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Judgments of Supreme Court of India and High Courts

Dr. Shahab Sharif S/O Mohammad … vs State Of Maharashtra, Thr. P.S.O. … on 13 November, 2019

Judgment 1 apl330.16.odt

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

CRIMINAL APPLICATION (APL) NO. 330/2016

Dr. Shahab Sharif S/o Mohammad Sharif,
Aged about 34 years, Occ. Radiologist,
R/o. Byramji Town, Nagpur – 13
…. APPLICANT

// VERSUS //

1] State of Maharashtra,
Through Police Station Officer,
P.S. Ganeshpeth Nagpur City,
Tq. Dist. Nagpur

2] State of Maharashtra,
Through Police Station Officer,
P.S. Sadar Nagpur City, Nagpur,
Tq. Dist. Nagpur

3] Shri Asad S/o Mansaf Khan,
Aged about 63 years, Occ. Business,
R/o House No. 307, Near Badi Masjid,
Bhaldarpura, Nagpur
…. NON-APPLICANT(S)
_
Shri Anil S. Mardikar, Senior Advocate a/b Shri A.B. Mirza, Advocate for the
applicant
Shri M.K. Pathan, APP for the non-applicant/State
Shri C.S. Dharmadhikari, Advocate for non-applicant no. 3
_

CORAM : Z.A.HAQ PUSHPA V. GANEDIWALA, JJ.

DATE OF RESERVING THE JUDGMENT : 03/10/2019
DATE OF PRONOUNCING THE JUDGMENT : 13/11/2019

JUDGMENT : (PER:- Z.A. HAQ, J.)

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Judgment 2 apl330.16.odt

1] Heard.

2] Undisputedly, marriage of the applicant was solemnized with

Aasma (daughter of the non-applicant no. 3) on 25/05/2013. According to

the applicant, Aasma cohabited with the applicant only for a short period of

about 2 ½ months and then returned to her parental house in August, 2013.

According to the applicant, father and brother of Aasma had been to the

house of the applicant and had picked up a quarrel with the parents of the

applicant and then on 22/08/2013, the father of Aasma had lodged a false

complaint with Sadar Police Station. The facts on record show that Aasma

had lodged a report with the Police Station Ganeshpeth making allegations of

cruelty. According to the applicant, he gave talak to Aasma on 19/10/2013 in

the presence of two panchas.

3] Aasma had filed proceedings under Section 12 of the Protection

of Women From Domestic Violence Act, 2005 (for short “the Act of 2005”)

before the Judicial Magistrate. Aasma had also filed the proceedings before

the Family Court, seeking maintenance. Prosecution for the offence

punishable under Section 498A read with Section 34 of the Indian Penal

Code and Sections 3 and Section4 of the Dowry Prohibition Act is pending before

the Judicial Magistrate.

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Judgment 3 apl330.16.odt

4] Aasma committed suicide on 13/03/2015. The facts on record

show that Aasma died because of the burn injuries suffered by her in the

incident at her parental house. Dying declaration of Aasma was recorded by

the Executive Magistrate on the basis of which Crime No. 371/2013 is

registered against the applicant and his family members under Section 306 of

the Indian Penal Code.

By this application under Section 482 of the Code of Criminal

Procedure, the applicant prays that the proceedings against him be quashed.

5] According to the applicant, Aasma cohabited with him only for

a period of about 2 ½ months after the marriage, and then since about

09/08/2013, she was residing with her parents at her parental house. Aasma

committed suicide on 13/03/2015 i.e. after about 19 months of leaving the

matrimonial house, and in these facts, it cannot be said that the applicant

inflicted any cruelty which led Aasma to take the extreme step.

6] Learned Senior Advocate appearing for the applicant argued

that the prosecution has not been able to bring on record any live link

between the unfortunate incident which took place on 13/03/2015 and the

alleged incidents of mental harassment, torture and cruelty. It is argued that

the claim made by the father and brother of Aasma, in their statements about

the demand of dowry is not true, but, father of Aasma tried to improve the

case of the prosecution. To support the contention that the prosecution of the

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Judgment 4 apl330.16.odt

applicant for the offence punishable under Section 306 of the Indian Penal

Code is unsustainable in law, reliance is placed on the following judgments:-

(i) Judgment given in the case of Sanju alias SectionSanjay

Singh Sengar vs. State of M.P. reported in AIR 2002 SC at page

1998.

(ii) Judgment given in the case of SectionS.S. Chheena vs.

Vijay Kumar Mahajan and another reported in (2010) 12 SCC at

page 190.

(iii) Judgment given in the case of SectionMadan Mohan Singh

vs. State of Gujarat and another reported in (2010) 8 SCC at

page 628.

(iv) Judgment given in the case of SectionBinod S/o Ratan

Sarkar vs. State of Maharashtra reported in 2013 (3) Mh.L.J.

(Cri.) at page 418.

(v) Judgment given in the case of SectionPinakin Mahipatray

Rawal vs. State of Gujarat reported in 2013 AIR SCW at page

5219.

7] According to the prosecution and non-applicant no. 3 (father of

Aasma), the applicant and his family members had suppressed that the

kidneys of the applicant were not properly functioning, and Aasma came to

know about this serious ailment of the applicant after marriage when she had

gone alongwith the applicant for his check up at Saifee Hospital, Mumbai.

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Judgment 5 apl330.16.odt

According to the non-applicant no. 3, Aasma was shocked to know that she

was cheated by the applicant and his parents, and instead of giving solace to

her, the applicant and his parents harassed Aasma and demanded Rs. 2 crore

from her father (non-applicant no. 3) or to purchase space for starting of

Scan Clinic at Sadar or Shankar Nagar and to get a C.T. Scan machine and

BMW car.

8] The prosecution and the non-applicant no. 3 allege that the

applicant had mis-behaved with Aasma on 10/03/2015 when Aasma had

gone to the Court to swear an affidavit and to meet her friend Natasha.

According to the applicant, the claim made by the non-applicant no. 3 about

the incident of 10/03/2015 is false and is an attempt to improve the case of

the prosecution.

9] With the assistance of learned Senior Advocate appearing for

the applicant, learned APP and learned advocate for the non-applicant no. 3,

we have examined the documents placed on record of this criminal

application.

10] Though Aasma committed suicide at her parental house after 19

months of leaving the matrimonial house, we find that the prosecution has

brought on record material to show that certain incidents occurred in 2013

after Aasma left her matrimonial house, and then on 10/03/2015. Though

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Judgment 6 apl330.16.odt

the applicant claims that the statements of the father and brother of Aasma

about the subsequent incidents of 2013 and of 10/03/2015 are false and are

made only with an intention to improve the case of the prosecution, in our

view, it would not be possible for us to examine the veracity of those

statements under Section 482 of the Code of Criminal Procedure, at this

stage. Proceedings for maintenance, proceedings under Section 12 of the Act

of 2005 and the prosecution of the applicant for the offences punishable

under Section 498A of the Indian Penal Code and Sections 3 and Section4 of the

Dowry Prohibition Act had been pending against the applicant and his

relatives. After considering the material on record, we find that this is not a

fit case to exercise jurisdiction under Section 482 of the Code of Criminal

Procedure and to quash the prosecution of the applicant.

11] Hence, the criminal application is dismissed.

CRIMINAL APPLICATION (APPP) NO. 1352/2019

In view of the dismissal of the criminal application, this

application praying for intervention does not survive. It is disposed

accordingly.

JUDGE JUDGE
Ansari

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