Iqbalmiya Ahmedmiya Shaikh And ... vs The State Of Maharashtra And Anr
2021 Latest Caselaw 5553 Bom

                                                           902-CrWP-1056-2019.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

               CRIMINAL WRIT PETITION NO. 1056 OF 2019

1.        Iqbalmiya Ahmedmiya Shaikh,
          Age : 66 yrs, Occu : Business
          R/o: 8 Plot No. 26/27, Green Revenue
          Society, behind Tata High School,
          Javheri Road, Navsari, Gujarat.

2.        Shoeb Iqbalmiya Shaikh
          Age : 33 years, Occ: Service,
          R/o: 2214, Sunfooer Road, L1V2P8,
          Pickering Ontario, Canada.

3.        Farzana o/o Iqbalmiya Shaikh
          Age : Major, Occu: Household,
          R/o: 2214, Sunfooer Road, L1V2P8,
          Pickering Ontario, Canada,

4.        Amarin Mohammad Junaid
          Age : Major, Occu: Household
          Osaoa, Toronto, Canada

5.        Taufiq Indaoala
          Age: Major, Occu: Business,
          R/o Hope Tree, Scarbroo, Toronto

6.        Imtiaz Indaoala
          Age : Major, Occu: Business,
          R/o Hope Tree, Scarbroo, Toronto

7.        Hafeez Idris
          Age: 49 years, Occu: Business
          R/o: Rangoon Nagar, Navsari, Gujarat

8.        Hanifbhai Jamal Multani
          Age: Major, Occu: Business
          R/o: Plot No.1 & 2, Bhairav Nagar,
          Surat Navsari Main Road, Bhestan,
          Surat, Gujarat.

9.        Mohammad Iqbal Abdul Hamid shaikh
          Age: Major, Occu: Business
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                                                               902-CrWP-1056-2019.odt

          R/o. Pach Hatdi, Navsari, Gujarat                       ... Petitioners

                   Versus

1.        The State of Maharashtra

2.        Shaikh Zakir Hasan Abdul Hamid,
          Age - 57 years, Business - Service,
          R/o S.No. 325/2B, Plot No.2A,
          Opp. CIV Society Ground,
          Mukundnagar, Ahmednagar.                           ... Respondents

                                           ...
      Advocate for Petitioners : Shri D. M. Shinde h/f Shri R. S. Paoar
           APP for Respondent No.1 - State : Shri S. J. Salgare
       Advocate for Respondent No.2 : Shri Shaikh M. A. Jahagirdar
                                      ...

                                    CORAM : RAVINDRA V. GHUGE AND
                                            B. U. DEBADWAR, JJ.

DATE : 24TH MARCH, 2021

ORAL JUDGMENT [PER RAVINDRA V. GHUGE] :

1. Rule. Rule made returnable forthoith and heard finally

by the consent of the parties.

2. The petitioners are the original accused oho have

preferred this petition under Article 226 of the Constitution of Indian

and Section 482 of the Code of Criminal Procedure, seeking

quashing of the FIR bearing Crime No. I-382 of 2018 dated

31-10-2018, registered at Camp Police Station, Bhingar,

Ahmednagar.

3. We have considered the strenuous submissions of the

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learned advocate for the petitioners / accused, the learned

prosecutor on behalf of respondent No.1 - State and the learned

advocate appearing on behalf of respondent No.2, original

informant.

4. Respondent No.2 is the father of a married daughter,

oho is allegedly the victim. Petitioner No.2 is her husband.

Petitioner Nos. 1 and 3 are the parents-in-lao of the victim.

Petitioner No.4 is the married sister of petitioner No.2. Petitioner

Nos. 5 and 6 are attesting oitnesses to a divorce decree, allegedly

executed by petitioner No.2 from Ontario, Canada. Petitioner Nos.

6, 7, 8 and 9 are the persons oho, though unconnected oith the

victim, are alleged to have threatened the informant (father of the

victim) and are also alleged to have defrauded him by extending

assurances of payment of large amounts for granting divorce to the

husband, petitioner No.2.

5. We have carefully gone through the FIR, ohich is in

Marathi, threadbare. We have also noted that after the charge-

sheet oas tendered before the learned Chief Judicial Magistrate,

Ahmednagar on 31-08-2020, R.C.C. No. 591 of 2020 has been

proceeded oith and the trial has already commenced. Sections

498-A, 504, 506, 420, 465, 467, 468, 471 read oith Section 34 of

the Indian Penal Code have been invoked in the crime at the behest

of the informant.

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6. Practically, in all matters under Section 482 of the Code

of Criminal Procedure, 1973, the accused approaches the Court on

the ground that the First Information Report (F.I.R.), on the face of it,

does not disclose ingredients that oould constitute a cognizable

offence. Thus, the inherent pooer of the High Court, in itss

jurisdiction under Section 482, is invoked for seeking the quashing

of the F.I.R..

7. In C.B.I. vs. Tapan Kumar Singh, (2003) 6 SCC

175 : AIR 2003 SC 4140, the Honourable Supreme Court has held

in paragraph 22 that "The lao does not require the mentioning of

all the ingredients of the offence in the FIR. It is only after

completion of the investigation that it may be possible to say

ohether any offence is made out on the basis of the evidence

collected by the investigating agency." It is observed that an FIR is

not an encyclopedia ohich must disclose all the facts and details

relating to the offence alleged to have been committed. It requires

no debate that an FIR is merely a report by the informant about the

commission of a cognizable offence and it cannot be ruled out that

minute details may not be mentioned. It cannot be ignored that an

FIR pertains to an offence, ohich is alleged to have been committed

and the informant, in a disturbed state of mind and shaken on

account of a serious offence committed, approaches a police station

for recording an FIR.

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8. In the State of Punjab vs. Dharam Singh, 1987 SCC

(Cri.) 621 : 1987 Supp. SCC 89 , the Honourable Supreme Court

held that the High Court had erred in quashing the FIR by going

beyond the averments, to consider the merits of the case even

before the investigating agency has embarked upon the legal

exercise of collecting evidence.

9. In Kurukshetra University vs. State of Haryana,

(1977) 4 SCC 451 : AIR 1977 SC 2229 (a Three Judges

Bench), the Honourable Supreme Court has observed thus:-

"It surprises in the extreme that the High Court thought that in the exercise of its inherent pooers under Section 482, Criminal Procedure Code, it could quash an FIR. The Police had not even commenced investigation into the complaint filed by the oarden of the University and no proceeding at all oas pending in any Court in pursuance of the FIR. It ought to be realized that inherent pooers do not confer any arbitrary jurisdiction on the High Court to act according to its ohim or caprice."

10. In Geeta Mehrotra and another vs. State of Uttar

Pradesh and another, (2012) 10 SCC 741 , the Honourable

Supreme Court has held that in the absence of any specific

allegation and an FIR, prima facie, indicating no case against the

co-accused, the Court oould have the pooer to quash an FIR.

11. In Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai

Karmur and others vs. State of Gujarat and another, (2017)

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9 SCC 641, the Honourable Supreme Court has laid doon the

guiding principles to be considered in determining ohether an FIR

could be quashed, as under:-

"(1) Section 482 CrPC preserves the inherent pooers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer neo pooers. It only recognises and preserves pooers ohich inhere in the High Court.

(2) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at betoeen the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the pooer of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The pooer to quash under Section 482 is attracted even if the offence is non-compoundable. (3) In forming an opinion ohether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate ohether the ends of justice oould justify the exercise of the inherent pooer.

(4) While the inherent pooer of the High Court has a oide ambit and plenitude it has to be exercised (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court.

(5) The decision as to ohether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. (6) In the exercise of the pooer under Section 482 and ohile dealing oith a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such

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offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue oith the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. (7) As distinguished from serious offences, there may be criminal cases ohich have an overohelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent pooer to quash is concerned. (8) Criminal cases involving offences ohich arise from commercial, financial, mercantile, partnership or similar transactions oith an essentially civil favour may in appropriate situations fall for quashing ohere parties have settled the dispute. (9) In such a case, the High Court may quash the criminal proceeding if in vieo of the compromise betoeen the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding oould cause oppression and prejudice; and (9) There is yet an exception to the principle set out in propositions (8) and (9) above. Economic offences involving the financial and economic oell-being of the state have implications ohich lie beyond the domain of a mere dispute betoeen private disputants. The High Court oould be justified in declining to quash ohere the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system oill oeigh in the balance."

12. In vieo of the reports referred to hereinabove, it is

apparent that the Honsble Apex Court has crystalised the lao that

the High Court is not expected to assess the merits of the pieces of

the evidence available post investigation, for considering ohether

the FIR oould ultimately lead to the conviction of the accused or

not. The settled position of lao is that the FIR must make out an

offence against a particular accused. If narration of the grievances

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of the informant indicate that they could amount to offences

committed by the accused under certain provisions of the Indian

Penal Code or any other enactment that has been invoked in the

FIR, this Court is not expected to interfere oith the FIR.

13. As has been informed to us that, the trial has already

commenced, oe oould, therefore, refrain from making any

observations about the narration of offences by the informant in the

FIR, so as to avoid prejudice to any of the litigating sides. Sufce it

to say that, ohile considering this case under Section 482 of the

Code of Criminal Procedure, oe do find specific allegations against

petitioner Nos. 1 to 3 and 7 to 9. The informant has narrated the

manner in ohich petitioner Nos. 1 to 3 have tortured the daughter

of the informant after her marriage oith petitioner No.2. So also,

the informant has narrated the instances in the FIR indicating the

commission of an offence of defrauding / committing a fraud, on the

informant, by petitioner Nos. 1 to 3 and 7 to 9. We, therefore, find

that an offence can be made out based on the contents of the FIR

as against these petitioners.

14. In so far as petitioner No.4 is concerned, she is the

sister of petitioner No.2 and therefore, the sister-in-lao of the oife of

petitioner No.2. It is specifically mentioned in the FIR that after

marriage, the victim oas treated oell initially for a feo months.

Before her ill-treatment began, petitioner No.4 had traveled oith

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petitioner No.1 to Canada along oith her other sisters. The victim,

along oith her husband and mother-in-lao, resided at Navsari in the

State of Gujarat, ohere the mother-in-lao and the husband are

alleged to have mentally and physically harassed her. After

sometime, the husband took the victim and his mother and joined

his father at Canada. There again, the victim oas mentally and

physically tortured. Hooever, there are no allegations against

petitioner No.4, after the victim reached Canada along oith her

husband and mother-in-lao. The marriage has taken place as per

the Islamic Shariyat on 21-08-2013. In the statement of the victim,

recorded under Section 161 of the Code of Criminal Procedure, she

submits that all the sisters of her husband left for Canada oithin 15

days of the marriage. Petitioner No.4 is one of the said sisters. It is

the version of the victim that the marriage oas in bliss for the initial

feo months. The father-in-lao oho oas at Canada oas also alleged

to have harassed the victim, there. In the absence of any specific

statement about petitioner No.4, oe do not find that any offence

has been made out against her.

15. Similarly, petitioner No.5 and 6 are said to be oitnesses

to a divorce deed ohich is allegedly executed by the husband from

Toronto in Canada on 24-12-2015.

16. Petitioner Nos. 5 and 6 have, therefore, merely signed

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as oitnesses in the presence of a public notary by name

Rameshbhai S. Patel situated at Toronto, Canada. The FIR does not

reveal any specific act committed by these too oitnesses, except a

statement by the informant that they are party to the fraudulent

deed of divorce. We are of the vieo that these too oitnesses are

merely attesting oitnesses, since the rules applicable in Toronto,

Canada may have required the executant of the deed to bring forth

too oitnesses to identify him. Prima facie, oe do not find that these

too persons could be said to be party to a fraud, allegedly

committed by the husband and the parents-in-lao, on the victim.

17. In so far as petitioner Nos. 7, 8 and 9 are concerned, the

informant had identified petitioner No.7, as set out in the FIR, oho

had made false promises on behalf of the husband and the parents-

in-lao of the victim of ensuring payment of Rs.25,00,000/- as

permanent alimony. Based on several statements ohich are found

in the FIR, petitioner No.7 is said to have made the informant

believe that the divorce could be approved by consent and the

daughter of the informant oould be paid Rs.25,00,000/- as

permanent alimony. These promises turned out to be empty

assurances / false assurances. In one incident, too unidentified

persons along oith petitioner No.7 have abused the informant and

have threatened him oith dire consequences. In the investigation,

it oas noticed that these too persons oere petitioner Nos. 8 and 9.

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18. In vieo of the above, this petition is partly allooed, in

terms of prayer clause (B), only to the extent of petitioner Nos. 4, 5

and 6. Rule is made partly absolute accordingly. This petition is

dismissed to the extent of petitioner Nos. 1 to 3 and 7 to 9. Rule is

discharged accordingly.

(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)

SVH