1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4067 OF 2010 Sau. Nanda Bhausaheb Shendge ..APPLICANT -VERSUS- The State of Maharashtra and another ..RESPONDENTS ......... Mr. N.V. Gaware, Advocate for applicant. Mr. B.J. Shelke, A.P.P. for respondent. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 13 th October, 2010. PER COURT : 1. Heard. 2. It appears that the applicant lodged F.I.R. against the informant and others pertaining to the same incident which allegedly occurred on 20th October, 2009. Her F.I.R. was registered at about 15 hours on the same day. She alleged that she had received calls on her Cell Phone. Informant-Prakash was giving abuses, and therefore, she ignored calls on Cell Phone. At about 1 p.m., the informant's wife and others including himself and his 2 brother entered her house. She alleged that they threatened her to cause her death. Her driver intervened and rescued her. Her gold necklace had broken in the course of assault and was lost. While she was going to lodge a report, informant-Prakash and his relatives obstructed her Car Vehicle and gave kick blows on the Car as well as fist blows on the front window screen. It appears that subsequently, the F.I.R. was lodged by informant-Prakash alleging that he and the applicant were dealing in business of transportation by using two tanker vehicles. It appears that informant-Prakash is relative of applicant and the tanker vehicles were leased out on her account. The agreement was executed in favour of the Indian Oil Company. Informant-Prakash alleged that annual account used to be settled between them. He suspected that there was some inaccuracy in maintaining of the accounts for the period of one year, and therefore, he demanded explanation from the applicant after visiting her house on 28th October, 2009. She told him that the accounts can be verified from the office of the Indian Oil Company at Amalner. He thereafter asked her to give back 23 Tolas of gold which was given by him to her at the time of elections. She was annoyed on account of such demand. She immediately closed the door and thereafter she and her son Dattatraya @ Viki and a driver started beating the informant. They also assaulted his sister Alka and maternal nephew Amit as well as 3 Miss.Sulbha. Ultimately he pleaded with her and requested to release them saying that he did not require return of gold ornaments or the account of transaction about the business of tanker. It is further alleged that at about 2 p.m. while the informant was proceeding from near Maliwada Arch, the applicant and her son came from behind and stopped him. She threatened that if he will lodge complaint against her then she would see him. While he was returning home without lodging any complaint, the Police came there and took him to the Police Station and enquired about the incident. He, therefore, lodged the F.I.R. 3. It is important to notice that the remedy under Section 438 of the Criminal Procedure Code is rather extra ordinary in character. It is not each and every one who apprehends arrest can seek protection under Section 438 of the Criminal Procedure Code. Where there is prima facie case made out to demonstrate that the person accused of the offence is arrested without any reason or rhyme then alone the protection may be granted in order to avoid humiliation of such a person. Where there is some prima facie evidence to implicate the applicant and there is probability of accusation being truth-bearing, the protection is unavailable. 4. True, the applicant filed the F.I.R. first in time but if 4 both the F.I.Rs. are considered, one fact is quite clear that informant-Prakash had been to the house of the applicant in the relevant noon. Secondly, while the applicant was travelling in her car vehicle, the informant and his relative met her on the road at about 2 p.m. Though her F.I.R. is earlier in point of time, yet in the F.I.R. lodged by informant-Prakash, it is made clear that he was threatened by the applicant that he would be seen because she is Sabhapati of the Panchayat Samiti and leader, who has dealt with many big shots. Due to such threat, he has not lodged the complaint and returned back to the home and while returning to home, the Police approached him and took him to the police station. In other words, he was under spell of threat, and therefore, he has not lodged F.I.R. One can not be oblivious of the fact that they are the relatives and had done certain business together. It is difficult, therefore, to infer that informant-Prakash would have falsely implicated the applicant though she is innocent and that he and his relatives had gone to her house in order to assault her. Be that as it may, the falsity of correctness of the accusation would be the subject matter to be decided during the course of investigation. At this juncture, the F.I.R. lodged by informant-Prakash can not be branded as incorrect or false without there being any substantial reason in particularly when his presence in the house of the applicant is admitted fact in view of the counter complaint. Under 5 the circumstances, the application is without much force and as such, is dismissed. The observations made in this order be not considered in any other matter, which may be required to be decided on its own merits. (V.R.KINGAONKAR) JUDGE gas/cri4067.10