Bombay High Court
Asalam Khan Rahemtulla Khan And … vs The State Of Maharashtra And Anr on 2 February, 2017
Bench: S.S. Shinde
1 Cri.A-4928-16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 4928 OF 2016
1. Asalam Khan Rahemtulla Khan
Age: 22 years, occu. Labourer,
2. Jawed Khan Rahemtulla Khan,
Age: 26 years, Occ- Labourer,
3. Rahemtulla Khan Hafijulla Khan,
Age: 57 years, Occ- Labourer,
4. Nurjaha Khan Rahemtulla Khan,
Age: 50 years, Occ-Labourer,
All are R/o Lonar, Anand Nagar,
Behind Besik School, Tal. Lonar,
Dist. Buldhana.
5. Najma Sayyed Dastgir,
Age: 20 years Occu – Household,
R/o : Hussain Colony, Pundalik Nagar
Galli, No. 5, Garkhed, Aurangabad. …APPLICANTS
versus
1. The State of Maharashtra
Through Investigating Officer,
Police Station Hingoli (City)
Hingoli, Dist. Hingoli.
2. Rukhsar Jawed Khan,
Age: 21 years, Occ- Labourer,
R/o C/o Sultanabi Salam Khan Pathan,
Mastanshah Nagar, Near Idagahan
Ground Hingoli, Tal & Dist. Hingoli. …RESPONDENTS
…..
Mr. S.V. Suryawanshi, Advocate holding for
Mr. Abhijeet P. Avhad, Advocate for Applicants
Mr. S.G. Karlekar, APP for Respondent – State
Mr. A.K. Bhosale, Advocate for Respondent No. 2
::: Uploaded on – 06/02/2017 ::: Downloaded on – 07/02/2017 00:41:29 :::
2 Cri.A-4928-16
CORAM : S.S. SHINDE AND
K.K. SONAWANE, JJ.
DATED : 2 nd FEBRUARY, 2017.
JUDGEMENT :- ( Per: S.S. Shinde, J.)
1. Rule. Rule made returnable forthwith. Heard finally with consent of the learned counsel for the parties.
2. At the outset, learned counsel appearing for the applicants seeks leave to withdraw the application to the extent of applicants No. 1 to 4 with liberty to avail appropriate remedy as may be permissible in law, in the event of filing charge-sheet, by the Investigating Officer.
3. Leave granted.
4. The application stands dismissed with liberty as prayed for to the extent of applicants No. 1 to 4.
5. The learned counsel appearing for the applicants submits that so far as applicant No. 5 Najma Sayyed Dastgir is concerned, already she married with one Sayyed Dastgir and residing at Aurangabad, therefore, the allegations in the first information report against her are inherently improbable and also general in nature, therefore, FIR to the extent of respondent No. 5 may be quashed and set aside.
6. On the other hand, learned APP appearing for respondent No. 1 – State and learned counsel appearing for respondent No. 2 relying upon allegations in the FIR submit that considering the allegations in the FIR, alleged offences have been disclosed as against applicant No. 5, therefore, the petition is devoid of merits and the same deserves to be dismissed to the extent of her also.
7. We have heard learned counsel appearing for the parties, with their able assistance we have perused the allegations in the FIR, also averments in the application and we are of the opinion that application to the extent of applicant No. 5 Najma Sayyed Dastgir deserves to be allowed for the reasons set out hereinafter below.
8. Applicant No. 5 Najma Sayyed Dastgir is married sister of applicants No. 1 and 2 and residing at Aurangabad. The distance between Aurangabad to Lonar District Buldhana is more than 150 K.M.
9. The Supreme Court in the case of “State of Haryana V/s Bhajanlal” {AIR 1992 SC 604} held that, in following categories the Court would be able to quash the F.I.R. :
1 Whether the allegations made in the F.I.R. or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code, except under an order of Magistrate within the purview of Section 155(2) of the Code;
3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the applicant;
4. Where the allegations in the F.I.R. do not constitute a cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act, (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provisions in the Code of the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
10. Therefore, keeping in view category No. 5 laid down in the case of State of Harayana Vs. Bhajanlal (supra), in our opinion, so far as applicant No. 5 is concerned, alleged offences are not disclosed and, therefore, further investigation on the basis of complaint – FIR would be abuse of process of law, hence, FIR to the extent of applicant No. 5 deserves to be quashed.
11. In that view of the matter, FIR No. 200 of 2016 registered at Hingoli City Police Station, District Hingoli for the offences punishable under sections 498A, 323, 504 read with section 34 of the Indian Penal Code to the extent of applicant No. 5 Najma Sayyed Dastgir stands quashed and set aside.
12. The application is partly allowed in above terms and stands disposed of. Rule is made absolute accordingly.
[ K. K. SONAWANE, J. [ S.S. SHINDE, J.]
