SMT. VIBHA v. KANKANWADI & ROHIT W. JOSHI, JJ DATE
Facts
1 criappln3154.23 judgment(1).docmIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPLICATION NO. 3154 OF 20231)Mushtak Ismail Shaikh, Age : 46 years, Occ.: Agriculture,R/o : Kuran, Taluka Sangamner,District : Ahmednagar.2)Anjum Mushtak Shaikh,Age : 40 years, Occ : Household,R/o : Kuran, Taluka Sangamner,District : Ahmednagar.3)Parveen Shakil Shaikh,Age : 34 years, Occ: Household,R/o : As above.4)Naveed Abdul Raheman Shaikh,Age : 38 years, Occ: Agriculture,R/o : Kuran, Taluka Sangamner,District : Ahmednagar....APPLICANTS V E R S U S1)The State of Maharashtra,Through Police Station Officer,Sangamner City Police Station,Sangamner, District Ahmednagar.2)Hafij Haidar Shaikh,Age : 55 years, Occ : Agriculture,R/o : Kuran, Taluka Sangamner,District : Ahmednagar....RESPONDENTS 2 criappln3154.23 judgment(1).docm …...Advocate for the Applicants : Mr. Shaikh Mazhar A. JahagirdarAdditional Government PLeader for the Respondent No. 1/State :Mr. S.A. GaikwadAdvocate for Respondent No. 2 : Mr. Narayan B. Narwade …... CORAM : SMT. VIBHA V. KANKANWADI & ROHIT W. JOSHI, JJ DATE : 26.11.2024JUDGMENT : [PER : ROHIT W. JOSHI, J.]1.The present application is filed under Section 482 of theCode of Criminal Procedure, 1973, inter-alia praying for quashing ofthe First Information Report, bearing No. 561 of 2023 registered on07.07.2023 with Sangamner City Police Station, Sangamner,District Ahmednagar, for the offence punishable under Sections323, 324, 354, 504, 506 read with Section 34 of the Indian PenalCode. Subsequently, the application is amended in order tochallenge the charge-sheet filed on 27.10.2023 bearing No. 187 of2023 and Regular Criminal Case No. 511 of 2023, pending on thefile of learned Judicial Magistrate, First Class, Sangamner, DistrictAhmednagar, which is registered pursuant to the filing of the FirstInformation Report. 3 criappln3154.23 judgment(1).docm2.It appears from the record that respondent No. 2 hadvisited Sangamner City Police Station on 03.11.2022, narrating theincident about an assault by applicant Nos. 1 to 4 on the said date.On the basis of information received, the Police Station Officerissued Non Cognizable Report (NCR) dated 03.11.2022.3.Respondent No. 2 thereafter filed an application underSection 156 (3) of the Code of Criminal Procedure, in the Court oflearned Judicial Magistrate, First Class, (Court No. 2), Sangamneron 14/12/2022. In the said application it is stated that although aserious offence was committed by applicant Nos. 1 to 4, the PoliceStation Officer wrongly registered NCR. It is also alleged that all thefacts narrated by respondent No. 2 were not written down by thePolice Station Officer. The said application preferred by respondentNo. 2, was allowed by the learned Magistrate vide order dated13.04.2023. Pursuant to the said order, the aforesaid FirstInformation Report has been registered.4.The allegations in the First Information Report are thatapplicant No. 1 is the nephew of respondent No. 2, informant. Theyown a property, which comprises of a room with tin shed, ad- 4 criappln3154.23 judgment(1).docmmeasuring around 42.90 square meters. Respondent No. 2, theinformant has stated that he had agreed to sell his portion in thesaid property to applicant No. 4, who is his nephew, however, sincehe was short of funds, it was decided that some time should begiven to him for arranging funds in order to purchase the property.Respondent No. 2, informant, however, alleged that respondent No.2 clandestinely sold the property to applicant No.1. It is furtherstated that applicant No. 1 had put his lock on the said property on03.11.2022 and on noticing the said fact respondent No. 2approached applicant No. 1 in order to make inquiry as to how hehad put his lock on the said property. It is further alleged that onthis, applicant Nos. 1 to 4 got agitated and started assaultingrespondent No. 2 by inflicting fists blows and kicks. It is furtherstated that the wife of respondent No. 2, Shaikh Farida Hafij rushedto the spot in order to save her husband. However, applicant Nos. 2to 4 assaulted her and tried to strangulate her with ‘Odhni’ /‘Dupatta’. It is further alleged that applicant No. 1 had pulled her‘Odhni’ and ‘Kurta’ in order to outrage her modesty. It is furtheralleged that the applicants also assaulted respondent No. 2 and hiswife with wooden stick that was lying nearby.
Legal Reasoning
9 criappln3154.23 judgment(1).docmnot mentioned in the F.I.R. It is however, also necessary to notethat the Rural Hospital, Sangamner had issued a Medico LegalCase Certificate (MLC) dated 10.11.2022 with respect to the injuriessuffered by respondent No. 2 and his wife. The injuries suffered byrespondent No. 2 and his wife are stated to be simple injuriescaused due to hard and blunt object. The injuries are in the natureof blunt trauma over face and contusion, swelling and tenderness.The Medical Officer of the Rural Hospital, Sangamner has alsoissued an undated communication to the Police Officer stating thatthe injuries referred in MLC reports of respondent No. 2 and hiswife are not possible to be inflicted by means of stick which isstated to be seized from the applicant no.1 and was sent to thehospital for opinion. Thus, on the basis of allegations and evidenceon record, we find that respondent No. 2 and his wife have sufferedsimple injuries which are inflicted by a stick, although not by thestick seized from the applicant no.1. In this context, it is nownecessary to consider as to whether the stick answers description ofweapon referred in Section 324 of the Indian Penal Code. Section324 of the Indian Penal Code is attracted when a person voluntarilycauses hurt by means of any instrument of shooting, stabbing orcutting or any instrument which, used as a weapon of offence, is 10 criappln3154.23 judgment(1).docmlikely to cause death or by any heated substance or poisonous orexplosive substance. As stated above the description of stick is notmentioned either in the F.I.R. or in the statements of witnesses.The injuries caused could not have been inflicted by the stick,which is allegedly seized from the applicants as per the report ofMedical Officer. We find that there is no material on record tosuggest that the stick used in the assault can answer thedescription of a weapon, which is likely to cause death. Althoughsimple injuries are caused by means of weapon i.e. stick, it cannotbe said that on the basis of material on record those injuries arecaused by the weapon, which is likely to cause death. We, therefore,hold that the material on record is grossly insufficient to remotelysuggest that the weapon used is a weapon capable of causing deathand therefore, Section 324 of the Indian Penal Code will not beattracted. In this regard, reference can be made to the judgment ofthe Hon’ble Supreme Court in Anwarul Haq vs The State Of UttarPradesh, reported in (2005) 10 SCC 581, particularly, paragraphNos. 12 and 13 thereof, which read as under : “12. The expression "an instrument, which used as aweapon of offence, is likely to cause death" should beconstrued with reference to the nature of theinstrument and not the manner of its use. What has 11 criappln3154.23 judgment(1).docmto be established by the prosecution is that theaccused voluntarily caused hurt and that such hurtwas caused by means of an instrument referred to inthis Section.13.The Section prescribes a severer punishmentwhere an offender voluntarily causes hurt bydangerous weapon or other means stated in theSection. The expression "any instrument which usedas a weapon of offence is likely to cause death" whenread in the light of marginal note to Section 324means dangerous weapon which if used by theoffender is likely to cause death.”12.Section 354 of the Indian Penal Code provides thatwhoever, assaults or uses criminal force to any woman, intendingto outrage or knowing it to be likely that he will thereby outrage hermodesty, shall be punished with imprisonment, which shall not beless than one year but which may extend to five years. The essentialingredients of Section 354 of the Indian Penal Code are that theperson who assault or uses criminal force to a woman, withintention to outrage her modesty or knowing that his act or assaultor use criminal force is likely to outrage her modesty. The perusalof the provision will clearly demonstrate that the mens-rea is an 12 criappln3154.23 judgment(1).docmessential element of the offence. It is on this back drop that we needto consider un-disputed facts emerging on the record.13.The applicants had put a lock to the property purchasedby the applicant No. 1 from applicant No. 4. Respondent No. 2rushed to the spot raising objection to this. Respondent No. 2claims to be a co-owner of the property. A quarrel ensued betweenthe applicants on the one hand and respondent No. 2 on the other.Seeing that respondent No. 2 was beaten up by the applicants, hiswife rushed to the spot to intervene to save her husband.Respondent No. 2 alleges that applicant No. 1 pulled her ‘Dupatta’and ‘Kurta’ during the ensuing fight. Apart from this there is noallegation, inappropriate physical contact with the wife ofrespondent No. 2. The incident has occurred in broad day light,when the wife of the Respondent No. 2 and another lady i.e.applicant No. 3 were present. It may also be stated that in the NCRrecorded on 03.11.2022, there is no allegation against the applicantNo. 1, regarding the alleged act of pulling clothes of wife ofrespondent No. 2 on the basis of which section 354 is applied. Therecord discloses that NCR was lodged immediately after theincident. The incident as stated to have occurred on 03.11.2022, at 13 criappln3154.23 judgment(1).docmabout 12.30, in noon and the NCR is registered on the same day, at1.38 p.m., i.e. within a period of one hour. The 156(3) applicationin which allegation regarding pulling clothes is made is dated14/12/2022 which is after a period of around 40 days from thedate of incident. It is true that respondent No. 2 has alleged thatthe police officer did not record the entire facts as narrated by him.The allegation is that he police authority did not record entirenarration of facts while issuing NCR is vague allegation, not backedby any particulars. The respondent No. 2 is absolutely silent asregards the reasons as to why police authority would not record allthe facts while issuing the NCR. We may also note that there is ongoing property dispute in relation to the agricultural land betweenrespondent No. 2 and his nephew applicant No. 4 and on this backdrop, applicant No. 4 and his family members have sold their sharein the property/tin shed, which respondent No. 2 claimed to be aco-owner. In such circumstances, the possibility of exaggerationand false implication cannot be ruled out.14.It is also pertinent to mention here that respondent No.2 has already sold his share in the said property, which is tin shedway back in the month of March, 2016 itself and yet he is claiming 14 criappln3154.23 judgment(1).docma right/share over the said property. The property card is a part ofthe charge sheet. The said property card and entries recordedtherein were not disputed by the learned counsel representing therespondent no.2. The property card records that 21.45 squaremeters area was sold by respondent No. 2, vide sale deed dated11.03.2016 to one Shaikh Abu Bakar Kalam and that 21.45 squaremeters area of the said property was sold by applicant No. 4 and hisfamily members to applicant No. 1, vide sale deed dated02.02.2023. In such circumstances, the allegations leveled byrespondent No. 2 are required to be carefully examined. 15.The Hon’ble Supreme Court has held in the matter ofMahemood Daliya and Ors. Vs. The State of Utter Pradesh and Ors,reported in 2023 SCC Online SC 950 that in cases where the FirstInformation Report/complaint is lodged with some ulterior motivefor taking wreaking vengeance the Court is duty bound to examinethe contents of the First Information Report/complaintmeticulously with great care and caution, keeping in mind that theperson who initiates criminal prosecution for wreaking personalvengeance would ensure that the complaint is well drafted withappropriate pleadings so as to make out some cognizable offence. 15 criappln3154.23 judgment(1).docmIn such circumstances, the Court is duty bound to take intoconsideration the other attending circumstances emerging fromrecord over and above the averments in the complaint/FirstInformation Report. The Court must try to read between the lineswhile dealing with a case initiated out of the personal ill-will andvengeance. The above judgment has been followed in the matter ofMamidi Anil Kumar Reddy Vs. The State of Andhra Pradesh andAnother, reported in 2024 SCC online SC 127, wherein, the Hon’bleSupreme Court has reiterated the legal principal laid down in thecase of Mahemood Ali (supra) and has further emphasized that insuch cases it is the duty of the High Courts to consider all theallegations with great care and circumspection so as to protectagainst danger of unjust prosecution.16.We have considered the allegations in the FirstInformation Report and material on record keeping in mind theaforesaid legal principles particularly noticing that there is familyfeud between respondent No. 2/ Informant and hisnephew/applicant No. 4 and that the applicant No. 1 haspurchased one of the properties in dispute from applicant no. 4. 16 criappln3154.23 judgment(1).docm17.Having regard to the totality of circumstances, we holdthat the essential ingredients of Section 354 of the Indian PenalCode are not made out, on the basis of the F.I.R. and the materialcollected during the course of investigation which is forming part ofthe charge-sheet.18.In view of the reasons recorded above, we find that theessential ingredients of Sections 324 and 354 of the Indian PenalCode are not made out. If said two offences are excluded the otheroffences punishable under Sections 323, 504 and 506 of the IndianPenal Code are non cognizable offences and therefore, theregistration of the FIR is prohibited by law. We, therefore, pass thefollowing order :ORDER(i)The Criminal Application stands allowed.(ii) The First Information Report bearing CrimeNo.561/2023, dated 07.07.2023 registered againstapplicant 1) Mushtak Ismail Shaikh, 2) AnjumMushtak Shaikh, 3) Parveen Shakil Shaikh, 4)Naveed Abdul Raheman Shaikh, with SangamnerCity Police Station, Dist. Ahmednagar, for the offencepunishable under sections 323, 324, 354, 504, 506read with section 34 of the Indian Penal Code and 17 criappln3154.23 judgment(1).docmRegular Criminal Case No. 511 of 2023, pending onthe file of the learned Judicial Magistrate, First Class,Sangamner, District Ahmednagar are herebyquashed. ( R.W.JOSHI )( SMT. VIBHA V. KANKANWADI )JUDGE JUDGEmahajansb/
Arguments
5 criappln3154.23 judgment(1).docm5.It may also be stated here that there is an on goingproperty dispute in relation to another property which is anagricultural land in between respondent No. 2 and applicant No. 4.6.Mr. Shaikh Mazhar A. Jahagirdar, learned Advocate forthe applicants submits that registration of the First InformationReport against the applicants is completely untenable andimpermissible, in as much as, the contents of the First InformationReport taken on the face value, do not make out any cognizableoffence. He submits that at the most the NCR report could havebeen issued as was issued earlier by the Police Station Officer.There are two offences which are cognizable in nature viz. sections324 and 354 of the IPC. As regards Section 324 of the IPC thelearned Counsel for the applicants submits that a stick cannot besaid to be a weapon of offence, which is likely to cause death andtherefore, Section 324 of the Indian Penal Code will not beattracted. As regards Section 354, he submits that since there wason going quarrel, it is probable that the dress of the wife ofrespondent No. 2 was pulled that by itself would not be sufficient toattract section 354 of IPC. He stated that the incident had occurredin broad day light. Applicant No. 2, who is wife of applicant No. 1 6 criappln3154.23 judgment(1).docmand another lady i.e. applicant No. 3 were present at the spot ofincident as per the FIR and that the wife of respondent No. 2 hadherself voluntarily come on the spot of incident after the quarrelhad ensued between the applicants and respondent No. 2. Hereiterated that the allegations regarding pulling of ‘Dupatta’ and‘Kurta’ would not attract Section 354 of the Indian Penal Code, inthe back drop of the facts narrated in the F.I.R. itself. He wouldtherefore sum up his submission urging that there is no material toinfer mens-rea as regards offence of outraging modesty and as sucheven if the allegations regarding the same are taken on their facevalue, no case is made out under Section 354 of the Indian PenalCode. 7.Learned Advocate for the applicants further submitsthat the allegations with respect to the outraging of modesty areclearly by way of afterthought, in as much as, same do not appearin the NCR dated 03.11.2022. He further submits that theallegation that the police did not record entire facts narrated whileissuing NCR dated 03.11.2022 is made irresponsibly withoutassigning any reason for the same. The learned Advocate has drawnour attention to the property card of the said tin shed, which is part 7 criappln3154.23 judgment(1).docmof the charge-sheet to contend that respondent No. 2 had sold hishalf share in the said property to one Shaikh Abu Bakar Kalam,vide registered sale deed dated 11.03.2016 and accordingly thename of purchaser is mutated vide mutation entry No. 49, recordedon 31.03.2016. Referring to the said document the learned counselcontends that although the respondent no.2 has sold his share inthe said tin shed he claims to be owner of half share in the sameand started quarrel with the applicant no.1 only because he haspurchased remaining half share from the applicant no.4. Hecontends that the foundation of the case is therefore, based onfalsehood. Apart from this there is also a property dispute inrelation to another property. In this backdrop he submits that thisis a clear case of false implication and therefore the allegations inthe FIR should not be considered as gospel and the Court shouldcorroborate the same with material forming part of the charge-sheet. 8.As against this, Mr. Gaikwad, learned APP appearing forrespondent No. 1 and the learned Advocate Mr. Narwade, appearingfor respondent No. 2 submit that while dealing with the applicationunder Section 482 of Code of Criminal Procedure, the allegations in 8 criappln3154.23 judgment(1).docmthe F.I.R. have to be taken to be true and correct and further thatthe veracity thereof cannot be looked into, while deciding theapplication under Section 482 of the Code of Criminal Procedure.They further state that since the stick has been used for assaultingrespondent No. 2 and his wife and the dress of the wife ofrespondent No. 2 was pulled, both Sections 324 and 354 of theIndian Penal Code are squarely attracted, as such offences arecognizable.9.We have perused the F.I.R. alongwith charge-sheet andthe documents included in the charge-sheet, so also the statementsrecorded during the course of investigation.10.As stated above, Sections 324 and 354 of the IndianPenal Code are the offences which are cognizable in nature,therefore, unless the ingredients of these two offences are made outthe registration of the F.I.R. will not be permissible.11.We first deal with Section 324 of the Indian Penal Code.Respondent No. 2 has stated in the F.I.R. that he and his wife wereassaulted with stick, however, the particulars of the said stick are