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Ou vs H on 9 June, 2011

Bombay High Court Ou vs H on 9 June, 2011Bench: A.P. Bhangale

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY rt

BENCH AT NAGPUR, NAGPUR.

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CRIMINAL APPLICATION NO. 1995 / 2010 C

1) Ajmal Khan s/o Jameel Khan

Aged about 26 years

occu: Medical Practitioner (BUMS) h

Presently R/o Haji Nagar, Akot file Post. Akola. Tq. & Dist. Akola.

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2) Akmal Khan s/o Jameel Khan

Aged about 23 years, occu: Jr.Engineer H

3) Rasheda Kausar w/o Mudassir Ahmad Aged about 26 years, occu: Hosuehold R/o Khair Mohammad Plots

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Old City Akola, Tq & Dist. Akola. ba

4) Sadiya Kidvai D/o Mohd. Talha Mohd. Shamim, Aged about 15 years

occu: Student R/o Haji Nagar

Akot file Po: Akola Tq. & Dist. Akola. om

5) Safwana Tabassum w/o Nasir Khan Aged about 33 years, occu: Hosuehold R/o 1589 Kazipura Tq. Barshitakli Dist.Akola.

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6) Azma Samrin Jamil Khan

Aged about 20 years, occu: student R/.o Haji Nagar, Akot file Po: Akola Tq. & Dist. Akola.

7) Huda Najish w/o M/o Paravej Akhatar Aged about 30 years, occu: Household R/o 132, Nehru Nagar Galli No.7

Ashok Nagar, Akola, Tq & Dist. Akola. ::: Downloaded on – 09/06/2013 17:19:51 ::: 2

8) Farhana Tabassum w/o Tanveer Khan rt

Aged about 35 years, occu: Hosuehold R/o 7, Arabi Madarasa Khadkipura Dahihanda Ves Akola

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Tq & Dist. Akola. .. ..APPLICANTS v e r s u s

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I) State of Maharashtra (Through Police Station Officer)

Old City Akola, Dist.Akola,.

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2) Smt. Afrin Faisal R/o Hasinagar, Akotfile

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Akola. . ….. NON-APPLICANTS RESPONDENT

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……………………………………………………………………………………………………………. Mr. S.A. Mohta, Advocate for the applicants Mr.D.B.Yengal,APP for Respondent No.1 y

Mr S I Jagirdar Adv.for Respondent No.2 ……………………………………………………………………………………………………….. ba

CORAM: A.P.BHANGALE , J.

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DATED : 9 June, 2011

th

ORAL JUDGMENT :

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Heard Mr. S.A. Mohta, learned counsel for the applicants; Mr D.B. Yengal, learned APP for respondent No.1 and Mr. S.I. Jagirdar, learned counsel for respondent No.2. ::: Downloaded on – 09/06/2013 17:19:51 ::: 3

2. Rule, returnable forthwith. With the consent of respective rt

learned counsel, the matter is taken up for final disposal ou

3. By this application under section 482 of the Code of C

Criminal Procedure, 1973 ( in short ” the Code”) the applicants pray for quashing and setting aside the FIR No.253/2010 dated 13 th March h

2010 reported at Old City Police Station, Akola for offence punishable ig

under sections 307, 498A, 504 read with section 34 of the Indian Penal Code ( in short ” IPC”).

H

4. The facts in nutshell are these : On 13.9.2010 Mrs Aliya y

Afrin w/o Faisal Sohail Khan lodged FIR No. 253/2010, in which the ba

first informant alleged that she had tied the knot with Faisal Sohail Khan, ten months prior to the incident. She was residing jointly along om

with her husband, father-in-law, mother-in-law, brothers-in-law and sisters-in-law etc. According to the first informant, she was constantly B

harassed by her husband and his near relatives for some reason or the other. When she became pregnant, her husband and in-laws insisted to get herself examined in the Hospital so as to know beforehand whether the foetus conceived by her is a male or female and if it is female they used to tell her to abort the foetus. Her husband and in-laws ::: Downloaded on – 09/06/2013 17:19:51 ::: 4

were also insisting upon the first informant to bring a sum of Rs. 5 rt

lakhs from her parents to enable her in-laws to purchase a flat and ou

get some employment for Faisal. Thus, she was subjected to ill- treatment and was assaulted time and again. As a result of this C

precarious condition, the first informant was constrained to reside with her parents at Khidkipura. Meanwhile, she was blessed with a baby- h

girl who was unwell and was receiving treatment in ICU in Hospital ig

of Dr.Kothari. On 13.9.2010 after feeding her child at midnight she was returning along with her mother, when they were on the road in H

front of the house of her husband and in-laws, it is alleged that her mother-in-law Farzana her husband Faisal, her father-in- law y

Jeemalkhan and sister in law Rukhwana, her another sister in law ba

Farhana and Shabana came from behind them and abused her saying that they had told her ( first informant ) not to deliver a female om

child and assaulted her; she was also subjected to threatening. As a result of the assault, her bangles were broken and she received B

abrasion injuries. Her mother’s bangles too were broken and received injuries. At that time, her mother-in law had brought a plastic can containing kerosene and poured it on her person. At that time, her husband had caught hold of her and others were threatening to kill her. When she ran towards the house due to fear of her life, others ::: Downloaded on – 09/06/2013 17:19:51 ::: 5

were threatening to kill her; she was followed by her husband and rt

in-laws and was assaulted. They had also thrown household articles in ou

the house of her father. Frightened to the hilt, the first informant called people in the locality and police by shouting. Hearing the shouts, C

the accused took to their heels. Under these circumstances, she lodged the report at Police Station which gave rise to FIR No.253/2010 on h

13.9.2010 at Old City Akola Police Station. It also appears the case of ig

the first informant that she was threatened by her in laws and her husband because her father had made complaint at Akot Police H

Station, Dist. Akola about the threats given. y

5. It is the contention on behalf of the applicants that the ba

accusations levelled against them are not specific and they are bereft of details ; that the accusations are made only with a view to drag the om

applicants to the Court in respect of the alleged crime without assigning any specific role to each of the applicants/accused in respect of the B

alleged incident. It is further submitted that the applicants have not committed any crime as alleged either under sections 307, 498A read with section 34 IPC etc. It is submitted that the applicants are not at all involved in the alleged crime. According to the applicants, applicant no.5-Safwana Tabassum was residing separately at her matrimonial ::: Downloaded on – 09/06/2013 17:19:51 ::: 6

home; while applicant no. 8 Farhana she is a married lady; rt

applicant no.1 Ajmal was not present at the time of the alleged ou

incident as he was in Mumbai; while applicant no.2 Akmal Khan was working at Amravati. Thus, it is alleged that although the applicants C

were not present, they are being implicated on the basis of false accusations made against them.

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6.

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Learned counsel for the applicants placed reliance upon the ruling in Arulvelu and another State and another reported in H

2010 Cri.L.J. 453 (SC) in order to submit that FIR shall, at least mention broad story of the prosecution and because of non- y

mentioning of material and vital facts, it would affect credibility of ba

the FIR. Reference is made to another ruling in Preeti Gupta vs. State of Jharkhand: 2010 (7) SCC 667 in order to submit that when om

there were no specific allegations against the applicants in the complaint and their implication is only with a view to harass and humiliate them, B

under such circumstances, the Apex Court had concluded that it would be unfair to compel the accused to undergo the rigour of the criminal trial and, therefore, the complaint was quashed against the accused on the ground that criminal trial lead to immense sufferings for all concerned and even ultimate acquittal in trial may not be able to wipe ::: Downloaded on – 09/06/2013 17:19:51 ::: 7

out the deep scars of suffering of ignominy. The accusations in rt

Preeti Gupta’s ( supra) case were in the nature of the offence ou

punishable under section 498-A IPC. Therefore, the Apex Court considered that it is a matter of common knowledge that unfortunately C

matrimonial litigation which is rapidly increasing in our country Courts are flooded with the matrimonial cases and exaggerated versions of the h

incident are reflected in large number of complaints. The tendency of ig

over-implication is also reflected in a very large number of cases. In the facts and circumstances of that case it was considered by the Apex H

Court that it would be unfair to compel the accused to undergo the rigour of a criminal trial. Therefore, the complaint was quashed. y

Next ruling referred to by learned counsel for the applicants, is Vijeta ba

Gajra vs. State of NCT of Delhi :2010 ( 6) JT 498 in respect of accusations u/s 498A IPC. The Apex Court has expressed the opinion om

that in the facts and circumstances of that case there will be no question of prosecution of petitioner-Vijeta and she shall not be tried B

for the offence u/s 498A. However, in the concluding paragraph, it appears that the Apex Court while directing that appellant – Vijeta shall not be tried for the offence punishable u/s 498A IPC; however, it desisted from quashing the FIR in view of the allegations made uunder sec. 406 IPC as well as the Apex Court expected the trial Court to be ::: Downloaded on – 09/06/2013 17:19:51 ::: 8

careful while considering the framing of charge; while directing that rt

appellant shall be granted benefit of bail by the trial Court. Further, ou

reference is also made to ruling in Kansraj vs. State of Punjab AIR: 2000 SC 2324 (1) to submit that in a cases of alleged dowry deaths C

in-laws of the deceased cannot be roped in only on the ground of being close relations of the husband of deceased. The overt acts h

attributed to them shall be proved beyond reasonable doubt. Lastly, ig

reference is also made to ruling in Ravindra vs. State of Maharashtra : 1993 Cri.L.J. 3019 in order to submit that mere harassment or H

mere demand of property could not amount to cruelty punishable u/s 498A of IPC. This Court (Principal Seat: Bombay) in the y

concluding paragraph 27 found that the prosecution had not proved ba

beyond reasonable doubt that the accused had demanded many articles from Rukmini or Meena and that the accused had harassed or beaten om

them for the purpose of coercing them to meet those demands. Ultimately it was held that the accused were entitled to benefit of B

doubt.

7. Learned counsel for the applicants taking recourse to the above-referred rulings, submitted that the applicants ought not to subjected to undergo the ordeal of criminal trial and, therefore, the ::: Downloaded on – 09/06/2013 17:19:51 ::: 9

proceeding may be quashed.

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8. Learned APP Mr D B Yengal, representing the State of Maharashtra assisted by Mr S I Jagirdar, learned Advocate for C

respondent no. 2 stoutly opposed the prayer of the applicants on the ground that the first information report is not expected to be an h

encyclopedia giving minute details of the incident in question. It is ig

submitted that in the present case, the victim had approached the Police Station after the incident and as such, there was no possibility of any H

deliberation to falsely implicate any of the applicants and their relatives It is further submitted that the applicants had their remedy to y

make their defence as also to seek discharge from the case. According ba

to learned APP and the Advocate for respondent no.2 the broad picture of crime was revealed in the FIR and as held in Naurangi vs. State of om

UP : 1996 Cri.L.J. 81 by the Division Bench of Allahabad High Court, it is well settled that the first information report need not contain the B

minute details of the crime, it is enough if broad picture presented by the prosecution was revealed in the FIR. The Allahabad High Court placed reliance upon P. Narayan vs. State of AP : 1975 SCCC (Cri)

427. Reference was also made to Tapankumar Mukherjee vs. State of West Bengal reported in 1995 Cri.L.J. 1985, in order to submit that ::: Downloaded on – 09/06/2013 17:19:51 ::: 10

once investigation is complete and enquiry report under section 173 of rt

the Code is placed before the High Court, the High Court’s jurisdiction ou

to quash proceeding under Art.226 cannot be invoked at the premature stage.

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9. Thus, the learned APP as also learned Advocate for Res.No.2 h

contended that the FIR was bound to be investigated further and ig

statements of eye witnesses have also been recorded, namely, Sk. Mohanis Sk. Shakil; Ahmed Mobin Ahmed Hakim, Ahmed Khalik Sk. H

Mannu; Haji Abdul Sattar Sk.Ibrahim ; Nisar Ahmed Feroz Khan and Mohammed Alim Mohd. Hakim, who stated about the presence and y

involvement of the applicants. Documentary evidence regarding the ba

discharge card from Kothari Hospital of the complainant (first informant) is also collected, apart from articles such as, kerosene can, om

clothes of four accused. Thus, it is submitted that the applicants are deeply involved in the crime and were active participants and material B

collected during the course of investigation is against them.

10. It appears that the charge-sheet in the case is not yet filed. My attention is invited to the interim order passed by this Court dated 28.4.2011 whereby the Investigating agency was directed not to file the ::: Downloaded on – 09/06/2013 17:19:51 ::: 11

final report till the hearing of this application. Be that as it may; rt

according to learned APP investigation has been completed and the ou

charge-sheet will be filed shortly. C

11. Learned counsel for applicants submitted with reference to paragraph 4 of the affidavit in reply dated 20.1.2011 that the h

investigating agency had also recorded the statements of persons who ig

have seen the harassment of the complainant at the hands of the accused as per the memorandum and and only four persons were H

named. Learned APP countered this submission on the ground that the names of all the applicants were figured in the FIR and accused were y

not limited to four in number although statements of only some of ba

the persons ( accused ) may have been recorded. om

12. Looking to these submissions in the light of the rulings cited B

supra, it may be observed that the accusations in the facts and circumstances of the present case were not limited to section 498A alone but serious accusations were also made u/s 307 read with sec.

34. IPC. The nature of accusations in the FIR appear aggravated on account of the legislation like Pre-Conception and Pre-Natal ::: Downloaded on – 09/06/2013 17:19:51 ::: 12

Diagnostic Techniques (Prohibition of Sex Selection ) Act, 1994 ( in rt

short “the Act of 1994”) by which, since 1994 it is now law of the land ou

that no woman shall be insisted upon by any person to undergo pre- natal Diagnostic tehcniques, in order to arrest the skewed sex ratio, for C

the purposes other than those permitted according to law and any such person who insists upon a women to have sex selection at prenatal h

stage, may invite serious charge of abetment of offence punishable ig

under the Act of 1994. Prima facie, it appears the case triable as a sessions trial considering the nature of accusations punishable u/s 307 H

read with section 34 IPC. Under these circumstances, it would be open for the applicants to apply for discharge before the trial Court while y

seeking benefit of bail as it is necessary on the part of the ba

prosecution to state the evidence collected against the accused on the basis of which the prosecution proposes to prove the guilt. The accused om

can apply for discharge before charge is framed. B

13. Learned counsel for the applicants also submitted that applicant no.4 is minor girl and a student and she is not related to the first informant. Be that as it may, the committing Magistrate or Sessions Judge is expected to pass an appropriate order considering the minority or young age of the applicant no.4. Charge sheet, if any, ::: Downloaded on – 09/06/2013 17:19:51 ::: 13

against the applicants shall be filed at the earliest, preferably within rt

15 days. In the facts and circumstances of the present case, therefore, I ou

do not find any rare or exceptional case so as to interfere with the FIR and the criminal proceedings. Hence application is rejected. Rule C

discharged.

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JUDGE

Sahare

ig

H

y

ba

om

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