Bombay High Court
Muskan Begum W/O. Irshad Attar ... vs The State Of Maharashtra And ... on 28 September, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
948-CriAppln-1576-2021
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
948 CRIMINAL APPLICATION NO.1576 OF 2021
MUSKAN BEGUM W/O IRSHAD ATTAR (NEE SONAL D/O
SAJEEVKUMAR ACHARE) AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
......
Advocate for Applicants : Mr. Rajiv B. Deshmukh
APP for Respondent No.1 : Mr. M. M. Nerlikar
Advocate for Respondent No.2 : Mr. B. N. Gadegaonkar
.....
CORAM : V. K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
DATED : 28th SEPTEMBER, 2021
PER COURT:-
1. Learned counsel for the applicants, on instructions, seeks
leave to withdrawn the application of applicant no.1 Muskan
begum w/o Irshad Attar.
2. Leave granted. The application of applicant no.1 Muskan
begum w/o Irshad Attar is dismissed as withdrawn.
3. So far as applicant no.2 Irshad s/o Mohiyoddin Attar is
concerned, learned counsel submits that co-accused Muskan,
whose name before conversion from Hindu religion to Muslim
948-CriAppln-1576-2021
religion was Sonal d/o Sajeevkumar Achare, is the daughter of
respondent no.2 herein. Co-accused Muskan and applicant no.2
Irshad are major and they have performed marriage at Telangana,
Hyderabad. Learned counsel submits that by order dated
09.03.2021, the Chairperson of Telangana State Human Rights
Commission has directed the concerned police to extent full
cooperation and protection to co-accused Muskan and the present
applicant Irshad in the event of anybody gives any threat or alleged
any compliant against the couple and take necessary action by
counseling the parents. It is also observed that both the petitioners
(applicants herein), who are present before the commission are to
be seen that they lead marital life in a peaceful manner.
Accordingly, the Telangana State Human Rights Commission has
disposed of the complaint.
4 Learned counsel for the applicants submits that almost more
than two months thereafter, respondent no.2 has lodged the
complaint against the applicant Irshad, his own daughter and also
two brothers and father of the applicant Irshad for having
committed theft in his house. It has been alleged in the complaint
that accused persons have committed theft of cash amount of Rs.
948-CriAppln-1576-2021
25,00,000/- and 73 tola of gold from the house of respondent no.2-
informant. Learned counsel submits that it has been specifically
stated in the complaint that on 28.02.2021, respondent no.2-
informant slept in his house in the drawing room and his wife and
co-accused Sonal slept in the bedroom. In the morning at about 4
a.m. to 5 a.m., wife of respondent no.2 informed him that co-
accused Sonal left the house. Thus, respondent no.2-informant,
after taking search of co-accused Sonal and even after taking
search of his house itself, found that the amount of Rs.25,00,000/-
kept in the cupboard for purchasing agricultural land and also the
golden ornaments weighing 73 tola and certain silver ornaments
was missing. Learned counsel submits that except these allegations,
there is nothing in the FIR to indicate that applicant Irshad went
there for commission of the crime. Even there are no allegations
that at the instigation of applicant Irshad, co-accused Sonal while
leaving the house committed theft of the said cash amount and
golden and silver ornaments. Learned counsel for the applicants
submits that the allegations have been made with an ulterior
motive for wreaking vengeance as against applicant Irshad, with
whom the daughter of respondent no.2 has performed marriage.
948-CriAppln-1576-2021
5. Learned counsel for respondent no.2 submits that as per the
directions given by the concerned Magistrate under Section 156(3),
the FIR came to be registered on 31.05.2021. Learned counsel for
respondent no.2 submits that there are specific allegations against
co-accused Sonal that she left the house in the wee hours along
with the huge cash amount and the golden ornaments and joined
the company of applicant Irshad. Thereafter, both of them fled
away. It is not within the knowledge of respondent no.2 as to
whether they have performed marriage or not. The investigation is
going on. For the purpose of recovery of the said amount and the
golden ornaments, custodial interrogation of applicant Irshad is
required. This is premature stage for quashing of the FIR since
investigation is still going on.
6. Learned APP submits that even in the missing report,
respondent no.2-informant has alleged that his daughter Sonal has
left the house along with huge cash amount and also the golden
and silver ornaments. Learned APP submits that the investigation is
going on. Learned APP however has fairly accepted that during the
course of investigation, the Investigating Officer has searched the
house of applicant Irshad at Hyderabad where he is residing along
948-CriAppln-1576-2021
with co-accused Sonal. Even the Investigating Officer has checked
the entries in their bank accounts. However, nothing has been
found.
7. We have carefully gone through the police papers,
particularly the complaint. It has been alleged in the complaint that
on 01.03.2021 in the wee hours, wife of respondent no.2 has
informed respondent no.2 that co-accused Sonal has left the house.
There is no reference as to how co-accused Sonal has committed
theft of the said huge amount of Rs.25,00,000/- and golden and
silver ornaments weighing 73 tola.
8. We have carefully gone through the order passed by the
Telangana State Human Rights Commission on 09.03.2021. It has
been observed by the Human Rights Commission that applicant
Irshad and co-accused Sonal loved each other and decided to enter
into a marital life. However, father of co-accused Sonal was not
consenting for the same. It has also been observed by the Human
Rights Commission that without any coercion from anybody co-
accused Sonal has converted into Islam and became Muslim. On
01.03.2021, both of them approached religious scholar at
948-CriAppln-1576-2021
Nampally, Hyderabad and submitted her willingness to convert her
present religion and to accept Islam as her permanent religion. It
has also been observed by the Human Rights Commission that on
02.03.2021, both of them approached to the office of Qazzath at
Qila Mohammed Nagar, Golconda and out of their free will and
consent, they performed marriage as per Muslim rites and customs.
They have also informed about the said marriage to respondent
no.2 and his wife though they did not agree for the said marriage.
It appears that the Human Rights Commission has also observed
that at present the couple is living at Hyderabad in house bearing
H.No. 14-20-238, Pandit Nehru Nagar, Borabanda, Hyderabad. The
Human Rights Commission has further observed that since both of
them are major and their marriage is performed as per Islam rites
and customs, they have been issued a marriage certificate. They
have a right to select their life partner with each other. The
Chairperson of the Telangana State Human Rights Commission has
finally given the following directions to the concerned police;
"Under these circumstances, the concerned police is
directed to extend full cooperation and protection to
both of them in the event of anybody gives any
threat or alleged any complaint against the couple
948-CriAppln-1576-2021
and take necessary action by counselling the
parents. Both the petitioners who are present before
the Commission are to be seen that they lead marital
life in a peaceful manner. With the above
observation, complaint is disposed of."
9. It further appears that on 31.05.2021, respondent no.2-
informant has lodged the specific complaint against the applicant
Irshad and his father and two brothers. We find that the allegations
have made with an ulterior motive for wreaking vengeance against
the applicant Irshad.
10. In the case of State of Haryana and others v. Ch. Bhajan Lal
and others, reported in AIR 1992 SC 604, in para 105 of the
judgment, the Supreme Court has formulated the categories of
cases by way of illustration, wherein powers under Section 482 of
the Code of Criminal Procedure could be exercised either to
prevent abuse of the process of any Court or otherwise to secure
the ends of justice. Clause 7 of these guidelines is relevant for the
present consideration which is reproduced herein below:
"105 (7) Where a criminal proceeding is
948-CriAppln-1576-2021
manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private
or personal grudge."
11. In the instant case, in our considered opinion, respondent
no.2 has lodged the complaint against applicant Irshad with some
ulterior motive for wreaking vengeance since applicant Irshad has
not only converted the religion of co-accused Sonal but also
performed marriage with her. Moreover, there is absolutely no
evidence against applicant Irshad for having committed the offence
of theft. Even in the search of house of applicant Irshad in
Hyderabad, where he resides with co-accused Sonal, nothing is
found and even there are no entries in their bank account
indicating that the amount allegedly stolen has been kept in the
bank account. In view of the same and in terms of the ratio laid
down by the Supreme Court in the case cited above, we are
inclined to allow this application so far as applicant Irshad is
concerned. Hence, we proceed to pass the following order:
948-CriAppln-1576-2021
ORDER
I. The criminal application is hereby allowed to the extent of
applicant no.2 Irshad s/o Mohiyoddin Attar in terms of prayer
clause "B"
II. The criminal application is accordingly disposed off.
(SHRIKANT D. KULKARNI, J.) (V. K. JADHAV, J.)
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