Mazhar Khan Gul Mohd Khan And ... vs State Of Maharashtra, Thr. P.S.O. ...
2021 Latest Caselaw 4009 Bom

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


                     CRIMINAL APPLICATION (APL) NO. 236/2016


 1]       Mazhar Khan Gul Mohd Khan,
          Aged about 28 years, Occ. Business

 2]       Jaherunisabee W/O Gul Mohd Khan,
          Aged about 65 years, Occ. Household

 3]       Jafarkhan S/O Gul Mohd. Khan,
          Aged about 44 years, Occ. Business

 4]       Fazalkhan S/O Gul Mohd. Khan,
          Aged about 29 years, Occ. Business

 5]       Imrankhan S/O Gul Mohd. Khan,
          Aged about 25 years, Occ. Business

 6]       Parvinbano D/O Gul Mohd. Khan,
          Aged about 34 years, Occ. Household

          Nos. 1 to 6 R/O Near Z.P. Marathi School,
          Mulawa, Tq. Umarkhed, Dist. Yavatmal

 7]       Nasrin Begum W/O Alamkhan,
          Aged about 38 years, Occ. Household
          R/o. Ahebab Colony, Pandharkawada Road,
          Yavatmal

                                                                .... APPLICANT(S)

                                  // VERSUS //


 1]       State Of Maharashtra,
          Through Police Station Officer
          Vasant Nagar Police Station, Pusad

 2]       Najiya Siddhika W/O Mazharkhan,
          Aged about 24 years, Occ. Household

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          R/o. C/o. House of Murtuja Khan
          Abdulla Khan, Near Hamida Masjid,
          Vasant Nagar, Pusad, Tq. Pusad,
          Dist. Yavatmal
                                                           .... NON-APPLICANT(S)

  *******************************************************************
      Ms. A. Sharma, Adv h/f Shri P.R. Agrawal, Adv for the applicant(s)
              Shri S.D. Sirpurkar, APP for the non-applicant no. 1
             Shri J.A. Malnas, Advocate for the non-applicant no. 2
  *******************************************************************

                               CORAM : Z.A.HAQ & AMIT B. BORKAR, JJ.

MARCH 04, 2021

ORAL JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Heard.

2] By this application under Section 482 of the Code of Criminal

Procedure, the applicants have challenged registration of F.I.R. No. 13/2016

registered with the non-applicant no. 1 - Police Station for the offences

punishable under Sections 498-A, 509 and 506 of the Indian Penal Code.

3] The first information report came to be registered against the

applicants with the accusations that the applicants physically and mentally

harassed the non-applicant no. 2. It is further alleged that the marriage

between the applicant no. 1 and non-applicant no. 2 was performed on

27/02/2011 and after period of two months, the non-applicant no. 2 was

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harassed by the applicant no. 1 mentally and physically on trivial reasons. It

is further alleged that the applicant no. 1 demanded Rs. 50,000/- and on

refusal, the non-applicant no. 2 was harassed by the applicant no. 1. It is

further alleged that the applicants on 22/05/2015 assaulted the non-

applicant no. 2 and the applicant nos. 2 to 7 threatened and abuse the non-

applicant no. 2. It is further alleged that the relatives of the non-applicant

no. 2 tried to settle the dispute but the applicants refused and demanded

money from the relatives of the non-applicant no. 2.

4] The applicants have therefore challenged registration of the first

information report by filing the present application. This Court on

01/04/2016 issued notices to the non-applicants and by way of ad-interim

order, it was directed that charge-sheet shall not be filed against the

applicants without seeking leave of this Court. This Court on 14/03/2018

admitted the present application and continued the ad-interim order granted

on 01/04/2016.

5] The non-applicant no. 1 in pursuance of the notice issued by

this Court has filed reply and has stated that during the investigation, the

Investigating Officer has recorded the statements of the family members and

neighbours who have supported the case of the prosecution. It is stated that

for non-payment of demand of Rs. 50,000/-, the applicants have harassed the

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non-applicant no. 2. It is further stated that the investigation conducted till

filing of the reply shows prima-facie involvement of the applicants in the

offences alleged against the applicants. Therefore, it is prayed that the

application be dismissed.

6] We have carefully considered the contents of the first

information report and the statements of the witnesses recorded by the

Investigating Officer. On careful perusal of the allegations in the first

information report, it appears that the non-applicant no. 2 has named each of

the applicant and has attributed some role to each of the applicant but in the

statement recorded before the Investigating Agency under Section 161 of the

Code of Criminal Procedure, there is no specific role assigned to the

applicant nos. 2 to 7. The statement of the non-applicant no. 2 recorded

before the Investigating Officer shows that the non-applicant no. 2 has made

allegations against the applicant no. 1 of harassing her for non-payment of

amount of Rs. 50,000/-. We have carefully considered the statements of the

relatives of the non-applicant no. 2. On careful reading of the statements of

the relatives of the non-applicant no. 2, it appears that the statements of the

non-applicant no. 2 and all other relatives of the non-applicant no. 2 are

exactly same. Therefore, it appears that the statements are mechanically

recorded by the Investigating Agency. We have also considered the

statements of the neighbours and auto-rickshaw driver. The neighbours in

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their statements have feigned ignorance about the exact nature of dispute

between the applicants and non-applicant no. 2. The neighbours have stated

that though there was some dispute between the applicants and non-

applicant no. 2, but they have no detailed knowledge about the dispute

between them. The statement of the auto-rickshaw driver shows that he had

accompanied the family members of the non-applicant no. 2 to the house of

the applicants but the auto-rickshaw driver has not stated that he was

present in the house of the applicants when the discussion between the

family members of the non-applicant no. 2 and the applicants took place.

7] Apart from the similar statements recorded by the relatives, we

find that the applicant nos. 2 to 7 who are the relatives of the husband of the

non-applicant no. 2 have been roped in as accused on the basis of omnibus

allegations. In G. Sagar Suri and another Vs. State of U.P. and others reported

in (2000) 2 SCC 636, the Hon'ble Supreme Court observed that the criminal

proceedings should not be allowed to be resorted to as shortcut to settle the

score. Before issuing process, the Criminal Court has to exercise a great deal

of caution. For the accused, it is a serious matter. Jurisdiction under Section

482 of the Code of Criminal Procedure has to be exercised to prevent abuse

of process of the Court or otherwise secure ends of justice.

In M/s. Indian Oil Corporation Vs. M/s. NEPC India Ltd.,&

others reported in 2006 (7) Scale 286 , the Hon'ble Supreme Court

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deprecated the tendency of using the criminal justice system as a tool of arm

twisting and to settle the score, and laid down that the High Court can

intervene where the criminal justice system is used as a tool.

The Hon'ble Supreme Court in the judgment of Kailash

Chandra Agrawal VS. State of U.P. and others reported in (2014)16 SCC 551

has made observations that tendency, which has been developed for roping

in all relations of the in-laws by the wife in the matter of dowry deaths or

such type of similar offences in an over enthusiasm and anxiety to seek

conviction needs to be deprecated. The Hon'ble Supreme Court in the case

of K. Subba Rao Vs. Sate of Telangana reported in 2018 (14) SCC 452

observed that relatives of the husband should not be roped in on the basis of

vague allegations unless specific instances of their involvement are set out.

8] It is true that while considering quashing of criminal

proceedings under Section 482 of the Code of Criminal Procedure, the Court

should not embark upon an inquiry into the truthfulness of the allegations

made by the complainant but, when filing of F.I.R. amounts to gross misuse

of the criminal justice system, it becomes the duty of the High Court to

intervene in such cases, under Section 482 of the Code of Criminal Procedure

so that there is no miscarriage of justice and faith of people in the judicial

system remains intact.

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 9]               In view of the ignorance feigned by the independent witnesses

like neighbours, we are satisfied that the prosecution launched by the non-

applicant no. 2 against the applicant no. 1 by roping in his mother, three

brothers and two sisters is not a legitimate prosecution. Hence, we are of the

opinion that continuance of the present proceedings against the applicants

would amount to abuse of process of the Court.

10] Hence, the following order is passed :-

F.I.R. No. 13/2016 registered against the applicants with the

non-applicant no. 1 - Police Station for the offences punishable

under Sections 498-A, 509 and 506 of the Indian Penal Code is

quashed and set aside.

Rule is made absolute in the above terms.

                   JUDGE                                     JUDGE




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