Nisar Khan Yusuf Khan And Others v. The State Of Maharashtra And Another
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD 945 CRIMINAL APPLICATION NO.476 OF 2021 NISAR KHAN YUSUF KHAN AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER ...
Advocate for Applicants : Mr. Girase Amarjitsing B. APP for Respondent : Mr. S J Salgare Advocate for Respondent 2 : Smt. Sheetal Waghmare (Appointed Through Legal Aid) ...
CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ. Dated : January 14, 2022 ...
PER COURT :- 1.
Leave to add the case name and to correct the name of the Court in the prayer clause B-1.
2.
We have heard the learned counsel for the applicants for some time.
3.
The learned counsel for the applicants, on instructions, seeks leave to withdraw this application to the extent of applicant no.1-Nisar Khan Yusuf Khan (husband of respondent No.2), applicant no.2-Yusuf Khan Nashir Khan (father-in-law of respondent no.2), applicant no. 3- Shamim Bi Yusuf Khan (Mother-in-law
of respondent no.2), applicant no. 4-Jarina Bi Firoz Khan (sister-in-law of respondent no.2), applicant no.5Shabanabi Arif (sister-in-law of respondent No.2), applicant no.6-Farzana Bi Mohd. Ajmal Khan (sister-inlaw of respondent no.2) and applicant no.7- Rubina Bi Mohammad Shoeb (sister-in-law of respondent No.2). Leave granted. Application to the extent of applicant nos.1 to 7 are hereby dismissed as withdrawn. 4.
Heard fnally with consent at admission stage. 5.
The applicants/original accused are seeking quashing of the FIR bearing crime no.1 of 2021 registered with Kasoda police station, Tq. Erandol, District Jalgaon for the offence punishable under sections 498-A, 406, 323, 504, 506, 34 of IPC. The applicants are also seeking quashing of the proceedings vide RCC No.16 of 2021 pending before the Judicial Magistrate First Class, Erandole.
6.
Learned counsel for the applicants submits that on the basis of the complaint lodged by respondent
no.2, crime came to be registered against 17 persons, however, allegations have been made mainly against four sister-in-laws, husband, father-in-law and mother-inlaw, whose application seeking quashing of the Proceedings came to be withdrawn. Learned counsel submits that, though names of the applicants are mentioned in the FIR, however, allegations as against them are general in nature without quoting any specifc incident. It is a case of over implication.
7.
Learned counsel for respondent no.2 submits that, names of the applicants are mentioned in the FIR with the specifc role attributed to each of them. Respondent no.2 got married in the year 2013 and she was treated well only for a period of one and half months and thereafter subjected to ill-treatment by all the applicants and co-accused persons for various reasons including non-fulfllment of the unlawful demand of certain amount. Learned counsel submits that she was subjected to cruelty, beating and mental harassment on
various reasons. There is no substance in this criminal application. The same is liable to be dismissed. 8.
We have also heard the learned APP for the respondent-State.
9.
We have carefully gone through the contents of the complaint and also perused the charge-sheet. It appears that the allegations have been made mainly against coaccused husband, father-in-law and four sisters-in-law by quoting individual specifc incident. So far as the applicants before the court are concerned, allegations are absurd in nature. It is a case of over implication since almost all the family members have been implicated in connection with the crime.
10.
In the case of Geeta Mehrotra and others v.
State of U.P. and others, reported in AIR 2013 SC 181, the Supreme Court has observed that "Courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute
whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding."
11.
In the case of Neelu Chopra and others v. Bharti, reported in 2010 CrLJ 448, the Supreme Court has observed that, "In order to lodge a proper complaint, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. The complaint in the instant case is sadly vague. It does not show as to which accused has committed
what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants". 12.
In the case of Taramani Parakh Vs. State of Madhya Pradesh and others, reported in (2015) 11 SCC 260, in para 10, 14 and 15 the Supreme Court has made the following observations :- "10.
The law relating to quashing is well settled. If the allegations are absurd or do not make out any case or if it can be held that there is abuse of process of law, the proceedings can be quashed but if there is a triable case the court does not go into reliability or otherwise of the version or the counter-version. In matrimonial cases, the courts have to be cautious when omnibus allegations are made particularly against
relatives who are not generally concerned with the affairs of the couple. We may refer to the decisions of this Court dealing with the issue.
11. to 13.
.....
14.
From a reading of the complaint, it cannot be held that even if the allegations are taken as proved no case is made out. There are allegations against Respondent 2 and his parents for harassing the complainant which forced her to leave the matrimonial home. Even now she continues to be separated from the matrimonial home as she apprehends lack of security and safety and proper environment in the matrimonial home. The question whether the appellant has in fact been harassed and treated with cruelty is a matter of trial but at this stage, it cannot be said that no case is made out. Thus, quashing of proceedings before the trial is not permissible.
15.
The decisions referred to in the judgment of the High Court are distinguishable. In Neelu Chopra v. Bharti, (2009) 10 SCC 184, the parents of the husband were too old. The husband Rajesh had died and main allegations were only against him. This Court fond no cogent material against the other accused. In Manoj Mahavir Prasad Khaitan v. Ram Gopal Poddar, (2010) 10 SCC 673 the appellant before this Court was the brother of the daughter-in-law of the accused who lodged the case against the accused for theft of jewellery during pendency of earlier Section 498-A IPC case. This Court found the said to be absurd. In Geeta Mehrotra v. State of
U.P. (2012) 10 SCC 741, case was against brother and sister of the husband. Divorce had taken place between the parties. The said cases neither purport to nor can be read as laying down any infexible rule beyond the principles of quashing which have been mentioned above and applied to the facts of the cases therein which are distinguishable.
In the present case the factual matrix is different from the said cases. Applying the settled principles, it cannot be held that there is no triable case against the accused."
13.
It is well settled that, if the allegations are absurd and do not make out any case, the proceedings are liable to be quashed. In the instant case, even if the allegations as against the present applicants are held to be proved, no case is made out. There is no triable case against them. This is a case of over implication. 14.
In view of the above and in terms of the ratio laid down by the Supreme Court, we proceed to pass the following order.
O R D E R
1.
Criminal Application is hereby allowed in terms of prayer Clause "B" and "B-1" as against the applicants.
2.
Criminal Application accordingly disposed off. 3.
Advocate Smt. Sheetal Waghmare is appointed to represent the cause of respondent no.2, we quantify her legal fees and expenses to the tune of Rs.2,000/- (Rs. Two thousand) to be paid by the High Court Legal Services Sub-Committee, Aurangabad.
( SANDIPKUMAR C. MORE, J. ) ( V.K. JADHAV, J. ) ...