Asmita W/O Rahul Khadse And Others vs State Of Maharashtra, Through ...
2021 Latest Caselaw 4491 Bom

                                                    1            23-A-J-APL-25-16.odt


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

              CRIMINAL APPLICATION (APL) NO. 25 OF 2016

 1. Asmita W/o Rahul Khadse,
    Aged about : 26 years,
    Occ : Household.

 2. Rahul S/o Motiram Khadse,
    Aged about : 30 years,
    Occ. Agriculturist.

 3. Namdeo S/o Ganaji Bhagat,
    Aged about ___ years,
    Occ. Agriculturist.

      All R/o Pangari Navghare,
      Tq. Mangrulpir, Dist. Washim.                          ... APPLICANTS

                               VERSUS

 1. State of Maharashtra,
    Through Police Station Officer,
    Mangrulpir, Tq. Mangrulpir,
    Dist. Washim.

 2. Nalinibai Wd/o Dinkarrao Bhagat,
      Aged about : 62 years,
      Occ. Household, R/o Mangaldham,
      Mangrulpir, Tq. Mangrulpir,
      Dist. Washim.                                          ... NON-APPLICANTS
 -------------------------------------------------------------------------------------------
 Shri A. V. Band, Advocate for applicants.
 Shri N.S.Rao, Additional Public Prosecutor for non-applicant No.1-
 State.
 -------------------------------------------------------------------------------------------
                               CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.

DATED : 11/03/2021.

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

1. By this application under Section 482 of the Code

of Criminal Procedure, the applicants have challenged registration

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of First Information Report No.3178/2015 dated 22/12/2015

registered with the non-applicant No.1- Police Station for the

offences punishable under Sections 294 and 506 r/w Section 34 of

the Indian Penal Code.

2. First Information Report came to be registered

against the applicants with the accusations that on 22/12/2015 at

2.00 p.m. when the non-applicant No.2 was present alongwith

Shyam Baheti in the field, the applicants came there and abused

the non-applicant No.2 in filthy language. It is further alleged that

the applicants threatened the non-applicant No.2 with dire

consequences. Therefore, the First Information Report came to be

registered against the applicants on 22/12/2015. The applicants

have therefore, filed present application challenging the

registration of First Information Report. This Court on

27/01/2016 issued notice to the non-applicants and granted

ad-interim relief in terms of prayer clause (ii). On 22/08/2016,

this Court admitted present application and continued interim

relief already granted.

3. The non-applicant No.1 has filed reply and it is

stated that the Investigating Agency has recorded the statements

of witnesses who have supported the version of the non-applicant

No.2 and from the material collected by the Investigating Agency

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ingredients of the offences alleged against the applicants are

fulfilled.

4. On 11/09/2020, learned Advocate for the non-

applicant No.2 was absent. Therefore, in order to give one chance

to the learned Advocate for the non-applicant No.2, matter was

adjourned for 28/09/2020. Again on 28/09/2020, learned

Advocate for the non-applicant No.2 was absent. Today, when the

matter was called out, again learned Advocate for the non-

applicant No.2 is absent. Therefore, we have proceeded to decide

the application on merits.

5. We have carefully considered the allegations in the

First Information Report. The offence alleged against the

applicants is under Section 294 of the Indian Penal Code. Section

294 of the Indian Penal Code reads as under :-

"[294. Obscene acts and songs. - Whoever, to the annoyance of others -

(a) does any obscene act in any public place, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place,

shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.]"

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The ingredients of Section 294 of the Indian Penal

Code which the non-applicant No.2 was required to fulfill -

i] the offender has done any obscene act in any public place or has sung, recited or uttered any obscene song or word in or near any public place, and

ii] has so caused annoyance to others.

6. Having considered the ingredients of Section 294

of the Indian Penal Code, in our opinion, in order to attract the

consequences under Section 294 of the Indian Penal Code it is

necessary that the offence must take place in public place. From

the allegations in the First Information Report, it appears that the

alleged offence took place in remaining agricultural field owned

by the non-applicant No.2, which is a private property.

7. Apart from absence of essential ingredients of

Section 294, it appears that there was civil dispute pending

between the applicants and the non-applicant No.2 in the form of

Regular Civil Suit No.60/2015 wherein the temporary injunction

was granted in favour of present applicants restraining the non-

applicant No.2 from disturbing the peaceful possession of the

applicants over the agricultural land where the incident took

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place. The order dated 31/10/2015 restrains the non-applicant

No.2 from entering the agricultural field where the alleged

incident took place. As per the accusations of the non-applicant

No.2, the incident took place on 22/12/2015 that is after the

order of injunction restraining the non-applicant No.2 from the

disturbing the possession of applicants was passed.

8. Having overall consideration of the allegations in

the First Information Report and the fact that an order of

injunction in favour of the applicants in relation to property where

the incident took place, we are satisfied that the continuation of

present proceedings against the applicants would amount to an

abuse of process of Court.

9. The other offence registered against the applicants

is under Section 506 of the Indian Penal which is non-cognizable

offence. In view of quashing of First Information Report under

Section 294 of the Indian Penal Code, the Investigating Agency

under Section 294 of the Indian Penal Code cannot investigate

into the offence under Section 506 of the Indian Penal Code

without permission from the Magistrate under Section 155(2) of

the Code of Criminal Procedure.

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10. We, therefore, pass the following order :-

First Information Report No.3178/2015 dated

20/12/2015 registered with the non-applicant No.1

- Police Station for the offences punishable under

Sections 294 and 506 r/w Section 34 of the Indian

Penal Code is quashed and set aside.

11. Rule is made absolute accordingly.

                      JUDGE                       JUDGE

 Choulwar