Bombay High Court
Shaikh Mehabub Shaikh Ismail And ... vs The State Of Maharashtra And ... on 10 February, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1383 OF 2021
01Shaikh Mehabub s/o Shaikh Ismail
02 Kamri @ Kamru w/o Shaikh Mehabub
03 Laiba Anam d/o Shaikh Mehabub
04 Aman s/o Shaikh Mehabub Applicants
Versus
01 The State of Maharashtra
02 Zarina Begum w/o Shaikh Farooque Respondents
Mrs. A. N. Ansari, advocate for the applicants
Mr. M. M. Nerlikar, APP for Respondent No.1-State.
Mr. T. A. Quadri, advocate for Respondent No.2.
CORAM : V.K.JADHAV AND
SANDIPKUMAR C. MORE, JJ.
DATE : 10th February, 2022.
PC :
1 Learned Counsel for the applicants, on instructions,
seeks leave to withdraw application of applicants no.1 and 2 with
liberty to fle an application for discharge before the trial Court in
the pending case.
2 Leave granted. Application of applicant no.1 - Shaikh
Mehaboob s/o Shaikh Ismail (uncle of husband of Respondent
No.2), applicant no.2 - Kamri @ Kamru w/o Shaikh Mehaboob
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(aunt of husband of Respondent No.2) is hereby dismissed as
withdrawn with liberty to both of them to fle an application for
discharge before the trial Court in the pending case.
3 Criminal Application is heard fnally at the stage of
admission by consent of learned Counsel for respective parties.
4 So far as applicant no.3 Laiba Anam d/o Shaikh
Mehaboob and applicant no. 4 - Aman s/o Shaikh Mehaboob are
concerned, learned Counsel for the applicants submits that
though their names are mentioned in the complaint, however,
allegations against them are general in nature. The learned
Counsel submits that applicant no.3 is cousin sister of husband of
Respondent No.2 and at present she is prosecuting B. A. M. S.
course. Applicant no.4 is the cousin brother of husband of
Respondent No.2, who is also taking education in 12th standard.
Learned Counsel submits that the allegations have been mainly
made against co-accused persons.
5 Learned Counsel for Respondent No.2 submits that names of
the applicants are mentioned in the First Information Report.
There is triable case against them. There is no substance in this
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application and the same is liable to be dismissed.
6 We have also heard learned A. P. P. for Respondent
No.1-State.
7 We have carefully gone through the allegations made in
the complaint and also perused the charge sheet. Though we fnd
names of the applicants are mentioned in the First Information
Report, however, allegations against them are general in nature.
Applicant no.3 is cousin sister of husband of Respondent No.2 and
she is prosecuting B. A. M. S. course and applicant no.4 is cousin
brother of husband of Respondent No.2, who is also studying in
12th standard. Parents of applicants no.3 and 4 have withdrawn
their application seeking quashing of the proceedings. It appears
that all the family members of applicants no.3 and 4 have been
arrayed as accused persons in connection with present crime.
8 In the case of Gita Mehrotra and others v. State of U.P.
and others, reported in AIR 2013 SC 181, the Supreme Court has
observed that "Courts are expected to adopt a cautious approach
in matters of quashing specially in cases of matrimonial dispute
whether the FIR in fact discloses commission of an offence by the
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relatives of the principal accused or the FIR prima facie discloses a
case of over-implication by involving the entire family of the
accused at the instance of the complainant, who is out to settle her
scores arising out of the teething problem or skirmish of domestic
bickering while settling down in her new matrimonial
surrounding."
9 In the case of Neelu Chopra and others v. Bharti,
reported in 2010 CrLJ 448, the Supreme Court has observed that,
"In order to lodge a proper complaint, mere mention of the sections
and the language of those sections is not be all and end of the
matter. What is required to be brought to the notice of the Court is
the particulars of the offence committed by each and every accused
and the role played by each and every accused in committing of
that offence. The complaint in the instant case is sadly vague. It
does not show as to which accused has committed what offence
and what is the exact role played by these appellants in the
commission of offence. There could be said something against
Rajesh, as the allegations are made against him more precisely but
he is no more and has already expired. Under such circumstances,
it would be an abuse of process of law to allow the prosecution to
continue against the aged parents of Rajesh, the present
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appellants herein on the basis of vague and general complaint
which is silent about the precise acts of the appellants".
10 In the case of Taramani Parakh v. State of Madhya
Pradesh and others, reported in (2015) 11 SCC 260, in para 10 the
Supreme Court has made the following observations:
"10. The law relating to quashing is well settled. If
the allegations are absurd or do not make out any
case or if it can be held that there is abuse of
process of law, the proceedings can be quashed but
if there is a triable case the court does not go into
reliability or otherwise of the version or the counter-
version. In matrimonial cases, the courts have to be
cautious when omnibus allegations are made
particularly against relatives who are not generally
concerned with the affairs of the couple. We may
refer to the decisions of this Court dealing with the
issue."
14. From a reading of the complaint, it cannot be
held that even if the allegations are taken as proved
no case is made out. There are allegations against
Respondent 2 and his parents for harassing the
complainant which forced her to leave the
matrimonial home. Even now she continues to be
separated from the matrimonial home as she
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apprehends lack of security and safety and proper
environment in the matrimonial home. The question
whether the appellant has in fact been harassed
and treated with cruelty is a matter of trial but at
this stage, it cannot be said that no case is made
out. Thus, quashing of proceedings before the trial
is not permissible.
15. The decisions referred to in the judgment of
the High Court are distinguishable. In Neelu
Chopra v. Bharti, (2009) 10 SCC 184, the parents of
the husband were too old. The husband Rajesh had
died and main allegations were only against him.
This Court fond no cogent material against the
other accused. In Manoj Mahavir Prasad Khaitan v.
Ram Gopal Poddar, (2010) 10 SCC 673 the appellant
before this Court was the brother of the daughter-
in-law of the accused who lodged the case against
the accused for theft of jewellery during pendency
of earlier Section 498-A IPC case. This Court found
the said to be absurd. In Geeta Mehrotra v. State of
U.P. (2012) 10 SCC 741, case was against brother
and sister of the husband. Divorce had taken place
between the parties. The said cases neither purport
to nor can be read as laying down any infexible rule
beyond the principles of quashing which have been
mentioned above and applied to the facts of the
cases therein which are distinguishable. In the
present case the factual matrix is different from the
said cases. Applying the settled principles, it cannot
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be held that there is no triable case against the
accused."
11 It is well settled that if the allegations are absurd and
no case is made out, the proceedings are liable to be quashed. In
the instant case, even if the allegations as against applicants no.3
& 4 are held to be proved, no case is made out. There is no triable
case against applicants no. 3 & 4. In view of the same,
continuation of the proceedings against them will be an abuse of
court process.
12 In view of the above and in view of the ratio laid down
by the Hon'ble Supreme Court in the afore-cited cases, Criminal
Application is allowed in terms of prayer clause "B" to the extent of
applicant no.3 Laiba Anam d/o Shaikh Mehaboob and applicant
no. 4 - Aman s/o Shaikh Mehaboob.
13 Criminal Application is accordingly disposed of.
(SANDIPKUMAR C. MORE) (V.K.JADHAV)
JUDGE JUDGE
adb
