

mention that, admittedly Respondent No.2 and her

husband are residing in the house owned by

Applicant No.1, and Applicant No.1 with his

family, is residing at some other place.

Therefore, in our opinion, on both counts i.e. the

allegations are general in nature, casual

references are given, and except husband

allegations are made against entire family members

of the husband of Respondent No.2, and secondly it

appears that F.I.R. is lodged maliciously with an

ulterior motive, we are inclined to allow this

Application.

9. The Supreme Court in the case of Geeta

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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 of the Judgment of the Supreme Court in

the case of G.V. Rao vs. L.H.V. Prasad 2 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

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

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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."

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

3 AIR 1992 SC 604

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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 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

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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.

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11. Upon careful perusal of the allegations

in the First Information Report, we find that

those are general in nature without mentioning any

specific overt-act qua each of the Applicant and

without any specific incident. Therefore, in our

considered opinion, keeping in view the categories

laid down in the case of Bhajanlal (supra), the

case of the Applicants would fall within category

Nos.1 and 7 of the aforesaid categories. In that

view of the matter, an inevitable conclusion is

that the First Information Report deserves to be