Bombay High Court
Awej Ahemad Shaikh And Others vs The State Of Maharashtra And Another on 20 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:23460-DB
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2258.23 CRAPLN (1).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2258 OF 2023
1. Awej Ahmed Shaikh (Husband)
Age 31 years, Occ. Labour Work,
R/o. Mali Galli, Near Masjit,
Latur.
2. Shafika w/o. Ahmed Shaikh (mother in law)
Age 64 years, occ. Household,
R/o. Arafat Chowk, Narkat Nagar, Latur.
3. Ahemad Rasul Shaikh (father in law),
Age 70 years, Occ. Business,
R/o. Arafat Chowk, Barkat Nagar, Latur.
4. Altmas s/o. Ahemad Shaikh (brother in law)
Age 36 years, Occ. Business,
R/o. Labour Colony, Near Blind School, Latur.
5. Arshad s/o. Ahemad shaikh (brother in law),
Age 25 years, Occ. Education,
R/o. Arafat Chowk, Barkat Nagar, Latur.
6. Afan s/o. Ahemad Shaikh (brother in law)
Age 22 years, Occ. Education,
R/o. Arafat Chowk, Barkat Nagar, Latur.
7. Marium w/o. Altmas Shaikh (wife of brother in law)
Age 36 years, Occ. Business,
R/o. Labour Colony, near Blind School, Latur.
.. APPLICANTS.
VERSUS
1. The State of Maharashtra
through Police inspector,
Gandhi Chowk Police Station,
Latur, Tq. & Dist. Latur.
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2. Minaj Begum w/o. Awej Shaikh,
Age 28 years, Occ. Service,
R/o. In front of Govt. Hospital,
Bole Galli, Patel chowk,
Gandhi Chowk, Latur,
Tq. And Dist. Latur.
.. RESPONDENTS.
Mr. Yogesh R. Shinde, Advocate h/f. Mr. H.P. Jadhav, Advocate for
applicants.
Mr. A.V. Lavte, APP for respondent State.
Mr. A.V. Peche, Advocate for respondent No.2. (appointed)
CORAM : SMT. VIBHA KANKANWADI
& S.G. CHAPALGAONKAR, JJ.
DATE : 20th SEPTEMBER, 2024.
JUDGMENT [ PER S.G. CHAPALGAONKAR, J]. :-
1. The applicants have approached this court under Section
482 of Cr.P.C., thereby praying to quash and set aside the FIR dated
28.4.2022, in Crime No. 201 of 2022 registered with Gandhi Chowk
police station, Dist. Latur for the offences punishable under Sections 498-
A, 323, 504 r/w. 34 of IPC and consequential criminal proceeding in RCC
No. 1212 of 2022 pending before the Chief Judicial Magistrate, Latur.
2. When the matter was taken up for hearing on 26.7.2023
before this Court, learned advocate appearing for the applicant withdrew
the application to the extent of applicant No.1 husband. Further, during
the course of today's hearing, learned advocate for the applicant, on
instructions, withdrew the application to the extent of applicant No. 2
and requested to consider the prayer in the application to the extent of
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applicant Nos. 3 to 7.
3. Respondent No.2 reported to Police Station, Gandhi Chowk
that on 19.1.2020, she married with applicant No.1 Awej Ahmed Shaikh
as per the Muslim rites and customs. Her parents had gifted Rs. 1 Lakh
alongwith gold and silver ornaments. She resided in her matrimonial
home, she was treated well for initial period of 2 months. Thereafter, she
was being ill-treated for trifle reasons. On 15.11.2020, her mother in law
reprimanded her on account of household work. The informant lost her
consciousness. When she was taken to hospital, it was revealed that she
was carrying pregnancy. On 17.11.2020 her husband, mother in law,
suspected her character and raised questions regarding her early
pregnancy. When she narrated the incident to her brother, her parents
and brother requested in-laws, not to torture her. However, they were
insisting to terminate the pregnancy. Thereafter, when concilation was
attempted, in-laws raised demand of Rs. 3 Lakhs for purchase of flat,
otherwise, gave threat to perform second marriage of her husband. On
28.8.2021, she gave birth to the girl - Rida. In-laws never visited to see
her. Consequently, she alleges that the in-laws (applicants) are guilty of
offence as charged.
4. The investigation progressed in pursuance of aforesaid
report. Finally, charge sheet has been filed in the Court of C.J.M., Latur
in RCC /No. 1212 of 2022.
5. Mr. Yogesh R. Shinde, learned advocate appearing for the
applicants submits that the applicants have been falsely implicated in
aforesaid crime. The applicant Nos. 4 to 7 have no concern with the
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family affairs of the applicant Nos. 1 and 2. However, they have been
implicated in aforesaid crime on the basis of omnibus and palpably false
statement. He would further submit that on the basis of vague and
omnibus statements in the FIR, no offence can be made out against the
applicants. By inviting attention of this court to the contents of the FIR
and statement of witnesses in the charge sheet, he would submit that
stereo type version of the incident is carried forward, which is without
substance. The FIR is lodged in the year 2022, whereas, respondent
No.2 is residing at her maternal home since long i.e. 1.1.2021. therefore,
he urges to allow the application and quash and set aside the FIR and
consequential criminal proceeding against the applicant Nos. 3 to 7.
6. Per contra, Mr. A.V. Lavte, learned APP and learned advocate
Mr. A.V. Peche appearing for respondent No.2 vehemently oppose the
prayer in the application, contending that the FIR specifically stipulates
ill-treatment in pursuance of demand of money at the hands of in-laws.
The applicants were residing in shared accommodation alongwith
respondent No.2 and all of them have mentally tortured her. Therefore,
they are liable to be prosecuted for the offence as charged. They would
also urge that now the charge sheet is filed which contains triable
material. Hence, this is a fit case for decision on trial.
7. We have considered the submissions advanced by the
learned advocates appearing for respective parties. We have minutely
considered the FIR and material in the charge sheet i.e. statements of
witnesses recorded under Section 161 of Cr.P.C. during the course of
investigation. Apparently, the marriage between respondent No.2 and
applicant No.1 was solemnized on 19.1.2020. The respondent No.2
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alleges that she was treated well for initial two months. Thereafter, she
was ill-treated for trifle reasons by her mother in law. The specific
narration of incident dated 15.11.2020 and 17.11.2020 is given.
However, allegations are restricted only against applicant Nos. 1 and 2
i.e. husband and mother in law. The allegation is made that amount of
Rs. 3 Lakh was demanded for purchase of flat by husband and his family
members. However, no specifications of such demands are stipulated.
From entire FIR, no specific averments is discernible against applicant
Nos. 3 to 7 that would constitute an offence. The record shows that
respondent No.2 had filed proceeding under Section 125 of Cr.P.C.
against husband seeking maintenance. She specifically states that from
1.1.2021, she is residing at parental home since respondent husband
refused to cohabit with her. It clarifies that respondent No.2 has resided
in matrimonial home, hardly for a period of 3 months after marriage.
Petition No. E-179 of 2021 appears to have been filed before the Family
court at Latur on 5.8.2021, whereas, the FIR is lodged on 28.4.2022. All
these circumstances clearly depict that applicant No.3 to 7 are implicated
in the crime only with intention to pressurize the applicant No.1.
8. We have perused the contents of the charge sheet,
particularly, the statement of witness recorded during the course of
investigation. However, it can be observed that all statement of witnesses
are stereotype and omnibus and bereft to make out a specific case against
applicant Nos. 3 to 7.
9. At this stage, reference can be given to the observations
made by the Supreme Court in the matter of Preeti Gupta Vs. State of
Jharkhand, reported in (2010)7 SCC 667 wherein the apex court
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observed in para. 30, 32 and 34 as under :-
" It is a matter of common knowledge that
unfortunately matrimonial litigation is rapidly increasing in
our country. All the courts in our country including this
Court are flooded with matrimonial cases. This clearly
demonstrates discontent and unrest in the family life of a
large number of people of the society.
32. It is a matter of common experience that most of these
complaints under section 498-A IPC are filed in the heat of
the moment over trivial issues without proper deliberations.
We come across a large number of such complaints which
are not even bona fide and are filed with oblique motive. At
the same time, rapid increase in the number of genuine
cases of dowry harassment are also a matter of serious
concern.
34. Unfortunately, at the time of filing of the complaint
the implications and consequences are not properly
visualized by the complainant that such complaint can lead
to insurmountable harassment, agony and pain to the
complainant, accused and his close relations."
12. In yet another case of Kahkashan Kausar Vs. State of Bihar
reported in (2022)6 SCC 599, the Supreme Court after taking stock of
various decisions, rendered by the supreme Court in the subject matter,
observed in para. 17 as under.
" The above-mentioned decisions clearly demonstrate that
this court has at numerous instances expressed concern over the
misuse of section 498A IPC and the increased tendency of
implicating relatives of the husband in matrimonial disputes,
without analysing the long term ramifications of a trial on the
complainant as well as the accused. It is further manifest from the
said judgments that false implication by way of general omnibus
allegations made in the course of matrimonial dispute, if left
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unchecked would result in misuse of the process of law.
Therefore, this court by way of its judgments has warned the
courts from proceeding against the relatives and in-laws of the
husband when no prima facie case is made out against them."
13. Similarly, in the case of Sushilkumar Sharma vs. Union of
India and others, reported in (2005) 6 SCC 281, the Supreme Court
observed in para. 19 as under :-
"19. The object of the provision is prevention of the
dowry menace. But as has been rightly contended by the
petitioner many instances have come to light where the
complaints are not bonafide and have filed with oblique motive.
In such cases acquittal of the accused does not in all cases wipe
out the ignominy suffered during and prior to trial. Sometimes
adverse media coverage adds to the misery. The question,
therefore, is what remedial measures can be taken to prevent
abuse of the well-intentioned provision. Merely because the
provision is constitutional and intra vires, does not give a licence
to unscrupulous persons to wreck personal vendetta or unleash
harassment. It may, therefore, become necessary for the
legislature to find out ways how the makers of frivolous
complaints or allegations can be appropriately dealt with. Till
then the Courts have to take care of the situation within the
existing frame work. As noted the object is to strike at the roots of
dowry menace. But by misuse of the provision a new legal
terrorism can be unleashed. The provision is intended to be used
a shield and not assassins' weapon. If cry of "wolf" is made too
often as a prank assistance and protection may not be available
when the actual "wolf" appears. There is no question of
investigating agency and Courts casually dealing with the
allegations. They cannot follow any strait jacket formula in the
matters relating to dowry tortures, deaths and cruelty. It cannot
be lost sight of that ultimate objective of every legal system is to
arrive at truth, punish the guilty and protect the innocent. There
is no scope for any pre-conceived notion or view. It is strenuously
argued by the petitioner that the investigating agencies and the
courts start with the presumption that the accused persons are
guilty and that the complainant is speaking the truth. This is too
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wide available and generalized statement. Certain statutory
presumption are drawn which again are reputable. It is to be
noted that the role of the investigating agencies and the courts is
that of watch dog and not of a bloodhound. It should be their
effort to see that in innocent person is not made to suffer on
account of unfounded, baseless and malicious allegations. It is
equally indisputable that in many cases no direct evidence is
available and the courts have to act on circumstantial evidence.
While dealing with such cases, the law laid down relating to
circumstantial evidence has to be kept in view."
14. Keeping in mind aforesaid observations of the Supreme
Court of India, particularly, in the light of allegations in the FIR and
material in charge sheet, we find that none of the ingredients of section
498-A would be attracted against applicant Nos. 3 to 7. The possibility of
their false implication also can not be ruled out. The applicant No.3 is the
father in law of respondent No.2. However, there is absolutely no
material to bring home his complicity in the commission of offence.
Same is the case as regards applicant Nos. 4 to 6, who are brothers in law
and applicant No.7 who is wife of applicant No.4. The contents of FIR
makes omnibus reference of their names in the concluding part with the
allegation that they were equally responsible for the acts committed by
husband and mother in law. However, such statement would not be
sufficient to make even a prima facie case against applicant Nos. 3 to 7.
In that view of the matter, we are of the firm view that this is a fit case to
exercise our inherent powers under Section 482 of Cr.P.C. and quash and
set aside the FIR and consequential criminal proceeding as against
applicant Nos. 3 to 7. Hence, we pass the following order :-
ORDER
[i] The criminal application is partly allowed;
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[ii] FIR in crime No. 201 of 2022 dated 28.4.2022 registered
with Gandhi Chowk Police Station, Latur, Dist, Latur for the offence
punishable under Sections 498-A, 323, 504 r/w. 34 of IPC and
consequential criminal proceeding bearing R.C.C. No. 1212 of 2022
pending before Chief Judicial Magistrate, Latur is hereby quashed and set
aside as against applicant Nos. 3 to 7.
[iii] The application stands disposed of as withdrawn to the
extent of applicant No. 1 and 2. The proceeding in R.C.C. No. 1212 of
2022 to continue against them.
[iii] Mr. A.V. Peche, learned advocate is appointed by this Court
to represent respondent No.2, his remuneration is quantified at Rs.
7000/- to be paid through Maharashtra Legal Services Authority, Sub-
Committee, Aurangabad.
[iv] Criminal application is disposed of.
[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J]
grt/-
