IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO. OF 2021

DIST: PUNE

IN THE MATTER OF ARTICLE 226

OF THE CONSTITUTION OF INDIA

 AND

IN THE MATTER OF SECTION 482 OF

CRIMINAL PROCEDURE CODE

AND

IN THE MATTER FOR QUASHING OF

FIR NO. 379 OF 2017 DATED 21st

SEPTEMBER 2017 REGISTERED

UNDER SECTION 498 (A), 323, 504,

506, 34 OF INDIAN PENAL CODE

WITH KONDHWA POLICE STATION,

PUNE, MAHARASHTRA.

AND

IN THE MATTER OF REGULAR

CRIMINAL CASE VIDE. R.C.C. NO.

1138/2017 PENDING BEFORE THE

COURT OF JUDICIAL MAGISTRATE

FIRST CLASS, CANTONMENT COURT,

PUNE, DISTRICT – PUNE.

IN THE MATTER OF:

1. Mr. Rehan Rafiq Shaikh

Age; 33 Years, Occ; Service

Residing at; Building No. A – 4,

Flat No. 15, Brahma Angan,

Salunkhe Vihar Road, Pune – 48

2. Mrs. Raziya Rafiq Shaikh

Age; 45 Years, Occ; Homemaker

Residing at; Building No. A – 4,

Flat No. 15, Brahma Angan,

Salunkhe Vihar Road, Pune – 48

3. Mr. Rafiq Yusuf Shaikh

Age; 55 Years, Occ; Nil

Residing at; Building No. A – 4,

Flat No. 15, Brahma Angan,

Salunkhe Vihar Road, Pune – 48

4. Miss. Swaleha Rafiq Shaikh

Age; 27 Years, Occ; Nil

Residing at; Building No. A – 4,

Flat No. 15, Brahma Angan,

Salunkhe Vihar Road, Pune – 48

5. Mr. Shahrukh Rashid Shaikh

Age; 27 Years, Occ; Business

Residing at; C/O Mr. Rashid Shaikh

570, Ambedkar Nagar, Opposite

Shankar Mandir, Market Yard, Pune – 37

6. Mrs. Shrin Farooque Shaikh

Age; 63 Years, Occ; Nil

Residing at; Flat No – 407/408, Sai

Shraddha Apartment, Near Bharat Cinema,

855, Bhawani Peth, Pune – 02

… PETITIONERS

VERSUS

1. The State of Maharashtra

{Copy to be served on Public Prosecution

High Court of Judicature of Bombay}

2. The Senior Inspector of Police,

Kondhwa Police Station, District; Pune

3. Mrs. Sana Rehan Shaikh

Alias Sana Jaan Mohammed Shaikh

Age; 34 Years, Occ; Service

 Residing at; C/O Mr. Jaan Mohammed Shaikh

867, Dastur Meher Road, Camp, Pune

Maharashtra – 411001

{Original Complainant}

… RESPONDENTS

TO

THE HON’BLE CHIEF JUSTICE AND OTHER

HON’BLE PUISNE JUDGES OF THE HIGH COURT
OF JUDICATURE AT BOMBAY.

THE HUMBLE PETITION OF THE PETITIONERS

ABOVENAMED.

MOST RESPECTFULLY SHEWETH:

It is most respectfully submitted on behalf of the Petitioners

above named is as under:

1. The Petitioner submit that, the petitioners are citizen of

India and having permanent residence at the address

mentioned in the cause title of this petition. The Petitioner

No.1 is the husband of Respondent No.3, the Petitioner No.2

 and 3 are mother in law and father in law of Respondent

No.3. The Petitioner No. 4 is the sister in law of Respondent

No.3 and Petitioner No. 5 is the brother in law of Respondent

No.3. That Petitioner No. 6 is an old family friend and well-

wisher of the other present petitioners. The Respondent

No.1 is the State of Maharashtra and Respondent No.2 is the

Senior Police Inspector of Kondhwa Police Station whereas

Respondent No.3 is the Original Complainant and wife of

Petitioner No.1. All the parties are necessary and proper

parties to the present petition.

2. The Petitioners are Original Accused Persons in

FIR. No. 379/2017 registered with Kondhwa Police Station

under section 498 (A), 323, 504, 506, 34 of Indian Penal

Code. That the Petitioners have already been enlarged on

bail and the Charge Sheet has been submitted and the trial

is yet to be commenced and the same is pending before the

Hon’ble Judicial Magistrate First Class, Cantonment Court,

Pune, Dist– Pune bearing R.C.C. No. 1138 /2017.

3. The Petitioners are approaching this Hon’ble Court under its

inherent power for quashing and setting aside the F.I.R as

well as the Charge sheet by exercising the powers under

 Article 226 of the Constitution of India and 482 Code of

Criminal Procedure

BREIF FACTS LEADING TO FILING OF THE PRESENT

CRIMINAL WRIT PETITION AS FOLLOWS:-

I. The Petitioner No. 1 and Respondent No. 3 got married on

15th October 2015 at Usmaniya Masjid, R.S. Kedari Road,

Camp as per Islamic per Islamic rites and rituals in presence

of parents, family members, relatives and acquaintances of

both the sides. Herewith marked and annexed as

“Exhibit – A Colly” is a copy of the Nikahnama and

Photographs of Marriage (Colly).

II. During Respondent No.3 stay at the Petitioners house she

remained pregnant for the first time. Thereafter Respondent

No.3 started arguments and disputes with the Petitioner No.1

demanding separate residence and to leave his father and

mother viz. Petitioner No.2 and 3 accordingly. As the

Petitioner No.1 denied her illegal and illegitimate demands of

separate residence the Respondent No.3 deserted Petitioner

No.1 approximately within 60-90 days of marriage and from

that time onwards she is residing with her parents. That

Respondent No.3 delivered a male child born viz. Master

Mohd. Ruhaan Rehaan Shaikh whose date of birth is 01st

 October 2016 and presently aged 5 years and presently in the

custody of Respondent No.3. Herewith marked and annexed

as “Exhibit – B” is a copy of the Birth Certificate of Master.

Mohd. Ruhaan Rehaan Shaikh.

III. The Petitioners submit that, the Respondent No.3 after

deserting Petitioner No.1 and delivery of child filed a

complaint application dated 05th May 2017 before the

Hon’ble Pune Police Commissioner thereby praying to

register an FIR against the present Petitioners. Thereafter

Respondent No.2 viz. Kondhwa Police Station registered an

FIR under section 498 (A), 323, 504, 506, 34 of Indian Penal

Code vide. FIR No. 379/2017. That after completion of the

investigation the Respondent No.2 submitted charge sheet

under section 498 (A), 323, 504, 506, 34 of Indian Penal

Code before the Hon’ble Judicial Magistrate First Class,

Cantonment Court, Pune, Dist– Pune and is pending trial

bearing R.C.C. No. 1138/2017. Herewith marked and

annexed as “Exhibit – C Colly” is a copy of the FIR and

Charge Sheet (Colly).

IV. The Petitioners obtained Anticipatory Bail from the Hon’ble

District and Sessions Court vide. Cri. Bail. Application

No. 3458/2017 through Order Dated 06th October 2017 and

 Cri. Bail. Application No. 3824/2017 through Order Dated

18th November 2017. Thereafter Respondent No.3 filed

proceedings under 125 of Code of Criminal Procedure before

the Hon’ble Family Court vide. P. E. No. 148/2017 and the

Hon’ble Family Court was pleased to pass and order of

interim maintenance at a tune of Rs. 7000/- per month. The

proceedings before the Hon’ble Family Court is pending

adjudication for necessary steps.

V. The Petitioners submits that Respondent No.3 also initiated

proceedings under The Protection of Women from Domestic

Violence Act, 2005 vide. Cri. Misc. Appln. No. 103/2019 and

the same is pending before the Hon’ble Judicial Magistrate

First Class, Cantonment Court, Pune, Dist– Pune.

VI. Being aggrieved by the lodging of the First Information

Report registered vide. FIR No. 379/2017 dated 21st

September 2017 registered under Sec. 498 (A), 323, 504,

506, 34 of Indian Penal Code with Kondhwa Police Station,

Pune, Dist – Pune, and being aggrieved with the Charge

Sheet in R. C. C. No. 1138 of 2017 under Sec. 498 (A), 323,

504, 506, 34 of Indian Penal Code. The present Petitioners

approached this Hon’ble Court for quashing and setting

aside the F.I.R as well as the Charge sheet by exercising the

 powers under Article 226 of the Constitution of India and

482 Code of Criminal Procedure.

:: GROUNDS ::

A. On perusal of the FIR and the Charge sheet the allegations,

even if they are taken at their face value and accepted in

their entirety do not prima facie constitute any offence

or make out a case against the Petitioners.

B. The allegations in the FIR and Charge sheet do not disclose

a cognizable offence, justifying an investigation by the

Respondent No.2 under the provisions envisaged in Code of

Criminal Procedure.

C. The uncontroverted allegations made in the FIR and the

Charge sheet and the evidence collected in support of the

same do not disclose the commission of any offence and

make out a case against the Petitioners.

D. The allegations made in the FIR and the statement of

witnesses recorded are so absurd and inherently

improbable on the basis of which no prudent person can

ever reach a just conclusion that there is sufficient

ground for proceeding against the Petitioners.

E. The criminal proceedings is manifestly attended with mala

fide and the proceeding is maliciously instituted with an

 ulterior motive for wreaking vengeance on the Petitioners

and with a view to spite them due to private and personal

grudge.

F. In the said FIR the Petitioners are charged under Sec. 498

(A), 323, 504, 506, 34 of Indian Penal Code, 1860 however,

the allegations in the FIR and Charge sheet do not constitute

a cognizable offence.

G. That the Respondent No.3 through filing a complaint

application succeeded in getting the FIR registered, however

the allegations made against the Petitioners are vague and

false and there is no specific allegations against the

Petitioners in the entire FIR and Charge sheet submitted

before the Hon’ble Judicial Magistrate Cantonment Court,

Pune.

H. The statement of witnesses recorded are stereo type and

mere copy paste and none of the witnesses were able to

connect the Petitioners to the alleged incidence apart from

the Respondent No.3 herself.

I. That there is no such allegation either in the FIR or in the

charge sheet making out a prima facie case against the

Petitioners.
J. That the FIR an Charge sheet does not contain any material

to qualify the expression “cruelty” as envisaged under

Sec. 498 (A) of Indian Penal Code. In order to bring in the

expression of “cruelty” as envisaged under Sec. 498 (A) of

Indian Penal Code, there must be such a conduct on the part

of the husband or relatives of the husband of woman which

is of such a nature as to cause the woman to commit suicide

or to cause grave injury or danger to life, limb or health

whether mental or physical of the woman.

K. In the entire FIR and the investigation conducted by

Respondent No.2 There is no allegation that there is any

such conduct on the part of the Petitioners which could be

said to be amounting to cruelty of such a nature as is likely

to cause the Respondent No. 3 to commit suicide or to cause

any injury to her life. The ingredient to constitute an offence

under explanation (a) of Section 498A Indian Penal Code

are not at all mentioned either in FIR or in charge sheet and

in absence thereof, no case is made out against the

Petitioners.

L. The allegations made in FIR and Charge sheet if examined

in the present case as to whether the case would fall under

explanation (b) of Section 498A of Indian Penal Code

 constituting cruelty of the nature as mentioned in

explanation (b). In order to constitute cruelty under the said

provision there has to be harassment of the woman with a

view to coercing her or any person related to her to meet any

unlawful demand for any property or valuable security or a

case is to be made out to the effect that there is a failure by

her or any person related to her to meet such demand. Hence

on perusal of the FIR and Charge sheet there is no prima

facie case even under the aforesaid provision is made out to

attract a case of cruelty.

M. On perusal of Sec. 498 (A) of Indian Penal Code and the

Explanation (a) and (b) read together makes it categorically

clear that to bring among the guilt of the accused the

ingredients of Sec. 498 (A) which prima facie constitute a

case of “cruelty” as defined and explained in that section are

absent. It is thus established that on a reading of the FIR as

also the charge sheet filed against the Petitioners no case

under Section 498A of Indian Penal Code is made out on the

face of the record, and therefore, both the FIR as also the

charge sheet are liable to be quashed in exercise of the

powers under Article 226 of the Constitution of India and

Sec. 482 Code of Criminal Procedure.

N. On perusal of the FIR and Charge sheet and the statements

recorded of the witnesses the primary allegation made by the

Respondent No.3 is a demand of Rs. 10, 00, 000/- (Ten Lakh

Rupees) for a purchase of another flat and in addition the

Petitioners used to keep the Respondent No. 3 hungry and

used to name call her as “being overweight”. That apart from

this there has been no major allegation of whatsoever against

the present petitioners and if all the allegations and the

statements recorded of the complainant and witnesses if

taken on their face value and accepted in their entirety it

does not make out a prima facie case under Sec. 498 (A),

323, 504, 506, 34 of Indian Penal Code.

O. On perusal of the statement of witnesses it is of utmost

important to mention that all the witnesses apart from

Respondent No.3 are “Hear Say” witnesses, hence cannot be

relied upon and on the basis of their statement the story put

forth by the Respondent No.3 does not stand the test of

reliability and the allegations made by the Respondent No.3

cannot be sufficient to attribute the guilt of the

accused/petitioners.

P. The Respondent No. 2 failed to record the statements of

neighbors, who are potential eye witnesses of the real facts

 which provide clear information in respect to the alleged

incidence.

Q. The Petitioner No. 3, 4 and 5 filed an application for

discharge from the criminal proceedings under Sec. 239 of

Code of Criminal Procedure on 29th April 2019 in R.C. C. No.

1138/2017 pending before the Hon’ble Judicial Magistrate

First Class Court, Pune and till date the Application for

Discharge is pending before the Hon’ble Lower Court.

Herewith marked and annexed as “Exhibit – D Colly” is a

Certified Copies of the Application under Sec. 239 of Code of

Criminal Procedure for Discharge of Accused and the Say of

the Prosecution on Discharge Application (Colly).

R. The Petitioners submit that till date the charges in the matter

has yet to be framed and it has been more than 4 years and

the trial has yet not begun. The matter was lastly listed on

26th October 2021 and thereafter got listed on 30th March

2022, due to which the present petitioners are facing severe

hardships and suffer irreparable loss. The right of speedy

trial guaranteed by the Constitution of India is defeated in

the present matter.

Herewith marked and annexed as “Exhibit – E” is a

Certified Copy of the Roznama of R.C.C. No. 1138 of 2017.

S. The Petitioner No.1, 4 and 5 are young and due to the

criminal prosecution facing difficulties in obtaining a

suitable employment. Moreover Petitioner No.6 is a distant

close friend of the other Petitioners and also residing at a

different address altogether. Herewith marked and annexed

as “Exhibit – F Colly” the Copy of the Aadhar Card of

Petitioner No.1, 4, 5 and 6 (Colly).

T. That Petitioner No. 3 being an elderly senior citizen and

facing serious illness due to his old age and stress caused by

continuous litigation and criminal proceedings hampering

the future of the entire family specifically Petitioner No. 1

and 4. Recently Petitioner No.3 was hospitalized in Lifeline

Hospital, Kondhwa, Pune due to severe diabetes and high

blood pressure. Herewith marked and annexed as

“Exhibit – G Colly” the Copy of the recent Medical

Records of Petitioner No.3 (Colly).

U. That it is an established position in law that High Courts can

exercise inherent jurisdiction under section 482 of the Code

of Criminal Procedure. and pass such orders as may be

necessary, to prevent abuse of the process of Court and/or to

secure the ends of justice. In State of Haryana v Bhajan Lal

1992 Supp (1) SCC 335 (hereinafter referred to as “Bhajan

 Lal)”, the Hon’ble Supreme Court held that one of the

categories of cases fit for the exercise of powers under

section 482, Code of Criminal Procedure is:

“Where the allegations made in the First Information

Report or the complaint, even if they are taken at their face

value and accepted in their entirety do not prima-facie

constitute any offence or make out a case against the

accused.”(emphasis supplied).

V. That the said FIR falls under the aforesaid category laid

down by the apex court which warrants quashing and setting

aside of FIR and Charge Sheet in exercise of the powers

under Article 226 of the Constitution of India and Sec. 482

of Code of Criminal Procedure. Therefore the said

FIR No. 379/2017 registered with Kondhwa Police Station,

Dist- Pune amounts to misuse of law and abuse of the

process of the court and should be quashed in the interest of

justice.

W. That continuance of the criminal proceedings arising out of

the FIR No. 379/2017 registered with Kondhwa Police

Station and pending proceeding before the Hon’ble Judicial

Magistrate First Class Cantonment Court, Pune vide. R.C. C.

No. 1138/2017 would not serve any purpose, other than cause
 unnecessary hardships to the Petitioners in the above

mentioned matter and will have to face the ordeal of facing

the trial unnecessarily. The FIR filed and Charge Sheet

submitted by the Respondents does not disclose the

commission of any offence by the Petitioners, and does not

make out a case against them

X. That if the criminal proceedings against the Petitioners are

allowed to continue, it will cause them severe prejudice.

4. The Petitioners craves leave of this Hon’ble Court to add,

alter, amend, vary or rescind and/or modify any of the

averments and/or submissions and/or prayers mentioned

hereinabove with the leave of this Hon’ble Court.

5. The Petitioners craves leave to produce and rely upon any

further documents and/or judgements and/or affidavits

enumerating further points as and when required during the

pendency of this Petition.

6. The Petitioners undertakes to supply the translation of

Marathi documents into English as and when directed by

this Hon’ble Court.

7. The Petitioners states that they have not filed any other

Appeal, Application, Petition seeking same or similar reliefs

either before this Hon’ble Court of Hon’ble Supreme Court.

8. No other alternative and efficacious remedy is available to

the Petitioners save and except the present Criminal Writ

Petition.

9. THE PETITIONERS, THEREFORE , PRAY THAT :

a. That this Hon’ble Court be pleased to admit the

present Writ Petition and issue notices to the Respondents.

b. That this Hon’ble Court be pleased to quash and set

aside the First Information Report registered vide. F.I.R. No.

379 of 2017 dated 21st September 2017 registered under

Sec. 498(A),323, 504, 506, 34 of Indian Penal Code with

Kondhwa Police Station, Dist – Pune.

c. That this Hon’ble Court be pleased to quash and set

aside the charge sheet submitted in R. C. C. No. 1138/2017

under Sec. 498(A),323, 504, 506, 34 of Indian Penal Code,

pending before the Hon’ble Judicial Magistrate First Class

Cantonment Court, Pune, Dist – Pune.

d. During pendency of hearing and final disposal of this

Writ Petition, this Hon’ble Court be pleased to stay the

regular criminal proceedings viz. R. C. C. No. 1138/2017

pending before the Hon’ble Judicial Magistrate Cantonment

Court, Pune.

e. Ad-interim relief in terms of prayer clause “d” may

kindly be granted in favor of the Petitioners.

f. Any other order as that court may deem fit in the

interest of justice.

AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE

PETITIONERS AS IN DUTY BOUND SHALL EVERY PRAY.

Place: Mumbai

Date: December 2021 Advocate for Petitioners

Petitioner No. 1

Petitioner No. 2

Petitioner No. 3

Petitioner No. 4

Petitioner No. 5

Petitioner No. 6
 VERIFICATION

I, Mr. Rehan Rafiq Shaikh, Age; 33 Years, Occ; Service,

Residing at; Building No. A – 4, Flat No. 15, Brahma Angan,

Salunkhe Vihar Road, Pune – 48, do hereby state on solemn

affirmation that what is mentioned in the aforesaid

paragraphs is true and correct and best of our knowledge.

Solemnly affirmed at Mumbai )

This Day of December 2021 ) Deponent

Identified by me;

Advocate