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Bayaji Kisan Andhale and anr. Vs. the State of Mah and ors - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai Aurangabad High Court
Decided On
Case NumberCRIMINAL APPLICATION NO.605/2011
Judge
ActsCode of Criminal Procedure (CrPC) - Section 482; Indian Penal Code (IPC) - Sections 420, 34
AppellantBayaji Kisan Andhale and anr.
RespondentThe State of Mah and ors
Appellant AdvocateMr. Bade Patil K.d. Adv.
Respondent AdvocateMr. V.D. Rakh; Mr. Dhakne Vijay A, Advs.
Cases Referred(Raghubir Saran (Dr.) v. State of Bihar
Excerpt:
.....therein. however, both are expired and his grand father had two sons namely mahadev maruti andhale and 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. 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. 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. .....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.....
Judgment:

1. Heard learned counsel for the parties.

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  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.  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 v. 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 Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise 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, 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 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 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  Indian Penal Code registered at Pathardi Police Station, Ahmednagar stands quashed and set aside. Rule is made absolute, accordingly. 


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