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Asalam Khan Rahemtulla Khan And … vs The State Of Maharashtra And Anr on 2 February, 2017

                                   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




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                                       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.

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3 Cri.A-4928-16

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;

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4 Cri.A-4928-16

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

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5 Cri.A-4928-16

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.

                               Sd/-                      Sd/-

             [ K. K. SONAWANE, J.               [ S.S. SHINDE, J.]





     MTK




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