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Moizoddin S/O Azizuddin Qauzi And … vs The State Of Maharashtra And Anr on 15 March, 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.5584 OF 2016

1. Moizoddin s/o. Azizuddin Qauzi
Age: 36 years, Occu. Electrician,
R/o. Near Gir School, Pathan Mohalla,
Pathri, Tq. Pathri, Dist. Parbhani.

2. Tahesin Begum widow/o Azizuddin Qauzi
Age: 66 Years, Occu. Household
R/o. as above.

3. Azimuddin s/o. Azizuddin Qauzi,
Age: 33 Years, Occu. Private Service
R/o. 9-2-418 Langar House
Golconda, Hyderabad, Andhra Pradesh

4. Rameezoddin s/o.Azizuddin Qauzi
Age: 30 years, Occu. Electrician
R/o. Near Gir School, Pathan Mohalla,
Pathri, Tq. Pathri, Dist. Parbhani

5. Shaziya Begum w/o. Muquibuddin Qauzi,
Age: 31 Years, Occu. Household,
R/o. Wangi Road, Magdumpura,
Tq. Dist. Parbhani.

6. Muquibuddin s/o. Muneebuddin Qauzi
Age: 32 Years, Occu. Rickshaw Driver
R/o. as above.

7. Aliya Fatema w/o. Ahmed Nurul
Ambiya Qauzi
Age: 28 Yrs, Occu. Household
R/o. 9-7-731/13, Shaheen Manzil,
Shahid Tipu Sultan Road,
Near Jamali Masjid, Maltekdi,
Station Road, Itwara
Tq. and Dist. Nanded.

8. Mohammad Nazeeroddin Raziur
Raheman Farooqui
Age: 50 Years, Occu. Electrician
R/o. Ekta Nagar, Pathri, Tq. Pathri
Dist. Parbhani.

9. Farhat Sultana Mohammad
Nazeeroddin Farooqui
Age: 36 Years, Occu. Household,
R/o. as above.

10. Alimunisa Begum w/o. Abdul
Mannan Farooqui,
Age: 35 Years, Occu. Household,
Aziz Mohalla, Pathri,
Tq. Pathri, Dist. Parbhani.

11. Abdul Mannan Rajiur Raheman Farooqui
Age: 45 Years, Occu. Electrician
R/o. as above.

12. Fayazuddin Raziur Raheman Farooqui
Age: 38 Years, Occu. Electrician
R/o. as above. APPLICANTS

VERSUS

1. The State of Maharashtra
Through Police Inspector
Police Station, Majalgaon City,
Tq. Majalgaon, Dist. Beed.

2. Gohar Afreen w/o. Moizuddin Quazi
Age: 28 Yrs., Ocu. Household,
R/o. Pathan Mohalla, Pathri,
Tq. Pathri, Dist. Parbhani
At present R/o. Meethpada
Naddinnaka, Bhivandi
Dist. Thane. RESPONDENTS

5584.2016 Cri.Appln.odt

Mr.K.N. Farooqui, Advocate for the applicants
Mr.M.M.Nerlikar, APP for the Respondent/
State
Mr.T.A.Quadri, Advocate holding for
Mr.M.G.Mustafa, Advocate for respondent no.2

CORAM: S.S.SHINDE
K.K.SONAWANE,JJ.

Reserved on : 06.03.2017
Pronounced on : 15.03.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. It is the case of the applicants

that respondent no.2 has filed First

Information Report against the husband,

mother-in-law and brothers of the husband and

the relatives of the husband, thereby making

false and omnibus allegations, without

attributing any specific overt act or date of

the incident. It is submitted that the police

authority, without verifying the genuineness

of the averments in the complaint filed by

respondent no.2, has registered the FIR.

2. It is further submitted that

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applicant nos.1, 3 and 4 are real brothers

and they are residing separately. Applicant

no.3 is residing in Hyderabad [Andhra

Pradesh] since the year 2010. There is no

joint family as such. Applicant no.1 and his

mother i.e. applicant no.2, and his brother

i.e. applicant no.4 are residing at Pathri,

District Parbhani. Sister of applicant no.1,

namely, Shaziya and brother-in-law

Muquibuddin are residing at Wangi Road,

Magdumpura, Parbhani. Aliya Fatema sister of

applicant no.1 is residing at Nanded.

Applicant nos. 8 and 9 maternal uncle and his

wife are residing at Ekta Nagar, Pathri,

District Parbhani. Applicant nos.10 to 12 are

residing at Aziz Mohalla, Pathri, who are

maternal uncle and aunt of applicant no.1.

The maternal uncle of applicant Abdul Mannan

is suffering from paralysis and he is

bedridden. They have no concerned with the

allegation in the complaint and family of

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respondent no.2. The learned counsel

appearing for the applicants invites our

attention to the copies of the Aadhar Cards

and Medical Certificates of the applicants.

It is further submitted that

informant i.e. respondent no.2 married, with

applicant no.1 on 22nd October, 2008, and

couple started residing separately at Pathri,

District Parbhani. Out of the said marriage,

informant begotten three daughters.

Respondent no.2 left the house of applicant

no.1 on 20th August, 2013, without giving any

reason. Applicant no.1 has sent notice on

27.11.2013 to the informant, requesting for

cohabitation. However, respondent no.2 did

not turn up. Therefore, again notice was sent

on 9th January, 2014, but there was no

response from respondent no.2. Respondent

no.2 is residing with her parents in Thane

District, since 20th August, 2013. Applicant

no.1 submitted application to the Women Cell

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at Pathri Police Station. The said office has

sent notice to respondent no.2 for

settlement, however, she did not appear

before the Women Redressal Forum.

3. It is submitted that applicant no.11

is suffering from paralysis and he is advised

to bed rest. Applicant nos.4 to 10 and 12 are

residing separately, they have no concerned

with the family of applicant nos.1 to 4.

However, only with a view to harass the

applicants, the FIR is lodged with ulterior

motive by the informant. The learned counsel

further submits that even if the allegations

in the FIR are read in its entirety, and

taken at its face value, the alleged offences

are not disclosed against the applicants. In

support of his contention that, when there

are omnibus allegations without attributing

specific overt acts to the accused and if the

allegations are inherently improbable and no

prudent person can believe such allegation,

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the learned counsel appearing for the

applicants placed reliance on the ratio laid

down in the following cases Preeti Gupta and

another Vs. State of Jharkhand and another1,

Chandralekha and others Vs. State of

Rajasthan and another2, Ramesh and others Vs.

State of T.N.3, Rukmini Narvekar Vs.Vijaya

Satardekar Ors.4, Saleha and Ors. Vs.

State of Maharashtra and Ors.5, Mayur Mozes

Khajekar Vs. The State of Maharashtra6 and

Rahul s/o. Punjaram Nikam Vs. The State of

Maharashtra7 and the judgment of Gujrat High

Court in the case of Devendra @ Tinku

others Vs. State of U.P. and another in

Application No.3615/2012, decided on 8th

April, 2013. Therefore, the learned counsel

appearing for the applicants submits that,

the application deserves to be allowed.

1 [2010] 7 SCC 667
2 [2013] 14 SCC 374
3 [2005] 3 SCC 507
4 [2008] 14 SCC 1
5 2015 All MR [Cri.] 2531
6 2015 All MR [Cri.] 3176
7 2015 All MR [Cri.] 2710

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4. On the other hand, the learned APP

appearing for the respondent-State, relying

upon the investigation papers submits that,

the Investigating Officer has recorded the

statements of the witnesses, and prima facie,

it is revealed that the applicants are

involved in the alleged commission of

offence, and therefore, the application may

be rejected.

5. The learned counsel appearing for

respondent no.2, relying upon the averments

in the affidavit-in-reply submits that, it is

true that applicant nos.1, 2 and 4 are real

brothers, but it is specifically denied that

they are residing separately. It is further

denied that applicant no.3 is residing at

Hyderabad since the year 2010. It is

submitted that applicant nos. 1, 2 and 4 are

the members of the joint family and reside

at Pathri, District Parbhani. It is submitted

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that, till that time respondent no.2 was

driven out from the matrimonial home in the

year 2013, all the accused/applicants were

residing jointly. The marriage of the Aliya

took place prior to 2 ½ years, after

respondent no.2 is driven out from the

matrimonial home. The learned counsel

appearing for respondent no.2 invites our

attention to the allegations in the FIR and

submits that, the alleged offences have been

disclosed, and therefore, this Court may not

consider the prayer for quashing of the FIR.

It is submitted that there was ill-treatment

and harassment on account of displeasure of

the accused that, respondent no.2 gave birth

to three daughters, and also there was demand

of Rs.2 lacs from the parents of respondent

no.2.

6. We have carefully considered the

submissions of the learned counsel appearing

for the applicants, learned APP appearing for

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respondent-State, and the learned counsel

appearing for respondent no.2. With their

able assistance, we have perused the

pleadings in the Application and grounds

taken therein, annexures thereto, reply filed

by respondent no.2, and also the rejoinder

filed by the applicants. Upon careful perusal

of the investigation papers, it appears that,

applicant no.1 Moizuddin Azizuddin Quazi,

applicant no.2 Tahesin Begum Azizuddin Qauzi,

applicant no.4 Rameezoddin Azizuddin Qauzi,

applicant no.8 Mohammad Nazeeroddin Raziur

Raheman Farooqui, applicant no.9 Farhat

Sultana Mohammad Nazeeroddin Farooqui,

applicant no.10 Alimunisa Begum Abdul Mannan

Farooqui, applicant no.11 Abdul Mannan Rajiur

Raheman Farooqui and applicant no.12

Fayazuddin Raziur Raheman Farooqui are

residing at Pathri, Taluka Pathri, District

Parbhani. Applicant no.3 Azimuddin Azizuddin

Qauzi is residing at Hyderabad. Applicant

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no.5 Shaziya Begum Muquibuddin Qauzi and

applicant no.6 Muquibuddin Muneebuddin Qauzi

are residing at Parbhani. Applicant no.7

Aliya Fatema Ahmed Nurul Ambiya Qauzi is

residing at Nanded.

7. Therefore, upon perusal of the

investigation papers, it is abundantly clear

that, all the applicants except the applicant

nos.3, 5, 6 and 7 are residing at Pathri,

District Parbhani. We do not wish to enter

into controversy whether the applicants are

residing at Pathri or at other places.

8. Upon perusal of the allegations as

against applicant nos.1, 2, 4, 8, 9 to 12 the

alleged offences have been disclosed, and

therefore, needs further investigation.

Therefore, we are not inclined to entertain

their application for quashing of FIR.

9. As already observed, even

investigation papers show that, applicant

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no.3 is residing at Hyderabad [Andhra

Pradesh]. Applicant no.5 and applicant no.6

are residing at Magdumpura, Taluka and

District Parbhani. Applicant no.7 is residing

at Nanded. It appears that applicant no.5 is

sister of applicant no.1 and applicant no.6

is her husband. Applicant no.7 is also

married sister of applicant no.1.

10. In that view of the matter, since

applicant nos.3, 5, 6 and 7 are not residing

at Pathri, Taluka Pathri, District Parbhani,

and there are no specific overt acts

attributed to them. We are of the opinion

that further continuation of the proceedings

based upon the FIR bearing Crime No.166/2016

registered at Majalgaon City Police Station,

Tq. Majalgaon, District Beed, for the offence

punishable under Section 498A, 323, 504, 506

r/w.34 of IPC, as against applicant nos.3, 5,

6 and 7 would be abuse of process of law.

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11. The Supreme Court in the case of

Geeta Mehrotra and another Vs. State of Uttar

Pradesh and another8 in the facts of that

case held that casual reference to a large

number of members of the husband’s family

without any allegation of active involvement

would not justify taking cognizance against

them and subjecting them to trial. In the

said judgment, there is also reference of the

judgment of the Supreme Court in the case of

G.V.Rao Vs.L.H.V. Prasad9 wherein in para 12

it is observed thus:

“12. There has been an outburst of
matrimonial disputes in recent
times. Marriage is a sacred
ceremony, the main purpose of which
is to enable the young couple to
settle down in life and live
peacefully. But little matrimonial
skirmishes suddenly erupt which
often assume serious proportions
8 (2012) 10 SCC 741
9 (2000) 3 SCC 693

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resulting in commission of heinous
crimes in which elders of the family
are also involved with the result
that those who could have counselled
and brought about rapprochement are
rendered helpless on their being
arrayed as accused in the criminal
case. There are many other reasons
which need not be mentioned here for
not encouraging matrimonial
litigation so that the parties may
ponder over their defaults and
terminate their disputes amicably by
mutual agreement instead of fighting
it out in a court of law where it
takes years and years to conclude
and in that process the parties lose
their ‘young’ days in chasing their
‘cases’ in different courts.”

12. The Supreme Court in the case of

“State of Haryana V/s Bhajan Lal10 held that,

in following categories the Court would be

able to quash the F.I.R.

108. In the backdrop of the
interpretation of the various relevant
10 AIR 1992 SC 604

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provisions of the Code under Chapter XIV
and of the principles of law enunciated
by this Court in a series of decisions
relating to the exercise of the extra-
ordinary power under Article 226 or the
inherent powers under Section 482 of the
Code which we have extracted and
reproduced above, we give the following
categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any Court or otherwise to
secure the ends of justice, though it
may not be possible to lay down any
precise, clearly defined and
sufficiently channelised and inflexible
guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

1. Where the allegations made in the First
Information Report 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

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disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the
Code except under an order of a
Magistrate within the purview of
Section 155(2) of the Code.

3. Where the uncontroverted allegations
made in the FIR 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 accused.

4. Where, the allegations in the F.I.R. do
not constitute a cognizable offence but
constitute only a non-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 FIR
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 provision in
the Code
or the concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.

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7. Where a criminal proceeding is
manifestly attended with mala fide
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.

13. The case of applicant nos.3, 5, 6

and 7 is covered in categories 5 and 7 of the

aforesaid categories.

14. In that view of the matter, FIR

bearing Crime No.166/2016 registered at

Majalgaon City Police Station, Tq. Majalgaon,

District Beed, for the offence punishable

under Section 498A, 323, 504, 506 r/w. 34 of

IPC, is quashed and set aside to the extent

of applicant no.3 Azimuddin Azizuddin Qauzi,

applicant no.5 Shaziya Begum Muquibuddin

Qauzi, applicant no.6 Muquibuddin Muneebuddin

Qauzi and applicant no.7 Aliya Fatema w/o.

Ahmed Nurul Ambiya Qauzi.

15. Application to the extent of

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applicant nos.1, 2, 4, 8 to 12 stands

rejected.

16. Though we have rejected the

application of applicant nos.1, 2, 4, 8 to

12, the same shall not be construed as an

impediment for them, in case they wish to

avail appropriate remedy as available in law

in the event of filing of charge-sheet by the

Investigation Officer.



              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC




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