Bombay High Court
Kamrunnisa Mohd. Ashpak vs State Of Mah. Thr. Police Station ... on 4 January, 2022
Bench: V.M. Deshpande, G. A. Sanap
1 28-J-APL-437-21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.437 OF 2021
1. Smt. Kamrunnisa Mohd. Ashpak,
Aged 47 years, Occ. Household.
2. Mohd. Ashpak Sheikh Mehmood,
aged about 58 years, Occ. Private.
Both R/o Taj Nagar, Digras,
Tq. Digras, Dist. Yavatmal. .... APPLICANTS
// V E R S U S //
1. State of Maharashtra,
Through Police Station Officer,
Digras, Police Station, Digras,
Dist. Yavatmal.
2. Ku. Vaishnavi Avinash Rathod,
aged 23 years, Occ. Private,
R/o Khedbid, Tq. Arni,
Dist. Yavatmal. ..NON-APPLICANTS
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Shri Firdos Mirza, Advocate for applicants.
Mrs. Mayuri Deshmukh, Additional Public Prosecutor for non-
applicant No.1-State.
Mrs. D. I. Charlewar, Advocate for non-applicant No.2.
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CORAM: V. M. DESHPANDE AND
G. A. SANAP, JJ.
DATED : 04/01/2022.
JUDGMENT : (PER G. A. SANAP, J.)
1. Rule. Rule is made returnable forthwith. Heard
finally with the consent of the learned counsel for the parties.
2 28-J-APL-437-21.odt
2. The applicant Nos.1 and 2 who are arrayed as
the accused Nos.2 and 3 in Crime No.0164/2021 registered
on 25/02/2021 under Sections 376, 377, 323, 504 and 506
read with Section 34 of the Indian Penal Code at Digras Police
Station, Dist. Yavatmal has prayed for quashing the said First
Information Report against them.
3. On the basis of the report lodged by non-
applicant No.2, the above crime came to be registered against
the son of the applicants and the applicants. The non-applicant
No.2 alleged that the accused No.1 sexually assaulted her and
the applicant Nos.1 and 2 assisted him in the commission of
said crime. It is also a case that the applicants have beaten her
brutally and extended threat to kill her. The accused No.1
took her to Pune with an assurance that he would marry her.
They resided at Pune for 8 days in a lodge. The accused No.1
on the false promise of marriage during this period had sexual
intercourse with the non-applicant No.2. The non-applicant
No.2 was brought by the accused No.1 to Digras. She was kept
3 28-J-APL-437-21.odt
in a separate room. The accused No.1 after having sexual
intercourse with her, drove her out of the house.
4. On the basis of allegations, the First Information
Report, as above came to be registered against the accused
No.1 and the applicant Nos.1 and 2. The applicant Nos.1 and
2 have stated that on bare perusal of the First Information
Report, their complicity in the offence has not been made out.
Their names have been mentioned with intention to harass
them. The allegations made in the First Information Report
vis-a-vis the applicants are too vague and general in nature.
The prosecution against them is nothing but misuse of process
of law. They have, therefore, prayed for quashing of the First
Information Report.
5. The Investigating Officer has filed reply and
opposed the application. In order to justify the prosecution
against the applicants, the Investigating Officer has reiterated
the facts stated in the First Information Report. It is contended
that the applicants have abetted the commission of offence by
4 28-J-APL-437-21.odt
the accused No.1. Their involvement in the crime has been
established on the basis of evidence. No case has been made
out to grant the prayer.
6. Mrs. Deepa Charlewar, learned Advocate was
appointed to represent the non-applicant No.2 by the High
Court Legal Services Sub-Committee, Nagpur. The learned
Advocate made oral submissions and opposed the application.
7. We have heard the learned Advocate for the
applicants, the learned Additional Public Prosecutor for non-
applicant No.1-State and the learned Advocate for non-
applicant No.2. We have gone through the record and
proceedings.
8. Shri Firdos Mirza, learned Advocate for the
applicants took us through the First Information Report and
submitted that the same does not disclose the involvement of
the applicants in the commission of crime. The learned
Advocate submitted that on the basis of such general and vague
5 28-J-APL-437-21.odt
allegations, the applicants cannot be made to face the
prosecution. The learned Advocate submitted that this is a fit
case to quash the First Information Report against the
applicants.
9. The learned Additional Public Prosecutor
submitted that the role played by the applicants has been
specifically mentioned in the First Information Report. In the
submissions of the learned Additional Public Prosecutor, the
facts stated in the First Information Report, at this stage, are
sufficient to prima facie establish the involvement of the
applicants. The learned Additional Public Prosecutor further
submitted that all throughout the applicants abetted the
commission of crime by the accused No.1, who is their son.
10. The learned Advocate for the non-applicant
No.2 adopted the arguments advanced by the learned
Additional Public Prosecutor for the State.
6 28-J-APL-437-21.odt
11. In order to appreciate the rival submissions, we
have gone through the contents of the First Information
Report. The perusal of the First Information Report would
show that no specific role has been attributed to the applicants
in the commission of crime of sexual assault with the non-
applicant No.2 by accused No.1. The perusal of the First
Information Report would show that the allegations made
against the applicant Nos.1 and 2 are of general nature. The so
called allegations against the applicants would not constitute
the offence alleged to have been committed by them. It is
settled legal position that the powers under Section 482 of the
Code of Criminal Procedure can be exercised where the
allegations made in the First Information Report even if they
are taken on their face value and accepted in the entirety do
not prima facie constitute any offence or make out a case
against the accused. If the uncontroverted allegations made in
the First Information Report or complaint and the evidence
collected in support of the same do not disclose the
commission of any offence and make out a case against the
7 28-J-APL-437-21.odt
accused, then the accused cannot be made to undergo
rigmarole of the criminal trial. The inherent powers given
under Section 482 of the Code of Criminal Procedure is with
the purpose and object of advancement of justice.
12. In our view, if the allegations made in the First
Information Report are taken on their face value and accepted
in their entirety would not prima facie constitute any offence
or make out a case against the applicants. In our view,
therefore, this is a fit case to grant the relief as sought for by
the applicants. In our view, grant of such relief would meet the
ends of justice. Therefore, we are not prepared to accept the
submissions advanced by the learned Additional Public
Prosecutor. In our view, the First Information Report, as
mentioned above, is required to be quashed and set aside qua
the applicants only. Hence, the following order :-
ORDER
i] The criminal application is allowed.
8 28-J-APL-437-21.odt
ii] The First Information Report registered vide
Crime No.0164/2021 on 25/02/2021 under
Sections 376, 377, 323, 504 and 506 read with
Section 34 of the Indian Penal Code at Digras
Police Station, Dist. Yavatmal is quashed and set
aside to the extent of applicants only.
iii] The fees of the learned Advocate appointed to
represent the non-applicant No.2 is quantified at
Rs.2,500/- (Rs. Two thousand five hundred only).
Rule accordingly. The criminal application
is disposed of.
(G. A. SANAP, J.) (V. M. DESHPANDE, J.)
Choulwar
Digitally signed by
VITHAL VITHAL MAROTRAO
MAROTRAO CHOULWAR
Date: 2022.01.06
CHOULWAR 13:22:54 +0530
