Criminal Writ Petition No.1429 of 2016

27th April, 2017.

Petitioner Counsel: Mr. P.P. DAWALKAR, Adv. h/f. Mr. C.S. DESHMUKH
Respondent Counsel: Mr. S.J. SALGARE, Mr. S.B. CHOUDHARI

Cases Cited:
State of Haryana Vs. Bhajan Lal, 2013 ALL SCR (O.C.C.) 1=AIR 1992 SC 604 [Para 2,7,8]
Rupali @ Jyoti W/o. Ganesh Kakade and others Vs. State of Maharashtra, 2017 ALL MR (Cri) 686=Cri.Appln. No.2622/2016, Dt.11.1.2017 [Para 2]
Chandralekha and others Vs. State of Rajasthan and another, 2013 ALL SCR 667=(2013) 4 S.C.C. 374 [Para 2]
Preeti Gupta and another Vs. State of Jharkhand and another, 2010 ALL MR (Cri) 2947 (S.C.)=(2010) 7 S.C.C. 667 [Para 2]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith and heard finally with the consent of learned counsel appearing for the parties.

2. Learned counsel appearing for the Petitioner submits that the Petitioner is a 70 years old lady suffering from several ailments for last ten years. The Petitioner needs help of family members for walking and doing other day to day activities. He submits that even if the allegations in the First Information Report are taken at its face value and read in its entirety, alleged offences are not disclosed. It is submitted that even if the statements of the witnesses/ accompaniments of the chargesheet are considered, in that case also there are no any specific overt acts attributed qua the Petitioner. He submits that in absence of any specific incident, date of incident and overt act attributed as against the Petitioner, on the basis of the allegations in the First Information Report an alleged offences are not disclosed. Therefore, keeping in view the guidelines laid down in the case of State of Haryana V/s Bhajan Lal, AIR 1992 SC 604 : [2013 ALL SCR (O.C.C.) 1] and in particular guideline Nos.1 and 5, the Petition deserves to be allowed. Learned counsel also placed reliance upon the Judgment of this Court in the case of Rupali @ Jyoti w/o Ganesh Kakade and others vs. State of Maharashtra (Criminal Application No.2622 of 2016) decided on 11th January, 2017 : [2017 ALL MR (Cri) 686]. In support of his submissions, learned counsel also placed reliance upon the Judgments of the Supreme Court in the case of Chandralekha and others vs. State of Rajasthan and another, (2013) 4 S.C.C. 374 : [2013 ALL SCR 667], and Preeti Gupta and another vs. Stte of Jharkhand and another, (2010) 7 S.C.C. 667 : [2010 ALL MR (Cri) 2947 (S.C.)].

3. On the other hand, learned A.P.P. appearing for the State relying upon the investigation papers and accompaniments of the chargesheet, submits that the Petitioner is named in the First Information Report, and along with other accused overt act is also attributed to the Petitioner.

4. Learned counsel appearing for Respondent No.2 relying upon the allegations in the First Information Report and also the statement of Kisan Sakharam Jawale recorded during the course of investigation, submits that the Petitioner played role along with the coaccused in instigating the husband and in turn the husband used to assault Respondent No.2. It is submitted that the Petitioner is residing along with the family members of accused in matrimonial home. Therefore, he submits that the Petition may be rejected.

5. We have given anxious consideration to the submissions of the counsel appearing for the parties, with their able assistance perused the averments in the Petition, grounds taken therein and also the allegations in the First Information Report, charge-sheet and the accompaniments of the charge-sheet. For the purpose of deciding present Petition, it would be relevant to reproduce the following allegations from the First Information Report:

"uarj R;kauh ts'khih ?ks.;klkBh rw>s vkbZ-oMhykadMwu iSls vku vls eyk lkaxs o uojk lklw lkljs R;kaps lkax.;ko:u eyk f'kO;k nsowu ekjgku djr vls- eh vkbZ ofMykauk HksVk;yk vkY;koj o ekgsjh xsY;koj lkljyksd ts'khch ?ks.;klkBh 1- ikaMwjax jkefdlu dpjs] ¼irh½] 2- eankckbZ jkefdlu dpjs] ¼lklw½] 3- Kkus'ojh v'kksd dpjs ¼tko½] 4- jkefdlu dpjs ¼lkljk½] 5- v'kksd jkefdlu dpjs ¼Hkk;k½] 6- NcwckbZ vadw'k ikrdG ¼ekol lklw½] loZ jk- ikMGh ft- v-uxj loZ ,d= ;k;ps o jk=h cs jk=h ek>s uo-;kyk ,dkps nksu lkaxwu uojk ikaMwjax gk eyk f'kO;k n;k;pk eh lklw] lkljk] tko] Hkk;k] ekol tko ;kauk lkaxk;ps rs i.k R;kpsp vkys o loZ eyk f'kO;k nsr o uojk dsl /k:u cqD;kus ekjgku djr o ts'khch ?ks.;klkBh ikp yk[k :- ekgsjgwu ?ksowu ;s ek>s vaxkojhy loZ lksU;kps nkfxus dks vkbZ oMhykalg c-;kp osGk letksrk dsyk ijarw R;kaps okxusr Qjd iMyk ukgh-"

6. Upon careful perusal of the statement of Kisan Sakharam Jawale recorded by the Investigating Officer during the course of investigation, even in his statement there is no any overt act attributed to the Petitioner or no any specific incident has been quoted. In that view of the matter when the ingredients of the alleged offences are not attracted and consequently alleged offences are not disclosed, in that case continuation of further proceedings bearing R.C.C. No.543 of 2016 initiated on the basis of Crime bearing No.123 of 2016 dated 1st June, 2016 registered at M.I.D.C., Paithan Police Station, under Sections 498A, 323, 504 read with 34 of the Indian Penal Code and Charge Sheet bearing No.106 of 2016 which is pending before 3rd J.M.F.C., Paithan, so far as present Petitioner is concerned, will be abuse of process of Court and would be exercise in futility when there are no chances of conviction of the Petitioner.

7. The Supreme Court in the case of "State of Haryana V/s Bhajan Lal, [2013 ALL SCR (O.C.C.) 1] supra, held that, in following categories the Court would be able to quash the F.I.R. :-

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 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 noncognizable 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.

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.

8. The case of the Petitioner is squarely covered under Category No.1 of the Categories laid down by the Supreme Court in the case of State of Haryana V/s Bhajan Lal, [2013 ALL SCR (O.C.C.) 1] (supra).

9. For the reasons aforesaid, the Writ Petition is allowed. The further proceedings bearing R.C.C. No.543 of 2016 initiated on the basis of Crime bearing No.123 of 2016 dated 1st June, 2016 registered at M.I.D.C., Paithan Police Station, under Sections 498A, 323, 504 read with 34 of the Indian Penal Code and Charge Sheet bearing No.106 of 2016 which is pending before 3rd J.M.F.C., Paithan, qua the Petitioner are quashed and set aside. Rule made absolute in above terms.

10. The observations made herein before are prima facie in nature and trial Court shall not get influenced by the said observations during the trial.

11. The other co-accused will not be entitled to derive any benefit from this order.

Petition allowed.