1 J-APL-553-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.553/2016
1. Vishwas s/o Rameshrao Hirulkar,
Aged about : 33 years, Occ. Service,
2. Ramesh s/o Mahadeorao Hirulkar,
Aged about : 71 years, Occ. Business.
3. Sau. Rajni w/o Ramesh Hirulkar,
Aged about : 60 years, Occ. Household.
4. Darshan s/o Ramesh Hirulkar,
Aged about : 31 years, Occ. Business.
All 1 to 4 are R/o Walkar Road,
Badkas Chowk, Mahal, Nagpur.
5. Sau. Mayuratai Mangesh Dharamkar,
Aged about : 36 years, Occ. Household,
R/o Hiwarkhed, Tq. Morshi,
Dist. Amravati. ..... APPLICANTS
...V E R S U S...
1. State of Maharashtra,
Through P.S.O., P.S. Rajapeth,
Amravati City, Amravati.
2. Sau. Neha w/o Vishwas Hirulkar,
Aged about : 31 years, occ.
R/o Gangotri Colony, Sai Nagar,
Rajapeth, Amravati. ... NON-APPLICANTS
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Shri C. G. Barapatre, Advocate, for the applicants.
Ms.Archana Kulkarni, APP for respondent No.1-State.
Shri Raj Damodar Wakode, Advocate for respondent No.2.
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CORAM:-
PRASANNA B. VARALE &
ARUN D. UPADHYE, JJ.
DATED :
27/11/2017.
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2 J-APL-553-16.odt JUDGMENT : (PER PRASANNA B. VARALE, J.)
1. Applicants are before this Court for quashment and setting aside the First Information Report No.478/2016 registered at Rajapeth Police Station dated 01/07/2016 for the offence punishable under Section 498-A r/w Section 34 of the Indian Penal Code on the complaint lodged by non-applicant No.2.
2. The non-applicant No.2 approached the office of Police Commissioner, Women Cell on 16/04/2016. It was submitted in the report that non-applicant No.2 and applicant No.1 both were possessing Degree of Engineering. The marriage between the non-applicant No.2 and applicant No.1 was solemnized on 12/06/2015 at Amravati. The non-applicant No.2 after her marriage was residing at her matrimonial place i.e. Nagpur along with the applicants. It was stated in the report that the applicants soon after the marriage, started ill-treating and abusing non-applicant No.2. It is further stated that applicant No.1 told non-applicant No.2 that for some company work, he was to proceed to Punjab and though applicant No.1 was insisting upon non-applicant No.2 to stay at Nagpur. She proceeded to Punjab along with applicant No.1. The couple stayed at Punjab for one month and even in that period of one month, non-applicant No.2 was subjected to ill-treatment and abuses. It is stated that the applicants also levelled allegations on the character of non-applicant No.2. It is stated that there was ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:49:51 ::: 3 J-APL-553-16.odt consistent demand for money and on account of demand, non-applicant No.2 was subjected to ill-treatment and subjected to physical and mental ill-treatment.
3. On 08/08/2015, the applicants gave abuses to non- applicant No.2 and told non-applicant No.2 to vacate the house. As non- applicant No.2 was under state of depression and she was very frightened. She called her parents to Nagpur from Amravati. Though the parents made an attempt to give understanding to the applicants, their attempt failed. The applicants forcefully driven out non-applicant No.2 from her matrimonial home and since then, she was residing at Amravati.
4. The learned counsel for the applicants vehemently submitted that non-applicant No.2 on false and baseless allegations, dragged the applicants in a criminal report. He then submitted that in the process of conciliation and counselling, the applicants submitted their say and their statements were recorded. The learned counsel submitted that non-applicant No.2 was not ready and willing to stay with applicant No.2, 3, 4 and 5 and she was insisting upon and she was picking up quarrels with the applicants. Non-applicant No.2 was also giving threats of dire consequences and she used to humiliate the applicant Nos.2 and 3, who are in their advance age. The learned counsel submitted that in the report lodged against the applicants, non- applicant No.2 stated that incidents of ill-treatment and abuses took ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:49:51 ::: 4 J-APL-553-16.odt place either at her matrimonial home i.e. at Nagpur or at Punjab where the couple was residing for a period of one month. The learned counsel submitted that the police authorities of Rajapeth Police Station, Amravati ought not have entertained the complaint and lodged the report. He further submitted that at the most, the police authorities of Rajapeth Police Station ought to have referred the matter to the appropriate police authorities at Nagpur.
5. The learned counsel then submitted that applicant No.1 was apprehending that non-applicant No.2 may take some steps against these applicants and may drag them to the Court of Law. As such, applicant No.1 submitted his report / representation to Kotwali Police Station on 14/12/2015. The learned counsel for the applicants then invited our attention to the order dated 18/09/2017. The order dated 18/09/2017 reads thus :-
"The question involved is of the jurisdiction of police station Rajapeth, Amravati, to register the offence punishable under section 498-A r/w section 34 of the Indian Penal Code against the applicants/accused. Prima facie reading of the F.I.R. and the oral complaint show that the alleged offence was committed either at Nagpur or at Barnala in State of Punjab. In such situation, according to the learned counsel for the applicants the investigation should have been transferred to the concerned police station at Nagpur, and therefore, subsequent filing of charge-sheet would of no consequence.
Put up this matter after two weeks. The learned APP to file reply on this aspect."
The learned counsel submits that as the report lodged against these applicants and the proceedings initiated on the basis of ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:49:51 ::: 5 J-APL-553-16.odt the report are clearly unsustainable. The report and proceedings be quashed.
6. The non-applicant No.1 - State of Maharashtra opposed the application. Two affidavits-in-reply are filed on 21/09/2016 and 03/11/2017 respectively.
7. Shri Wakode, learned counsel for non-applicant No.2 while opposing the application, submitted that in similar circumstances, this Court, thought it fit to transfer the proceedings. Shri Wakode, the learned counsel thus, submitted that the same course be adopted in the present matter.
8. We have gone through the material placed on record. Perusal of the record shows that though the matter was referred for mediation, the mediation failed. It is stated in the reply filed by non- applicant No.1 - State dated 21/09/2016 that on receiving the complaint from non-applicant No.2, the offence came to be registered against the present applicants and the Investigating Agency was set in motion. The statement of witnesses are recorded. On the backdrop of the allegations in the report that non-applicant No.2 was subjected to virginity test, the medical papers in that relation are also seized. In the additional affidavit dated 3 rd November, 2017, non-applicant No.1 - State admits that the offence was committed either at Nagpur or at Barnala in State of Punjab and non-applicant No.2 lodged complaint against these applicants at Amravati. It is stated that as non-applicant ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:49:51 ::: 6 J-APL-553-16.odt No.2 was residing with her parents at Amravati, as she had no other option to take the shelter of her parents. The report came to be lodged at Amravati. It is submitted in the additional affidavit that the investigation was concluded and the charge sheet was filed on 16/12/2016 and the criminal case is already registered in Amravati Court on 16/04/2016.
9. Considering the above referred facts, we find merit in the submission of the learned counsel Shri Wakode appearing for non- applicant No.2. It would be useful to refer to the observations of this Court in the case of Shekhar Shivdas Mahire and others Vrs. Sou. Sarikabai Shekhar Mahire and another, reported in 2010 Criminal Law Journal 3607. Facts in the present matter are nearly identical to the facts in the case of Shekhar Shivdas Mahire (supra). In the case of Shekhar Shivdas Mahire, the entire instances have taken place within the jurisdiction of Court at Nashik and the report was lodged at Sahada Police Station. The learned Single Judge in the case of Shekhar Shivdas Mahire, referred to the observations made by the Hon'ble Apex Court, in the case of Manish Ratan and others Vrs. State of Madhya Pradesh and another, reported in (2007) 1 SCC 262. It was observed thus :-
"It can thus be clearly seen that the Hon'ble Apex Court in clear terms had held that the offence under Section 498-A is not a continuing offence, merely because the complainant has left the matrimonial house on account of ill-treatment by her husband and resides with her parents, cannot be ground to bestow the Court at the place where the parents reside, a jurisdiction to entertain the complaint."
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7 J-APL-553-16.odt Then considering the facts of the matter, the learned Single Judge, thought it fit to transfer the proceedings. It was observed in para 15 in the case of Shekhar Shivdas Mahire.
"15 - In the present case as already discussed herein above, there are no allegations of any ill- treatment at the place where the parents of the complainant resided. The entire allegations pertain to the matrimonial home of the complainant i.e. Nashik. In that view of the matter, the proceedings before the court at JMFC, Sahada are not tenable. However, I find that in spite of quashing the proceedings, it would be in the interest of justice to transfer the proceedings from the court of JMFC Sahada to the court of learned Chief Judicial Magistrate, Nashik. The application is therefore allowed by directing the proceedings being CR.No.126/2006 registered with Sahada Police Station and charge sheet No.9 of 2007 filed in RCC No.14/2017 pending before the learned J.M.F.C., Sahada to be transferred to the court of the learned Chief Judicial Magistrate, Nashik, who shall allot the same to the court of competent jurisdiction at Nashik. It is needless to state that the proceedings shall stand transferred from the present stage along with the evidence, if any, recorded."
10. Considering the facts of the present case and considering the Judgment in the matter of Shekhar Shivdas Mahire (supra), we allow the application by directing the proceeding being Crime No.478/16 registered at Rajapeth Police Station, Amravati and the proceedings being Regular Criminal Case No.1542/2016 on the basis of the charge sheet filed by Rajapeth Police Station pending before the learned Chief Judicial Magistrate, Amravati to be transferred to the Court of learned Chief Judicial Magistrate, Nagpur who shall allot the same to the court of competent jurisdiction at Nagpur. ::: Uploaded on - 28/11/2017 ::: Downloaded on - 29/11/2017 01:49:51 :::
8 J-APL-553-16.odt Needless to state that the proceedings shall stand transferred from the present stage along with evidence, if any, recorded.
11. Learned counsel appearing for the applicants prays for liberty to file an application seeking discharge, before the appropriate Court.
Liberty, as prayed for, is granted.
JUDGE JUDGE
Choulwar
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