1 Criminal Writ Petition No.126/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.126 OF 2010 1. Kwaja Mohd. Viquaruddin Age 31 years, Occ. Advocate, R/o Rehmat Nagar, District Nanded. 2. Kwaja Mohd. Anwaruddin, Age 65 years, Occ. Advocate, R/o as above. 3. Khaliquennisa Begum, Age 58 years, Occ. Household, R/o as above. 4. Mohammed Sirajuddin, Age 50 years, Occ. Service R/o as above. 5. Syed Mirajuddin, Age 32 years, Occ. Service, R/o as above . ... PETITIONERS VERSUS 1. State of Maharashtra, through Police Station Officer, Itwara Police Station, Nanded. 2. Vijayakumari Sanjiwani Karta Molat, Age 47 years, Occ. W.P.S.I., R/o Detective Department, City Crime Station, Hyderabad.. ... RESPONDENTS ..... Shri S.S. Bora, Advocate for the petitioners Shri K.S. Patil, A.P.P. for respondent No.1/State ..... 2 Criminal Writ Petition No.126/2010 CORAM : K.U. CHANDIWAL, J. DATE : 2nd February, 2011. ORAL JUDGMENT : 1. Heard. Rule. Rule made returnable forthwith. Respondent No.2, in spite of service, absent. With the consent of learned counsel for the parties, taken up for final hearing at admission stage. 2. The petitioners have questioned prosecution vide Crime No.9/2009, pending on the file of learned Judicial Magistrate, First Class, Nanded, dated 23.1.2009, for an offence under Sections 353, 323, 143, 186, 224, 225, 504 and 506 of the Indian Penal Code, seek its quashment in terms of exercise of powers under Section 482 of the Criminal Procedure Code. 3. The matrimonial controversies between Kwaja Mohd. Ajmoddin with his wife Syeda Humera Farheen lead to prosecution before the 13th Additional Chief Metropolitan Magistrate, Hyderabad. Consequently, a search warrant with warrant of arrest was issued by order dated 7.1.2009. 3 Criminal Writ Petition No.126/2010 4. W.P.S.I. Respondent No.2 Smt. Vijayakumari Sanjiwani Karta Molat, attached to Detective Department, City Crime Station, Hyderabad was assigned the duty to execute search and warrant. Hence, she along with two female police constables and the complainant Syeda Humera Farheen with her brother, maternal uncle, brother-in-law, another lady, had been to the residence of Kwaja Mohd. Ajmoddin, Khaja Mohd. Anwaroddin @ Khurshid, Smt. Salekh Anisabegum @ Safiya w/o Khaja Anwaroddin to cause their arrest. Assistance from local police was provided, P.S.I. Y.S. Shaikh, S.S.I. Iftekhar, L.P.C. 2420 Gurupwad accompanied them and went to the house of petitioners at around at 12.00 noon. The notice was served upon the petitioners informing the intention of the complainant Smt. Vijayakumari, the police officer. It was at this stage, one of the petitioner Niquaroddin, in an outrageous manner, informed that he does not recognise the police party, created a situation of panic and may-hem and commotion had a brawl with the police party. Female constables were manhandled, pushed, abused. The two witnesses named in the report present at the spot were also abused and manhandled. This gave rise to prosecution in terms of Crime No.9/2009. 5. The learned counsel for the petitioners submits that, the petitioners No.1 and 2 are Advocates from Nanded. On the date of 4 Criminal Writ Petition No.126/2010 so called event dated 23.1.2009, they were all throughout busy in Court to procure transit pre-arrest in Crime No.276/2008 and they could not remain present at their houses to witness the events or to be instrumental in the events. The second limb of submission is that the station diary at police station, recorded at around 12.00 noon disclosed that A.S.I. Iftekhar was bandobast duty at a mosque, he could not be expected to remain present in the manner Smt. Vijayakumari informed. 6. The counsel also submits, the prosecution is initiated at 5.20 p.m., it was to curtail benefits of the transit pre-arrest bail in favour of the petitioners and as a counterblast to it. Learned counsel has placed reliance to the judgment of the Hon’ble Apex Court in the matter of M/s Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others (A.I.R. 1998 SC 128) and particularly paragraph Nos.29 and 30 thereof. 7. The learned counsel also placed reliance to the judgment of the Hon’ble Apex Court in the matter of Preeti Gupta and another Vs. State of Jharkhand and another ((2010) 7 SCC 667), Placitam B thereof referred in paragraph Nos.4, 27, 28, 35 and 38 of the said judgment. 5 Criminal Writ Petition No.126/2010 8. The counsel also referred to the judgment in the matter of Madhavrao Jiwajirao Scindia & ors.Vs. Sambhajirao Chandrojirao Agre & ors. (1988 (1) SCC 692) referred in paragraph No.7 in the matter of Preeti Gupta. The counsel lastly took recourse to the celebrity judgment in the matter of State of Haryana and others Vs. Bhajanlal and ors. (1992 SCC (Cri.) 426). He informs, 7 categories in the matter of State of Haryana and others Vs. Bhajanlal and ors. (supra) will squarely cover the case of present petitioners seeking quashment. 9. In the matter of Bhajanlal, the Hon’ble Lordships have made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of miriad kinds of cases wherein such powers should be exercised. The categories that has been explained by the Lordships are (7) as under: (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 entirety 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; 6 Criminal Writ Petition No.126/2010 (3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR 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 FIR 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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 10. The matter of Madhavrao Scindia was relating to a settlement between the parties where quashment of the criminal prosecution was sought, the Court did not agree and consequently, the above observations came to be recorded. In the matter of M/s Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others (A.I.R. 1998 SC 128), on the face of record, the Lordships found that the prosecution was nothing more than a persecution. The accused persons therein were highly placed officers, they were 7 Criminal Writ Petition No.126/2010 required to travel a long distance to meet the accusations which were not comfortable for the appellants to be told that they could appear before the Court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. 11. Reverting back to the present case, one should not be oblivious that the complainant Vijayakumari is a police officer from Andhra Pradesh, she has nothing to do with the ongoing scuffle and feud between the petitioners or Syeda Humera Farheen. Whatever transpired has been depicted in her report. The possibility that the petitioners were in the Court will have to be explained by them during trial, at this stage it should not be a ground to quash the proceedings. The reference to the station diary entry being recorded at 12.00 noon, its implications will be answered at appropriate stage. It is unconceivable, P.S.I. was all throughout at Bandobast near mosque. The reference that some advocate was present and dealt arrogantly is referred by Vijayakumari consequently it cannot be said that the F.I.R. was belatedly recorded at 5.20 p.m. 12. Taking survey of the facts, at this stage, it cannot be 8 Criminal Writ Petition No.126/2010 said that, the prosecution against the present petitioners manifestly or maliciously activated for recking vengeance on the accused or with a view to spite the petitioners to resolve a private or personal grudge of the complainant Syeda Humera Farheen. I repeat, the police officer cannot be used as a stooge to such gravity where her rights are tried to be restricted. Resistance was offered when she was performing her duty for lawful apprehension of the suspects. Since she was public servant, the petitioners being Advocates, should be more conscious that a public servant should not be obstructed in discharge of a public function. The pushing, assault and criminal force intimidation by the witnesses or the petitioners was primarily to deter public servant from discharging the duties and consequently, the prosecution cannot be said to be an abuse. Writ Petition lacks merits, dismissed. Rule discharged. K.U. CHANDIWAL JUDGE