Allowed

Shashikant Samarth Pawar and Others v. the State of Maharashtra

Bombay HC24 Feb 2017APPLN/718/2016

Case brief

AI extract

What is this about?

Local family of Respondent No.2 filed a criminal application seeking to quash an FIR lodged 18 months after alleged incidents. The High Court quashed the FIR against the applicants due to general allegations lacking specific dates or overt acts, significant delay, and absence of prima facie case. Investigation against other accused may proceed.

What did the court decide?

The First Information Report to the extent of Applicant Nos.1 to 4 is quashed and set aside.

Shashikant Samarth Pawar and Others Vs the… — Contract and Commercial Disputes | Bombay HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.718 OF 2016

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1) Shashikant Samarth Pawar, Age-68 years, Occu:Retired,

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2) Mrs. Shobha w/o Shashikant Pawar, Age-64 years, Occu:Household,

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 Both R/o- at Kawar Police Station,
 Behind Backward Boys & Girls'
 Hostel, Sindhi Colony, Jalgaon,
 Tq. and Dist-Jalgaon,

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3) Balasaheb Sukhdeo Birhade, Age-44 years, Occu:Service,

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4) Sow. Manisha Balasaheb Birhade, Age-39 years, Occu:Household,

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 Applicant Nos.3 and 4 both
 R/o-Mount Girna Complex,
 Talabat Road, Rajkot,
 Tq. and Dist-Rajkot
 (Gujrat State).

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...APPLICANTS

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 VERSUS

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1) The State of Maharashtra,
 Through Police Station Officer,
 M.I.D.C. Police Station, Jalgaon,

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Tq. and Dist-Jalgaon,

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2) Dr. Sow. Sonali Rajesh Shejwale, Age-25 years, Occu:Household, R/o-At present Plot No.40, Ajantha Housing Society, M.I.D.C. Jalgaon, Tq. and Dist-Jalgaon.

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...RESPONDENTS

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...

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 Mr.N.L. Choudhari Advocate for Applicants.
 Mr.S.Y. Mahajan, Additional Public Prosecutor
 for Respondent No.1.

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 Mr.Vijay B. Patil Advocate for Respondent No.2.

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...

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

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 DATE : 24TH FEBRUARY, 2017

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ORAL JUDGMENT: (PER S.S. SHINDE, J.) :

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1.Rule. Rule made returnable forthwith and

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heard finally with the consent of the learned
counsel appearing for the parties.

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2.This Application is filed praying therein

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to quash and set aside the F.I.R. bearing Crime

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No.321 of 2015, registered at M.I.D.C. Police

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Station, Jalgaon, Taluka and District-Jalgaon,
dated 26th November, 2015, against the Applicants,

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for the commission of offences punishable under
Sections 498-A, 323, 504, 506 read with 34 of the
Indian Penal Code.

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3.Learned counsel appearing for the

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Applicants submits that matrimonial home of
Respondent No.2 situate at Dhule. Applicant Nos.1
and 2 are residing at Jalgaon. Applicant Nos.3
and 4 are resident of Rajkot (Gujrat State).
Learned counsel submits that Applicant No.4 is
sister of Rajesh i.e. husband of Respondent No.2.

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Applicant No.4 got married long back with
Applicant No.3. The couple, i.e. Applicant Nos.3
and 4, is residing at Rajkot, Gujrat State, which
is far away from Dhule. The counsel further
submits that Applicant Nos.1 and 2 are parents of
sister-in-law of Rajesh, husband of Respondent

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No.2. He further submits that the allegations in
the F.I.R. as against the Applicants are general

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in nature without mentioning any specific incident

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or date. He further submits that even if the

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allegations in the supplementary statement of
Respondent No.2 which was recorded by the
Investigating Officer on 5th January 2016 are also
general in nature. He submits that the alleged
harassment / ill-treatment is for the period from
23rd January 2011 till 24th April 2014, however,
the First Information Report has been belatedly
lodged in the month of November 2015. In support
of his contentions that when the allegations are
omnibus without mentioning any specific incident
or date and those allegations are made against the
relatives who are residing at different places,

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placed reliance on the reported Judgment of the
Bombay High Court, Bench at Aurangabad, in the
case of Kailas s/o Damodar Pathe and others vs.
State of Maharashtra and another1, and unreported
Judgments of the Bombay High Court, Bench at
Aurangabad, in the case of Girish and others vs.
the State of Maharashtra and others (Criminal

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Application No.2876 of 2016 and Criminal

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12015(2) Mh.L.J.(Cri.) 81

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Application No.5915 of 2016 in Criminal
Application No.2876 of 2016) decided on 18th
January 2017, Vikas and others vs. the State of
Maharashtra and others (Criminal Application
No.5193 of 2016) decided on 27th January 2017,
Sumersing and others vs. the State of Maharashtra
and others (Criminal Writ Petition No.471 of 2014)
decided on 3rd July 2015. Therefore, learned
counsel appearing for the Applicants submits that
the Application may be allowed.

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4.On the other hand learned A.P.P.

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appearing for the State and learned counsel
appearing for Respondent No.2 invites our
attention to the allegations made against the
Applicants in the First Information Report and
also in the supplementary statement of Respondent
No.2 recorded by the Investigating Officer on 5th
January 2016. They submit that upon careful

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perusal of the allegations in the First
Information Report and supplementary statement, it

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is abundantly clear that the ingredients of the
alleged offences have been disclosed and therefore
needs further investigation so as to take those
allegations to the logical end. It is submitted
that Respondent No.2 was prosecuting her medical
studies at Jalgaon and Applicant Nos.1 and 2 used
to call her and then harass and ill-treat her.
Therefore, it is submitted that the allegations in
the First Information Report and supplementary
statement will have to be read as they appear and
can be tested only during the trial and hence the
Application be rejected.

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5.We have given careful consideration to
the submissions made by the learned counsel
appearing for the Applicants, learned A.P.P.
appearing for the State and learned counsel
appearing for Respondent No.2 and with their able
assistance, perused the grounds taken in the
Application, annexures thereto, allegations in the
First Information Report and also supplementary

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statement of Respondent No.2 and other documents
places on record along with investigation papers.
Upon careful perusal of the contents of the First
Information Report, it appears that alleged ill-
treatment and harassment is for the period from
23rd January 2011 till 24th April 2014, however
the First Information was registered on 26th
November 2015. Therefore, we find considerable
force in the arguments of learned counsel
appearing for the Applicants that there is
considerable delay in lodging the First
Information Report.

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6.So far as present Applicants are

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concerned, the allegations against them in the
First Information Report read as under:-

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" yXukuarj eh fn- 23-01-2011 jksth lkljh ukan.;kl xsyh rsOgk ?kjke/;s vkEgh lkljs izdk'k ek/ko 'kstoGs] lklq lqf'kyk izdk'k 'kstoGs] tsB jkgqy izdk'k 'kstoGs] tsBkuh feuk{kh jkgqy 'kstoGs] irh jkts'k izdk'k

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'kstoGs vls jkgr gksrks] rlsp ek>h u.kan efu"kk ckGklkgsCk fc&gkMs] uuanksbZ ckGklkgsCk fc&gkMs g- eqjktdksV o tsBkuhph vkbZ 'kksHkk 'kf'kdkar iokj] tsBkuhps oMhy 'kf'kdkar iokj jk- tGxko ;kaps lq/nk ek>s lkljh lkj[ks ;s.ks tk.ks gksrs------- .......

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rlsp ek>s tsBkuhph vkbZ 'kksHkk oMhy 'kf'kdkar gs lq/nk eyk R;kps ?kjh cksyoqu eyk dqBY;k dqBY;k dkj.kko:u eyk nenkVh d:u rq ek>h eqyxh feuk{kh gh tls lkaxsu rls ?kjke/;s okxk;ps o rq>s MkWDVjdhps f'k{k.k can djk;ps vls lkaxk;ps rlsp ek>h uuan efu"kk o uuanksbZ ckGklkgsCk vls v/kqu e/kqu /kqGs o tGxko ;sFks ;soqu dkgh dkgh cksyqu f'kohxkG d:u rqÖ;k ofMykauh dk; fnys vkgs ;k dkj.kko:u eyk cksyqu rlsp ekÖ;k irhauk ek>s fo:/n dkgh dkgh lkaxqu R;kauh ek>k NG dsysyk vkgs- ......

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R;kp njE;ku irh jkts'k lkljs izdk'k lklq lqf'kyk] tsB jkgqy] tsBkuh feuk{kh] uuan efu"kk] uaunksbZ ckGklkgsCk tsBkuhph vkbZ 'kksHkk] ofMy 'kf'kdkar ;kauh laxuer d:u f'kohxkG d:u eyk ekjgk.k d:u xkatikB d:u ekufld NG d:u fiGo.kwd dsyh o rq Rk q Ö;k ofMykadMqu ¶yWV ?ks.;klkBh 5]00]000@& :i;s vk.k'khy rsOgkp rqyk ?kjkr ?ksoq v'kh /kedh nsoqu ?kjkP;kckgsj dk<qu fnys- ......

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Eg.kqu ek>h 1½ irh & jkts'k izdk'k 'kstoGs] 2½ lkljs & izdk'k ek/ko 'kstoGs] 3½ lklq & lqf'kyk izdk'k 'kstoGs] v- dz- 1 rs 3 jk- lksupkQk caxyk dY;k.kh uxj] lkdzh jksM] /kqGs] 4½ tsB jkgqy izdk'k 'kstoGs] 5½ tsBkuh feuk{kh jkgqy 'kstoGs] v- dz- 4 o 5 jk- IYkkWV ua- 52 vftaBk gkS- lks- ,e-vk;-Mh-Lkh- tGxko] 6½ u.kau efu"kk ckGklkgsCk fc&gkMs] 7½ uuanksbZ ckGklkgsCk fc&gkMs v-dz- 6 o 7 jk- g- eq- bafM;u vkWbZy dkWiksZjs'ku DokWVZj jktdksV] 8½ tsBkuhph vkbZ 'kksHkk 'kf'kdkar iokj] 9½ tsBkuhps oMhy 'kf'kdkar iokj jk- tGxko v- dz- 8 o 9 jk- va/k 'kkGstoG ekxkloxhZ; olrhxgkekxs fla/kh dkWyuh] jk- tGxko v-dz- 1 rs 9 ;kaps fo:/n oj dk;nsf'kj fQ;kZn vkgs- "`

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.The allegations against the present
Applicants, in the supplementary statement of
Respondent No.2 are as under :-

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" rlsp ek>h u.kan o uanksbZ gs R;kaps eqykaP;k mUgkG;kP;k lqVhr o fnokGhps lqVhr vkeps ?kjh /kqGs ;sFks izR;sd o"khZ ;sr vlr R;kosGh u.akn eyk Vkspqu cksyr gksrh o ek>s uanksbZ gs ekÖ;k irhl fpFkko.kh nsr vlr dh] fgP;k is{kk nqljh pkaxyh eqyxh djk;yk

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ikfgts gksrh vls Eg.kqu ekÖ;k irhP;k eukr ekÖ;k fo"k;h }s"k fuekZ.k djhr gksrs- rlsp eh T;kosGh vkbZ oMhykadMsl tGxko ;sFks ;sr vls R;k osGh ekÖ;k tsBkuhps vkbZ oMhy gs ns[khy tGxkao ;sFks jkgr vlY;kus rs eyk R;kaP;k ?kjh cksykowu fdaok ek>s vkbZ oMhykaps ?kjh ;soqu R;kaph eqyxh ekÖ;k is{kk deh f'kdysyh vlY;kus R;k vlq;siksVh rs eyk] eh MkWDVjdhps f'k{k.k lksMqu lalkj djkok vls Eg.kwu usgeh frjLdkj;qDr cksyr vlr- "

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7.Upon careful perusal of the allegations

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as against present Applicants, neither any
specific date of incident nor any specific
allegations qua each of the Applicant have been
mentioned. Admittedly, Applicant Nos.3 and 4 are
resident of Rajkot District situate in Gujrat
State. Merely because there is allegation that
they used to visit the matrimonial place during
summer vacation and used to ill-treat and harass
Respondent No.2, in absence of any overt-act
attributed qua each of the Applicant or in
absence of any specific allegations, in our

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considered view, it will be exercise in futility to
cause further investigation of such allegations.
As already observed, there is delay of about 18
months in lodging the First Information Report.

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8.The Supreme Court in the case of Geeta

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Mehrotra and another Vs. State of Uttar Pradesh

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and another2 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. Prasad3 wherein in
para 12 it is observed thus:

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“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

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2 (2012) 10 SCC 741

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3 (2000) 3 SCC 693

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couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions 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.”

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9. The Supreme Court in the case of " State

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of Haryana V/s Bhajan Lal4" held that, in following
categories the Court would be able to quash the

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4 AIR 1992 SC 604

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F.I.R.

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"108. In the backdrop of the interpretation of the various relevant 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 extraordinary 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.

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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

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not prima facie constitute any offence or make out a case against the accused.

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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 a Magistrate within the purview of Section 155(2) of the Code.

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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.

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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.

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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.

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6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under

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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.

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10. Upon careful perusal of the allegations

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in the First Information Report and supplementary
statement of Respondent No.2, we find that those

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are general in nature without mentioning any

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specific overt-act qua each of the Applicant and
without any specific incident. Therefore, in our

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considered opinion, keeping in view the categories
laid down in the case of Bhajanlal (supra), the
case of the present Applicants would fall within
category Nos.1, 2 and 5 of the aforesaid
categories. In that view of the matter, inevitable

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conclusion is that the First Information Report,

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so far as present Applicants are concerned,
deserves to be quashed and set aside.

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11.In the result, the First Information

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Report to the extent of present Applicant Nos.1
to 4, is quashed and set aside. It is needless to
observe that Investigating Officer can proceed
against other accused. Rule is made absolute in
terms of prayer clause (B) to the Application. The
Application is allowed and the same stands
disposed of, accordingly.

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

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asb/FEB17

Shashikant Samarth Pawar and Others v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Shashikant Samarth Pawar and Others v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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