Rajendra S/O Digamber Pawar And ... vs The State Of Maharashtra And Anr
2017 Latest Caselaw 5176 Bom

                                              6879.2016 Cri.Appln..odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                   CRIMINAL APPLICATION NO.6879 OF 2016

          1.       Rajendra s/o.Digamber Pawar,  
                   Age 40 Years, Occ. Business, 
                   R/o. Jalan Nagar, Plot no.7,  
                   Railway Station, Aurangabad,  
                   Dist: Aurangabad.  

          2.       Vijaya w/o.Digamber Pawar,  
                   Age: 65 Years, Occu: House Hold 
                   R/o: Vivekanad Chowk, Nanded Naka,  
                   Latur Tq. & Dist. Latur.  

          3.       Digamber s/o.Jivlag Pawar,  
                   Age: 70 years, Occu: Ex-Service Man,  
                   R/o: Vivekanad Chowk, Nanded Naka,  
                   Latur Tq. & Dist. Latur.  

          4.       Baby Saroja w/o.Angad Biradar, 
                   Age: 43 years, Occ: Service & 
                   Social work,  
                   R/o: Vivekanad Chowk, Nanded Naka,  
                   Latur Tq. & Dist. Latur.      APPLICANTS 
                    
                        VERSUS

          1.       The State of Maharashtra,  
                   Through Satara Police Station,  
                   Aurangabad.  

          2.       Surekha w/o Rajendra Pawar,  
                   Age: 45 years, Occu: Service,
                   R/o. Jalan Nagar, Plot No.7,  
                   Railway Station, Aurangabad,  
                   Dist: Aurangabad.            RESPONDENTS  




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                               ...
          Mr.S.A.Nagarsoge, Advocate for the applicants
          Mr.M.M.Nerlikar, APP for the Respondent No.1/ 
          State
          Mr.R.D.Sanap, Advocate for respondent No.2. 
                               ...

                                  CORAM:  S.S.SHINDE & 
                                          S.M.GAVHANE,JJ.      

Reserved on : 20.07.2017 Pronounced on : 28.07.2017

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

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. This Application is filed for

quashing and setting aside the First

Information Report vide Crime No.270/2016

registered at Satara Police Station,

Aurangabad, on 26th July, 2016, and further

criminal proceeding bearing R.C.C.No.

2639/2016, pending before the learned Chief

6879.2016 Cri.Appln..odt

Judicial Magistrate, Aurangabad, against the

applicants for the offence punishable under

Section 498-A, 323, 504 and 506 r/w. 34 of

the Indian Penal Code.

4. The learned counsel appearing for

the applicants invites our attention to the

allegations in the FIR, and submits that the

allegations as against applicant nos.2 to 4

are inherently improbable inasmuch as the

marriage of the informant with applicant no.1

was solemnized on 29th December, 1996.

Thereafter, the informant stayed in the

matrimonial home at Latur till 1st February,

2000. It is submitted that thereafter, the

informant shifted to Aurangabad, and since

then residing with her brother. It is

submitted that the FIR is belatedly

registered on 26th July, 2016, making

allegations therein from the year 1998. It is

submitted that the applicants had no occasion

6879.2016 Cri.Appln..odt

to travel to Aurangabad and to visit the

house of the brother of the informant, and

give her ill-treatment or harassment. The

distance between Aurangabad and Latur is more

than 260 kilo meters. It is submitted that no

any specific incident with specific date has

been mentioned in the FIR. He submits that

the allegations are omnibus, and therefore,

the FIR deserves to be quashed.

5. On the other hand, the learned APP

appearing for the respondent-State, and the

learned counsel appearing for respondent no.2

relying upon the allegations in the FIR and

investigation papers, submits that, the

alleged offences have been disclosed, and

therefore, further investigation is

necessary.

6. We have given careful consideration

to the submissions of the learned counsel

appearing for the applicants, the learned APP

6879.2016 Cri.Appln..odt

appearing for the respondent-State, and the

learned counsel appearing for respondent

no.2. With their able assistance, we have

perused the allegations in the FIR, and also

the statements of the witnesses recorded by

the Investigating Officer, and also all other

material collected by the Investigating

Officer during the course of investigation.

It appears that after investigation the

charge-sheet has been filed by the

Investigating Officer. It appears that the

marriage of respondent no.2 i.e. informant

was solemnized on 29th December, 1996, with

applicant no.1 at Latur. Since then she

started residing in the matrimonial home. It

is stated in the FIR that from the said

wedlock, respondent no.2 gave birth to one

female child on 23rd September, 1998. There

are no allegations of ill-treatment or

harassment till that time. It is alleged that

since respondent no.2 gave birth to female

6879.2016 Cri.Appln..odt

child the members of the matrimonial home

started giving ill-treatment to her; they

also started giving harassment and ill-

treatment on some trifle grounds. It appears

that the informant came to Aurangabad on 1st

February, 2000, and she got employment in

Lokmanya Blood Bank, Adalat Road, Aurnagabad,

and simultaneously she was prosecuting her

studies. She started residing with her

brother, namely Prakash Surwase in the rented

premises. It is further alleged that during

the said period applicant no.1 i.e. husband

got addicted to liquor, and used to ask for

money from her salary and demanded Rs.2 lacs

for the purpose of construction of house at

Latur. So far applicant nos.2 to 4 are

concerned, they used to visit the house of

her brother, and harassed her and used to

make demand of Rs.2 lacs for the purpose of

construction of house at Latur. They used to

ill-treat mentally as well as physically and

6879.2016 Cri.Appln..odt

also used to give fist blows to her. The said

ill-treatment continued even after the death

of mother of the informant i.e. on 30th

January, 2010. She was not able to give money

since she was serving on temporary basis in

I.C.T.C. Department till 2008.

7. Upon careful perusal of the contents

of the FIR, admittedly, there was no

harassment or ill-treatment given by

applicants till 23rd September, 1998. The

period of alleged ill-treatment or harassment

in the matrimonial home as stated in the FIR

is with effect from 23rd September, 1998, till

1st February, 2000. Thereafter, the informant

shifted to Aurangabad and started residing

with her brother. The allegations that the

applicants used to visit at Aurangabad, and

visit the house of the brother and give

harassment and ill-treatment and also give

fist blows are inherently improbable inasmuch

6879.2016 Cri.Appln..odt

as the distance between Latur and Aurangabad

is more than 260 kilo meters. In the FIR,

neither any specific incident or any date is

mentioned. The allegations are omnibus. So

far period from 23rd September, 1998, till 1st

February, 2000 is concerned, there are no any

specific allegations or incident quoted or

any specific date is mentioned. Therefore, if

the allegations in the FIR are taken at its

face value, and read in its entirety, do not

attract the ingredients of the alleged

offences and consequently the alleged offence

have not been disclosed. It would be travesty

of justice to ask the applicants to face

agony of trial by traveling the distance of

more than 260 kilo meters on every date of

trial in absence of any specific allegations

with specific incident or date. The material

collected by the Investigating Officer during

the course of investigation is not sufficient

to proceed with the trial as against

6879.2016 Cri.Appln..odt

applicant nos.2 to 4. The conducting trial on

the basis of such inadequate material would

be exercise in futility and wastage of

valuable time of the Court, which would

amount to abuse of process of court.

8. 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

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 1 (2012) 10 SCC 741 2 (2000) 3 SCC 693

6879.2016 Cri.Appln..odt

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 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."

9. The Supreme Court in the case of

6879.2016 Cri.Appln..odt

State of Haryana V/s Bhajan Lal3 wherein it

is held that, in those categories of the case

which are mentioned in para 108 of said

judgment, the High Court would be able to

quash the F.I.R.

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 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

3 AIR 1992 SC 604

6879.2016 Cri.Appln..odt

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.

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

6879.2016 Cri.Appln..odt

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.

10. The case of applicant no.2 Vijaya

w/o.Digamber Pawar, applicant no.3 Digamber

s/o.Jivlag Pawar, and applicant no.4 Baby

Saroja w/o. Angad Biradar is squarely covered

under category nos.1 and 5 of the afore-

stated categories from the judgment in the

case of State of Haryana V/s Bhajan Lal

[cited supra].

6879.2016 Cri.Appln..odt

11. In the result, Criminal Application

partly succeeds. So far applicant no.1

Rajendra Digamber Pawar i.e. husband of the

informant, his application was already

rejected as not pressed by order dated 16th

December, 2016. Therefore, the trial Court

can proceed against applicant no.1.

12. The application to the extent of

applicant no.2 Vijaya w/o.Digamber Pawar,

applicant no.3 Digamber s/o.Jivlag Pawar, and

applicant no.4 Baby Saroja w/o. Angad Biradar

is allowed in terms of prayer clause-B.

Rule is made absolute on above terms. The

application is partly allowed and the same

stands disposed of.

              [S.M.GAVHANE]             [S.S.SHINDE]
                  JUDGE                     JUDGE  
          DDC