[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.1203 OF 2008 Mr.Priyesh Bheda ..Applicant Vs. State of Maharashtra & Anr. ..Respondents ... Mr.Priyesh Bheda Applicant in person Ms.Vijaya Nadar Respondent no.2 in person Mr.V.B.Konde-Deshmukh A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : NOVEMBER 18, 2008 DATE : NOVEMBER 18, 2008 DATE : NOVEMBER 18, 2008 P.C. P.C. P.C. 1. Heard the applicant in person, respondent no.2 in person and the learned A.P.P. for the State. 2. The applicant is seeking quashing of Cri.Case No. 100/PW/2008 which is pending before the learned Metropolitan Magistrate, 35th Court, CST, Mumbai. The said case pertains to FIR No.244 of 2007 of Dadar Railway Police Station, Mumbai. The said case is under Sections 323, 354, 504 and 506 of IPC. The FIR has been lodged by respondent [-2-] no.2. I have perused the said FIR dated 14.11.2007. In the said FIR, the complainant has stated that she and her daughter were travelling to Tirupati via Banglore. She was travelling by Chalukya Express. She had reservations in Bogie No.S-7 berth Nos. 41 and 44. Her brother had come to leave her at the station. When she sat on the seat, she saw the applicant who was her old acquaintance, was also travelling in the said Bogie along with his family members. The applicant told her to give him Rs.65,000/- which she had taken from him earlier, otherwise he would defame her. The applicant gave threat to her to return the said amount or he would see her. He started abusing her. The applicant then assaulted the complainant with hands and during the assault, he tore T-shirt of the complainant and thereby he outraged her modesty. On account of the said incident, FIR came to be lodged under Sections 323, 354, 504 and 506 of IPC. 3. The applicant has submitted that if the case of the complainant is taken as true, there ought to have been some injuries on her person, however, there are no injury marks on the person of the [-3-] complainant. It is submitted that this shows that it is a false case and hence, the said case deserves to be rejected. In support of his contention, reliance is placed on two cases i.e. Camillo Fernandes Vs. State, 1988 (3) Crimes, 178 Camillo Fernandes Vs. State, 1988 (3) Crimes, 178 Camillo Fernandes Vs. State, 1988 (3) Crimes, 178 and in the matter of A.Ramu Vs. Ramaswamy and A.Ramu Vs. Ramaswamy and A.Ramu Vs. Ramaswamy and Another, 1993 Cri.L.J. 2544. Another, 1993 Cri.L.J. 2544. Another, 1993 Cri.L.J. 2544. The said decisions are not on quashing of FIR but in those cases, evidence had been led and thereafter, the Court came to the conclusion that the material was insufficient and acquitted the accused. In the present case, the trial has yet not commenced and hence, these decisions would not be applicable to the facts of the present case. Moreover, the case is only under Section 323 in which case, it is not necessary that there should be a visible injury. 4. Reliance was also placed by the applicant on the decision of the Supreme Court in the case of State of Haryana Vs. Bhajanlal reported in 1992 State of Haryana Vs. Bhajanlal reported in 1992 State of Haryana Vs. Bhajanlal reported in 1992 (Supp.)(1) SCC 335: AIR 1992 SC 604. (Supp.)(1) SCC 335: AIR 1992 SC 604. (Supp.)(1) SCC 335: AIR 1992 SC 604. In the said case it is observed that in following cases power to quash the case can be exercised: (1) Where the allegations made in the First [-4-] 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. (3) Where the uncontroverted allegations made in the FIR 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-] (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. 5. I have perused the FIR. On perusal thereof, it is seen that offences under Sections 323, 354, 504 [-6-] and 506 of IPC are clearly made out hence, clauses (1) to (6) of this decision, cannot have any application in the present case. As far as clause (7) is concerned, I shall deal with it a little later. 6. Reliance is also placed by the applicant on the decision in the case of Rajendra Nath Mahato Vs. Rajendra Nath Mahato Vs. Rajendra Nath Mahato Vs. T.Ganguly, Dy.Supdt. and Another; T.Ganguly, Dy.Supdt. and Another; T.Ganguly, Dy.Supdt. and Another; reported in 1972(1) SCC 450. 1972(1) SCC 450. 1972(1) SCC 450. In the said case, the High Court quashed the process issued by the Magistrate on the ground that he had not taken cognizance of the offence and he had no right to issue process. The facts in the present case are completely different and hence, this decision would not apply to the facts of the present case. As observed by me earlier, allegations in the FIR if taken at its face value, makes out a case under Sections 323, 354, 504 and 506 of IPC, hence, this said decision would be of no help to the applicant. However, the applicant submitted that FIR has been lodged solely on the ground of malafide with an ulterior motive by the complainant as the applicant had lodged FIR against the complainant about two weeks prior to the incident. The legal position is clear that [-7-] when the allegations made in the FIR if taken at its face value, makes out a case against the accused, it cannot be quashed. As far as malafides are concerned, enmity is a double edged weapon and on account of enmity or grudge, it is possible that the incident could have occurred and it is also possible that the person may be falsely implicated in a case. As far as this aspect is concerned, in the facts of the present case, there is no material to show that a false case is lodged on account of malafides. Without any evidence being led, it is difficult to come to the said conclusion that a false case has been malafidely lodged. 6. Looking to all the facts of this case, no case is made out for quashing of FIR. Application is rejected. 7. It would be open to the applicant to prefer an application for discharge before the trial Court. In case such application is preferred by the applicant, the trial court to decide the said application without being influenced by observations in this order. [-8-] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]