Mrs. Hira Ankush Mangavde & Ors. v. Mr. Babasaheb Sambhaj

Mr. Babasaheb Sambhaji Havaldar, (Original Complainant) R/o. Village Tandulwadi, Tq. Paranda, Dist. Osmanabad. Mr. Raikar A.V., The Senior Inspector of Police, Ambi Police Station, Tq. Bhum, Dist. Osmanabad. Mr. Jagtap B.B. Code No. 17, Police Head Constable attached to 2 Cri.W.P. 1018/10 Ambi Police Station, Tq. Bhum, Dist. Osmanabad. The State of Maharashtra At the instance of Ambi Police Station, Tq. Bhum, Dist. Osmanabad. The Superintendent of Police, Add : Office of Superintendent of Police, at Dist. Osmanabad. ....Respondents.

5. Mr. B.T. Tulpule, Mr. Manoj D. Shelke, Vidya Mangavade, K.V. More, Advocates for petitioners. Mr. S.D. Kaldate, A.P.P. for respondent Nos. 2 to 5. Mr. S.B. Jadhav, Advocate for respondent No. 1. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. RESERVED ON : 10th February, 2012. PRONOUNCED ON : 23rd February, 2012. ORDER : [ PER T. V. NALAWADE, J.]

1. The petition is filed under Article 226 of Constitution of India for the reliefs like quashing of F.I.R. No. 45/2010 registered with Ambi Police Station, Tahsil Bhoom, District Osmanabad and for direction to Judicial Magistrate, First Class, Pranda to start proceedings under section 166, 167, 177, 182, 191, 196, 203, 500 r/w. 34 of the Indian Penal Code against the first informant of Cr. No. 45/2010 and against the witnesses named in the F.I.R. Both the sides are heard. 3 Cri.W.P. 1018/10

2. Petitioner Nos. 1 and 2 are parents of petitioner Nos. 3 and 4. Respondent No. 1 has given F.I.R. dated 20.10.2010 against the petitioners and the offence is registered under section 363, 366 r/w. 34 of I.P.C. The father of complainant Balasaheb lives in village Tandulwadi and he cultivates the lands there. The prosecutrix, who is a daughter of respondent No. 1, first informant, was living with the father of respondent No. 1 in village Tandulwadi at the relevant time. The prosecutrix had not crossed even the age of 17 years at the relevant time and her marriage was settled and it was to be performed on 22.5.2010.

3. The petitioners are relatives of complainant. The petitioners were invited for aforesaid marriage and so, according to complainant, they had reached Tandulwadi on 21.5.2010. Allegations are made against the petitioners that on the night between 21st and 22nd May 2010, the petitioners enticed the prosecutrix and due to the petitioners, the prosecutrix left village on that night with one Deepak Baraskar. It is the case of complainant that the petitioners had told the prosecutrix that the bridegroom approved for the marriage was not suitable for her and Deepak Baraskar was proper match for her. Allegations are made that even prior to that day, the petitioners were trying to convince the prosecutrix to marry with Deepak. There are 4 Cri.W.P. 1018/10 allegations made in the F.I.R. that on the aforesaid night, petitioner Nos. 1 to 4 had called the prosecutrix out of the house of complainant from Tandulwadi and from there, the prosecutrix was taken by the petitioners to the bridge of Khaire river. It is contended that Deepak was waiting near the bridge and from there, he took the prosecutrix away from Tandulwadi on a motorcycle. Since then the prosecutrix did not return to the house of parents.

4. At about 4 a.m. of 22.5.2010 the complainant realized that the prosecutrix was not available. Search was made for prosecutrix and during search the witnesses Sadu Havaldar, Bapu Kharade, Vijay Jagtap, Khore, Chaitanya Dusade informed that they had seen Deepak in the company of prosecutrix on that night. The complainant searched for prosecutrix in the houses of his relatives from different places and ultimately he realized that the prosecutrix was kidnapped by Deepak with the help of petitioners.

5. It is the case of complainant that on 7.10.2010 petitioner Nos. 1 to 4 came to his house and they gave threats that they would take away the other daughter of complainant also. After this incident the complainant gave report against the 5 Cri.W.P. 1018/10 petitioners.

6. It was submitted for petitioners that at Tandulwadi there is the land of mother of petitioner No. 1 and the complainant's family and the family of father of complainant is obstructing the petitioners in the cultivation of the land. It was submitted that complainant and his father had committed theft of articles like fuse, pipeline, wire of electric motor installed on well of the mother of petitioner No. 1 and report in that regard was given to police by petitioner No. 1. It is contended that even after registration of the crime, on the basis of this report dated

4.8.2010, the complainant and father of complainant continued to harass petitioners and mother of petitioner No. 1. It is contended that due to conduct of the father of the complainant and due to assault made on mother of petitioner No. 1, another report was given on 17.8.2010 to police. In support of these contentions petitioners have produced copies of reports and copies of representations made to higher authorities of police and even to State Home Minister. There are copies of representations made by complainant/respondent No. 1 also up to Home Minister. Both have grievance that police machinery is not acting on the basis of complaint given by them. Petitioner No. 4 is an advocate and in the letters sent by her, she has made allegations against the 6 Cri.W.P. 1018/10 police officers including the investigation officer of the present F.I.R.

7. This Court has perused the aforesaid record. In the report dated 4.8.2010 which was given by petitioner No. 1, there is the mention that respondent No. 1 has suspicion that petitioners are involved in the incident of kidnapping of prosecutrix and due to that, he is harassing the petitioners. Most of the record produced by the petitioners is in respect of alleged incidents which took place in June 2010 and afterwards.

8. It was submitted for Investigating agency that the investigation is almost completed and final report can be filed at any time. It appears that in the past interim relief was given in favour of the petitioners by this Court and due to that, further steps were not taken by the police for investigation. The original record of investigation was shown to this Court and it includes statement of prosecutrix. After considering the material, prima facie, we do not find that interference is required at this stage. Prima facie, we have noticed following facts from the record. (a) The date of birth of prosecutrix is 2.7.1993 and so she was minor on 22.5.2010. 7 Cri.W.P. 1018/10 (b) From the night between 21.5.2010 and

22.5.2010, the prosecutrix was missing and since then she is in the company of aforesaid Deepak. (c) The marriage of prosecutrix was settled and it was to be performed on 22.5.2010 and on the previous night, she was taken away from village Tandulwadi.

9. The complainant has made specific allegations against petitioners that they had enticed the prosecutrix and only due to this enticement and help, the prosecutrix could leave Tandulwadi and she could go with Deepak. In the F.R.I., the names of witnesses, who had seen the prosecutrix in the company of Deepak, are mentioned. Prima facie, from the material placed before us, we find that the case is made out to investigate into F.I.R. The F.I.R. makes out a cognizable offence of kidnapping.

10. In exercise of extraordinary writ jurisdiction of this Court under Article 226 of Constitution, at this stage, we do not find any sound reason for interfering into the case by quashing the First Information Report or to stall the investigation.

11. The second prayer of the petitioner that, the Judicial 8 Cri.W.P. 1018/10 Magistrate, First Class, should start proceedings against the complainant/respondent No. 1 and the witnesses named by him in the F.I.R., is misconceived and for such a relief, the proceeding is very premature. Unless police completes the investigation and file final report, unless some order in favour of the petitioner is made by the Court on final report or at the end of the trial, such prayer cannot be considered. So such direction also cannot be given to Judicial Magistrate, First Class.

12. In view of the aforesaid discussion, this Court holds that no case is made out by the petitioners in respect of both the reliefs and so the petition stands rejected.

13. The observations made in this order by this Court shall not affect the ultimate result of investigation and consequently, the case on merits. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/