Bombay High Court
Irfaan Salim Badshah vs State Of Maharashtra And Anr on 29 August, 2024
Author: Neela Gokhale
Bench: A. S. Gadkari, Neela Gokhale
2024:BHC-AS:35402-DB
Gitalaxmi 73-wp-3710-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3710 OF 2024
Irfaan Salim Badshah,
Aged 46 years, Occ.:Business,
Residing at 62, Gai-Lane,
Keshavji Naik Road,
Opp. S. T. Building,
near Bharat Gas, Dongari, Mumbai. .....Petitioner
Vs.
1. The State of Maharashtra,
(At the instance of Dongari Police Station,
Mumbai.)
2. Jainab Hasanali Gazal,
Aged 20 years, Occ.:Household,
Residing at 67, Gai-Lane,
Keshavji Naik Road,
Opp. S. T. Building,
near Bharat Gas, Dongari, Mumbai. .....Respondents
Mr. Ganesh Bhujbal for the Petitioner.
Mr. Vinod Chate, A.P.P. for the Respondent-State.
CORAM : A. S. GADKARI AND
DR. NEELA GOKHALE, JJ.
DATE : 29th AUGUST 2024.
ORAL JUDGMENT (Per Dr. Neela Gokhale, J) :-
1) The Petitioner seeks quashing of criminal proceedings bearing
C.C. No. 662/PW/2019 pending before the Judicial Magistrate First Class,
70th Court, Mazgaon, Mumbai arising out of F.I.R. No. 4 of 2019 dated 8 th
January 2019 registered with the Dongri Police Station, Mumbai for the
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offence punishable under Sections 509 & 506 of the Indian Penal Code.
2) The Petitioner and Respondent No. 2 are relatives. On 6 th
January 2019, there was a quarrel between the family members of both the
parties and the Petitioner and his wife. The Petitioner and his wife
registered Non-cognizable (N.C.) Complaints No. 25 of 2019 and 28 of
2019 on the same date. The Respondent No. 2 also registered N.C.
Complaint against the Petitioner and his family members being 27 of 2019.
3) It is the case of Respondent No. 2 that, on 6th January 2019 at
1.30 in the afternoon, she and her mother found the Petitioner who is her
uncle tinkering with the electricity meter outside her house. Her mother
asked the Petitioner as to what he was doing. He responded by calling her
names and abused her in filthy/indecent language. The Respondent No. 2's
mother was shocked and humiliated. The Respondent No. 2 tried to calm
down her mother and uncle, but despite her efforts, her uncle proceeded to
abuse even her in absolutely filthy, indecent, obscene and vulgar language
outraging their modesty. This led to filing of the subject F.I.R.
4) Mr. Ganesh Bhujbal, learned Advocate appears for the
Petitioner and Mr. Vinod Chate, learned A.P.P. represents the State.
5) Mr. Bhujbal contended that, the incident took place on 6 th
January 2019 and the N.C. was registered. On 8 th January 2019 the
Respondent No. 2 made different allegations against the Petitioner and his
family members which are not part of the N.C. No. 27 of 2019. He
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submitted that, thereafter the F.I.R. was registered for the same incident
and hence is not maintainable as per provisions of Section 155(2) of the
Criminal Procedure Code (Cr.P.C.). He further submitted that, there is an
unexplained delay of two days in filing the F.I.R. Mr. Bhujbal submitted
that, the Respondent No. 2 had requested the Police to register F.I.R. but
even the Police did not register the same and instead filed a N.C., which is
non-cognizable, bailable and compoundable. He further submitted that,
once N.C. is received, the Police Officer cannot commence investigation
without securing Order from the competent Court and thus registration of
the F.I.R. is bad-in-law. He thus urges the Court to admit and allow the
Petition.
6) At the outset, Mr. Chate brings to our attention that, the
investigation in the crime is completed, chargesheet has been filed in the
Court and the competent Court has even framed charges. He also relied on
the statement of the Respondent No. 2 recorded under Section 164 of the
Cr.P.C. which reinforces her earlier statement. Thus Mr. Chate urges the
Court to dismiss the Petition.
7) We have heard both the counsels and perused the documents
with their assistance.
8) Before analysing the facts in the case, it is relevant to record at
this juncture that, we queried with Mr. Bhujbal as to whether the Petitioner
had assailed the Order of the trial Court framing charges against him. Mr.
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Bhujbal fairly conceded that, he had not done so and further admitted the
effect of the same being as much as accepting the Order of framing of
charges. We then asked him to advance arguments on maintainability of
the Petition once the charges were framed and not assailed by the
Petitioner. He was unable to offer any legally cogent explanation to the
same. Mr. Bhujbal contended that, he was aware of the appropriate remedy
available to the Petitioner of defending himself in the trial, however the
Petitioner has instructed him to pursue the present Petition on merits to
quash the F.I.R. Thus, we proceeded to hear the Petition on merits.
9) Be that as it may. The words/sentences uttered by the
Petitioner are reproduced ad-verbatim, as under:
"rq D;k dj jgk gS ---jaMh] fNuky ---rsjh csVh os';k gS] /kank yxkds
j[k gS] ?kjes vkSj 10 vkneh Hkstq D;k iSlks dh vPNh dekbZ gks
tk,xh] rq rks uktk;t vkSykn ysds ?kqe jgh gS vkSj rsjh csVh Hkh
uktk;t vkSykn ysds ?kqe jgh gS ---jaMh] fNuky] rsjs isVes rsjs irh
dk csVk ugh vkSj dhlh dk gS] vkSj dhlhls iSls dekrh gS ---rsjs
isV is ykFk ek#axk] rsjs irh is jsi dk bYtke yxkoqaxk---"
10) A plain reading of the F.I.R. comprising the offending words
uttered as above, clearly establish commission of a cognizable offence. The
intention of Petitioner to insult the modesty of Respondent No. 2 is clearly
manifested by his conduct i.e. abuses hurled by him to the victim.
Furthermore, the Respondent No. 2 tried to calm down her uncle but
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instead of relenting, he then shifted his ire towards her. This unprovoked
and continued tirade of abusive words against the Respondent No. 2 and
her mother confirms the intent of Petitioner in insulting them and outraging
their modesty.
11) The Petitioner has also threatened to kill her and this is enough
to frighten the Respondent No. 2 and create an apprehension in her mind of
bodily injury to her life and limb. The mere fact of filing N.C. prior to the
F.I.R. prima-facie indicates the reluctance of the Police Authorities to
commence investigation in the crime and shrug off their duty to initiate the
enforcement machinery at their disposal. In any case the contents of N.C.
are quite distinct from that of the allegations in the F.I.R. and hence Mr.
Bhujbal's arguments in this regard are stated only to be rejected. The
reason as to why the Police failed to register F.I.R. and relegated her
grievance to a mere N.C. is something that can be determined in the trial.
Whether the contents of N.C. and F.I.R. arose from the same incident, can
also be ascertained during trial. The High Court in its writ jurisdiction is
not to conduct a mini-trial.
12) We have also perused the statement of Respondent No. 2
recorded by the Additional Chief Metropolitan Magistrate, 19 th Court,
Esplanade, Mumbai dated 12th February 2019 under Section 164(5) of
Cr.P.C.. The statement is identical as that which she has stated in the F.I.R.
There is no reason to disbelieve the Respondent No. 2 regarding the
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allegations made against the Petitioner. The statements of Respondent No.
2 inspire confidence which satisfy the ingredients of the offences as alleged.
13) The Supreme Court in its decision in the case of Central Bureau
of Investigation Vs. Aryan Singh1, has observed as under:
"4.1...... As per the cardinal principle of law, at the stage
of discharge and/or quashing of the criminal proceedings,
while exercising the powers under Section 482 Cr.P.C., the
Court is not required to conduct the mini-trial. The High
Court in the common impugned judgment and order has
observed that the charges against the accused are not
proved. This is not the stage where the prosecution/
investigating agency is/are required to prove the charges.
The charges are required to be proved during the trial on
the basis of the evidence led by the prosecution/
investigating agency. Therefore, the High Court has
materially erred in going in detail in the allegations and
the material collected during the course of the
investigation against the accused, at this stage. At the
stage of discharge and/or while exercising the powers
under Section 482 Cr.P.C., the Court has a very limited
jurisdiction and is required to consider "whether any
sufficient material is available to proceed further against
the accused for which the accused is required to be tried
or not."
14) In another decision of the Supreme Court in the case of State of
Andhra Pradesh Vs. Vangaveeti Nagaiah2, it is observed as under:
1. 2023 SCC OnLine (SC) 379.
2. (2009) 12 SCC 466.
Gitalaxmi 73-wp-3710-2024.doc
"6..... When exercising jurisdiction under Section 482 of
the Code, the High Court would not ordinarily embark
upon an enquiry whether the evidence in question is
reliable or not or whether on a reasonable appreciation of
it accusation would not be sustained. That is the function
of the trial Judge. Judicial process no doubt should not be
an instrument of oppression, or, needless harassment
Court should be circumspect and judicious in exercising
discretion and should take all relevant facts and
circumstances into consideration before issuing process,
lest it would be an instrument in the hands of a private
complainant to unleash vendetta to harass any person
needlessly. At the same time the Section is not an
instrument handed over to an accused to short-circuit a
prosecution and bring about its sudden death. The scope
of exercise of power under Section 482 of the Code and
the categories of cases where the High Court may exercise
its power under it relating to cognizable offences to
prevent abuse of process of any court or otherwise to
secure the ends of justice were set out in some detail by
this Court in State of Haryana v. Bhajan Lal [1992 Supp
(1) SCC 335]."
15) The perusal of the F.I.R. clearly discloses commission of a
cognizable offence as alleged against the Petitioner. Moreover the
jurisdictionally competent Court has perused the final report of
investigation placed before it by the Police and has found sufficient material
against the Petitioner enough to frame charges against him. There is
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nothing to indicate abuse of the process of justice by proceeding with the
trial to justify a quashing of the crime in question.
16) Considering the facts in the present matter and the settled legal
position, we are not inclined to quash the criminal proceeding bearing C.C.
No. 662/PW/2019 pending before the J.M.F.C., 70 th Court, Mazgaon,
Mumbai arising out of F.I.R. No. 4 of 2019 dated 8 th January 2019
registered with the Dongri Police Station, Mumbai.
17) Petition being dehors of any merits is according dismissed.
(DR. NEELA GOKHALE, J.) (A. S. GADKARI, J.)
GITALAXMI KRISHNA
KRISHNA KOTAWADEKAR
KOTAWADEKAR Date:
2024.09.04
09:55:02 +0530
