2008crn2322.08.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 2322 OF 2008 1. ASHFAQUE AHEMAD SYED ISMAIL & 2 ORS. JAMIL COLONY, AMRAVATI 2. SYED MUSHTAQ AHMAD SYED ISMAIL ASMA COLONY , AMRAVATI 3. NUSRATBANO SYED MOBIL AHAMAD ANJANGAON SURJI , DIST. AMRAVATI .. APPLICANTS VERSUS 1. STATE OF MAH. THRU. P.S. INCHARGE NAGPURI GATE P.S. , AMRAVATI 2. SAU. NAJMUSSHER NAUSIN W/O SAYED ASHFAQUE AHEMAD .. RESPONDENTS ----------------------------------------------------------------------------------------------------------------------------------------------- Mr. A. S. Mardikar, Advocate for the applicants. Mr. D. M. Kale, A. P. P. for respondent No. 1-State. Mr. C. S. Kaptan, Advocate for respondent No. 2. ------------------------------------------------------------------------------------------------------------------------------------------------ CORAM:- R. Y. GANOO, J. DATED :- 20TH AUGUST, 2009. P. C. : 1. A charge-sheet is filed in criminal case No. 565 of 2008 which is pending on the file of learned Judicial Magistrate, First Class, Amravati. The applicants want that the said charge sheet should be quashed and set aside. 2. I have heard learned Advocates on both sides at the stage of admission. Based on the First Information Report filed by the wife of applicant No.1 on 15/4/2008 action is initiated. Investigation was carried out and charge 2008crn2322.08.odt 2/3 sheet has been filed as aforesaid. Statements of respondent No. 2 as well as daughters of respondent No. 2 and son of respondent No. 2 have been recorded. 3. Before this Court, learned Advocate Mr. Mardikar, on the basis of statements available in the charge sheet, tried to submit that offence under Section 498-A read with Section 34 of the Indian Penal Code is not made out. He also submitted that applicants No. 2 and 3 have been roped with malafide intention though they were staying away and have no occasion to deal with the FIR complainant. Learned Advocate Mr. Mardikar relied upon the judgment of the Supreme Court in the case of Bhaskarlal vs. Monika delivered on 27/7/2009 to contend that the charge sheet does not disclose offence under Section 498-A IPC, and therefore, the charge sheet should be filed. 4. I have perused the said judgment. I have also perused the statements recorded. It is possible to say that in regard to the instances which have taken place prior to March, 2008, the complaint has been filed by respondent No. 2 belatedly. The charge sheet discloses certain events which have taken place in the month of March, 2008. On going through the entire record it is not possible to say that no offence under Section 498-A IPC is made out as there are allegations as regards applicants hatching a plan to put respondent No. 2 at fire. Learned Advocate Mr. Mardikar argued that if no offence is made out under Section 498-A IPC, the same should be quashed and cannot be accepted. Merely because the police put in Section 498-A IPC while filing charge sheet, that does not mean that the charge sheet will have to be looked only from that angle. In order to frame the charge, the Court will have to peruse entire charge sheet, find out as to whether any case is made out for framing of charge under Section 498-A 2008crn2322.08.odt 3/3 IPC or any other offence and then proceed to frame the charge. If, on the basis of the record before it, no case is made out for framing of charge, undoubtedly, the concerned Court will have to decide the case. In my view, learned Advocate for the applicants is not in a position to say that no offence, whatsoever, is made out against the applicants and to that extent the charge sheet cannot be quashed. 5. In view of the aforesaid discussion, the course open to the applicants is to move the learned trial Court either for discharge or wait till the stage of framing of charge and then persuade the learned Judge to observe that no case is made out or the case for lessor offence is made out. 6. The application is, therefore, liable to be dismissed at the stage of admission. Whatever is stated in this order will not come in the way of the applicants to advance their arguments as may be found fit and necessary before the learned trial Judge. 7. Learned Advocate Mr. Mardikar submitted that learned trial Judge be directed to take up the matter for framing of charge as expeditiously as possible. 8. It may not be proper for this Court to pass such an order as this Court is unable to gather the workload before the learned trial Judge. However, it will be open for the applicants to make an application in writing for such a request which application shall be considered by the Court by considering the workload of the said Court. The application is dismissed, accordingly. JUDGE wwl