Shabbir S/O. Suleman Bohra vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 6935 Bom

APL  180/17                                         1                          Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.
              CRIMINAL APPLICATION (APL) No. 180/2017
Shabbir S/o Suleman Bohra,
Aged about 58 years, Occu-Business,
R/o Ansari Ward, District Gondia.                                            APPLICANT
                                     .....VERSUS.....
1.    State of Maharashtra,
      Through Police Station Officer,
      Police Station Gondia City, Gondia.
2.    Hussain S/o Hatim Bohra,
      Aged 35 years, Occ-Business,
      R/o Ansari Ward, Gondia,
      Tah. & Dist. Gondia.                                              NON-APPLICA
                                                                                    NTS

                    Shri Nikhil Tekade, Counsel for the applicant.
     Shri P.S. Tembhare, Additional Public Prosecutor for the non-applicant no.1.
                 Shri R.K. Borkar, counsel for the non-applicant no.2.


                                      CORAM :SMT.VASANTI  A  NAIK AND
                                                    M.G. GIRATKAR, JJ.                

DATE : 08 TH SEPTEMBER, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

The criminal application is ADMITTED and heard finally at

the stage of admission with the consent of the learned counsel for the

parties.

2. By this criminal application, the applicant seeks the quashing

and setting aside of the first information report bearing F.I.R. No.98 of

2017 registered against the applicant for the offences punishable under

Sections 452, 341, 294, 506 read with Section 506 of the Penal Code.

APL 180/17 2 Judgment

3. The grandmother of the non-applicant no.2, viz. Khatija

Begum had filed Regular Civil Suit No.239 of 2014 against the applicant

and several other family members for declaration, permanent injunction,

partition and separate possession. In the said suit, Mrs.Nafisa Bohra, the

mother of the non-applicant no.2 had filed an application for temporary

injunction restraining all the other parties to the suit from disturbing her

peaceful possession over the house situated on suit property no.2. The

temporary injunction application of Mrs.Nafisa Bohra was allowed and all

the parties including the applicant were restrained from disturbing the

peaceful possession of Mrs.Nafisa Bohra on the house property. A report

was lodged by the non-applicant no.2 against the applicant on

01.03.2017 alleging therein that with an intention to disturb the

possession of Mrs.Nafisa Bohra and the non-applicant no.2 over the

property, the applicant entered into the property and assaulted the

persons residing in the same. It is alleged in the report that the right of

way of the non-applicant no.2 was sought to be obstructed by the

applicant by constructing a wall on his way to the house. On the basis of

the report, the first information report was registered against the

applicant under Sections 452, 341, 294, 506 read with Section 506 of the

Penal Code. The applicant has sought for the quashing and setting aside

of the first information report.

APL 180/17 3 Judgment

4. Shri Tekade, the learned counsel for the applicant, submitted

that the non-applicant no.1 should not have taken cognizance of the

report lodged by the non-applicant no.2, when the dispute between the

parties is a civil dispute. It is stated that a partition suit is pending before

the trial Court since the year 2015 in which the applicant, the non-

applicant no.2 and the other members of the family are parties. It is

stated that since an order of temporary injunction was passed in favour of

the mother of the non-applicant no.2, viz. Mrs.Nafisa Bohra, if in the view

of the non-applicant no.2 the applicant was trying to disturb his

possession by taking the law in his own hands, the non-applicant no.2

should have availed an appropriate remedy under the provisions of the

Code of Civil Procedure. It is submitted that it is held by the Hon'ble

Supreme Court and this Court time and again that when a civil dispute is

pending between the parties in a competent Court, parallel criminal

proceedings may not be instituted. It is submitted that in the

circumstances of the case, the first information report registered against

the applicant may be quashed and set aside.

5. Shri Tembhare, the learned Additional Public Prosecutor

appearing for the non-applicant no.1 and Shri Borkar, the learned counsel

for the non-applicant no.2 submitted that the applicant was taking the

law in his own hands by entering in the house of the non-applicant no.2

APL 180/17 4 Judgment

though an injunction order was operating in favour of the mother of the

non-applicant no.2 and, hence, the first information report was registered

against the applicant. It is, however, not disputed by the non-applicant

no.2 that his grandmother had filed a suit for partition, separate

possession and declaration and in the said suit a temporary injunction is

granted in favour of the mother of the non-applicant no.2, in respect of

the house property in which the non-applicant no.2 resides.

6. On hearing the learned counsel for the parties and on a

perusal of the first information report, it appears that the first information

report registered against the applicant needs to be quashed and set aside.

It is held by the Hon'ble Supreme Court and this High Court in the

judgments reported in 1987 Supp. SCC 146 (Sardool Singh & Another

Versus Smt.Nasib Kaur) and 2016(1) BCR (Criminal)167 (Laxman

Vithoba Jadhav & Others Versus State of Maharashtra & Others) that

parallel criminal proceedings cannot be permitted to be continued when

civil proceedings are pending as it would tantamount to the abuse of

process of the Court. In the matters before the Hon'ble Supreme Court

and this Court, the questions whether the will was forged and the

partition-deed was forged were in issue. In the instant case, the issue

pertains to the possession of the non-applicant no.2 and his mother on the

house property and since a temporary injunction was granted in favour of

the mother of the non-applicant no.2, it was necessary for the mother of

APL 180/17 5 Judgment

the non-applicant no.2 to take up appropriate proceedings under the

provisions of the Code of Civil Procedure. If the applicant had allegedly

taken the law in his own hands and had tried to dispossess and threaten

the possession of the non-applicant no.2, the mother of the non-applicant

no.2 would be entitled to take appropriate action against the applicant in

the civil suit that is pending before the trial Court. In the circumstances

of the case, it would be necessary to quash and set aside the first

information report registered against the applicant.

7. Hence, for the reasons aforesaid, the criminal application is

allowed. The first information report registered against the applicant

bearing F.I.R. No.98 of 2017 for the offences punishable under Sections

452, 341, 294, 506 read with Section 506 of the Penal Code is quashed

and set aside. Order accordingly.

With the disposal of the writ petition, criminal application

bearing Criminal Application (APPP) 1447 of 2017 also stands disposed

of.

              JUDGE                                             JUDGE

APTE