Bombay High Court
Shaikh Osman Shaikh Nabi And Another vs The State Of Maharashtra And Another on 23 January, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:4233-DB
1
32.cri.apl.2863.2023.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPLICATION NO.2863 OF 2023
1. Shaikh Osman s/o Shaikh Nabi, Age -
52 yrs, Occ. Business, R/o H.No.4-4-33,
Near Shahanoor Hamvi Masjid Moti
Karanja, Dist. Aurangabad.
2. Shaikh Naheed Begum w/o Shaikh
Usman, Age - 43 yrs, Occ. Household,
R/o H.No.4-4-33, Near Shahanoor
Hamvi Masjid Moti Karanja, Dist.
Aurangabad.
... APPLICANTS
VERSUS
1. The State of Maharashtra, through
Police Inspector, Police Station Kranti
Chowk, Dist Aurangabad.
2. Manisha w/o Shaikh Abrar, Age 35
yrs, Occ. Household, R/o 1. Near
Bharat Press, Anguri Baugh, Dist.
Aurangabad 2) Bakwal Nagar, Waluj,
Aurangabad.
... NON-APPLICANTS.
_____________________________________________________________
Shri Shaikh Altamash Abdul L. Shaikh, Advocate for the
applicants.
Smt. P.R. Bharaswadkar, Assistant Public Prosecutor for the
Non-applicant/State.
Non-applicant no.2 is served.
______________________________________________________________
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32.cri.apl.2863.2023.odt
CORAM : SMT. VIBHA KANKANWADI AND ROHIT W. JOSHI, JJ.
DATE : 23.01.2025.
JUDGMENT (PER ROHIT W. JOSHI, J.) :
Heard. ADMIT.
2. The matter is taken up for final disposal by consent of the
learned Counsel appearing for the parties.
3. The applicants in the present matter are accused nos. 3 and
4 in the First Information Report ('FIR') No.226 of 2019 registered with
the Police Station Kranti Chowk, Aurangabad City on 16.07.2019 for
the offence punishable under Sections 498-A, 323, 504, 506 read with
Section 34 of the Indian Penal Code ('IPC'). The applicant no.2 is the
wife of applicant no.1. The non-applicant no.2 is the informant, who is
the wife of brother of applicant no.1 namely Shaikh Abrar. This Shaikh
Abrar is accused no.1 and his second wife Nilofar is accused no.2.
4. The gist of an allegation in the FIR is that the marriage of
non-applicant no.2 was solemnized with accused no.1 somewhere in
the year 2011. The couple is blessed with two children from the
wedlock. The non-applicant no.2 claims that she was treated well in the
initial period of around 3 years from the date of marriage. However,
32.cri.apl.2863.2023.odt
thereafter, accused no.1 married accused no.2 from where the things
started getting bad. She alleges that accused nos.1 and 2 used to ill
treat her, abuse her and also beat her, exerting pressure for getting
money from her parents for buying motorcycle. She claims that such
incidents of cruelty had occurred repeatedly. As regards the present
applicants, who are accused nos. 3 and 4, the allegations are that they
had mentally and physically harassed her and often used to threaten
her that they will forcibly evict her from the matrimonial home. Based
on these allegations the non-applicant no.1 has registered FIR against
the present applicants and husband of non-applicant no.2 and his
second wife. The non-applicant no.1 has conducted investigation in the
matter and has filed a charge-sheet. Pursuant to the said charge-sheet,
a criminal case being Regular Criminal Case('R.C.C.') No.1632 of 2020
is registered against all the accused persons, which is pending for
adjudication before the learned Judicial Magistrate First Class at
Aurangabad.
5. Shri Shaikh Altamash Abdul L., learned Counsel for the
applicants submits that the allegations against the applicants are
absolutely vague and lacking in all material particulars. He states that
the allegations are not sufficient to sustain prosecution against the
applicants, and therefore, FIR should be quashed against them.
32.cri.apl.2863.2023.odt
6. As against this, the contention of Smt. P.R. Bharaswadkar,
learned Assistant Public Prosecutor ('APP') is that the allegations are
sufficient to sustain prosecution at present and details of harassment
and cruelty can be furnished during the course of trial in the witness
box.
7. We have heard the rival submissions as aforesaid and
perused the record of the case with able assistance of both the learned
Counsel. Perusal of the FIR and other statements recorded under
Section 161 of the Code of Criminal Procedure reveal that general and
vague allegations are made against the applicants that they used to ill-
treat the non-applicant no.2 and had threatened to forcibly evict her
from the matrimonial house, if the demand of money is not fulfilled.
What is relevant is that the tentative period, tentative number of such
incidents and particulars with respect to manner of harassment
amounting to cruelty are completely absent in the FIR. It is now, well
settled by the catena of the decision of the Hon'ble Supreme Court as
also this Court that, the prosecution under Section 498-A of the IPC
cannot be sustained on the basis of general and vague allegations. We
find that the allegations levelled in the FIR are grossly inadequate to
make out essential ingredients of the offence under Section 498-A of
the IPC against the present applicants. We are unable to accept the
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contention of the learned APP that particulars with respect alleged
cruelty can be furnished during the course of trial in the present case
since the allegations in the FIR are grossly inadequate to make out a
case of cognizable offence punishable under Section 498-A of the IPC.
As a general proposition, we may accept the contention that particulars
can be given during the course of trial while depositions are recorded.
However, there cannot be any quarrel about the proposition that the
FIR with its contents must disclose that the cognizable offence is
committed and all the essential ingredients thereof must be mentioned.
We find the allegations in FIR grossly inadequate, and therefore, no
fruitful purpose would be served for forcing the applicants to undergo
the turmoil of facing a criminal trial. The present applicant no.1, who is
the brother of the husband of non-applicant no.2 as also the applicant
no.2, who is the wife of applicant no.1 are unnecessarily arrayed as an
accused. The case against them is one of over-implication, since they
are family members of estranged husband of non-applicant
no.2/informant. We, therefore, inclined to allow the present application
by quashing the FIR and criminal proceedings against the present
applicants. Hence, we pass the following order :
(a) The Criminal Application is allowed.
32.cri.apl.2863.2023.odt
(b) The First Information Report No.226 of 2019 registered
with the Police Station Kranti Chowk, Aurangabad City on
16.07.2019 for the offence punishable under Sections
498-A, 323, 504, 506 read with Section 34 of the Indian
Penal Code along with Charge-sheet bearing R.C.C.
No.1632 of 2020 pending on the file of Judicial Magistrate
First Class at Aurangabad are hereby quashed against the
present applicants i.e. 1. Shaikh Osman s/o Shaikh Nabi
and 2. Shaikh Naheed Begum w/o Shaikh Usman.
8. The Criminal Application stands disposed of accordingly.
(ROHIT W. JOSHI, J.) (SMT. VIBHA KANKANWADI, J.)
Trupti
