Bombay High Court
Amol Tulshiram Khaire And Others vs The State Of Maharashtra And Another on 12 August, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
907 CRIMINAL APPLICATION NO.1456 OF 2021
WITH APPLN/609/2022 IN APPLN/1456/2021
AMOL TULSHIRAM KHAIRE AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Mr. R.P. Patwardhan, Advocate h/f Mr. S.S. Jadhav, Advocate for applicants
Mr. R.V. Dasalkar, APP for respondent No.1
Mrs. Shilpa L. Awachar, Advocate (appointed) for respondent No.2
...
CORAM : SMT. VIBHA KANKANWADI AND
RAJESH S. PATIL, JJ.
DATE : 12th AUGUST, 2022
PER COURT :
1 Criminal Application No.609 of 2022 stands allowed and
disposed of. Amendment be carried out forthwith.
2 Present application has been filed invoking the inherent powers
of this Court under Section 482 of the Code of Criminal Procedure, 1973, for
quashing First Information Report vide Crime No.2/2020 registered with
Osmanabad City Police Station, for the offence punishable under Section 376,
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493 read with Section 34 of the Indian Penal Code, 1860. By way of
amendment prayer has been made for quashment of the charge sheet
numbered as Regular Criminal Case No.447/2021 filed before Chief Judicial
Magistrate, Osmanabad.
3 In view of the order passed by this Court on 26.08.2021 the
criminal application stood dismissed as against applicant No.1 and now after
hearing the learned Advocate for the applicants, when this Court showed
disinclination to grant any relief for applicant No.3, the learned Advocate for
the applicants seek withdrawal of the application for him also. The
application proceeded for the relief claimed by the applicant No.2.
4 Heard learned Advocate Mr. R.P. Patwardhan holding for learned
Advocate Mr. S.S. Jadhav for applicants, learned APP Mr. R.V. Dasalkar for
respondent No.1 and learned appointed Advocate Mrs. Shilpa L. Awachar for
respondent No.2.
5 Perusal of the First Information Report lodged by the respondent
No.2 would show that present applicant No.2 who has been posed as accused
No.2 is the friend of original accused No.1. The prosecutrix in her entire First
Information Report has stated only about the presence of the applicant No.1,
in Police Station, when she had gone to lodge the First Information Report.
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In the First Information Report no specific overt act is attributed. It has been
stated in para No.9 of the First Information Report that the present applicant
No.2/original accused No.2 had instigated original accused No.1. The
allegations against accused No.1 are that by giving false promises to marry,
though he was already married and had two children at that time, had kept
physical relations with the prosecutrix. There cannot be an instigation of
such kind of act. Further, the First Information Report also states about the
act that the present applicant had gone to the house of prosecutrix to see her
at the time of settlement of marriage talks. The specific act done by the
accused No.2 on that day has not been told. Accompanying original accused
No.1 by itself will not amount to any offence even including Section 420 of
the Indian Penal Code, as any representation that was made by accused No.2
or applicant No.2 has not been specifically stated.
6 Perusal of the charge sheet would show that twice
supplementary statement of the informant/prosecutrix has been taken and it
is almost the reiteration of the contents of the First Information Report.
Except in the second supplementary statement, that is, stated to have been
taken on 22.07.2021, she has stated that along with the applicant
No.3/accused No.3, even the applicant No.2 had given threat in the Police
Station that she would be at liberty to lodge case and they would spend on
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the same. They will not allow her as well as her family to live. In her First
Information Report the said threat is stated to have been given by the
applicant No.3/accused No.3. Therefore, her second supplementary
statement stating that even accused No.2 had given such kind of threat can
be taken as improvement. Further, he is a friend of accused No.1. It is highly
impossible that he would have shown such kind of interest. The statement of
other witnesses is in respect of the relationship between the prosecutrix and
accused No.1. We cannot forget that the prosecutrix was aged 29, that
means major.
7 Though there appears from the application that the allegations
are made that the prosecutrix herself had demanded some amount and in
respect of that even the affidavit-in-reply by Assistant Police Inspector,
Osmanabad City Police Station Mr. Salim Bashir Pathan has given; yet, that
cannot be taken into consideration at this stage, as that electronic evidence
will have to be proved by the accused persons as part of their defence, if they
wish.
8 However, taking into consideration the contents of the First
Information Report and the entire charge sheet it would be a futile exercise
for the applicant No.2 to face the charge/case on the basis of those
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allegations. Therefore, in view of State of Haryana and others vs. Ch. Bhajan
Lal and others, AIR 1992 SC 604 this is a case made out for exercise of
powers under Section 482 of the Code of Criminal Procedure for quashing
the First Information Report as well as the charge sheet in respect of
applicant No.2. Hence, following order.
ORDER
1 Application has already been dismissed as against applicant No.1 by order dated 26.08.2021.
2 Application stands dismissed as withdrawn in respect of applicant No.3.
3 Application stands allowed in respect of applicant No.2. 4 The First Information Report vide Crime No.2/2020 dated 03.01.2020 registered with Osmanabad City Police Station, for the offence punishable under Section 376, 493 read with Section 34 of the Indian Penal Code, 1860, and further Regular Criminal Case No.447/2021 pending before learned Chief Judicial Magistrate, Osmanabad and if the Sessions case has been committed to the Court of Sessions, then, the said Sessions Case stands quashed and set aside as against the applicant No.2 viz. Ganesh Digambar ::: Uploaded on - 18/08/2022 ::: Downloaded on - 09/01/2023 04:24:05 ::: 6 Cri.Appln_1456_2021 Burade.
5 The fees of the appointed Advocate is quantified at Rs.5,000/- (Rupees Five Thousand only), to be paid by High Court Legal Services Sub- Committee, Aurangabad.
( Rajesh S. Patil, J. ) ( Smt. Vibha Kankanwadi, J. ) agd ::: Uploaded on - 18/08/2022 ::: Downloaded on - 09/01/2023 04:24:05 :::