HON’BLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL PETITION No. 3037 of 2008 ORDER: This Criminal Petition has been filed U/Sec. 482 of Cr.P.C. by the petitioners herein, who are A-1, A-2 and A-4 in Crime No. 38 of 2008 of Hussainialam Police Station with a prayer to quash the Proceedings therein. 2. The respondent No.2 herein presented a private complaint before the Chief Metropolitan Magistrate’s Court, Hyderabad, on 25.02.2008 alleging inter-alia that he and the petitioner No.2 – Jameelunnisa Begum got married on 24.07.1983 and they got five children out of the wedlock. They lead marital life for 24 long years. Petitioner No.2 - A2 had filed a partition suit being O.S No. 1922 of 2006 on the file of the VII Senior Civil Judge’s Court, Hyderabad, against her brothers and sisters. On 06.12.2007 there were heated arguments between him and the petitioner No.2 (A-2) with regard to partition suit. The petitioner No.2- A-2 and the Petitioner No.1-A-1, went out from the house stating that they would go to Asra Hospital. According to the complainant, the petitioner Nos.1 and 2 went to the house of Fareeduddin Sabri (A3) and Mohd. Waseemuddin-(Petitioner No.4) where all of them conspired to implicate him in a false case so that they can ransack the house and accordingly they lodged a false report before the Hussainialam Police Station. On the intervening night of 6/7-12-2007 the respondent No.2 was taken to the police station and lodged in lockup after sending A-2 (Smt. Jameelunnisa Begum) to the hospital for treatment. While so, Hussain Mohd. Farooq-A-1 along with his associates went to his house at Khilswath, Hussainialam, Hyderabad and ransacked the house and took away the valuable documents such as Bank Passbook of SBH, Gunfoundry ; and Original Cheque Books of S.B.H and 20 tulas of gold ornaments and passport and ration card etc., He also found missing of Registered G.P.A. standing in his name. He presented a complaint before the Hussainialam Police Station. There being no action by the police on the complaint, he presented a private complaint before the Chief Metropolitan Magistrate, Hyderabad, who in turn forwarded the complaint to the Station House Officer, Hussainialam Police Station U/Sec. 156(3) Cr.P.C. The Station House Officer, Hussainialam P.S. received the complaint and registered the same as a case in Cr.No. 38 of 2008 for the offence punishable U/Sec. 380 r/w 34 IPC and issued FIR. Hence this petition by A-1,A2 and A4 (Hussain Mohd. Farooq, Smt. Jameelunnisa Begum and Mohd. Waseemuddin) with a prayer stated supra. 3. Heard learned counsel appearing for the petitioners and the learned counsel appearing for the 2nd respondent and the learned Addl. Public Prosecutor appearing for the 1st respondent-state. 4. Leaned counsel appearing for the petitioners submitted that even by going through the complaint averments, there is no accusation made against the petitioner Nos.2 and 3, who have been arrayed as A-1 and A4 with regard to the incident said to have been taken place on the intervening night of 6/7- 12-2007. The learned counsel further submitted that at the time of the alleged incident, the petitioner No.2 was sent to the hospital by the police and therefore, her participation in the commission of the alleged offence is highly improbable. A further submission has been made that the respondent No.2 presented the complaint on 25-2-2008 with regard to the incident said to have been taken place on the intervening night of 6/7-12-2007. He did not state with regard to the names of the associates, who are stated to have accompanied A- 1 in ransacking the house. Therefore, participation of the petitioner Nos.2 and 3 herein cannot be made out either from the complaint presented by the petitioner or any other material placed on record with regard to the alleged incident. 5. Learned counsel appearing for the 2nd respondent submitted that the case is under investigation and the participation of the assailants are yet to be ascertained and therefore, the proceedings in crime No. 38 of 2008 cannot be quashed at this stage in exercise of powers U/sec. 482 Cr.P.C. In support of his submission, reliance has been placed on para No.9 of the Judgment of the Supreme Court of India in The State of Andhra Pradesh Vs. Aravapally Venkanna [1] and it is thus: 9. Whether the material already in existence or to be collected during investigation would be sufficient for holding the concerned accused persons guilty has to be considered at the time of trial. At the time of framing the charge it can be decided whether prima facie case has been made out showing commission of an offence and involvement of the charged persons. At that stage also evidence cannot be gone into meticulously. It is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed, if the are material showing possibility about the commission of the crime as against certainty. That being so, the interference at the threshold with the FIR is to be in very exceptional circumstances as held in R.P.Kapoor’s case supra.” 6. The 2nd respondent presented a complaint on 25.02.2008 with regard to the incident said to have been occurred on the intervening night of 6/7-12- 2008. He did not claim of his witnessing the witness to the incident. He came to know of the incident through one M.A.Ghafoor, who is his friend. The statement of M. A. Ghafoor has been reflected in the complaint presented by him. According to the complaint, M.A. Ghafoor, a friend of the complainant, saw A-1 and his associates while moving near the house of the complainant on the intervening night of the alleged incident. The complainant did not claim of M.A. Ghafoor informing him that petitioner Nos.2 and 3, (A2 and A4), participated in the commission of the offence. Though the complaint has been filed after two months of the incident, the 2nd respondent –complainant did not choose to mention the names of the petitioner Nos.2 and 3 herein as the persons, who participated in the commission of the offence along with the petitioner No.1. There is no material to speak of the participation of the petitioner Nos.2 and 3 in the incident said to have been occurred on the intervening night of 6/7-12-2008. 7. Such is the situation, continuance of the proceedings against the petitioner Nos.2 and 3- (A-2 & A-4) in Cr.No. 38 of 2008 of Hussainialam Police Station amounts to abuses of process of law. With regard to Petitioner No.1, there is a specific mention in the complaint against him and therefore, he does not deserve for any relief in this petition. 8. Accordingly, the Criminal Petition is partly allowed quashing the FIR in Cr.No. 38 of 2008 of Hussainialam Police Station in respect of Petitioner Nos. 2 and 3- (A-2 and A-4). So far as the petitioner No.1– (A-1) is concerned, the petition is dismissed. Interim Stay granted on 10.06.2008 shall stand vacated. ____________ 23-07-2010 Mjl/* [1] 2009(4) Supreme 312