Panjab S/O Devaji Hire And 5 Others vs State Of Mah. Thr. Pso Ps Buldhana City ...
2026 Latest Caselaw 566 Bom

Bombay High Court

Panjab S/O Devaji Hire And 5 Others vs State Of Mah. Thr. Pso Ps Buldhana City ... on 19 January, 2026

2026:BHC-NAG:1033-DB




              Judgment

                                                         4 apl468.21

                                           1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                   CRIMINAL APPLICATION APL NO.468 OF 2021

              1. Panjab s/o Devaji Hire,
              aged about 64 years,
              occupation : medial practitioner.

              2. Sau.Alka w/o Panjab Hire,
              aged about 55 years,
              occupation housewife.

              3. Dr.Akshay s/o Panjab Hire,
              aged about 36 years.
              Occupation : medical practitioner.

              Applicant Nos.1 to 3, r/o Hire
              Hospital, John Layout.
              Jambhrun Road,
              Buldhana.

              4. Vijay s/o Ramkrushna Kale,
              aged about 50 years,
              occupation Mutthe Layout, Jambhrun Area,
              Buldhana.

              5. Janabai w/o Ganesh Shinde,
              aged about 43 years,
              occupation housewife/labourer,
              r/o Kumbefal, Buldhana.

              6. Jijabai w/o Maroti Gaikwad,


                                                             .....2/-
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                                                   4 apl468.21

                            2

aged about 45 years,
occupation housewife/labourer,
r/o Near Sangam Talao,
Jagdamba Nagar,
Buldhana.                            ..... Applicants.

                     :: V E R S U S ::
1. State of Maharashtra,
through Police Station Officer,
Police Station Buldhana City,
Buldhana.

2. Surekha w/o Subhash Nikalje,
aged about 48 years,
occupation Not Known
r/o Raut Complex, Jambhrun Road,
Buldhana.                     ..... Non-applicants.
==============================
Shri F.T.Mirza, Senior Counsel assisted by Shri
N.B.Karade, Adv. Counsel for the Applicants.
Shri A.M.Joshi, APP for Non-applicant No.1/State.
Shri M.V.Rai, counsel for NA No.2.
==============================
CORAM : URMILA JOSHI-PHALKE, J.
DATE : 19/01/2025

ORAL JUDGMENT

1. Heard. Admit. Heard finally by consent.

2. The present application is preferred by the applicants

to quash and set aside FIR in connection with Crime

.....3/-

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4 apl468.21

No.183/2021 registered for offences under Sections 143, 144,

147, 148, 294, 307, 323, 325, 354, 354-B, 394, 395, 450,

452, 453, 459, 504, and 506 of the IPC and under Section 3

of the Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 and order dated 10.3.2021 passed by

learned Additional Sessions Judge, Buldhana in Misc.Criminal

Application No.8/2021.

3. The crime is registered on the basis of a report lodge

by non-applicant No.2 on allegations that one Advocate Satish

Rote has handed over two shops to her and other ladies at

Raut Complex Jambhrun Road, Buldhana for carrying out the

work of "Azad Hind Mahila Sanghatana". They are doing the

social work and they are using the said shops for preparing

food to be distributed. As per the allegations, on 10.2.2021,

at about 8:00 pm to 8:30 pm, the applicants along with some

unknown persons entered into the shops and asked them to

vacate the said shops and assaulted her as well as other

prosecution witnesses and abused them on their caste. On

.....4/-

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4 apl468.21

the basis of the said report, the police registered the crime

against the applicants.

4. Learned Senior Counsel for the applicants submitted

that the applicant No.2 is owner of shops, block No.13B and

14B situated at Raut Complex, Jambhrun Road, Buldhana.

Advocate Satish Rote is in possession of adjacent shop block.

The blocks owned by the applicants were vacant and to be

used for any other purpose. The non-applicant No.2 has

purchased the same to facilitate commencement of the

practice by applicant No.3 who is the son of applicant Nos.1

and 2. On 10.2.2021, they came to know that the non-

applicant No.2 has illegally trespassed in the shop blocks and,

therefore, applicant Nos.3 asked his friend Rajesh Chauhan to

verify this fact and, therefore, he went to shops and the non-

applicant No.2 abused him in a filthy language and also

assaulted. Regarding the said incident, the report is also

lodged by Janabai Ganesh Shinde, who is one of applicants.

The non-applicant No.2 has also reached the police station

.....5/-

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4 apl468.21

and lodged the report regarding the said incident. He

submitted that without having any authority, non-applicant

No.2 was possessing the said shops and after thought after

one month of the incident without following due process

under Section 154 of the Code, she directly approached

learned Additional Sessions Judge, Buldhana by filing a

complaint and learned Additional Sessions Judge, Buldhana

passed order without assigning any reason, which is required

in view of judgment of the Hon'ble Apex Court in the case of

Priyanka Srivastava and anr vs. State of UP, reported in

(2015)6 SCC 287. He submitted that the application is also

not supported by affidavit which is also one of requirement

in view of the above the same.

He further invited my attention towards the reply filed

by the State wherein the State has specifically stated that the

said shops are belonging to the applicant No.2. The reply

filed by the State further shows that as far as abuses are

concerned, there is no CCTV footage showing that the

.....6/-

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4 apl468.21

applicants have abused the informant or other prosecution

witnesses as no audio was there in the CCTV footage. He

submitted that after one month, a detailed application is filed

by non-applicant No.2 after thought and concoction. In fact,

she has not narrated all these incidents in her earlier NCR

bearing No.123/2021.

He further invited my attention towards the caste

certificates which show that all the applicants belong to the

Scheduled Caste and, therefore, the provisions of the SC and

ST Act are not applicable against the applicants. He

submitted that the offence is also registered under Sections

354 and 354-B of the IPC against the applicants. Whereas, in

earlier NCR, the non-applicant No.2 has not alleged any

allegations as to outraging of modesty either of her or of any

other witnesses. Thus, he submitted that considering the

entire allegations levelled against the applicants, no prima

facie case is made out.

.....7/-

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4 apl468.21

He has further invited my attention to the order passed

by learned Magistrate, Buldhana wherein it is specifically

observed that one application was also filed before him

wherein earlier fact of filing of application before learned

Additional Sessions Judge is suppressed. Thus, non-applicant

No.2 who is the complainant therein has suppressed

the material fact and rejected the application. Thus, he

submitted that considering the entire scenario that the alleged

shops were trespassed by non-applicant No.2, the non-

applicant No.2 is represented by Advocate Shri Satish Rote.

According to the complainant, he has handed over the said

shops to them who has no authority. Thus, the illegal act of

the non-applicant No.2 cannot be protected by any court.

5. Per contra, learned APP strongly opposed the said

contentions and submitted that during investigation, various

statements were recorded and from the said statements, it

reveals that the applicants have taken law in their hands and

.....8/-

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4 apl468.21

abused and assaulted the informant and other prosecution

witnesses. In view of that, prima facie case is made out

against the applicant and, therefore, the application deserves

to be rejected.

6. Learned counsel for the complainant also reiterated

the said contentions and submitted that considering various

statements of the witnesses, prima facie offence is made out

against the applicants and, therefore, the application deserves

to be rejected.

7. On hearing both the sides and perusing the entire

investigation papers, it reveals that the alleged incident has

taken place in shops situated Raut Complex Jambhrun Road,

Buldhana. It is an admitted position that in the reply the State

has also admitted that the said shops belong to applicant No.2

Alka. As per the allegations in the application filed by non-

applicant No.2 before learned Additional Sessions Judge that

the said shops were handed over to them by one Advocate

.....9/-

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4 apl468.21

Satish Rote for carrying out work of "Azad Hind Mahila

Sanghatana" and they were preparing food to distribute the

same as social work. Thus, these facts show that the non-

applicant No.2 or Advocate Satish Rote is neither owner of the

said shops nor they were having legally possession of the said

shops. Thus, the contention of the applicants that they are

trespassers is prima facie established by the applicants.

8. Admittedly, regarding the said incident, initially, NCRs

are filed by both the sides vide NCR No.124/2021. One of

applicants Janabai has filed the complaint on the basis of

which the NCR was lodged. Another NCR was lodged on the

basis of report lodged by Surekha dated 10.2.2021. Both the

reports are of the same date. Another report filed by Rajesh

Chauhan is also of the same date. Perusal of the NCR filed by

the non-applicant No.2, if considered, it reveals that she has

stated that the shops have been taken by her on rental basis

from Advocate Satish Rote. The entire recital of the FIR

regarding the incident shows that on 10.2.2021 Rajesh

.....10/-

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4 apl468.21

Chauhan has come in the shop, abused her in filthy language

and thereafter destroyed objects and material lying there and

also assaulted her. She has alleged that some ladies also came

along with him. They have also assaulted her and her

daughter and one Yogita Rote rescued her from their clutches.

This initial NCR nowhere reveals that any filthy language or

abuses are on the caste and there is no allegation as far as

outraging of modesty is concerned.

9. Perusal of the statements of the various witnesses

recorded during the investigation also reveals that none of the

witnesses have stated that there was any attempt by the

persons who came there to outrage the modesty of either of

the non-applicant No.2 or any of the witnesses. Initial NCR

nowhere reveals the presence of the applicant Nos.1 to 3 at

the spot of the incident. Even, the presence of applicant

Nos.4, 5 and 6 is also not mentioned in the initial NCR and

subsequently after one month, after thought, with concoction,

.....11/-

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4 apl468.21

specifying the role of each of the applicants, the complaint

came to be lodged.

10. Admittedly, the said application was not supported

with the affidavit which is requirement of law in view the

decision of the Hon'ble Apex Court in the case of Priyanka

Srivastava and anr supra wherein it has been extensively dealt

with application under Section 156(3) and and held that

filing of such affidavit would curb the practice of preferring

application under Section 156(3) of the Code in a routine and

casual manner without any responsibility merely to harass

certain persons. Especially in cases where applicant despite

having remedy under a particular statue or under Article 226

of the Constitution to assail the orders passed against him

under the said statute, in stead of availing that remedy tries

to prosecute the person passing orders against him by taking

recourse under Section 156(3) of the Code. Thus,

requirement of affidavit in support of application under

Section 156(3) of the Code would have a deterrent effect with

.....12/-

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4 apl468.21

regard to casual invocation of jurisdiction under Section

156(3) of the Code. Because filing of false affidavit by

applicant would make him liable for prosecution in

accordance with law.

11. Thus, the purpose and intention behind the

requirement of the affidavit is narrated by the Hon'ble Apex

Court and it is mandatory on the part of the applicant who is

seeking relief under Section 156(3) of the Code.

12. Another aspect brought to the notice by learned Senior

Counsel for the applicants is that another application is filed

regarding the same incident by the informant before learned

Magistrate. He invited my attention towards the observations

of the learned Magistrate wherein in para No.7 he has

referred the judgment of the Hon'ble Apex Court in the case

case of Priyanka Srivastava and anr supra. The said para

No.7 of the order of the learned Magistrate is reproduced for

reference:

.....13/-

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4 apl468.21

"07. In this judgment it is necessary to refer the judgment of Hon'ble Supreme Court, in Priyanka Srivastava and anr vs. Stat of UP and ors, (2015)6 SCC 287, wherein Hon'ble Supreme Court in para No.29 held that:

"At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigation takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same".

The order passed by the learned Magistrate further

discloses that the non-applicant No.2 has not appeared before

him with clean hands and she has suppressed the fact that she

has filed an application before the special court. He

specifically mentioned that if it was mentioned, police may

investigate regarding both the incidents i.e. 21.1.2021 and

10.2.2021 and he has rejected the application.

.....14/-

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4 apl468.21

13. It further reveals that, "despite the order passed by this

court on 8.4.2021 that, "the effect and operation of the

impugned order passed by learned Additional Sessions Judge,

Buldhana in Misc. Criminal Application No.8/2021 shall stand

stayed until further order. It was further directed that

proceeding of Misc. Criminal Application No.8/2021 pending

before learned Additional Sessions Judge, Buldhana shall

stand stayed until further order".

14. Thus, despite the order passed by this court staying the

investigation as well as staying proceeding before learned

Additional Sessions Judge, Buldhana, the investigation was

carried out by the investigating agency without seeking leave

of this court.

15. From the entire discussion, it reveals that admittedly,

the offence under the provisions of the SC and ST Act is not

made out as the applicants also belong to the Scheduled

Caste. The caste certificates are already produced on record.

.....15/-

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16. As far as the offence under Sections 354, 354-B, 394,

395, 450, 452, 453, 459, 504, and 506 of the IPC is

concerned, which was not alleged earlier when the NCR was

filed. In fact, the presence of applicants was not at all

mentioned and in earlier NCR only allegations against her

and Rajesh Chauhan and some unknown persons were

alleged. There was no allegation that the applicants have

formed unlawful assembly and in furtherance of the common

object of the assembly they came in the said shops. In fact,

the possession of non-applicant No.2 over the said shops, in

view of the reply filed by the State, itself appears to be illegal

one.

17. It is rightly pointed out by learned Senior Counsel for

the applicants that the illegal act of non-applicant No.2

cannot be protected by any court.

18. As far as the law regarding directions under Section

156(3) of the Code is concerned, the duty of the Magistrate

.....16/-

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while exercising the power under Section 156(3) is well

settled by the judgment in the case of Priyanka Srivastava and

anr supra. It is specifically held by the Hon'ble Apex Court

that exercise of powers warrants application of judicial mind.

The Magistrate exercising their powers must remain vigilant

with regard to nature of allegations made in application and

not to issue direction without proper application of mind. In

appropriate cases, the Magistrate can verify truth and veracity

of the allegations having regard to nature thereof.

Furthermore, it is now mandatory for Section 156(3) of the

Code that application be supported by affidavit.

19. Thus, in absence of the above compliance, order passed

by learned Additional Sessions Judge, Buldhana is contrary to

the judgment of the Hon'ble Apex Court and, therefore, the

application deserves to be allowed, as per order below:

ORDER

(1) The Criminal Application is allowed.

.....17/-

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(2) FIR in connection with Crime No.183/2021 registered for

offences under Sections 143, 144, 147, 148, 294, 307, 323,

325, 354, 354-B, 394, 395, 450, 452, 453, 459, 504, and 506

of the IPC and under Section 3 of the Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989 and

order dated 10.3.2021 passed by learned Additional Sessions

Judge, Buldhana in Misc.Criminal Application No.8/2021 are

hereby quashed and set aside to the extent of applicants.

Application stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 22/01/2026 17:46:09