Bombay High Court

Irfan Shah Imam Shah And Others vs The State Of Maharashtra And Anr on 22 March, 2022

Bench: V.K. Jadhav, Sandipkumar Chandrabhan More

                                       (1)
                                                        951 criappln-4300.2019.odt

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                   BENCH AT AURANGABAD

            951 CRIMINAL APPLICATION NO.4300 OF 2019
 Irfan Imam Shah and others                                           Applicants
                  Versus
 The State of Maharashtra and
 another                                                              Respondents
                                        ...
          Mr. S.B. Choudhari, Advocate for the applicants.
        Smt. P.V. Diggikar, A.P.P. for respondent No. 1- State.
         Mr. Sachin Jaiswal, Advocate for respondent No. 2.
                                   ...

                           CORAM : V.K. JADHAV AND
                                   SANDIPKUMAR C. MORE, JJ.

DATE : 22-03-2022.

P.C. :

1. Learned Counsel for the applicants, on

instructions, seeks leave to withdraw the application of

applicant Nos.1 to 3.

2. Leave granted.

3. Application of applicant No.1 Irfan Shah Imam

Shah (husband of respondent No. 2.), applicant No.2 Imam

Shah Budhan Shah (father-in-law of respondent No.2) and

applicant No. 3 Shahnaz Bi Imam Shah (mother-in-law of

respondent No. 2) is hereby dismissed as withdrawn.

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4. Heard fnally with consent at the admission stage.

5. Learned Counsel for the applicants submits that

during pendency of this criminal application, applicant No.6

Afsana Bi died. Learned Counse, thus, seeks leave to delete

the name of applicant No. 6.

6. Leave granted.

7. Name of applicant No. 6 be deleted from the array

of the applicants.

8. The applicants - accused are seeking quashing of

the F.I.R. bearing Crime No. 458/2019 registered with Jinsi

Police Station, Aurangabad and consequential criminal

proceedings bearing R.C.C. No. 1551/2020 pending before the

learned 2nd Judicial Magistrate, First Class, Aurangabad for

the offences punishable under Sections 498-A, 323, 504 read

with Section 34 of the Indian Penal Code.

9. Learned Counsel for the applicants submits that

though the names of the applicants are mentioned in the

F.I.R., however, the allegations as against them are general in

nature without quoting any specifc incident to the extent of

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their individual role. Learned Counsel submits that applicant

Nos.4 and 5 are married sisters-in-law residing at different

places, applicant Nos. 7, 8 and 10 are distant relatives and

applicant No. 9 is the husband of applicant No. 5. Learned

Counsel submits that it is a case of over implication.

10. Learned Counsel for respondent No. 2 submits

that respondent No. 2-informant was treated well for a period

of 9 months after the marriage, but thereafter she was

subjected to ill-treatment for various reasons by all the

applicants and co-accused persons. The applicants have also

made unlawful demand on certain amount and extended

beating to respondent No. 2 on account of non-fulfllment of

the said demand. Learned Counsel for respondent No. 2

submits that respondent No.2 has quoted the incident dated

27.04.2018 and further the incident after 14.11.2018. Learned

Counsel submits that the allegations have made against all

the applicants and co-accused persons by quoting specifc

incident. There is triable case against all the applicants.

There is no substance in the criminal application and the

criminal application is liable to be dismissed.

951 criappln-4300.2019.odt

11. We have also heard learned A.P.P. for respondent

No.1 - State.

12. We have carefully gone through the contents of the

complaint and also perused charge-sheet. Though we fnd

names of the applicants in the F.I.R., however, the allegations

have been made mainly against co-accused husband, father-

in-law and mother-in-law whose application seeking quasing

of F.I.R. and proceeding came to be withdrawn. Though there

are two incidents quoted in the F.I.R. i.e dated 27.04.2018 and

the second incident is after 14.11.2018, however, the

allegations hardly attract the provisions of Section 498-A of

I.P.C. against the applicants before us. So far as the incident

dated 27.04.2018 is concerned, it has been alleged that the

co-accused husband, mother-in-law and applicant Nos. 4 and

5 removed the ornaments from the person of respondent No.2

and thereafter the other applicants came there in their house

due to the said incident. There are general allegations that

respondent No. 2 subjected to abuses and slaps and further

she was driven out from the house. However, except giving

names of the applicants, no individual role has been ascribed

to them. The allegations are not only general in nature, but

absurd in nature. So far as the second incident is concerned,

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after 14.11.2018, respondent No. 2 has resumed her

cohabitation and she was allegedly subjected to ill-treatment

because she gave birth to a female child. However, there are

general allegations stating therein that she was subjected to

ill-treatment and driven out from the matrimonial home

without taking the names of any accused person.

13. 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 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."

14. 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

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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

appellants herein on the basis of vague and general complaint

which is silent about the precise acts of the appellants ".

15. In the case of Taramani Parakh v. State of Madhya

Pradesh and others, reported in (2015) 11 SCC 260, in

paragraph Nos.10, 14 and 15, 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

951 criappln-4300.2019.odt

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 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

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were only against him. This Court found 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 be held that there is no triable case against the accused."

16. 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 these applicants are held to be proved, no triable case

is made out against them. It further appears that all the

family members have been implicated in connection with this

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crime and even distant relatives are also not spared. It is a

clear-cut case of over-implication.

17. In view of the above and in terms of the ratio laid

down by the Supreme Court in the above-cited cases, we are

inclined to quash the proceedings as against these applicants.