Charandas S/O Hari Chavhan And ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 2005 Bom

                                               6117.2016 Cri.Appln.odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.6117 OF 2016 

          1.       Charandas s/o Hari Chavhan,  
                   Age : 35 years, Occu. Agriculture.  

          2.       Hari s/o Dubala Chavhan,  
                   Age : 70 years, Occu. Agriculture.  

          3.       Purandas s/o. Hari Chavhan,  
                   Age : 42 years, Occu. Agriculture 

          4.       Dhanraj s/o. Hari Chavhan,  
                   Age : 32 years, Occu. Agriculture 

          5.       Gorakh s/o. Hari Chavhan, 
                   Age : 30 years, Occu. Agriculture 

          6.       Sau. Tarabai w/o. Dhanraj Chavhan, 
                   Age : 30 Years, Occu. Household.  

          7.       Sau. Sharadaba @ Kamalbai Purandas 
                   Chavhan, Age 38 Years, Occu.Household

                   All R/o. village Valthan, 
                   Tq.Chalisgaon, District Jalgaon 
                                                 APPLICANTS 
                        VERSUS 

          1.       The State of Maharashtra,  
                   Through Kannad Rural Police Station, 
                   Tq. Kannad, District Aurangabad.  

          2.       Sau. Mohini @ Shalu w/o Charandas 
                   Chavhan, Age : 30 years, Occu.Household,
                   R/o. Village Valthan, Tq.Chalisgaon, 
                   Dist. Jalgaon 
                   At present Bhambarwadi, Tq.Kannad,  
                   District Aurangabad.         RESPONDENTS




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                               ...
          Mr.Nilesh   N.Desale,   Advocate   for   the 
          applicants
          Mr.S.Y.Mahajan, APP for the Respondent/State
          Mr.S.C.Yeramwar, Advocate for respondent no.2
                               ...

                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 24.04.2017 Pronounced on : 26.04.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. It is the case of the applicants

that the marriage between applicant no.1 and

respondent no.2 was solemnized on 11th May,

2003. Applicant no.2 is the father of

applicant no.1. Applicant nos.3 to 5 are the

brothers of applicant no.1. Applicant no.6 is

the wife of applicant no.4, and applicant

no.7 is the wife of applicant no.3. Applicant

6117.2016 Cri.Appln.odt

nos.3 and 7 are residing separately in the

village Valthan. Applicant nos.4 and 6 are

residing separately in the same village.

Even applicant nos.2 and 5 are also residing

in the house of applicant no.3.

4. It is further the case of the

applicants that after the marriage, applicant

no.1 and respondent no.2 were only residing

together in the same village. Applicant no.1

and respondent no.2 were cohabiting

peacefully, since their marriage i.e. from

11th May, 2003. Out of the said wedlock,

applicant no.1 and respondent no.2 begotten

children, namely, Siddhesh [aged 10 years]

and Kalpesh [aged 7 years]. There was no

harassment or ill-treatment at the hands of

applicant no.1 or at the hands of other

applicants during cohabitation with the

applicant no.1. After lapse of more than 13

years from the date of marriage, respondent

no.2 lodged false and fabricated complaint

6117.2016 Cri.Appln.odt

against applicants on 17th August, 2016. It is

falsely alleged by the informant that after

one year of the marriage, the applicants

started causing ill-treatment and further

harassed on account of non-fulfillment of

illegal demand of Rs.1,00,000/- for

establishment of Kirana Shop. It is further

alleged that the father of the informant has

paid Rs.50,000/- prior to one year of the

complaint. It is pertinent to note that the

complaint is lodged by the informant after

lapse of 13 years of the marriage. On the

contrary, it is alleged that after one year

of the marriage, there was ill-treatment.

However, during 12 years not a single

incident of lodging the complaint against the

applicants or any specific allegation is

leveled in the complaint regarding harassment

or ill-treatment to the informant at hands of

applicants. Accordingly, FIR bearing Crime

No.I-62/2016 is registered on 17th August,

6117.2016 Cri.Appln.odt

2016, with Kannad Rural Police Station,

Taluka Kannad, District Aurangabad, for the

offences punishable under Sections 498 (A),

323, 504 r/w.34 of the Indian Penal Code

against the present applicants.

5. It is further the case of the

applicants that thereafter the police

authorities have recorded the statements of

the parents of the informant on 23rd August,

2016. The police authorities further recorded

the statements of maternal uncle of the

informant on 23rd August, 2016. After

completion of the investigation, the police

authorities have filed the charge-sheet

bearing No.30/2016, before the Chief Judicial

Magistrate, Kannad, on 30th September, 2016.

6. The learned counsel appearing for

the applicants invites our attention to the

grounds taken in the application and submits

that the marriage between applicant no.1 and

6117.2016 Cri.Appln.odt

respondent no.2 was solemnized on 11th May,

2003, and the FIR making wild and omnibus

allegations is filed after 13 years of the

marriage. He submits that other applicant

nos.2 to 7 are no way concerned with the

matrimonial affairs of applicant no.1 and

respondent no.2. Therefore, he submits that,

the continuation of the further proceedings

would cause great prejudice and mental agony

to the applicants since an allegations made

in the FIR are general in nature and far from

truth.

7. On the other hand, the learned APP

appearing for respondent-State and the

learned counsel appearing for respondent no.2

submit that after detailed investigation, the

charge-sheet has been filed. The prosecution

witnesses have supported the allegations in

the FIR, and therefore, it is only during

trial the statements of the witnesses can be

tested.

6117.2016 Cri.Appln.odt

8. We have heard the learned counsel

appearing for the applicants, learned APP

appearing for respondent-State, and the

learned counsel appearing for respondent no.2

at length. With their able assistance,

perused the allegations in the FIR and also

the statements of the witnesses. So far as

applicant no.1 i.e. husband of respondent no.

2 is concerned, an allegations made in the

FIR clearly disclosed alleged offences

against him, and therefore, the FIR/charge-

sheet qua him cannot be quashed.

9. It appears that the marriage between

applicant no.1 and respondent no.2 had taken

place 13 years back. Out of the said wedlock,

respondent no.2 begotten children, namely

Siddhesh aged 10 years and Kalpesh aged 7

years. There are specific allegations of

beating, ill-treating and cruelty at the

hands of applicant no.1. Therefore, his

application deserves no consideration.

6117.2016 Cri.Appln.odt

10. So far as other applicants i.e.

applicant nos.2 to 7 are concerned, there are

general allegations that there was demand of

Rs.1,00,000/- so as to establish grocery

shop. There is no any specific overt act

attributed to each of the applicants. There

are general allegations without mentioning

specific incident or dates of such incident.

It is also relevant to mention that the

marriage had taken place 13 years back and if

at all there was ill-treatment, immediately

after one year of the marriage, respondent

no.2 ought to have protested by resorting to

appropriate proceedings. However, the FIR is

lodged belatedly in the year 2016.

Therefore, an allegations as against

applicant nos.2 to 7 appears to be

afterthought and also general in nature. It

is also relevant to mention that applicant

no. 1 and respondent no.2 were only residing

together in the same village. It is brought

6117.2016 Cri.Appln.odt

on record by the applicants that applicant

nos.3 and 7 are residing separately in the

village Valthan. Applicant nos.4 and 6 are

residing separately. Applicant nos.2 and 5

are also residing in the house of applicant

no.3. It appears that applicant nos.2 to 7

are residing separately and not in the

matrimonial house. Be that as it may, upon

perusal of the allegations in the FIR and the

statements of the witnesses, who have only

reiterated and repeated version stated in the

FIR stereo type manner, we are of the opinion

that, an ingredients of an alleged offences

are not attracted and consequently alleged

offences are not disclosed as against

applicant nos.2 to 7.

11. The Supreme Court in the case of

Geeta Mehrotra and another Vs. State of Uttar

Pradesh and another1 in the facts of that

case held that casual reference to a large

1 (2012) 10 SCC 741

6117.2016 Cri.Appln.odt

number of members of the husband's family

without any allegation of active involvement

would not justify taking cognizance against

them and subjecting them to trial. In the

said judgment, there is also reference of the

judgment of the Supreme Court in the case of

G.V.Rao Vs.L.H.V. Prasad2 wherein in para 12

it is observed thus:

"12. There has been an outburst of matrimonial disputes in recent times.

Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons

2 (2000) 3 SCC 693

6117.2016 Cri.Appln.odt

which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their 'young' days in chasing their 'cases' in different courts."

12. The Supreme Court in the case of

"State of Haryana V/s Bhajan Lal3" held that,

in categories mentioned in para 108 of the

said judgment, the High Court would be able

to quash the F.I.R. Para 108 is reproduced

herein below:

108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-

ordinary power under Article 226 or the

3 AIR 1992 SC 604

6117.2016 Cri.Appln.odt

inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report 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 a Magistrate within the purview of Section 155(2) of the Code.

6117.2016 Cri.Appln.odt

3. Where the uncontroverted allegations made in the FIR 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 accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-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 FIR 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 provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide 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.

6117.2016 Cri.Appln.odt

13. The case of applicant nos.2 to 7 is

covered under category nos.1, 2 and 7. In

the light of the discussion hereinabove, we

pass the following order:

ORDER

i] The application to the extent of applicant no.1 stands rejected.

ii] The application to the extent of applicant nos.2 to 7 is allowed in terms of prayer clause-C.

iii] Rule is made absolute on above terms. The Criminal Application is allowed partly, and the same stands disposed of accordingly.

iv] An observations made hereinabove are prima facie in nature and the trial Court should not get influenced during trial by the said observations.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC