Nasir Rahim Khan vs State Of Maharashtra And Anr
2023 Latest Caselaw 4265 Bom

2023:BHC-AS:12680-DB

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                                                                            36-APL-629-2022-RO.doc

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                    CRIMINAL APPELLATE JURISDICTION

                             CRIMINAL APPLICATION (APL) NO.629 OF 2022

            Nasir Rahim Khan                                    ...Applicant
                  V/s.
            The State of Maharashtra & Anr.                     ...Respondents

            Mr. Satish R. Soni for Applicant.
            Mr. Ajay Patil, A.P.P. for the Respondent No.1-State.
            Mr. Viral Rathod i/by Ms. Saima Sothe for Respondent No.2.

                                                 CORAM   :      A. S. GADKARI AND
                                                                PRAKASH D.NAIK, JJ.

                   Date of Closing for Order             :      28th MARCH 2023.
                   Date of Pronouncing the Judgment      :      27th APRIL 2023.

            JUDGMENT : (Per : Prakash D. Naik, J.)

            .      The Applicant has invoked the inherent powers of this Court under

Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.' ) challenging

the criminal proceedings in R.C.C. No.53 of 2022 pending before the Court

of learned Judicial Magistrate First Class, Pen, District Raigad.

2. The First Information Report (for short 'FIR') dated 02.01.2022 was

registered at the instance of Respondent No.2 with Nagothane Police

Station, District Raigad vide C.R. No.3 of 2022 for offences under Sections

498-A, 406, 323, 377, 504 & 506 read with Section 34 of the Indian Penal

Code (for short 'IPC' ).

3. The case of the prosecution as appears from the FIR lodged by

Respondent No.2 is that, the Applicant is father-in-law of Respondent No.2.

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The Accused No.1 Sajid Nasir Khan is the son of Applicant. Respondent

No.2 is the wife of Accused No.1. There was love affair between

Respondent No.2 and Accused No.1, Sajid Nasir Khan. There was physical

relationship between them. The family members of Accused No.1 were

against marriage between Respondent No.2 and Accused No.1. The

Accused No.1 refused to perform marriage. Respondent No.2 lodged

complaint with Nagothane Police Station on 26.06.2021 alleging that, the

Accused No.1 had cheated her by giving false promise of marriage. Accused

No.1 agreed to perform marriage but insisted that, she should withdraw the

complaint. Respondent No.2 did not pursue her complaint. The family

members of Accused No.1 agreed to perform marriage between Accused

No.1 and Respondent No.2, on a condition that, they should part with gold

and cash of Rs. 20 Lakhs. The mother of Respondent No.2 agreed for the

same, considering the interest of her daughter. Marriage was performed.

Gold ornaments were given to Respondent No.2 during her marriage.

Thereafter, Respondent No.2 was ill treated by the Accused. She was

abused, harassed and assaulted. There was demand of gold and money.

On 25.09.2021, the Accused No.1 visited the parental home of Respondent

No.2 and threatened her. Thereafter, the Respondent No.2 went to her

matrimonial home. Her father-in-law who was in Saudi Arabia informed

his family members that, they should not allow her the entry in the of house

without money. The Respondent No.2 was assaulted. On 04.10.2022 she

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lodged N.C. Complaint against her husband, mother-in-law and sister-in-

law. On 21.10.2021, the Respondent No.2 informed Accused No.1 that, she

had lodged the complaint against him. Accused No.1 was persuading her

not to file complaint. Accused No.1 subjected Respondent No.2 to

unnatural sex. FIR was lodged on 02.01.2022. On completing investigation,

charge-sheet was filed.

4. Learned Advocate for Applicant submitted that, the Applicant has

been falsely implicated in this case. All the family members are dragged in

the FIR by Respondent No.2. The complainant has stated that, the

Applicant was working at Saudi Arabia. The allegations against the

Applicant are vague. Admittedly, at the time of alleged incident, the

applicant was not in India and did not participate in the alleged acts

attributed to the other Accused. There is no evidence to substantiate the

charges under Section 498-A of IPC against the Applicant. The FIR and the

charge-sheet does not makes out any offence against the Applicant.

5. Learned A.P.P. submitted that, the statement of first informant and

other witnesses refers to the involvement of Applicant which would amount

to cruelty under Section 498-A of IPC. The grounds urged by the Applicant

will have to be appreciated after recording evidence during the trial. No

case is made out for quashing the FIR or charge-sheet.

6. Learned Advocate for Respondent No.2 submitted that, specific

overt act has been attributed to the Applicant. The statement of

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Respondent No.2, her mother and sisters corroborated each other in

disclosing the involvement of Applicant in the crime. Although, the

Applicant was in Saudi Arabia, on telephonic instructions he had instigated

other Accused in harassing the Complainant. The charge-sheet cannot be

quashed on the basis of the statements advanced by the learned Advocate

for the Applicant.

7. The marriage between Respondent No.2 and Accused No.1 (son of

Applicant) was performed on 02.08.2021. Prior to the marriage,

Respondent No.2 had approached Police with Complaint on 26.06.2021

alleging that, the Accused No.1 has given false promise of marriage to her.

As per the version of Respondent No.2, she did not pursue the said

complaint on the promise of Accused No.1, that, he would perform

marriage with her. It is also apparent that, non cognizable complaint was

lodged by Respondent No.2 against other Accused on 04.10.2021. The

alleged incident of telephonic call made by the Applicant from Saudi Arabia

had occurred prior to lodging the N.C. complaint. Apparently, there was no

grievance against the Applicant in the said complaint. In the FIR itself it is

stated that, the Applicant is working at Saudi Arabia and he came to India a

month prior to lodging the FIR. No other overt act is attributed to the

Applicant. The mother and sister of Respondent No.2 has stated that, they

were informed by Respondent No.2 that, the Applicant had made a call

from Saudi Arabia and told the other family members not to allow entry of

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the Respondent No.2 in the matrimonial home without money. According

to first informant, she had visited matrimonial home after the said alleged

incident. The allegations against the Applicant are vague and not sufficient

to prosecute him for the alleged offence. Apparently, the Applicant has

been impleaded in this case with malafide intention.

8. In the case of State of Hariyana and Others V/s. Ch. Bhajan Lal and

Others1, the apex Court has considered the series of decisions relating to the

exercise of the extraordinary power under Article 226 of the Constitution of

India or the inherent powers under Section 482 of the Code and

enumerated the categories of cases by way of illustration wherein such

power could be exercised either to prevent abuse of the process of any

Court or otherwise to secure ends of justice. It would be appropriate to

quote observations made by the Apex Court in Paragraph 108 of the

aforesaid decision which reads as follows :-

" In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, through it may not be possible to lay down any precise, clearly defined and sufficient channelised and in flexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1     AIR 1992 Supreme Court 604.





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1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the code.

3. Where the uncontroverted allegations made in the FIR 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 Accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceedings against the Accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceedings ia manifestly attended with malafide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge."

9. From the aforesaid observations it is clear that, the High Court can

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exercise its powers under Article 226 of the Constitution of India or Section

482 of Cr.P.C. to prevent abuse of process of law or otherwise to secure ends

of justice. If the allegations made in the FIR or complaint, even if they are

taken at their face value and accepted in their entirety do not prima facie

constitute any offence or make out a case against the Accused; where the

allegations in the FIR and other materials, if any, accompanying the FIR do

not disclose the cognizable offence, justifying an investigation by Police

Officers under Section 156(1) of the Code; if the uncontroverted

allegations made in the FIR 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 Accused; where the allegations made in the

complaint or FIR are so absurd & inherently, improbable on the basis of

which no prudent person can ever reach a just conclusion that, there is

sufficient ground for proceeding against the Accused, and where the

criminal proceedings is manifestly attended with malafide and/or where the

proceedings is maliciously instituted with an ulterior motive for wreaking

vengeance on the Accused and with a view to spite him due to private and

personal grudge. The Court is empowered to exercise the powers under the

aforesaid provisions to prevent abuse of process of any Court or secure ends

of justice such proceedings can be quashed.

10. Considering the factual matrix of the case, and the principles

enunciated in the aforesaid decision as well as various other decisions of

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the apex Court, the impugned proceedings initiated by Respondent No.2

qua Applicant can be quashed and set aside.

11. Hence, the following Order :-

ORDER

i) Criminal Application No. 629 of 2022 is allowed;

ii) Proceedings in R.C.C. No.53 of 2022, pending before the

learned Judicial Magistrate First Class, Pen, are quashed and set

aside qua the Applicant only.

       (PRAKASH D. NAIK, J.)                          (A.S. GADKARI, J.)