Smt. Jayshree vs The State Of Maharashtra
2013 Latest Caselaw 187 Bom

                                      (1)


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
              AURANGABAD BENCH, AT AURANGABAD.




                                                                          
                        Criminal Writ Petition No. 81 of 2013




                                                  
    Smt. Jayshree w/o. Ratnakar Hogale,
    Age : 35 years,
    Occupation : Household,




                                                 
    Address : Presently Residing at,
    Gourgaon,
    Taluka : Kallam,
    District : Osmanabad,




                                        
    Maharashtra.                                     .. Petitioner.

               versus
                          
    1. The State of Maharashtra.
                         
    2. Smt. Nilawati w/o. Chandrasen Hogale,
       Age : 59 years,
       Occupation : Household,
      

       Resident of, A/P. - Tadwala,
       Taluka & District : Osmanabad,
   



       Maharashtra.

    3. Bharat s/o. Chandrasen Hogale,
       Age : 37 years,





       Occupation : Agriculture,
       Resident of, A/P. - Tadwala,
       Taluka & District : Osmanabad,
       Maharashtra.





    4. Mrs. Rohini w/o. Bharat Hogale,
       Age : 32 years,
       Occupation : Household,
       Resident of, A/P. - Tadwala,                  .. Respondents
       Taluka & District : Osmanabad,                   (Nos.3 to 5 -
       Maharashtra.                                      Original accused)




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                 Mr. A.D. Ostwal, Advocate, for the petitioner.




                                                              
                 Mr. P.N. Muley, Additional Public Prosecutor, for
                 the respondent no.1.

                 Mr. S.Y. Mahajan, Advocate, for respondent




                                                             
                 nos.2 to 4.

                                   ........................




                                           
                                  CORAM : ABHAY M. THIPSAY, J.

                           ig      DATE : 22ND NOVEMBER 2013
                         
    ORAL JUDGMENT :

    1.           Rule.   By consent, Rule made returnable forthwith.                           By
      


    consent, heard finally.
   

2. The petitioner is the original complainant in Regular Criminal Case No. 248 of 2010, pending before the 4th Judicial Magistrate (First

Class), at Osmanabad. The complaint was filed against five persons mentioned as accused therein, including the respondent nos.2, 3 and 4, who are mentioned as the accused nos.3, 4 and 5, respectively, in the said

complaint. The allegation in the complaint was in respect of offences punishable under Sections 120-B of the Indian Penal Code [For short, "IPC"], 465 of the IPC, 468 of the IPC, 471 of the IPC, 323 of the IPC, 506 of the IPC, read with Section 34 of the IPC. The other two accused mentioned, as such, in the complaint are one, Sunita Dattatraya Jamale,

who was Sarpanch of village Tadwala at the material time, and one, Ashok A. Mhetre, who was the Gram Sevak of the said Grampanchayat at the

material time.

3. The learned Magistrate, after examining the petitioner and her witness, ordered investigation under the provisions of Section 202 of the

Code of Criminal Procedure, 1973 [For short, "the Code"], to be carried out by the Police. After considering the report of investigation submitted by the Police, the learned Magistrate by his order dated 1-2-2012, directed

process to be issued against all the accused persons with respect to the

offences punishable under Sections 120-B of the IPC, 465 of the IPC, 468 of the IPC, 471 of the IPC, 323 of the IPC, 506 of the IPC, read with

Section 34 of the IPC. The respondent nos.2, 3 and 4 herein (original accused nos.3 to 5, respectively) challenged the said order issuing process by filing an application for revision in the Court of Sessions. The learned

Ad-hoc Additional Sessions Judge-1, Osmanabad, who heard the revision

application, allowed the same and quashed the order issuing process.

The petitioner is aggrieved by the order of Court of Sessions, in

revision, and has approached this Court in constitutional jurisdiction.

4. I have heard the learned Counsel for the parties, at length. I

have gone through the petition and the annexures thereto. I have taken into consideration the case law relied upon by them.

5. The substance of the complaint filed by the petitioner is that, the respondent nos.2, 3 and 4 herein, being her 'in-laws', started harassing

her after the death of her husband Ratnakar, in the year 2001. That, after the death of the petitioner's husband, she was harassed by the respondent

nos.2, 3 and 4 herein, for the purpose of dowry and by making other financial demands. That, she was driven out of the matrimonial house on

22-9-2001. That, on 8-7-2010, when the petitioner had gone to the said respondents, for demanding her share in the property of her husband, she

was abused, threatened and assaulted. That, her husband and the respondent no.3 - Bharat had jointly purchased a plot of land on which construction was carried out from out of the amount of the deceased

husband of the petitioner. That, in the extracts of the Grampanchayat, the

property had been entered in the name of the petitioner's husband and the respondent no.3 - Bharat, both. That, however, the relevant record was

tampered and the name of the husband of the petitioner was erased therefrom. Thus, the record now shows only the name of the respondent no.3 - Bharat as the holder of the said property in the records of the

Grampanchayat. That, this tampering of record has been done by the

respondent nos.2, 3 and 4, with the help of the accused nos.1 and 2, who were the custodians of the said record at the material time.

6. It cannot be disputed that, prima facie, the record seems to have been tampered with. The tampering is visible. The name of Ratnakar - husband of the petitioner seems to have been erased from the

record.

7. In his order, the learned Magistrate took the averments in the complaint, the verification statement of the petitioner (complainant), the report of the Police into consideration and formed an opinion that, there

was a prima facie case for proceeding against the respondents and the other co-accused, with respect to the offences of conspiracy, forgery, as

also, the offences punishable under Sections 323 of the IPC and 506 of the IPC.

8. The question that requires determination is, whether the order

passed by the Court of Sessions, in revision, in quashing the order issuing process, is just, proper and legal.

9. The learned Ad-hoc Additional Sessions Judge in his order

observed, that the record, that was allegedly tampered with, was in the custody of the Gram Sevak, and that, there was nothing to show that the

present respondents had any access to the record or any connection with the Gram Sevak. The learned Ad-hoc Additional Sessions Judge was critical of the petitioner and observed that, she had not approached the

authority for getting information to connect the accused regarding the

erasing of the name of her husband. Curiously, the learned Ad-hoc Additional Sessions Judge observed that, it was possible that the respondents, being the beneficiaries of the alleged alteration, might have

done something, but there was no prima facie evidence against any of them. Holding so, he quashed the order issuing process.

10. The reasoning adopted by the learned Ad-hoc Additional Sessions Judge is perverse. It is not the case of the petitioner that, she knows when and in what manner, the respondent nos.2, 3 and 4, or any of them, have done the tampering in question. Her case is that, the record which was in the custody of the Sarpanch and the Gram Sevak (accused

nos.1 and 2, respectively) had been tampered with, and that, the tampered record is beneficial to the respondent nos.2, 3 and 4. Her case was that,

that tampering was done at the instance of these respondents was, therefore, required to be inferred necessarily. The learned Ad-hoc

Additional Sessions Judge, while accepting this, went on to observe that, there was no prima facie evidence against these respondents. The question

that arises is, when, that the relevant record has been tampered with in a particular manner is accepted, was it not possible to draw an inference, prima facie, that, the tampering was by and / or at the instance of the

persons who would stand to gain, or who would be in an advantageous

position as a result of such tampering. Clearly, such an inference can be drawn for the purpose of proceeding against such persons.

11. Moreover, the parameters laid down by the Supreme Court, in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi & others

[AIR 1976 SC 1947(1)], as to when interference with an order issuing

process would be justified by the superior courts, have not been kept in mind by the learned Ad-hoc Additional Sessions Judge. Clearly, this was not a case where the allegations made in the complaint and the statements

of the complainant and witness, even if taken at face value, made out 'absolutely no case', against the accused persons; or that, the complaint did not disclose essential ingredients of the offences alleged against the

accused persons. This was not a case, where the allegations made in the complaint, particularly with respect to the forgery, etc., were patently absurd and inherently improbable. This was not a case, where the discretion exercised by the Magistrate could be said to be capricious or arbitrary, or having been based on no evidence, or based on irrelevant or

inadmissible material. There was, therefore, no scope for interfering with the order issuing process, on the ground that there was no evidence against

the respondents. The impugned order, therefore, is clearly bad in law.

12. One aspect of the matter, however, needs to be considered. It is that, the justification for proceeding against the respondent nos.2, 3 and

4, is on the basis of an inference which is based on the factum of actual tampering of the record, which prima facie is clear. Therefore, whether such inference should be drawn only against the respondent no.3 - Bharat,

or whether it should be drawn also against the respondent no.2 - Nilawati,

and the respondent no.4 - Rohini, would need consideration.

13. In the course of arguments, the learned Counsel for the petitioner conceded that there were no sufficient grounds for proceeding against the respondent no.4 - Rohini, but maintained that, there were

sufficient grounds for proceeding against the respondent no.2 - Nilawati -

mother-in-law of the petitioner. He contended that, process has also been issued with respect to offences punishable under Sections 323 of the IPC and 506 of the IPC, in which offences, the role of the respondent no.2 -

Nilawati was apparent.

14. Considering the matter as a whole, it is clear that the

petitioner had been residing separately from the respondents, right since the year 2001. The incidents of matrimonial cruelty alleged by her, are pertaining to the year 2001 and no charge of cruelty has been levelled against the accused persons. By making the Sarpanch and the Gram Sevak as accused, the petitioner has made it clear that, the basic grievance is

about the forgery of the relevant record. In fact, in the course of arguments also, the emphasis was on this aspect only. The mention of

matrimonial disputes or quarrels arising therefrom between the petitioner and these respondents, which are not connected to main incident on which

the complaint is focused, cannot be held sufficient for proceeding against the respondents, particularly when the assertions in that regard are too

vague and general. Under these circumstances, after having viewed the matter fully, I do not think it fit to revive the order issuing process against the respondent nos.2 and 4.

15.

In the result, the order passed by the learned Ad-hoc Additional Sessions Judge, in so far as it relates to quashing of the process

against the respondent no.3 - Bharat, is quashed and set aside. Consequently, the order of the Magistrate, in so far as it relates to issuing process against the respondent no.3 - Bharat, is revived.

16. The petition is allowed in the aforesaid terms and to the aforesaid extent. Rule is made absolute accordingly.

( ABHAY M. THIPSAY ) JUDGE

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bgp/criwp81