IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 538 OF 2016
1) Khwaja Munawar Sultana
W/o Siddiqui Minhajuddin
Age : 47 years, occ : Teacher,
R/o Rangeen Gate, Labour Colony,
Aurangabad.
2. Khwaja Kauser Jabeen
W/o Athar Ahmed
Age : 42 years, Occ : Teacher,
R/o Labour Colony, Vishwasnagar,
Aurangabad…PETITIONERS
-VERSUS-
1. State of Maharashtra
Through Vaijapur Police
Station, Aurangabad.
2. Tajeen Tajwar Khwaja Alimoddin
Age : Major, Occ : Teacher,
R/o Syed Zaheit Ali Syed Masood Ali
Maqsood Colony, Near Sumairu hospital,
Roshan Gate, Aurangabad…RESPONDENTS
…
Advocate for petitioners : Mrs.R.S. Kulkarni
APP for Respondent/State : Mr. S.P. Deshmukh
Advocate for respondent no.2 : Mr. M.R. Jadhav
…
CORAM : S.S. SHINDE
K.K. SONAWANE, JJ.
RESERVED ON : 21st February, 2017
PRONOUNCED ON : 2nd March, 2017
JUDGMENT : (PER S.S. SHINDE, J)
This Petition is filed praying
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
2
therein for quashing of F.I.R. bearing Crime
No.I-37 of 2016 dated 10th February, 2016
registered at Vaijapur Police Station,
Aurangabad for the offences punishable under
Sections 498A, 120(B), 328, 504, 506 read
with 34 of the Indian Penal Code.
2. The learned counsel appearing for
the petitioners submits that, the petitioners
are married sisters of the husband of
respondent no.2. The petitioner no.1 got
married on 3rd February, 1991 and petitioner
no.2 got married on 18th November, 1999. The
petitioners are living with their respective
husbands and families. They are arrayed as
accused nos.2 and 3 by respondent no.2. It is
submitted that, the brother of the
petitioners got married with respondent no.2
on 27th May, 2017 at Aurangabad, as per the
Muslim rites and customs. Respondent no.2 on
10th February, 2016, for the first time,
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
3
alleged that, the petitioners and other
family members have treated her well for two
months, initially after the marriage and
thereafter started harassing her to bring
some money from her parents. It is alleged
that, her husband got married to one Asma and
both gave her medicines, which were injurious
to her kidneys. It is submitted that, so far
as the allegations of administration of wrong
medicines, which affected the kidneys of
respondent no.2, are not against the present
petitioners. Respondent no.2 for the first
time after lapse of nine years have came with
a case of cruelty. The allegations in the
First Information Report are vague and no
specific overt acts are attributed to the
petitioners. It is submitted that respondent
no.2 voluntarily left the matrimonial home.
The learned counsel appearing for the
petitioners invites our attention to the
allegations in the First Information Report
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
4
and submits that, the allegations are
general in nature, absurd and inherently
improbable, and therefore, the First
Information Report deserves to be quashed.
3. The learned counsel appearing for
the petitioners placed reliance on the
exposition of law by the Hon’ble Apex Court
in the cases of Geeta Mehrotra V/s State of
U.P.1, Preeti Gupta V/s State of Jharkhand 2,
G.V. Rao V/s L.H.V. Prasad and others3 and
Pramod Uttam Shinde and others V/s State of
Maharashtra4. It is submitted that, the
alleged incident had occurred at Aurangabad
at matrimonial home and the First Information
Report is filed at Vaijapur, which is beyond
territorial jurisdiction of Vaijapur Police
Station, and hence registration of the same
is bad in law. In support of her contention,
1 (2012) 10 SCC 741
2 (2010) 7 SCC 667
3 (2000) 3 SCC 693
4 2015 All MR (Cri) 4232
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
5
when the allegations are vague and omnibus in
nature, the F.I.R. deserves to be quashed,
the learned counsel placed reliance on the
unreported judgment of this Court in the case
of Asma Hashmi D/o Mumtaz Abdulgani Hashmi
V/s The State of Maharashtra in Criminal
Application no.1926 of 2016 decided on 13th
April, 2016. It is submitted that respondent
no.2 has been under constant medications
since 2010 and if the prescriptions of
various medications of several doctors which
are annexed to the present petition are seen,
the same would show that, she has been
complaining of abdominal pains and
difficulties relating to abdomen since long
and hence the solitary incident as alleged in
the First Information Report which is
punishable under Section 328 of Indian Penal
Code is highly improbable. It is submitted
that, the allegations in respect of Section
328 of Indian Penal Code are vague since the
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
6
name of the medicine alleged to have been
administered to her by the accused is not
mentioned anywhere in the complaint and thus
it raises a serious doubt over the authority
of the allegations of administration of the
medicine since one does not know the
medicine, which though not admitted but for
the sake of arguments may have been given to
her and the medicine which she may have
produced before respondent no.1 and the
doctor are one and the same and hence on the
face of the complaint, the allegations are
unbelievable and over exaggerated and hence
the continuation of the criminal proceedings
would be nothing but abuse of process of law
and hence is liable to be quashed and set
aside.
4. On the other hand, the learned
A.P.P. appearing for the Respondent/State
submits that, the alleged offences have been
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
7
disclosed against the petitioners, and
therefore, those need investigation.
5. The learned counsel appearing for
respondent no.2 invites our attention to the
allegations in the First Information Report
and submits that, the allegations are serious
in nature, which need investigation. Though
the petitioners have been married, as a
matter fact they are residing in the
matrimonial home at Aurangabad.
6. We have heard the learned counsel
appearing for the petitioners, the learned
A.P.P. appearing for the respondent/State and
the learned counsel appearing for respondent
no.2 at length.
7. The allegations against the present
petitioners in the First Information Report
are as under :-
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
8“——1- R;kosGh ekÖ;k uUuank] ßdk;e rw vdsyh
nqfu;kes dekÅ gS D;k] ?kj dk dke D;k rsjk cki
djsxk D;kÞ vls nksUgh uUunk ukes fl}hdh equksOoj
Hkz- feugktksnnhu o [kktk dkSlj tchu Hkz- vFkj
vgsen Vkse.ks ekjr vlr- eh tsOgk gh xksV eks
irhyk lkaxr vls rsOgk rsgh eyk “rsjs cki dh ?kj
jk.kh gS D;k] ?kj dk dke djuk tku ij vkrk gS
blfy, nsj ls vkrh gS” vls Vkse.ks ekjr vls o
eyk f’kohxkG djhr vls o “ukSdjh djds midkj
dj jgh gS D;k” vls Eg.kwu ekÖ;kdMwu osGksosGh
eks loZ iSls ?ksr vlr-
2——- R;kuarj ekÖ;k yXukP;k 3 rs 4 o”kkZuarj eyk
ekÖ;k irhps eqaczk ;sFkhy jkg.kk;k ,dk MkW- vkRek
gk’eh firk eqerkt gk’eh fgP;kcjkscj iszelaca/k
vlY;kph ekfgrh [kqnn ekÖ;k irhus eyk lkafxryh
o rwyk eqyckG gksr ukgh eh frP;k’kh yXu dj.kkj
vkgs vls eyk Eg.kwu eks ekulhd [kPphdj.k eks
irh d: ykxys- R;kauh eyk R;kaP;k fiz;lhus
ikBoysys ?kk.ksjMs o v’yhy eWlst nk[kor vlr-
rlsp rw dqN dke dh ugh] eqs rsjs es baVsl ugh]
vkLek cgwr lqanj gS] eS mlhlsa ‘kknh d:axk vls
lkj[ks Eg.kwu ykxys- ekÖ;k uUuank ns[khy
eyk ?kkywu ikMwu cksyw ykxY;k- o rqyk eqyckG
gksr ukgh- rw dkgh dkekph ukgh vls Vkse.ks ek:
ykxY;k- eks irh eyk eksBeksB;k iksyhl
vf/kdk;kaps eWlst o Dyhi nk[kowu ekh ;kaP;k’kh::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
9vksG[k vkgs vls Eg.kwu /kedkohr vlr o rlsp
eyk ekÖ;k isz;lh gk’eh vkLek jk.kk Hkz- eqerkt
gk’eh fgP;klkscr nqljs yXu dj.;kph ijokuxh ns
R;klkBh rw ekh enr dj rqyk eqyckG gksr ukgh-
vls Eg.kwu ekÖ;koj ncko Vkdw ykxys- ekÖ;k
irhus eks ,-Vh-,e- dkMZ ijr dsysys ukgh- rsp
ekk tek gks.kkj ixkj ns[khy [kpZ djhr vlr-
rlsp ekÖ;k nksUgh uUuank o irh gs ‘kkGk
cka/k.;klkBh 10]00000@µ :i;s ¼ngk yk[k
:i;s½ ?ksÅu ;s vls lkaxr gksrs – R;kosGh eks
irh gs ex rw eks nqljs yXu d:u ns- ,d fnol
vls Eg.kwu eyk CyWdesy djr djhr gksrs-
3——- R;kp njE;ku fnukad 17@11@2015 jksth ekÖ;k
irhus R;kaps nksUgh cfg.kh rlsp fe= rcjst o
vyh ;kapslkscr eqaczk ;sFks tkÅu eLthne/;s yXu
dsys o eyk Qksu d:u lkafxrys o rqyk vkrk dk;
djk;ps rs d:u ?ks v’kh /kedh fnyh- ekÖ;k
yXukyk ngk o”kZ kys vlY;keqGs o eksiqs dkghgh
bykt ulY;kus eh ukbyktkus rsFks jkgw ykxys-
R;kuarj eks irh R;kph nqljh iRuh vkLek o nksUgh
uUuank vls yXu d:u ?kjh vkys- R;kosGh ekh
rC;sr fc?kMysyhp gksrh o eh ?kjkr ksiwu gksrs- ?kjh
vkY;koj irhus ekÖ;k’kh vpkud xksM cksy.;kph
Lkq:okr dsyh- o rC;srhph fopkjiwl dsyh- eh
R;kauk iksV nq[kr vlY;kps o Fkdok vkY;kps::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
10lkafxrys- rsOgk R;kauh R;kaph uohu iRuh gh MkWDVj
vlY;kus fryk fopk:u eyk xksG;k vk.kqu fnY;k-
eh rh xksGh ?ksryh R;kuarj vkLek fgus eyk ekÖ;k
uo;kP;k ekQZr fu;fer ?ks.;kPkk lYyk fnyk- dkgh
fnolkauh ekÖ;k uo;kus vkLek fgyk ?kjkiklwu
dkgh varjkoj vklsfQ;k dkWyuhrhy R;kaps ojh”B Qst
l¸;n ;kaps cfg.khpk yWV ?ksrys o rs rsFksp jkgw
ykxys- ek= frus fnysyh xksGh nksu efgus
lrr ?;k;yk ykoys- eh lk/kkj.kr lnj xksGh nksu
efgus lrr ?ksryh- R;kuarj ekh rC;sr vpkud
fc?kMyh o ekÖ;k y?kohrwu jDr IkMw ykxys- o y?
kohP;k fBdk.kh tGtG gksÅ ykxyh- Eg.kwu eh
ekgsjh vkys- o y?kohP;k fBdk.kh tGtG gksÅ
ykxyh- Eg.kwu eh ekgsjh vkys- njE;ku eyk e/ks
e/ks [kqi tkLr =kl gksr gksrk- ijarq eks irh eyk
lnj xksGh ?ks- rw cjh gks’khy vls lkaxwu d/kh xksM
cksywu rj d/kh tcjnLrhus ?;k;yk ykor vls- ek=
vpkud Qscqzokjh efgU;kr ekh rC;sr tkLrp [kjkc
kyh- R;keqGs eh ekÖ;k ekgsjh oStkiwj ;sFks vkys o
eks HkkÅ vWM- jkQs ;kauk loZ gdhdr lkafxryh-
R;kauh eyk fnukad 04@02@2016 jksth MkW- vfHkthr
vUunkrs ;kaps vkuan gkWLihVy ;sFks usys- R;kauh
ekh oS rikl.kh dsyh o ;kiwohZ pkyw vlysY;k
vkS”k/kksipkjkcnny fopkjys- R;koj eh R;kauk eks
irh ukes [kktk vyheksnnhu firk [kktk ukfljksnnhu
o R;kaph iRuh MkW vkLek fgps lkax.;ko:u fnysY;k::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
11xksG;k nk[koY;k- rsOgk MkWDVj lkgsckauh ,dne eyk
vksjMwu ;k xksG;k rqEgh d’kk dk; ?ksrk- ;k
xksG;keqGs rqeph fdMuh [kjkc gksr vkgs vls
lkafxrys o ekh lksuksxzkQh o brj VsLV dsY;k o
rkcMrksCk eyk ekÖ;k irhus fnysY;k uksMkMZ Iyl
;k ;k xksG;k rkcMrksc caan djk vls lkafxrys o
nql;k xksG;k fygwu fnY;k- l/;k eh MkW- vfHkthr
vUunkrs ;kaP;kdMs vkS”k/kksipkj ?ksr vkgs- R;kuarj
ekÖ;k y{kkr vkys dh ekÖ;k irhus R;kaP;k
cfguhlkscr o iRuhlkscr feGwu ekk fto tkok
Eg.kwu xksM xksM cksywu ekÖ;k ‘kfjjkP;k egRokP;k
vo;okl btk iksgpowu ekk ft tkok ;k gsrwus eyk
pqdhP;k xksG;k fnY;k- ;kewGs ekÖ;k fdMuhyk btk
iksgpyh vkgs- (Underlines added)
8. The contention of the learned
counsel appearing for the petitioners that
the allegations in the First Information
Report are omnibus and the alleged offences
are not disclosed, cannot be accepted. Upon
careful reading of the allegations in the
First Information Report alleged offences are
disclosed. When the investigation is in
progress, it is not possible to reach to the
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:43 :::
538.16WP
12
definite conclusion that, the offence
punishable under Section 328 of the Indian
Penal Code is not disclosed. So far as
alleged offences under sections 120B, 498A,
120(B), 504 and 506 of the Indian Penal Code
are concerned, the ingredients of the said
offences are clearly attracted and the
alleged offences have been disclosed. The
First Information Report is not an
encyclopedia. During the course of
investigation, the Investigating Officer has
recorded the statements of the witnesses, and
prima facie, it appears that the material
collected by the Investigating Officer lends
support to the version of the informant in
the First Information Report.
9. The Supreme Court in the case of
Bhaskar Lal Sharma and another V/s Monica and
others5 in para 11 of the judgment has held
5 (2014) 3 SCC 383
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:44 :::
538.16WP
13
that the facts, as alleged, in the complaint
will have to be proved which can be done only
in the course of a regular trial. The
appreciation, in a summary manner, of the
averments made in a complaint petition or
F.I.R. would not be permissible at the stage
of quashing of F.I.R. and the facts stated
will have to be accepted as they appear on
the very face of it.
10. The Supreme Court in the case of
Taramani Prakash V/s State of M.P. and
others6 has also taken a view that, the
question whether the informant/complainant
has infact been harassed and treated with
cruelty is a matter of trial. In that view of
the matter, we are not inclined to entertain
this Petition for quashing of First
Information Report. Hence the Petition stands
rejected. The observations made hereinabove
6 2015 AIR (SC) (Supp) 704
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:44 :::
538.16WP
14
are, prima facie, in nature. The rejection of
present Criminal writ Petition shall not be
construed as an impediment in case the
petitioners wish to avail of the appropriate
remedy by way of filing the application for
discharge in the event of filing charge-sheet
by the Investigating Officer.
(K.K. SONAWANE, J.) (S.S. SHINDE, J.)
…
sga
::: Uploaded on – 02/03/2017 ::: Downloaded on – 03/03/2017 01:09:44 :::