Akil Ahmad Mohammad Ayyub Sabir vs The State Of Maharashtra
2021 Latest Caselaw 11021 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH AT NAGPUR


          Criminal Application (APL) No. 915 of 2018


  APPLICANTS:                  1. Akil Ahmad Mohammad Ayyub Sabir,
                                  Aged : 80 years, Occupation : Nil,

                               2. Abrar Mohammad Sabir Akil Ahmad,
                                  Aged : 30 years, Occupation: Business,

                               3. Ahrar Ahmad Sabir Akil Ahmad,
                                  Aged : 28 years, Occupation : Business

                               4. Nazema Thasin w/o Nadim Ashfaque
                                  Aged : 38 years, Occupation : Service

                               5. Shaiba Farheen w/o Abdul Haque
                                  Aged : 42 years, Occupation : Service

                                   Applicant Nos. 1 to 5 are all residing
                                   behind Salt Factory, Aseer Colony,
                                   Walgaon Road, Amravati

                                     Vs.

  RESPONDENTS :                1. The State of Maharashtra,
                                  Through High Court Government
                                  Pleader, Nagpur

                               2. Yasmeen Anjum w/o Nadim Ashfaque
                                  Aged : 27 years,
                                  Occupation : Household,
                                  residing at Chaparasipura, Camp,
                                  Amravati,Taluka and District:Amravati

           Mr. Rahul Dhande, Advocate for the applicants
           Mr. S.D. Sirpurkar, APP for the respondent No.1
           Mr. Amit Choube, Appointed Advocate for the respondent
           No.2




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                                     CORAM :        MANISH PITALE, J.

                                     DATE :         AUGUST 13 , 2021

           ORAL JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally

with the consent of learned counsel appearing for rival

parties.

2. By this application, the applicant has challenged order

dated 21/07/2018, passed by the Court of Additional

Sessions Judge-1, Amravati, whereby a Revision Petition filed

by the applicants, stood dismissed. As a consequence, order

dated 05/02/2018, passed by the Judicial Magistrate First

Class, Court No.8, Amravati, issuing process against the

applicants for offences under Sections 395, 324 and 506 of

the Indian Penal Code (IPC), stood confirmed.

3. Mr. Rahul Dhande, learned counsel appearing for the

applicants submitted that in the present case, the Magistrate

did not show application of mind as required under law and

as per the mandate of Section 204 of the Code of Criminal

Procedure (Cr.P.C.), while passing the order dated

05/02/2018, issuing process against the applicants. It was

submitted that the background facts leading up to the filing

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of the Complaint by the respondent No.2 ought to have been

appreciated by the Magistrate before issuing process. It was

submitted that the respondent No.2 in the present case is the

second wife of the husband of the applicant No.4. The

applicant No.1 is the father while applicants No.2 and 3 are

brothers of applicant No.4 and applicant No.5 is her sister,

who also happens to be the wife of the elder brother of her

husband. It is submitted that the respondent No.2 had filed

a Criminal Complaint in the backdrop of quarrel between her

and the applicant No.4, which could be appreciated from the

angle that both of them happen to be wives of the same

person.

4. Apart from this, it is submitted that even according to

the respondent No.2, the incident took place on 10/08/2013,

while the Complaint was submitted before the Magistrate on

30/07/2015, which was about 27 months after the date of

incident. It is further submitted that the procedure as

contemplated under Section 200 of the Cr.P.C. was not

followed by the Magistrate while issuing process and that,

therefore, the order issuing process ought to have been

interfered with by the Sessions Court in revisional

jurisdiction. It is submitted that the entire story put up by

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the respondent No.2 was exaggerated and wholly absurd,

thereby indicating that the impugned order deserved to be

set aside. The learned counsel relied upon judgments of the

Hon'ble Supreme Court in the cases of Chandru Deo Singh

Vs. Prokash Chandra Bose Alias Chabi Bose 1963 AIR (SC)

1430 and Nagawwa Vs. Veeranna Shivalingappa Konjalgi

1976 AIR SC 1147.

5. Mr. Amit Choubey, learned counsel appointed for

respondent No.2 appeared on her behalf and made

submissions. This is in the backdrop of order dated

12/08/2021, passed by this Court, whereby Mr. Choubey

was appointed to appear on behalf of respondent No.2 in

view of the fact that the Advocate engaged by the respondent

No.2 i.e. Mr. S. Raisuddin, had repeatedly failed to appear

before this Court and such failure was recorded in the order

dated 12/08/2021.

6. Mr. Choubey, learned counsel appointed for

respondent No.2 submitted that in the present case there was

no question of delay on the part of respondent No.2 in

setting the criminal law in motion. Attention of this Court

was invited to documents indicating that the respondent

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No.2 had approached the police on the date of the incident

itself i.e. 10/08/2013, pursuant to which the concerned

Police Inspector had sent a letter to the Medical Officer of

General Hospital at Amravati, requesting that the respondent

No.2 be medically examined for the injuries suffered in the

alleged incident. A medico legal injury report, issued by the

District General Hospital, Amravati, is also on record

recording the injuries suffered by the respondent No.2. It

was then submitted that when the respondent No.2 came to

know that the police was not taking any steps in the matter

for registration of offences, despite her approaching the

police and inspite of medical injury report on record, she was

constrained to submit a Complaint before the Magistrate on

30/07/2015. By inviting attention of this Court to Section

468 of the Cr.P.C., in the context of the alleged offences

under Sections 395, 324 and 506 of the IPC, it was

submitted that the Complaint could not be said to be hit by

limitation.

7. On the aspect of the procedure followed by the

Magistrate before issuance of process, it was submitted that

the verification statement on oath of the respondent No.2

was indeed recorded by the Magistrate and thereafter, upon

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being satisfied with the contents of the Complaint and the

verification statement, the Magistrate issued process after

due application of mind.

8. On the aspect of the ingredients of the alleged

offences, the learned counsel appearing for the respondent

No.2 referred to the relevant provisions and by reading

contents of the Complaint and other material on record, he

submitted that prima facie ingredients of the offences were

made out and that, therefore, the Sessions Court was

justified in not interfering with the order of the Magistrate,

while exercising revisional jurisdiction. It was submitted

that the background facts on which the applicants were

relying, to allege that the Complaint was frivolous and

malafide, was an irrelevant factor, while issuing process. The

learned counsel relied upon judgments of the Hon'ble

Supreme Court in the cases of Japani Sahoo Vs. Chandra

Sekhar Mohanty (2007) 7 SCC 394, Madhao and Another Vs.

State of Maharashtra and Another (2013) 5 SCC 615, State

of A.P. Vs. Golconda Linga Swamy and another (2004) 6 SCC

522 and Mehmood Ul Rehman Vs. Khazir Mohammad Tunda

and Others (2015) 12 SCC 420.

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9. Mr. S.D. Sirpurkar, learned APP had appeared on

behalf of respondent No.1 - State.

10. Heard learned counsel for the rival parties and

perused the material on record. In the present case, the

specific contention of the learned counsel appearing for the

applicants is that the Complaint in the question has been

submitted in the backdrop of family quarrel between the

respondent No.2 and the applicant No.4, both of whom

happen to be wives of the same person. It is submitted that

the Complaint is the result of the bitterness that has arisen

between the two and that the father and siblings of applicant

No.4 were deliberately roped in by the respondent No.2.

Much emphasis was placed on the alleged delay in lodging of

the Complaint.

11. Insofar as delay in lodging of the Complaint is

concerned, the incident is alleged to have taken place on

10/08/2013, while the Complaint was admittedly submitted

before the Magistrate on 30/07/2015, which was about 27

months after the date of incident. At first blush, the said fact

appears to be a factor that could be taken into consideration

in favour of the applicants, but, the material on record shows

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that the respondent No.2 had approached the police on the

very date of the incident i.e. 10/08/2013. There is a medico

legal injury report on record of the very same day, stating

that the respondent No.2 had indeed suffered three injuries.

This is a contemporaneous document supporting the

contentions raised on behalf of the respondent No.2 that she

on her behalf had immediately sought to set the criminal law

in motion. Therefore, the contentions raised on behalf of the

applicants in respect of delay in approaching the authorities

or the Magistrate, cannot be accepted. Record also shows

that according to the respondent No.2, she did have an

explanation for eventually filing the Complaint before the

Magistrate on 30/07/2015.

12. In this context, a perusal of Section 468 of the Cr.P.C.

would show that limitation periods are specified for offences

wherein the punishment is upto a period of three years. In

the present case, the allegation levelled by the respondent

No.2 was that the applicants were liable to be proceeded

against for offences under Sections 395, 324 and 506 of the

IPC. Even if Section 395 of the IPC was to be ignored for a

moment, the period of limitation in the present case would

still be three years and the Complaint was admittedly

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submitted much before expiry of the said period. Therefore,

this Court finds that on the question of delay or limitation, it

cannot be said that the Magistrate erred in issuing process

against the applicants.

13. Insofar as the procedure to be followed under Section

200 of the Cr.P.C. onwards for issuance of process, a perusal

of the documents placed on record would show that the

Magistrate did record a verification statement on oath on

06/03/2017 of the respondent No.2 and upon perusal of the

Complaint, as also the aforesaid statement, found substance

in the Complaint and the verification statement on record, in

order to issue process against the applicants. Therefore, on

the procedural aspect of the matter, it cannot be said that the

Magistrate committed any error in issuing process. In the

context of the question of delay and limitation, as also the

manner in which the procedure was followed by the

Magistrate, the learned counsel for the respondent No.2 is

justified in relying upon judgments of the Hon'ble Supreme

Court in the cases of Japani Sahoo Vs. Chandra Sekhar

Mohanty, Madhao and Another Vs. State of Maharashtra and

Mehmood Ul Rehman Vs. Khazir Mohammad Tunda and

Others (supra).

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14. The other aspect argued on behalf of the applicants

was that the order issuing process in the present case did not

demonstrate application of mind on behalf of the Magistrate.

It is submitted that merely in an order of five lines, the

Magistrate had issued process, thereby showing that a grave

error was committed.

15. This Court has perused the order passed by the

Magistrate issuing process. The Magistrate is required to

peruse the Complaint, verification statement and other such

material on record to appreciate the facts that emerged from

such material and then to come to a prima facie conclusion

as to whether process needs to be issued. At the stage of

issuance of process, the Magistrate is not expected to go into

great detail of the matter and instead he is required to come

to a prima facie conclusion on the question as to whether the

accused need to be proceeded against. Even in the judgment

in the case of Chandru Deo Singh Vs. Prokash Chandra Bose

Alia Chabi Bose (supra), on which the learned counsel for

the applicants has placed reliance, all that is required of the

Magistrate is that he should carefully scrutinize the

allegations in the Complaint and the supporting material,

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before passing the order of issuance of process. On the basis

of material available on record, this Court is of the opinion

that the Magistrate cannot be said to have committed any

error in passing the order of issuance of process.

16. The only aspect that now remains to be considered is,

as to whether the ingredients of the three offences in respect

of which process has been issued can be said to be prima

facie present in the facts and circumstances of the present

case. Insofar as Section 395 of the IPC is concerned, the

requirements of the said provision are that there should be at

least five persons involved in the incident and the allegation

has to be that they have conjointly committed or attempted

to commit robbery, with robbery being defined as theft or

extortion. In the present case, the material allegation in the

Complaint against the applicants is in paragraph 4 thereof,

which reads as follows :

"4] That thereafter on 10/08/2013 at about 2.30 P.M. accused persons no. 1 to 4 came at the house of accused no 5 and awaited there and when the husband of the complainant went down stairs to buy milk then at about 3.00 P.M. the all accused persons came at the house of complainant and insulted her by saying incorrect language and threaten to kill the complainant and assaulted by sharp object due to which the complainant sustained bleeding injury on her left forearm and also on her back and the accused

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persons also beaten by first and thereby she sustained injury on her cheek and due to assault there is problem in the hearing of the complainant and during the assault also the all accused had robbed Rs.5,000/- from the house of complainant and at the time also threaten her to kill her and her husband."

17. The said allegations have to be read in the backdrop of

paragraphs No.1 to 3 of the Complaint. The said paragraphs

read as follows :

"1] That the complainant is the permanent resident of above said address. That the complainant is second wife of Nadeem Ashfque. That the first wife of Nadeem Ashfaque is accused no 4 and accused no 1 is father of 2 to 5 and accused no 2 & 3 are brother of accused no 4 and 5 and son of accused no 1 and accused no 4 & 5 are daughter of accused no 1. That one daughter of accused no 1 namely Nazema Tahesin who is accused no 4 is the wife of husband of complainant and other daughter of accused no 1 who is accused no 5 is the wife of elder brother of husband of complainant namely Abdul Haq and the complainant used to reside with her husband at Chaprasipura Camp Amravati in same building at second floor of the same house and the accused used to reside first floor of same house with her husband and children. That the complainant have to go to her house from stair in front of door of the elder brother of her husband namely Mohd Shahid Rafique and Abdul Haq.

2] That the first wife of complainant's husband namely Nazema Tahesin is government teacher i.e. accused no. 4 and the wife of elder brother of complainant's husband i.e. accused no 5 is also government teacher and their marriage was solemnized on 23/12/2002 and June 1997 respectively.

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                  3]      That the marriage of complainant was

performed on 20/12/11 with Nadeem Ashfaque with the consent of accused no 4 but when the construction work was completed in month of June 2013 then the husband of complainant brought the complainant in his house then the first wife of husband of complainant i.e. accused no 4 quarreled and went to her parental house on 10/06/2013 but the accused no 5 was residing at Chaprasipura Camp in the same house on the first floor."

18. A bare reading of the Complaint at paragraphs 1

to 3 shows that as per the respondent No.2 there had been a

quarrel between the applicant No.4 and the respondent

No.2, with the crucial background fact that both of them

happen to be wives of the same person. The genesis of the

incident, even as per the Complaint appears to be a domestic

dispute between the two wives of the same person. The

father and siblings of applicant No.4 have been named in the

Complaint as being responsible for the said incident,

described in paragraph No.4. Considering the background of

the allegations, it needs to be analyzed whether the

allegations so made can be said to be so patently absurd and

improbable that no prudent person can ever reach a

conclusion that there is sufficient ground for proceeding

against the applicant, as held by the Hon'ble Supreme Court

in the case of Nagawwa Vs. Veeranna Shivalingappa Konjalgi

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(supra), on which the learned counsel for the applicants has

placed reliance.

19. Before analyzing as to whether ingredients of

Section 395 of the IPC are made out, if Sections 324 and 506

of IPC are perused, in the context of paragraph 4 of the

Complaint quoted above, this Court finds that the material

available on record, particularly, the medico legal injury

report dated 10/08/2013, issued by the District General

Hospital, Amravati, indicates that prima facie the ingredients

of the offences under Sections 324 and 506 of IPC, can be

said to be made out. This is for the reason that there is

indeed an abrasion with an incised wound and also an injury

on the cheek of the respondent No.2, recorded in the medico

legal injury report, which prima facie corresponds with the

allegations made in paragraph 4 of the Complaint, quoted

above. Therefore, it is difficult for this Court to reach a

conclusion that in the face of such material, it is patently

absurd and inherently improbable to conclude that not even

a prima facie case is made out for proceeding against the

applicants with regard to offences under Sections 324 and

506 of the IPC.

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20. But, insofar as Section 395 of the IPC is concerned, it

appears that there is an exaggeration on the part of the

respondent No.2, obviously in the backdrop of the domestic

dispute between the respondent No.2 and applicant No.4.

Paragraphs No.1 to 3 of the Complaint quoted above reveal

the background in which the incident dated 10/08/2013, is

described at paragraph No.4 of the Complaint by the

respondent No.2. This Court is of the opinion that insofar as

ingredients of Section 395 of IPC are concerned, it can be

said that even prima facie it appears to be patently absurd

that the applicant No.4, her father and her siblings would

commit or attempt to commit a robbery in the house where

the respondent No.2 was residing, merely because there was

a domestic dispute between the applicant No.4 and

respondent No.2. To that extent, the contentions raised on

behalf of the applicants deserve to be accepted.

21. The Magistrate has erred in appreciating the

material on record while issuing process under Section 395

of the IPC against the applicants before this Court. The

Sessions Court in the revision application ought to have

appreciated this aspect of the matter while passing the

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impugned order. Therefore, to that extent the Sessions Court

committed an error.

22. In view of the above, the application is partly

allowed. The order dated 05/02/2018, passed by the

Magistrate issuing process against the applicant is set aside,

only to the extent of issuance of process under Section 395

of the IPC. The remaining portion of the order of the

Magistrate is confirmed. Order passed by the Sessions Court

is also interfered with to that extent.

23. As a result, the Magistrate will now proceed in the

matter, in accordance with law against the applicants only in

the context of alleged offences under Sections 324 and 506

of the IPC.

24. Needless to say, the applicants will be at liberty to avail

such remedies as are available in law upon the Magistrate

proceeding further in the matter.

25. This Court places on record the able assistance

rendered by the appointed counsel for respondent No.2. His

fees for appearance and conducting final hearing is fixed at

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Rs.10,000/- and the Legal Services Sub-Committee at

Nagpur is directed to disburse the same within six weeks.

26. Rule is made absolute in above terms. No orders as to

costs.

JUDGE

MP Deshpande