MANU/MH/2528/2019

IN THE HIGH COURT OF BOMBAY

(AURANGABAD BENCH)
Criminal Application No. 3593 of 2018
Decided On: 30.08.2019
Mohd. Sajid Khan and Ors. Vs. The State
of Maharashtra and Ors.
Hon'ble Judges/Coram:
T.V. Nalawade and K.K. Sonawane, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Gajanan
G. Kadam, Advocate
For Respondents/Defendant: V.S.
Chaudhari, APP and Pratibha
Suryawanshi, Advocate
Subject: Criminal
Acts/Rules/Orders:
Code of Criminal Procedure, 1973 (CrPC) -
Section 482; Hindu Marriage Act, 1955 -
Section 9; Indian Penal Code 1860, (IPC) -
Section 323; Indian Penal Code 1860,
(IPC) - Section 34; Indian Penal Code
1860, (IPC) - Section 498-A, Indian Penal
Code 1860, (IPC) - Section 498A; Indian
Penal Code 1860, (IPC) - Section 504;
Indian Penal Code 1860, (IPC) - Section
506
Cases Referred:
Kans Raj vs. State of Punjab & Ors.
MANU/SC/0296/2000; Preeti Gupta and
Anr. vs. State of Jharkhand and Anr.
MANU/SC/0592/2010; Arnesh Kumar vs.
State of Bihar MANU/SC/0559/2014;
Madhavrao Jiwajirao Scindia and Ors. vs.
Sambhajirao Chandrojirao Angre and Ors.
MANU/SC/0261/1988; State of Haryana
and others vs. Ch. Bhajan Lal and others
MANU/SC/0115/1992
Case Note:
Criminal - FIR - Quashing of - Sections
498A, 323, 504, 506 and 34 of Indian
Penal Code, 1860 (IPC) - Present petition
seeks quashing of FIR registered against
petitioner for offences under Sections
498A, 323, 504, 506 and 34 of IPC -
Whether FIR impugned herein need to be
quashed - Held, allegations in impugned
FIR against does not constitute any
offence or make out case against
applicants - No propriety to allow
prosecution to proceed further into
matter - Possibility of their ultimate
conviction in this matter is totally bleak -
Penal proceeding initiated against
applicants No. 2 to 7 quashed and set
aside - Application in respect of applicant
No. 1 is disposed of as withdrawn -
Application partly allowed.
Disposition:
Appeal Partly Allowed
JUDGMENT
K.K. Sonawane, J.
1. Rule. Rule made returnable forthwith.
Heard finally, with the consent of learned
counsel for parties.
2. The applicants preferred present
application under Section 482 of the Code
of Criminal Procedure (Cr.P.C.) seeking
relief to quash and set aside the First
Information Report (FIR) bearing No. 169
of 2018 registered at Bhagyanagar Police
Station, Nanded, District Nanded, for the
offence punishable under Sections 498A,
323, 504 and 506 read with Section 34 of
Indian Penal Code (IPC).
3. It has been alleged on behalf of
prosecution that the first informant-
complainant Nazima Khan Mohd. Sajid
Khan, on 11-06-2018, approached to the
Police of Bhagyanagar Police Station,
Nanded, District Nanded and ventilated
the grievance that her marriage was
solemnized on 13-11-2005 with applicant
No. 1-Mohd. Sajid Khan, resident of
Degloor Naka, Nanded. The applicants
No. 2 and 3 are the brother-in-laws and
applicant No. 4 is mother-in-law,
applicants No. 5 to 7 are the sister-in-laws
of the complainant-wife. After the
marriage, complainant-wife joined the
company of husband for cohabitation, in
a joint family comprising mother-in-law,
brother-in-laws and sister-in-laws. It has
been alleged that since inception the
inmates of matrimonial home used to
harass mentally and physically to the
complainant on the flimsy ground. It has
been contended that the applicant-
husband was in habit of drinking liquor.
The inmates of matrimonial home used to
instigate applicant-husband to mal-treat
the complainant-wife and gave threat of
life. Due to quarrels, complainant-wife and
her husband started residing separately
on rent in Workshop Corner area at
Nanded. At that time, mother-in-law and
sister-in-laws used to visit and instigate
applicant-husband to beat the
complainant. The applicant-husband was
taking suspicion on her character. They
asked the complainant to bring Rs. 5
Lakhs from her parents. She was driven
out of the house. The complainant-wife
after giving understanding again joined
the company of applicant-husband for
cohabitation at her matrimonial home.
That time, brother-in-law Imran, mother-in-
law and applicant-husband maltreated
and tortured the complainant-wife
severely by pulling her hairs and beaten-
up her by means of slaps and fists blows.
The applicants abused the complainant in
filthy language and harassed her
physically and mentally. Eventually, she
approached to the Police for penal action
against the applicants.
4. Pursuant to FIR, the Police of
Bhagyanagar Police Station, Nanded,
District Nanded, registered the crime and
set the penal law in motion. Pending the
investigation, the applicants moved the
present application by invoking remedy
under Section 482 of Cr.P.C. for the relief
to quash and set aside the impugned FIR.
5. Learned counsel for applicants
vehemently submits that there were no
physical and mental cruelty to the
complainant on the part of applicants.
But, she has filed present false penal
proceeding with an malafide intention to
harass the applicants. There were no
specific allegations about maltreatment
and torture meted out to the complainant-
wife. According to learned counsel, the
applicants No. 2 to 7 are residing
separately. He further added that
complainant-wife has filed the proceeding
under Section 9 of the Hindu Marriage
Act, 1955, for restitution of conjugal rights
as well as proceeding for maintenance
against the applicant-husband in the
Family Court at Nanded. The present FIR
came to be lodged to harass and to wreak
vengeance from the applicants' family.
The present FIR is the off-shoot of a
matrimonial disputes. Learned counsel
for the applicants submits that the
applicants No. 2 to 7 have no any concern
with the marital life of applicant No. 1 and
complainant-wife. They have no any
reason to cause interference into the
marital affairs of the spouses. The
complainant did not mention any specific
instances of maltreatment at the hands of
applicants No. 2 to 7. The allegations
made in the FIR are vague and general in
nature. There was no demand of any kind
on the part of applicants. The present
complaint is nothing but an abuse of
process of law. It would unjust and
improper to compel the applicants to face
the agony of trial. In case, the present
penal proceeding is not quashed, it would
cause serious prejudice and injustice to
the applicants.
6. The learned APP as well as learned
counsel for respondent No. 2-first
informant opposed the contentions put-
forth on behalf of applicants and submit
that the allegations of ill-treatment
nurtured on behalf of complainant in the
FIR discloses commission of crime under
Sections 498A, 323, 504 and 506 of IPC.
The complainant categorically described
the episode of her maltreatment and
torture at the hands of applicants. There
was unlawful demand of money from the
applicants for business purpose. There
were allegations of physical and mental
torture to the complainant.
7. Having given anxious consideration to
the arguments advanced on behalf of
both sides, we do not find merit in the
contentions propounded to the extent of
applicant No. 1 for exercise of inherent
jurisdiction of this Court under Section
482 of Cr.P.C. to exonerate from the
charges pitted against him. Eventually, the
learned counsel for the applicants seeks
leave to withdraw the proceedings to the
extent of applicant No. 1. Therefore, we
allowed the learned counsel to withdraw
the proceeding to the extent of applicant
No. 1 only.
8. In regard to allegations nurtured
against the applicants No. 2 to 7, we find
that the allegations cast on behalf of
complainant-wife against these
applicants are totally vague and general in
nature. There are no specific allegations
attributing overt-act of these applicants to
maltreat and harass the complainant-
wife. There were no detail particulars
given in the FIR about participation of
applicants No. 2 to 7 for their act of
cruelty to the complainant or for demand
of money, etc. The allegations about
cruelty by applicants No. 2 to 7 are found
stray and sweeping in nature. The
applicants No. 2 and 3 are the brother-in-
laws and applicant No. 4 is mother-in-law,
whereas, applicants No. 5 to 7 are the
sister-in-laws and they are residing
separately. The applicant No. 5 to 7 are
the married sister-in-law and since their
marriage, they are residing at their
matrimonial home. The applicant No. 4
mother-in-law is 68 years old. Therefore, it
would difficult to conceive that the
applicants No. 2 to 7 have any reason to
cause interference in the marital life of
spouses. It is fallacious to appreciate that
they are the beneficiaries from the marital
discord between the spouses. The
circumstances on record conjures-up an
image that the present FIR came to be
filed against these applicants with
purported motivation to harass them.
9. At this juncture, the question that
arises, whether the FIR registered against
applicants can be quashed and set aside
by exercise of powers under Section 482
of Cr.P.C. It is worth to mention that the
Honourable Apex Court in the case of-
Kansraj Vs. State of Punja and others
reported in MANU/SC/0296/2000 : (2000)
5 Supreme Court Cases, 207 observed
that, "a tendency has, however, developed
for roping in all relations of the in-laws of
the deceased wives in the matters of
dowry deaths which, if not discouraged is
likely to affect the case of the prosecution
even against the real culprits. In the
cases, where accusations are made, the
overt-acts attributed to persons other
than husband, are required to be proved
beyond reasonable doubt. Their Lordships
of Apex Court further observed that, "in
their over-enthusiasm and anxiety to seek
conviction for maximum people, the
parents of the deceased have been found
to be making efforts for involving other
relations which ultimately weaken the
case of the prosecution even against the
real accused."
10. In the case of-Preeti Gupta and
another Vs. State of Jharkhand and
another, reported in
MANU/SC/0592/2010 : (2010) 7 Supreme
Court Cases 667, it has been delineated
that ultimate object of justice is to find
out truth and punish the guilty and protect
the innocent. A serious relook of the
entire provision of Section 498-A of
Cr.P.C. is warranted by the legislature. It
was observed that the exaggerated
versions of the incidents are also
reflected in a very large number of
complaints.
11. Likewise, in the case of-Arnesh Kumar
Vs. State of Bihar and another, reported in
MANU/SC/0559/2014 : (2014) 8 Supreme
Court cases, 273, the Honourable Apex
Court elucidated the fact that, "Section
498-A of IPC is a cognizable and non
bailable offence has lent it a dubious
place of pride amongst the provisions
that are used as weapons rather than
shield by disgruntled wives. The simplest
way to harass is to get the husband and
his relatives arrested under this
provisions."
12. It is worth to mention that the
Honourable Apex Court in the case of
Madhavrao Jiwaji Rao Scindia and
another Versus Sambhajirao Chandrojirao
Angre and others, reported in
MANU/SC/0261/1988 : AIR 1988 SC 709,
categorically elucidated in paragraph No.
7 as under:
"7. The legal position is well-settled
that when a prosecution at the initial
stage is asked to be quashed, the test
to be applied by the court is as to
whether the uncontroverted
allegations as made prima facie
establish the offence. It is also for the
 court to take into consideration any
special features which appear in a
particular case to consider whether it
is expedient and in the interest of
justice to permit a prosecution to
continue. This is so on the basis that
the court cannot be utilised for any
oblique purpose and where in the
opinion of the court chances of an
ultimate conviction is bleak and,
therefore, no useful purpose is likely
to be served by allowing a criminal
prosecution to continue, the court
may while taking into consideration
the special facts of a case also quash
the proceeding even though it may be
at a preliminary stage."
13. The Honourable Apex Court in the
case of State of Haryana and others Vs.
Ch. Bhajan Lal and others reported in
MANU/SC/0115/1992 : 1991(1) RCR
(Cri.), 383 (SC) held that "where the
proceedings is instituted with an ulterior
motive or were the allegations made in
the complaint are absurd and improbable,
the Court would be within its power to
quash the complaint/FIR". Moreover, if the
allegations in the FIR against the
applicants are taken at their face value
and accepted the same in its entirety
would not constitute any offence or make
out case against applicants, in such
circumstances, there would not be any
propriety to allow the prosecution to
proceed further into the matter.
14. In the light of aforesaid exposition of
law, in the instant case, it would be unjust
and improper to allow the prosecution to
proceed further against applicants No. 2
to 7. It would be an futile efforts and
would cause injustice to them, if they are
compelled to face agony of trial before
criminal Court. It would also dissipate the
precious time of Court of law as the
possibility of their ultimate conviction in
this matter is totally bleak. The ends of
justice would be served by ensuring that
the applicants No. 2 to 7 may not be
forced unnecessarily to go on litigation
before the Criminal Court. Hence, penal
proceeding initiated against applicants
No. 2 to 7 deserves to be quashed and set
aside. Therefore, we proceed to pass
following order:
ORDER
i. The Criminal Application is partly
allowed.
ii. The Criminal Application in respect
of applicant No. 1 Mohd. Sajid Khan
S/o. Ali Khan is disposed of as
withdrawn.
iii. The Criminal Application in respect
of applicants No. 2 to 7 is hereby
allowed.
iv. The penal proceeding initiated
against applicants No. 2 to 7, bearing
FIR No. 169 of 2018, for the offence
punishable under Sections 498-A, 323,
504 and 506 read with Section 34 of
IPC registered with Bhagyanagar
Police Station, Nanded District
Nanded, is ordered to be quashed and
set aside.
v. Rule is made absolute partly in
terms of prayer clause "C".
vi. Fees of the learned Advocate Ms.
Pratibha Suryawanshi, appointed on
behalf of respondent No. 2 is
quantified at Rs. 3000/- (Rupees
Three Thousand only), which would be
payable by the High Court Legal
Services Authority, Sub-Committee,
Aurangabad.
vii. As this Court has made out order
on 11-07-2019 to see that the
conveyance expenses of the wife has
also been ordered to be given and
attempt was made to settle the matter
and as she came on three occasions
to this Court, hence, conveyance
expenses of Rs. 1500/- (Rs. One
Thousand Five Hundred Only) is to be
paid to her immediately today itself
and it is to be paid through the High
 Court Legal Services Authority, Sub-
Committee, Aurangabad.
viii. The Criminal Application is
disposed of in above terms.
ix. No order as to costs.
© Manupatra Information Solutions Pvt.
Ltd.