Kailas S/O Damodar Pathe And ... vs The State Of Maharashtra And ...
2014 Latest Caselaw 172 Bom

                                                                   Cri.Appln.No.5429/2014
                                            1

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

                     CRIMINAL APPLICATION NO.5429 OF 2014




                                                                          
    [1]   Kailas s/o Damodar Pathe                             |   Application
          (wrongly typed in charge                             |   dismissed as




                                                  
          as Kailas s/o Aba Pathe)                             |   not pressed as
          Age 23 years, Occu.Agri.,                            |   per Court's order
          R/o Village Bhoyegaon,                               |   dated 8.10.2014
          Taluka Gangapur,                                     |
          District Aurangabad




                                                 
    2.    Latabai w/o Raju Khatke
          Age 36 years, Occu.Household
          R/o Village Sarangpur,
          Taluka Gangapur,




                                       
          District Aurangabad

    3.    Raju s/o Asaram Khatke,
                         
          Age 40 years, Occu.Agriculture,
          R/o Village Sarangpur,
          Taluka Gangapur,
                        
          District Aurangabad

    4.    Dwarkabai w/o Shamrao Pahune
          Age 40 years, Occu.Household,
          R/o Village Nababpurwadi,
      

          Taluka Gangapur,
          District Aurangabad
   



    5.    Shamrao s/o Gajaba Pahune,
          Age 45 years, Occu.Agriculture,
          R/o Village Nababpurwadi,
          Taluka Gangapur,





          District Aurangabad                                  ..Applicants

                Versus

    1.    The State of Maharashtra





    2.    Lalita w/o Abasaheb Pathe,
          Age 26 years, Occu.Agril.,
          R/o Village Bhagalwadi,
          Taluka Gangapur,
          District Aurangabad                                  ..Respondents

Mr H.V.Tungar, Advocate for applicants Mr S.D.Kaldate, A.P.P.for respondent No.1 Mr D.S.Kore, Advocate for respondent No.2

CORAM : S.S. SHINDE AND N.W. SAMBRE, JJ

DATE : 23rd December 2014

Cri.Appln.No.5429/2014

ORAL JUDGMENT

1. Rule. Rule made returnable forthwith. With the consent of learned

Counsel for the parties, heard finally.

2. This application is filed with following prayer :

"(B) The proceedings of RCC No.53/2012 pending in the court

of Judicial Magistrate, First Class, Gangapur for the offence u/s 498-A, 323, 504, 506 r/w 34 of the Indian Penal Code may kindly be quashed."

4.

So far as applicant No.1, the brother in law of the original

complainant is concerned, his application was not pressed and as a

result, same was dismissed as not pressed as per order of this Court

dated 8th October 2014.

5. The applicant Nos.2 and 4 are the married sisters-in-law of the

respondent No.2 i.e. original complainant. The applicant No.3 is the

husband of applicant No.2 whereas the applicant No.5 is the husband of

applicant No.4. The respondent No.2 herein, on 3 rd January 2012 lodged

the F.I.R. with the Gangapur Police Station, Gangapur, District

Aurangabad vide Crime No.I-03/2012.

6. It appears that the Police have conducted investigation and

thereafter filed charge-sheet vide No.01/2012 in the Court of Judicial

Magistrate, First Class, Gangapur. The case is registered as

R.C.C.No.53/2012. The Counsel appearing for the applicants informs this

Court that the charge is not yet framed.

Cri.Appln.No.5429/2014

7. This application is filed praying therein for quashing pending

proceedings in R.C.C.No.53/2012 before the learned Judicial Magistrate,

First Class, Gangapur.

8. The learned Counsel appearing for the applicants invited our

attention to the allegations in the F.I.R. and also the statements of the

witnesses and other material placed on record and submits that

allegations in the F.I.R. are general in nature, no specific instances have

been stated and, therefore, in absence of specific instances about ill-

treatment or illegal demands, ingredients of provisions of Section 498A

of the Indian Penal Code would not get attracted and when there is no

prima facie case, this application deserves to be allowed. It is also

submitted that the applicants are residing at different places. The

applicants No.2 and 4 are married long back and they are staying with

their family at the places which are mentioned in the title cause. It is

submitted that even if the allegations in the F.I.R. are taken at its face

value, no offence is disclosed and, therefore, the application deserves to

be allowed. The Counsel appearing for the applicants further submits

that even if the allegations in the F.I.R. and the statements of the

witnesses are carefully read and taken as it is, no offence, as alleged can

be attracted so far present applications are concerned. In support of

aforementioned contentions, the learned Counsel for the applicants

invited our attention to the exposition of the Supreme Court in case of

Ramesh & Ors.,Vs. State of T.N., reported in 2005 ALL MR (Cri)

1795 (S.C.).

Cri.Appln.No.5429/2014

9. On the other hand, learned Counsel appearing for the original

complainant submits that allegations in the F.I.R. and the statements of

the witnesses will have to be read as it is. It is further submitted that the

prosecution agency has collected sufficient material and case is triable.

Therefore, this Court may not entertain this application. It is submitted

that, upon reading allegations in the F.I.R. and the statements of the

witnesses, offence is disclosed. The prosecution agency has collected

the sufficient material and, therefore, this Court may not entertain this

application. The learned A.P.P. also adopted the arguments advanced by

the learned Counsel for the original complainant.

10. We have given anxious consideration to the rival submissions.

With the assistance of learned Counsel for the applicants, learned A.P.P.

for the State and learned Counsel for the original complainant, we have

carefully perused the allegations in the F.I.R., the statements of the

witnesses and also the affidavit-in-reply filed by respondent No.2. So far

present applicants are concerned, allegations as they appear in the F.I.R.

are as under :

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Cri.Appln.No.5429/2014

f'kohxkG d:u eyk dh rq vkt ekgsj tk rq>s vkbZ oMhyk dMwu 'ksrkr cksvj ?ksowu eksVkj o ikbZi ykbZu ?ks.;klkBh fnM yk[k

:i;s ?ksowu ;s- ulrk ?kjh ;sow udks] vkyh rj rqyk ftoar ek:u Vkdw v'kh /kedh fnyh R;keqGs ekgsj vkbZ oMhykdMs vkys vkgs o

vkrk R;akpsdMs jkgr vkgs- ek>s vkbZ oMhy xjhc vlY;keqGs iSls nsow 'kdr ukgh**-

11. Upon perusal of the statements of the witnesses, what is stated in

the F.I.R. by the complainant against the applicants have been repeated

and there is no material particulars quoting any specific instances of ill-

treatment or harassment by the applicants so as to attract ingredients of

Section 498A of the Indian Penal Code. In the first place, allegations in

the F.I.R. are general in nature, no specific overt act is attributed to each

of the applicants. Secondly, even if the allegations in the F.I.R. are taken

at its face value, there are no specific instances or material particulars

which would strengthen the contention of the complainant that there

was harassment or ill-treatment which is contemplated by the provisions

of Section 498A of the Indian Penal Code so as to even make out the

prima facie case against the applicants. We find considerable force in

the arguments of the Counsel appearing for the applicants that mere

general utterances like in the facts of the cited case in the case of

Ramesh and others Vs. State of T.N. would not attract the provisions of

Section 498A of the Indian Penal Code. Paragraph 6 of the said

judgment reads thus :

"6. Before we proceed to deal with the two contentions relating to limitation and territorial jurisdiction, we would like

Cri.Appln.No.5429/2014

to consider first the contention advanced on behalf of the appellant - Gauri Ramaswamy. Looking at the allegations in the F.I.R. and the contents of charge-sheet, we hold that none

of the alleged offences, viz. Sections 498-A, 406 of the I.P.C.

and Section 4 of the Dowry Prohibition Act are made out

against her. She is the married sister of the informant's husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time, i.e. between March

and October 1997, when the 6 th respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which

connects her with an offence under Section 498-A or any other offence of which cognizance was taken.

ig Certain acts of taunting and ill-treatment of informant by her sister-in-law (appellant) were alleged but they do not pertain to dowry

demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the F.I.R. is that on some occasions, she directed the complainant

to wash W.C. and used to abuse her and used to pass remarks such as 'even if you have got much jewellery, you are our

slave'. It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn

her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the

most, the allegations reveal that her sister-in-law Gauri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband's relations as possible. Neither the F.I.R. nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences

Cri.Appln.No.5429/2014

alleged against the appellant - Gauri Ramswamy. The High Court ought not to have relegated her to the order of trial. Accordingly, the proceedings against the appellant - Gauri

Ramaswamy are hereby quashed and her appeal stands allowed."

12. In the light of discussion in foregoing paragraphs and upon

considering the provisions of Section 498A of the Indian Penal Code and

other sections which are invoked by the prosecution agency in the light

of material brought on record and also the legal position settled by the

Supreme Court, in our considered view, this application deserves to be

allowed.

13. The Supreme Court, in the case of "State of Haryana V/s

Bhajanlal" {AIR 1992 SC 604} has laid down the categories so as to find

out under which category case falls while exercising jurisdiction by the

High Court under Section 482 of the Code of Criminal Procedure, which

read thus :

1 Whether the allegations made in the F.I.R. or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code, except under an order of Magistrate within the purview of Section 155(2) of the Code;

3. Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the applicant;

Cri.Appln.No.5429/2014

4 Where the allegations in the F.I.R. do not constitute a cognizable offence, no investigation is permitted by a

police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

5. Where the allegations made in the F.I.R. or complaint are

so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act, (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a

specific provisions in the Code of the concerned Act, providing efficacious redress for the grievance of the

aggrieved party.

7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously

instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Upon perusal of the categories laid down by the Supreme Court in

case of State of Haryana Vs. Bhajanlal, the present case would fall under

Categories No.1 and 5 inasmuch as the allegations made in the F.I.R.

or the complaint even if they are taken at their face value and

accepted in their entirety do not prima facie constitute any offence

or make out a case against the applicants and secondly, the

allegations made in the F.I.R. or complaint are so absurd and

inherently improbable on the basis of which no prudent person can

ever reach a just conclusion that there is sufficient ground for

proceeding against the applicants.

Cri.Appln.No.5429/2014

14. In that view of the matter, the application is allowed and Rule is

made absolute in terms of prayer clause (B). Application stands

disposed of accordingly.

           ( N.W. SAMBRE, J.)                  ( S.S. SHINDE, J.)



    (vvr/5429.14criappln)