1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.605/2011
1. BAYAJI KISAN ANDHALE
age 60 years, Occ. nil.
2. Lilabai w/o Bayaji Andhale
age 58 years, occ. Nil.
Both r/o Jogewadi, Tq. Pathardi,
Dist. Ahmednagar. Applicants.
VERSUS
1. THE STATE OF MAH AND ORS
through investigation officer,
pathardi police station,
pathardi, Dist. Ahmednagar
[copy to be served on P.P. High
Court of Bombay Bench at
Aurangabad]
2. Suresh Mahadeo Andhale
age 42 years, occ. Agril,
r/o Gulaj, Tq. Georai,
Dist. Beed. Respondents
...
Advocate for Applicants. : Mr. Bade Patil K.d.
APP for Respondent(s): Mr. V.D. Rakh for R-1
Mr. Dhakne Vijay A. Adv For Respdt 2
...
CORAM : SHRIHARI P. DAVARE, J.
DATE : 12th JULY, 2011.
ORAL JUDGMENT :-
1. Heard learned counsel for the parties.
::: Downloaded on - 09/06/2013 17:29:38 :::
2
2. Rule. Rule made returnable forthwith. With the consent of
the learned counsel for the parties, taken up for final hearing.
3. By the present criminal application filed by the applicants
under section 482 of the Code of Criminal Procedure prays that First
Information Report bearing Crime No.I-456/2010, dated 16.12.2010,
registered under section 420 r/w/ 34 of Indian Penal Code, registered at
Pathardi Police Station, District Ahmednagar, be quashed and set aside.
After filing present application, interim relief was granted by this Court and
the prosecution, the subject of the challenge, in crime No.I – 456/2010
dated 16.12.2010 was stayed by order of this court passed on 17.3.2011.
4. The complainant i.e. respondent No.2 herein namely Suresh
Mahadev Andhale filed First Information Report on 16.12.2010 under
section 420 r/w section 34 of Indian Penal Code, which was registered at
Pathardi Police Station as Crime No.I-456/2010, wherein the complainant
alleged that his grand father namely Maruti Tatya Andhale r/o Jogewadi Tq.
Pathardi, had half share in the property i.e. property No.169 Jogewadi as
well as his cousin grand father namely Kisan Tatya Andhale also had half
share therein. However, both are expired and his grand father had two
sons namely 1) Mahadev Maruti Andhale and 2)Bappaji Maruti Andhale
and son namely Mahadev Maruti Andhale is the father of the complainant
herein and said Mahadev Maruti Andhale expired on 8.12.1994 at Gulaj. It
::: Downloaded on – 09/06/2013 17:29:38 :::
3
is also alleged in the said complaint that his cousin grand father namely
Kisan Tatya Andhale had also two sons i.e. Nana Kisan Andhale and Bayaji
Kisan Andhale i.e. applicant No.1 herein and their one fourth share each in
the property was entered in the record of rights in the year 1994 and
extract No.8A was prepared in that respect. Thereafter, during the period
1993-1997, some property was shown in the name of Nana Kisan Andhale
and during the said period, name of Kisan Andhale was deleted and name
of applicant No.1 herein namely Bayaji Kisan Andhale was entered and
extract was prepared in his name. It is further alleged that during the
period 2007-2011 property of 30 khans was entered into the name of his
cousin uncle i.e. applicant No.1 Bayaji Kisan Andhale and his wife Lilabai
Bayaji Andhale.
5. The grievance of the complainant in the said complaint is that
after death of his grand father namely Maruti Tatya Andhale, names of
applicant no. 1’s father i.e. Mahadev Maruti Andhale and his uncle namely
Bayaji Maruti Andhale were not entered as heirs as well as after death of
his father, name of the complainant and his brother were not entered into
record of rights of the property, where as names of applicants were entered
into the property of 30 khans in the year 2007-2011 as well as Nana Kisan
Andhale and his wife Anusaya Nana Andhale in the property of 10 khans.
Moreover, it is also grievance of the complainant that the applicants herein
in collusion with the ‘Gramsevak’ deleted the names of complainant in the
record of Rights of jogewadi Grampanchayat in respect of the property No.
::: Downloaded on – 09/06/2013 17:29:38 :::
4
169 in the year 1991 and entered applicants name therein and thereby
deceived the complainant.
6. However, considering the contents of the complaint, it
appears that the allegations made by the complainant pertain to the year
1991, 1993-1997 but apparently, the complaint appears to have been filed
after substantial lapse of period and delay i.e. on 16.10.2010 and no
plausible explanation has been given by the complainant in that respect.
In the said context, reliance can be placed on the judicial pronouncement
cited by the learned counsel for the applicant in the case Zandu
Pharmaceutical Works Ltd and others Vs. Mohd. Sharaful Haque and
another reported at 2005 (1) Bom.C.R.(Cri) 620.
“11. The scope of exercise of power under section 482 of
the Code and the categories of cases where the High Courtmay exercise its power under it relating to cognizable
offences to prevent abuse of process of any Court orotherwise to secure the ends of justice were set out in some
detail by this Court in (State of Haryana v. Bhajan Lal)2,
1992 (Supp. 1) S.C.C. 335. A note of caution was, however,added the power should be exercised sparingly and that too
in rarest of rare cases. The illustrative categories indicated
by this Court are as follows:
“102. (1) 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
entirely do not prima facie constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information report and other materials,
::: Downloaded on – 09/06/2013 17:29:38 :::
5
if any, accompanying the F.I.R. do not disclose a cognizable offence,
justifying an investigation by Police Officers under section 156(1) of the
Code except under an order of a Magistrate within the purview of section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the F.I.R. or complaint
and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation is
permitted by a Police Officer without an order of a Magistrate as
contemplated under section 155(2) of the Code.
(5) Where the allegations made in the F.I.R. or complaint 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 accused.
(6) Where there is an express legal bar engrafted in any of the provisions
of the Code or the Act concerned (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the Act concerned,
providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides
and/or where the proceeding is maliciously instituted with an ulterior motive
for wreaking vengeance on the accused and with a view to spit him due to
private and personal grudge.”
As noted above, the powers possessed by the High
Court under section 482 of the Code are very wide and
the very plenitude of the power requires great caution in
its exercise. Court must be careful to see that its decision
in exercise of this power is based on sound principles.
The inherent power should not be exercised to stifle a
::: Downloaded on – 09/06/2013 17:29:38 :::
6
legitimate prosecution. The High Court being the highest
Court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has
not been collected and produced before the Court and
the issues involved, whether factual or legal, are of
magnitude and cannot be seen in their true perspective
without sufficient material. Of course, no hard-and-fast
Rule can be laid down in regard to cases in which the
High Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. See (Janata Dal
v. H.S. Choudhary)3, 1992(4) S.C.C. 305 and (Raghubir
Saran (Dr.) v. State of Bihar)4, A.I.R. 1964 S.C. 1 :
1964(1) Cri.L.J. 1. It would not be proper for the High
Court to analyse the case of the complainant in the light
of all probabilities in order to determine whether a
conviction would be sustainable and on such premises
arrive at a conclusion that the proceedings are to be
quashed. It would be erroneous to assess the material
before it and conclude that the complaint cannot be
proceeded with. In a proceeding instituted on complaint,
exercise of the inherent powers to quash the
proceedings is called for only in a case where the
complaint does not disclose any offence or is frivolous,
vexatious or oppressive. If the allegations set out in the
complaint do not constitute the offence of which
cognizance has been taken by the Magistrate, it is open
to the High Court to quash the same in exercise of the
inherent powers under section 482 of the Code. It is not,
however, necessary that there should be meticulous
analysis of the case before the trial to find out whether
::: Downloaded on – 09/06/2013 17:29:38 :::
7
the case would end in conviction or acquittal. The
complaint has to be read as a whole. If it appears that on
consideration of the allegations in the light of the
statement made on oath of the complainant that the
ingredients of the offence or offences are disclosed and
there is no material to show that the complaint is mala
fide, frivolous or vexatious, in that event there would be
no jurisdiction for interference by the High Court. When
an information is lodged at the Police Station and an
offence is registered, then the mala fides of the informant
would be of secondary importance. It is the material
collected during the investigation and evidence led in
Court which decides the fate of the accused person. The
allegations of mala fides against the informant are of no
consequence and cannot be themselves be the basis for
quashing the proceedings.
7. Thus, it is manifestly clear from the contents of the complaint
that the allegations made therein are vague and are of civil nature and said
complaint lacks the very ingredients of section 420 of Indian Penal Code.
Hence, this is a fit case where in First Information Report lodged by the
complainant deserves to be quashed and set aside under section 482 of
the Code of Criminal Procedure.
8. In the result, present application is allowed in terms of prayer
clause ‘B’ thereof and First Information report registered under CR
No.I-456/2010 dated 16.12.2010 registered under section 420 r/w/ 34 of
::: Downloaded on – 09/06/2013 17:29:38 :::
8
Indian Penal Code registered at Pathardi Police Station, Ahmednagar
stands quashed and set aside. Rule is made absolute, accordingly.
[ SHRIHARI P. DAVARE ]
JUDGE
…
AAA/605.11
::: Downloaded on – 09/06/2013 17:29:38 :::