High Court

Legal Reasoning

1APPLN.3857.2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPLICATION NO. 3857 OF 20231.Namdev s/o Khanduji Kadpe,Age: 56 Years, Occ.- Agri,R/o: Raygavhan, Tq. Partur, Dist. Jalna.2.Tukaram s/o Khanduji Kadpe,Age: 53 Years, Occ.- Maharaj (Kirtankar),R/o: Raygavhan, Tq. Partur, Dist. Jalna.… ApplicantsVersus1.The State of MaharashtraThrough: Police Inspector,Dindrud Police Station,Tq. Majalgaon Dist. Beed2.Shaikh Nannubi w/o Shaikh Mahebub,Age:- 50 years, Occu.: HouseholdR/o: Dindrud, Tq. Majalgaon Dist. Beed.… Respondents...Mr. Kayyum Najir Shaikh, Advocate for Applicants.Mrs. P. R. Bharaswadkar, APP for Respondent No.1 / State.Mr. Jay R. Raundale, h/f Mr. I. K. Wagh, Advocate for Respondent No.2....CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE :15th July, 2025. 2APPLN.3857.2023.odtO R D E R: (Per Sanjay A. Deshmukh, J.)1Heard the learned advocates for the respective parties. 2This application is filed under Section 482 of the Code ofCriminal Procedure, 1973 (for short “the Cr.P.C.”) for quashing of theproceedings in R.C.C. No.297 of 2022, pending in the Court of thelearned Judicial Magistrate First Class, Majalgaon, District Beed, forthe offences punishable under Sections 307, 354, 354-B, 452, 323 and506 read with 34 of the Indian Penal Code, 1860 (for short “the IPC”)and under Sections 3/25 of the Arms Act, arising out of FIR bearingCrime No.25 of 2022, dated 13th February, 2022, registered withDindrud Police Station, Taluka Majalgaon, District Beed, for theoffences punishable under Sections 307, 354, 354-B, 452, 323 and506 read with 34 of the IPC and under Sections 4, 25 of the Arms Act. 3Respondent No.2 / informant averred in the report that sheis labourer by occupation, residing at Dindrud, Taluka Majalgaon,District Beed, with her son Firoz and two daughters. Her husband is afarmer. The entire family resides together. Her husband, son and hersister’s son Syed Zuber Syed Akbar are being prosecuted forkidnapping. In connection with that case, the police came to theirhouse for couple of times for inquiry. 3APPLN.3857.2023.odt4The informant further averred that on 12th February, 2022,at about 08:30 pm, after dinner, her daughter-in-law Nafeesa SheikhFiroz, her step-son Ejaz Mahebub Sheikh, and her sister’s daughter-in-law Syed Nusrat wife of Zuber (resident of Kasari, Taluka Dharur) werepresent in the house. The informant and Nusrat slept in one room, herdaughter-in-law Nafeesa and her children were in another room, andher step-son Ejaz slept on the terrace. At around 01:00 am in thenight, someone knocked on the door. Upon asking who it was multipletimes, a voice from outside responded that they were police officers.The informant opened the door and applicant Nos.1 and 2 entered thehouse. Applicant No.2 was carrying a gun in his hand. Alongwith them,there were two more unidentified persons. All four persons suddenlyentered the house. Applicant No.1 asked the informant about thewhereabouts of her husband and her son. The informant replied thatshe has no knowledge of the same. Upon this, the applicants caughthold her hands, due to which the bangles on her hands were brokenand she sustained injuries. At that moment, applicant No.1 instructedone of the accompanying persons, addressed as Shidu, to take out hispistol. Shidu came there alongwith pistol. Upon seeing the weapon,the informant made hue and cry. Hearing this, Syed Nusrat wife ofZuber, came to intervene, but Applicant No.2 directed one of the otherpersons, namely Shivhar, that “this is Zuber’s wife, take her into the 4APPLN.3857.2023.odtvehicle.” Thereafter, all the accused pulled the hair of both theinformant and her daughter-in-law, tore off their blouses. Theinformant loudly called her step-son Ejaz. Ejaz rushed there. At thattime, Shidu beat Ejaz with a heavy blow, causing him to fall, andpointed a pistol at him and threatened to eliminate him. After hearingthat chaos, informant’s daughter-in-law Nafeesa and her two minorchildren started to cry loudly. Due to the stress and fear, the informantfainted. She regained consciousness after Ejaz poured water on herface. Thereafter, Ejaz informed the informant that the said personshad fled in a large white vehicle. Thereafter, she lodged the report. 5The learned advocate for the applicants submitted that theapplicants are falsely implicated in the crime. There is no cogent andacceptable material against the applicants. Vague and generalallegations are made against her. He submitted that this Court hasquashed the FIR and the consequential charge-sheet against co-accused Sivhar Pote and Shideshwar @ Shidu. He further submittedthat the roles of the present applicants are similar to those of the saidco-accused, Sivhar Pote and Shideshwar @ Shidu. He lastly prayedto allow the application on the ground of principle of parity. 6The learned APP for the State and the learned counsel forrespondent No.2 / informant strongly opposed the application and 5APPLN.3857.2023.odtsubmitted that the applicants are involved in a serious crime. Theirnames are specifically mentioned in the report and the allegationsagainst them are of a grave nature. He submitted that the applicantsdo not deserve any discretionary relief in view of the prima-faciematerial against them. They lastly prayed to reject the applications. 7Here, it is relevant to refer to the decision of theHonourable Supreme Court in Mohammad Wajid and Another Vs.State of U.P. and Another, reported in, 2023 SCC Online SC 951;2023 INSC 683, whereunder the Honourable Supreme Court heldthus:-“34.……. it will not be just enough for the Court to look intothe averments made in the FIR/complaint alone for thepurpose of ascertaining whether the necessary ingredients toconstitute the alleged offence are disclosed or not. Infrivolous or vexatious proceedings, the Court owes a duty tolook into many other attending circumstances emerging fromthe record of the case over and above the averments and, ifneed be, with due care and circumspection try to read inbetween the lines. The Court while exercising its jurisdictionunder Section 482 of the CrPC or Article 226 of theConstitution need not restrict itself only to the stage of a casebut is empowered to take into account the overallcircumstances leading to the initiation/registration of the caseas well as the materials collected in the course ofinvestigation....” 6APPLN.3857.2023.odt8We have perused the charge-sheet, particularly, the reportand the statements of the witnesses. The witnesses have statedsimilar facts as stated by the informant in her report. 9It is an admitted fact that on 31st January, 2022, applicantNo.1 – Namdev lodged the report against the family members of theinformant alleging that they have kidnapped his son Keshav. 10It is the contention of the learned counsel for theapplicants that the FIR in question is counterblast to the FIR lodged byapplicant No.1. The vague and general allegations of tearing ofblouses of the informant and her daughter-in-law are made against theapplicants, without pointing out specific role of the applicants or otherco-accused. In the first part of the report, it is alleged that co-accusedShidu was armed with a gun and in the later part, it is alleged thatco-accused Shidu was armed with a pistol. Though revolver is seizedas per Section 27 of the Indian Evidence Act from co-accusedShideshwar @ Shidu, his application for quashing the proceedings isallowed by this Court. The incident itself is not found probable, asthere is discrepancy about the use of pistol or gun. Though Section307 of the IPC is invoked against the applicants, there is no suchreliable material of attempt to commit murder either of the informant or 7APPLN.3857.2023.odther daughter-in-law on the part of these applicants and co-accused.The intention to kill and attempt to kill is not establishing from thematerial placed on record by the prosecution, particularly report andstatements of witnesses. The essential ingredients of Section 307 ofthe IPC are not established against the applicants. 11The medical certificates of the informant and her daughter-in-law show that they sustained simple injuries. Those certificateshave been issued 1 and ½ months after the injured were examined.From the nature of injuries sustained to the informant and herdaughter-in-law, it is certainly a case of non-cognizable offencepunishable under Sections 323 of the IPC. 12As far as outraging of modesty of the informant and herdaughter-in-law is concerned, there are allegations that the applicantsand co-accused caught hold their hair, dragged them and torn downtheir blouses. However, these are vague and general allegationsmade against these applicants and the co-accused. In the statementof the informant recorded under Section 164 of the Cr.P.C., she hasstated that these two applicants torn her blouse. Further, thewitnesses particularly the daughter-in-law of informant has also notspecified the role of these applicants and co-accused as to whoexactly torn their blouses. Therefore, vague and general allegations of 8APPLN.3857.2023.odttearing down the blouses of informant and her daughter-in-law arereasonably doubtful and not sustainable to hold the applicants liablefor outraging the modesty as per Section 354 of the IPC. There is nosuch material against the applicants that they were willing to disrobethe informant and her daughter-in-law to invoke Section 354-B of theIPC. No such overt act is committed to establish the essentialingredients of Section 354-B of the IPC. 13The incident is alleged to have been happened in thehouse of informant, is also doubtful to apply Section 452 of the IPC, soas to constitute an offence of house trespass. The eye-witnesses arefamily members of the informant. The alleged gun and white colouredvehicle is not seized. Therefore, it is found that it is a doubtful case. 14The Division Bench of this Court while deciding CriminalApplication No.1290 of 2023 (Sivhar S/o Karbhari Pote and anotherVs. The State of Maharashtra and another) by an order dated 1stSeptember, 2023, pertaining to two co-accused (Sivhar Pote andShideshwar @ Shidu), had considered every aspect of the case andgranted relief of quashing of the report and the consequential charge-sheet to the said two co-accused. The alleged roles of the presentapplicants are similar to those of the said co-accused. Therefore, theapplicants are entitled for the relief of quashing of the proceedings on 9APPLN.3857.2023.odtthe principle of parity. It is important to note that co-accused Shidu,who produced alleged pistol under Section 27 of the Indian EvidenceAct, was one of the applicants in that application. The informant or theState had not challenged the said order of quashment of the report andthe consequential charge-sheet passed by the Division Bench of thisCourt in the Honourable Supreme Court. It has reached to finality.There are similar allegations against these applicants particularlyoutraging of modesty, house trespass etc. 15Considering the facts and circumstances of the case andthe law laid down in the case of Mohammad Wajid and Another(supra) as well as the reasons discussed above, compelling thepresent applicants to face the trial, certainly would be an abuse of theprocess of the Court. The case is made out for exercising powersunder Section 482 of the Cr.P.C. We are, therefore, inclined to allowthe application, in the interest of justice and to prevent the abuse of theprocess of the Court. Hence, the following order:-O R D E RI.The application is allowed.II.The proceedings in R.C.C. No.297 of 2022, pendingin the Court of the learned Judicial Magistrate First 10APPLN.3857.2023.odtClass, Majalgaon, District Beed, for the offencespunishable under Sections 307, 354, 354-B, 452, 323and 506 read with 34 of the Indian Penal Code andunder Sections 3/25 of the Arms Act, arising out ofFIR bearing Crime No.25 of 2022, dated 13thFebruary, 2022, registered with Dindrud PoliceStation, Taluka Majalgaon, District Beed, for theoffences punishable under Sections 307, 354, 354-B,452, 323 and 506 read with 34 of the Indian PenalCode and under Sections 4, 25 of the Arms Act,stands quashed as against the present applicants. [ SANJAY A. DESHMUKH, J. ] [ SMT. VIBHA KANKANWADI, J. ]nga