:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1961 OF 2007 Atif Iqbal Mansuri and anr. ..Petitioners. Vs. State of Maharashtra and ors. ..Respondents. Mr.Aspi Chinoy, Sr.Counsel with Mr. P. Janardhanan, Mr.Rajiv Patil, Mr. Subhash Jadhav, Mr. Inderpal Singh i/by ALMT Legal for the Petitioners. Mrs.V.R. Bhosale, APP. for the Respondent No.1. Mr.Samir A. Vaidya for the Respondent No.2. CORAM: F.I. REBELLO & R.S. MOHITE, JJ. DATE : 4th December, 2008 P.C P.C P.C : : : (Per R.S. Mohite,J.) 1. This Writ petition is filed by one Atif Iqbal Mansuri and two others (hereinafter referred to as "the petitioners") for quashing and setting aside the proceeding under C.R.No.224/2007 registered at the Agripada Police Station. 2. The proceeding sought to be quashed had been initiated by the Agripada Police Station in pursuance of an F.I.R. lodged by the respondent No.2 Mrs. Juveria Majeed Patni for alleged offences punishable under Section 498A and 406 read with 34 of the Indian Penal Code. :2: 3. The brief facts of the case are that the petitioner No.1 and respondent No.2 Juveria were married on 15.5.2005. It is contended on behalf of the respondent No.2-wife that from the very inception of the marriage she was treated with cruelty and harassment. It seems to be the admitted position that on 19.2.2006 the respondent No.2-wife left the family home of Petitioner No.1 at Mumbai and thereafter was staying separately. On 10.8.2006, a son was born from the marriage. On 13.9.2006, the husband Atif filed an application for the custody of his son in the Family Court at Bandra. On 15.10.2006, he filed an interim application seeking access to his minor son, which application was allowed on 25.7.2007. A Writ Petition was filed against this grant of access and it was summarily rejected on 7.8.2007 but since the order was not complied with, the petitioner No.1 filed a Civil Contempt Petition on 4.9.2007. In this contempt petition, on 4.9.2007, this court directed the respondent No.2 to comply with the order of the Family Court regarding grant of access. It was contended on behalf of the petitioner that as a counter blast, the respondent No.1 filed a false F.I.R. on 6.9.2007 at Agripada Police Station making false allegations of cruelty and misappropriation and this resulted in the arrest of petitioner No.1 on 6.9.2007. The present writ petition was thus filed for the quashing of the proceedings commenced in pursuance of this F.I.R. :3: 4. We have heard both the sides and perused the record. On perusal of the F.I.R., it is seen that the petitioners are shown as accused therein. In so far as the petitioner Nos. 2 and 3 are concerned, they are the mother and sister of the accused No.1 Atif. A bare perusal of the F.I.R. indicates that the allegations against Petitioner Nos. 2 and 3 in respect of offence under Section 498A as well as 406 of the I.P.C. are totally vague. The two statements against petitioner Nos. 2 and 3, are as under. "My mother in law and sister in law are torturing me by saying that I am a prostitute and my son is not of his brother and they are defaming me". "Since marriage, during the aforesaid period, my husband Atif, sister-in-law Alkama and mother-in-law Anjum have mentally, physically harassed me and gave me ill-treatment in collusion with each other and misappropriated my passport, educational documents, ornaments, clothes and other house hold articles and cash amount of Rs.50,000/-". :4: . There is no mention as to when or how such alleged harassment or misappropriation took place or as to what was the exact individual role played by the petitioner Nos. 2 and 3. We find that these allegations are completely vague and totally bereft of details. 5. In so far as the offence of misappropriation is concerned, the Apex Court in the case of Ramaswamy Nadar Vs.The State of Madras reported in A.I.R.1958 S.C.Page-56 has held that in order to prove an offence under Section 403 the prosecution has to prove i) It was the property of person in question ii) that the accused mis-appropriated or converted the said property to his own use and iii) he did so dishonestly. We find from the averments that there are no specific averments relating to entrustment, misappropriation or conversion against any of the petitioners. 6. As regards the offence under Section 498A said to have been committed by the petitioner No.1, we prima facie find that there is some material in the F.I.R. There is mention about an incident which took place during the reception of the marriage in Mumbai as also regarding an incident at the second reception held at Dubai. There is another incident of slapping in a cloth shop at Dubai and again on 22nd or 23rd August, 2005. As regards the incident which occured on 22nd or 23rd :5: August, 2005, it is contended that the Petitioner No.1 banged her head many times on a wall by holding her hair and slapped on her left ear to such an extent that till date, she was taking medicines and there was a permanent loss of hearing. There is also a reference to the fact that the husband continued to abuse her after she became pregnant, in Nov. 2005. In view of such averments, we find it difficult to hold that the investigation as regards the offence under Section 498A of the Indian Penal Code against the husband can be quashed at this early stage. If and when the charge sheet is filed, it will be open to the petitioner No.1 to apply for discharge if no material is adduced against him and no offence can be said to have been made out. In the net result, the following order is passed. ORDER a) The petition is partly allowed in terms of prayer clause (a) in respect of offence alleged under Section 403 read with 34 of the Indian Penal Code by all the petitioners and in respect of offence under Section 498A read with 34 of the Indian Penal Code alleged to have been committed by Petitioners Nos. 2 and 3 only. b) The investigation against Petitioner No.1 for the alleged offence under Section 498A may continue and :6: he shall have liberty to apply for discharge after charge sheet is filed, in accordance with law. c) Rule made partly absolute accordingly. (R.S. MOHITE, J.) ( F.I. REBELLO,J.)