Amol S/O Tukaram Deshmukh vs The State Of Maharashtra & Ors
2017 Latest Caselaw 3077 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                      CRIMINAL APPLICATION NO. 920 OF 2017

1]     Tukaram s/o Bajirao Deshmukh,
       Age : 55 years, Occu. Service,

2]     Vijyabai w/o Tukaram Deshmukh,
       Age : 50 years, Occu. Housewife,
       Both R/o Plot No. 23, Sector F.N.S.-1 north of
       12th Shivaji Nagar, Aurangabad.

                VERSUS

1]     State of Maharashtra,
       Through P.S.O.P.S Ahemadpur, Ahemadpur.

2]     Rohini w/o Amol Deshmukh,
       Age : 28 years, Occu. Service,
       R/o Bank Colony, Ahemadpur,
       Dist. Latur.

Mr. V.D. Salunke Advocate h/f Shri. R.A. Jaiswal, Advocate for Applicant
Mr. K.D. Munde APP for Respondent-State
Mr. J.R. Patil, Advocate for Respondent No. 2


                     CRIMINAL WRIT PETITION NO. 792 OF 2015

Amol s/o Tukaram Deshmukh,
Age ; 30 years, Occu. Junior Advocate,
R/o Plot No. 23, Gut No. 125,
Sector FNS-1, Shivaji Nagar,
Aurangabad.                                                ...PETITIONER

       versus

1]     State of Maharashtra,
       Through : District Superintendent of Police,
       Latur, Dist. Latur.

2]     The Police Inspector,
       Police Station, Ahedmadpur,
       Tq. Ahemadpur, Dist. Latur.



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3]        Sow. Rohini w/o Amol Deshmukh,
          Age : 26 years, Occu. Household,
          R/o . Bank Colony, Ahemadpur,
          Tq. Ahemadpur, Dist. Latur
                                                           ...RESPONDENTS

                                     .....
Mr. V.D. Salunke Advocate h/f Shri. R.A. Jaiswal, Advocate for Applicant
Mr. K.D. Munde APP for Respondent-State
Mr. J.R. Patil, Advocate for Respondent No. 2

                                       .....

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

RESERVED ON : 7th April, 2017.

PRONOUNCED ON : 13th June, 2017.

JUDGMENT : ( Per : K.K. Sonawane, J.)

1] Rule. Rule made returnable forthwith. Heard finally by consent

of parties.

2] By the present petition, filed under Article 226 and 227 of the

Constitution of India and the application filed under Section 482 of Cr.P.C.,

the petitioner/applicants have prayed to quash and set aside the criminal

proceedings bearing RCC No. 109 of 2015, instituted against them, pursuant

to crime No. 124 of 2015 registered under Section 498-A, 323, 504, 506 r/w.

34 of IPC, at Ahmedpur police station, Dist. Latur, following directions of

the learned Magistrate, Ahmedpur for investigation under Section 156(3) of

Cr.P.C.

3] The factual matrix, giving rise to these proceedings is as

under :-

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That, the complainant Sau. Rohini is the wife of petitioner Amol

Tukaram Deshmukh. The applicants Shri Tukaram s/o. Bajirao Deshmukh and

Smt. Vijayabai Tukaram Deshmukh are the parents of petitioner Amol r/o.

CIDCO, Aurangabad. The marriage of complainant Rohini with Amol was

solemnized on 24.12.2013 as per the Hindu rites. After marriage,

complainant Rohini joined the company of husband Amol at matrimonial

home located in Aurangabad city. At the time of marriage, petitioner Amol

was in service at Tasgaonkar Sugar Mills Ltd. The complainant used to reside

with in-laws at matrimonial home in Aurangabad. The wife Rohini was

insisting husband - Amol to take her at Mumbai for cohabitation. But, he

refused to allow the wife to accompany with him at the place of his

avocation. The complainant was not keeping good health. Therefore, she

came to parents house at Ahmedpur for rest. During medical treatment, it

was revealed that the complainant was pregnant. The news of conception of

Rohini was communicated to the husband and his parents. But, they did not

give any response. In contrast, husband Amol and in-laws insisted the

complainant Rohini for abortion and they compelled her to terminate the

pregnancy in the hospital of Dr. Khade. It has alleged that the complainant

Rohini was subjected to ill-treatment and humiliate for demand of gold

ornaments, laptop, refrigerator etc. The husband and in-laws were

demanding divorce from the complainant for second marriage of the

petitioner Amol. They used to hurl abuses and torture the complainant

Rohini under one or the other pretext. There was an attempt to push her

from terrace with intention to kill her. Whenever complainant received

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opportunity, she used to disclose her ordeal to parents and relatives. They

all gave understanding to the petitioner Amol and in-laws of complainant but

all the efforts did not evoke result. It has been alleged that in the Month of

September, 2014, husband Amol, under the pretext of going to excursion,

took the wife Rohini to her parents home at Ahmedpur. Her mother-in-law

i.e. applicant Vijaya also taken out the gold ornaments of complainant under

the guise that spouses are going for excursion. However, the husband Amol

left the wife Rohini at Ahmedpur and returned to Aurangabad. The

Complainant Rohini insisted the husband to accompany with him but he

reprimanded the wife and said that he has no desire to cohabit with her and

asked wife Rohini to stay with parents at Ahmedpur. He had also given

threats of life to the wife, in case she makes forcible attempt to accompany

with him. Thereafter, he left the complainant at her parents house and

went away.

Eventually, complainant approached to Ahmedpur Police

Station, for lodging the FIR but they did not take any cognizance. The Police

directed the complainant to approach to the Court for redressal of

grievances. At last, complainant knocked the door of court of learned

Magistrate and filed a complaint bearing M.A. No. 167 of 2015. The learned

Magistrate dealt with the complaint of wife Rohini and directed the police to

investigate into the allegations under section 156(3) of Cr.P.C. Pursuant to

the directions of the learned Magistrate, the police of Ahmedpur P.S.

registered the Crime No. 124 of 2015 and set the criminal law in motion. I.O.

carried out the investigation and recorded the statements of witnesses

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acquainted with the facts of the case. I.O. also collected relevant documents

and after completion of formalities, I.O. preferred the charge-sheet against

the petitioner as well as both the applicants for the offence punishable

under Section 498-A, 323, 504 and 506 r/w. 34 of IPC, bearing RCC No. 109 of

2015 before the learned Magistrate, Ahmedpur. The impugned criminal

proceedings and charge sheet is the subject matter of present proceedings.

4] Learned counsel Shri V.D. Salunke for the petitioner/applicants

strenuously contends that the petitioner/applicants are innocent of the

charges pitted against them. They have not committed any crime. They are

falsely implicated in this case. He submits that the respondent Rohini, since

marriage was reluctant to cohabit with husband Amol. It was revealed that

the marriage of the complainant Rohini was solemnized with petitioner Amol

against her will and, she was not happy at matrimonial home. She used to

give threats of self immolation to the petitioner and in-laws. Eventually,

complainant Rohini left the matrimonial home and started residing with her

parents at Ahmedpur. The circumstances constrained the petitioner Amol

and applicants to indulge in matrimonial litigation which are pending before

the court of law. There were threats of dire consequences to the petitioner

Amol and applicants owing to which complaint/applications were filed in the

concerned court as well as police station resulting into registration of various

NCs, bearing Nos. 321 of 2015, 1941 of 2015, 550 of 2015 and 703 of 2015

etc. There was an endeavour to lodge FIR but no crime was registered

against respondent. The private complaint bearing MCA No. 1222 of 2015

was also filed before the learned Magistrate for investigation of the

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allegations under Section 156(3) of Cr.P.C. and same is pending with the

learned Magistrate for further process. The Learned counsel Shri Salunke

added that the wife Rohini, with malafide intention to harass and torture

the husband Amol and in-laws, preferred a private complainant on false and

fabricated accusations under Section 498-A of IPC. He submits that there

was no ill-treatment and harassment to complainant Rohini but she herself

was not happy to cohabit with husband Amol at matrimonial home. He

submits that there is a delay in filing the FIR as the cruelty alleged to the

complainant, as per the FIR commenced since April, 2014. The allegations

made in the FIR are false and concocted one. She did not disclose in the

impugned FIR about the matrimonial litigation pending between the spouses

in the Family court and by misleading, she obtained the impugned order

under section 156(3) of Cr.P.C. According to learned counsel Shri Salunke,

the impugned order of the learned Magistrate is illegal, imperfect and bad in

law.

5] Learned counsel for the petitioner/applicants, further assailed

that the court of JMFC, Ahmedpur has no jurisdiction to try the said offence.

There was no such incident of cruelty or harassment ever occurred within

the territorial jurisdiction of learned Magistrate at Ahmedpur. Shri Salunke

further urged that the incidents as alleged against the petitioner/applicants

all were occurred at Aurangabad. There are no allegations particularly

against applicant Shri Tukaram and his wife Vijayabai that they committed

crime within the territorial jurisdiction of learned Magistrate at Ahmedpur.

Hence, he submits that the learned Magistrate at Ahmedpur has no

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jurisdiction to deal with criminal proceedings instituted against applicants

and petitioner Amol. He also harped on the circumstances that in view of

allegations made in the FIR it cannot be said that the offence of cruelty was

continuing one. In such circumstances the proceedings against these

applicants are required to be quashed and set aside. Learned counsel for

petitioner/applicants relied upon the judicial pronouncements of Honourable

Apex Court in the case of Bhuraram and others Vs. State of Rajasthan

reported in AIR 2008 SC 2666 and in the case of Y. Abraham Ajith and

others vs. Inspector of Police, Chennai and another reported in 2004

Cri.L.J. 4180 : MANU/SC/0635/2004. .

According to Shri Salunke, learned counsel the impugned

criminal proceedings instituted against petitioner/applicants is an abuse of

process of law. The respondent-wife Rohini preferred the present complaint

under Section 498-A of Cr.P.C. only to harass and torture the husband and in-

laws, which can be termed as "legal terrorism" as described by the

Honourable Supreme Court in the case of Sushilkumar Sharma vs. Union of

India, JT 2005(6) SC 266, in W.P. (C) No. 141 of 2005 decided on

19.7.2005. He also placed on record the citation of the Honourable Supreme

Court in the case of Prabhu chawla vs. State of Rajasthan (2016) ALL SCR

(Cri) 1526, Vijay and another vs. State of Maharashtra (2017) ALL SCR

(Cri) 248. In these case laws, it has been held that the availability of

alternate remedy of revision cannot be a ground to dis entitle the relief

under Section 482 of Cr.P.C. Eventually, learned counsel Shri Salunke fervidly

urged that prima facie allegations made in the FIR are all false, baseless and

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fabricated and do not constitute cognizable offence for initiating criminal

proceedings against petitioner and applicants. Moreover, learned Magistrate

has no territorial jurisdiction to deal with the FIR particularly against

applicant Tukaram and Smt. Vijayabai, as no offence alleged against them,

came to be committed within the jurisdiction of Ahmedpur town. Hence, he

prayed that the criminal case instituted against petitioner and applicants

bearing RCC No. 109 of 2015 pending in the court of Learned Magistrate at

Ahmedpur be quashed and set aside.

6] Per contra, learned APP for respondent/State and learned

counsel Shri Patil for respondent/wife Rohini vociferously opposed the

contentions put-forth on behalf of petitioner/applicants. Learned counsel

Shri Patil submits that the allegations made in the FIR prima facie constitute

ingredients of the offences of cruelty. Complainant Rohini was subjected to

ill-treatment and harassment by her husband and in-laws. It is evident from

the FIR that complainant Rohini was forced to terminate the pregnancy by

abortion. There was a demand of gift articles on the part of applicant. The

complainant has specifically attributed overt act of the petitioner/applicants

in the FIR. Therefore, it would be unjust and improper to quash and set aside

the criminal proceedings initiated against the petitioner/applicants.

7] The learned counsel Shri Patil further submitted that in the FIR

it has been categorically stated that the applicant Smt. Vijayabai i.e.

mother-in-law of the complainant took out the entire gold ornaments under

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the guise that the spouses are going for excursion to Nanded. Thereafter the

husband Amol took the wife Rohini to Ahmedpur and left her at the mercy of

parents. Applicant Vijayabai also goaded petitioner Amol to take wife Rohini

to parents home at Ahmedpur under the pretext of excursion to Nanded.

Therefore the offence of cruelty under section 498-A in this case is a

continuing offence, as the complainant was not only ill treated and harassed

at her matrimonial home in Aurangabad but also subjected to torture and

humiliation at her parents home in Ahmedpur. The husband abandoned her

by giving threats to life and did not allow her to cohabit. These events

occurred at Ahmedpur constituting offence of cruelty within the territorial

jurisdiction of learned magistrate at Ahmedpur. Therefore impugned

criminal proceedings is maintainable in the court of learned magistrate at

Ahmedpur for trial of the petitioner/applicants as per law. Learned counsel

Shri. Patil explained the attending circumstances in detail and prayed not to

nod in favour of applicants and reject the petition/application. He also

placed reliance on the judicial precedent of the Hon'ble Apex court in the

matter of Smt. Sujata Mukharjee Vs. Prashant Mukharjee reported in

1997 CrI.L.J. 2985. Learned APP also stepped into the shoe of learned

counsel Shri. Patil and prayed to dismiss both the proceedings filed on behalf

of petitioner/applicants.

8] We have considered the rival submissions made on behalf of

both sides. We have also delved into the factual aspect and relevant

documents, placed on record. Admittedly, the marital relations in between

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petitioner Amol and complainant Rohini is not put in controversy. After

marriage, complainant joined the company of husband Amol as well as

applicants Tukaram and Smt. Vijayabai for cohabitation. But there was

marital discord between the spouses which resulted into litigation amongst

them. The impugned criminal proceedings bearing RCC No. 109 of 2015 is

also the fallout of marital discord in between the spouses.

9] In such backdrop, we proceed to scrutinize the circumstances

to deal with the controversy in the present proceedings. The questions

that arise for consideration are :-

{1} Whether the impugned proceeding bearing RCC No. 109 of 2015 is required to be quashed and set aside being not amenable within the provisions of law and no cognizable offence is made out against the petitioner - Amol.

[2] Whether the Court of learned Magistrate at Ahmedpur has territorial jurisdiction to deal with Criminal case bearing RCC No. 109 of 2015 instituted against applicants Tukaram and Smt. Vijayabai.

10] Whether the offence has been disclosed or not must necessarily

based on the factual aspects of each case. If on appreciation of relevant

material, the court is satisfied that prima-facie offence has been disclosed,

it will not normally cause any interference in the progress of the matter. It is

also imperative to take into consideration the scope of extraordinary

jurisdiction under Article 226 and 227 of the Constitution of India, as well as

the inherent powers of this court under Section 482 of the Cr.P.C. There is

no dispute about the legal principles that the Writ jurisdiction under Article

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226 of the Constitution of India is not available for quashing the criminal

investigation unless there is an error apparent on the face of record or the

proceedings can be termed to be malafide one. Moreover, the discretion

vested in the High Court under Section 482 of Cr.P.C. is to be exercised to

prevent abuse of process of court or otherwise to secure the ends of justice.

This legal aspect has been clarified by the Honourable Apex Court in the case

of State of Haryana vs. Bhajanlal1 wherein the Honourable Apex Court

delineated that 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 myraid kinds of cases wherein such

power should be exercised, there are circumstances where the court may be

justified in exercising such jurisdiction. It has been laid down that the

inherent powers under Section 482 may be exercised by the Court in the case

where the FIR does not prima facie constitute an offence, does not disclose a

cognizable offence justifying investigation by the police; where the

allegations 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; where there is an express legal

bar engrafted in any of the provisions of the Code or the concerned Act;

where a criminal proceeding is manifestly attended with malafide and/or

where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance and with a view to spite the accused due to private or

personal grudge.

1 AIR 1992 SC 604

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It is worth to mention that, in addition to aforesaid guidelines,

the Honourable Apex Court further given a note of caution to the effect that

the power to quash a criminal proceeding should be exercised sparingly and

with circumspection and that too in the rarest of rarer case. The

Honourable Apex Court also give a warning that it would not be justitified in

embarking upon an enquiry as to the reliability or genuineness or otherwise

of the allegations made in the FIR or the complaint and that the

extraordinary or inherent powers do not confer arbitrary jurisdiction on the

court to act according to its whims and caprice.

11] In the case of Rajiv Thapar Vs. Madanlal Kapur 2 Their Lordships

of the Honourable Apex Court in para. 28 enunciated the ambit and scope of

section 482 of Cr.P.C. as below :-

"28. The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial.

This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is 2 (2013)3 SCC 330

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not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."

(Emphasis Supplied)

12] Keeping in view the aforesaid principles of law, we proceed to

deal with the questions raised on behalf of petitioner/applicants in the

matter in hand. We have minutely perused the contents of the FIR and the

statements of prosecution witnesses as well as the documents placed on

record. Intense scrutiny of the attending circumstances and the factual

score, reflects that the allegations nurtured on behalf of complainant against

the petitioner/applicants, prima facie, constitute an offence of cruelty,

voluntarily causing hurt, criminal intimidation etc. The complainant

categorically cast allegations that she was subjected to ill-treatment and

humiliation by her husband and in-laws while cohabitation at matrimonial

home. She made allegation that the husband and in-laws forced her for

abortion. She stated about the overt acts and participation of husband and

in-laws for the cruelty meted out to her. She has also disclosed about

attempt to kill her by pushing from the terrace. There were allegations

about demand of valuable articles. The allegations regarding maltreatment

and harassment with cruelty is a matter of trial and, therefore, the quashing

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of proceeding before trial is impermissible. In view of specific overt acts

attributed to the petitioner/applicants, we are of the considered opinion

that it would be unjust and improper to quash and set aside the penal

proceedings initiated against the petitioner/applicants.

13] It has been propounded on behalf of petitioner/applicants that

the complainant Rohini was not happy for cohabitation with the husband

Amol. Her marriage with petitioner Amol was performed against her will and

she was reluctant to reside at the matrimonial home. Therefore, she left

the matrimonial home and started residing at her parents house. The

accused/petitioner initiated matrimonial dispute and taking umbrage of the

litigation filed by the petitioner Amol, complainant Rohini initiated the

present penal action against petitioner/applicants on false and fabricated

accusations.

14] At this juncture, we would reiterate the principle of law laid

down by the Apex court in Rajiv Thapar's case (referred supra). It is to be

noted that this is not a stage of evaluating truthfulness or otherwise of the

allegations levelled by the complainant Rohini. Moreover, it is also not

legally justifiable to determine the quality and veracity of the defence

raised on behalf of petitioner/applicants. According to rule of law, even if

the petitioner/accused is successful in showing some suspicion or doubt in

the allegations nurtured on behalf of complainant Rohini, it would be

impermissible to discharge the petitioner/applicants before trial. Obviously,

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in case the criminal proceeding against the petitioner/applicants is quashed

and set aside it would result in giving finality to the accusations cast on

behalf of complainant, without any opportunity to adduce the evidence to

substantiate the claim. Admittedly, after completion of investigation, I.O.

has filed the charge-sheet against the petitioner/applicants and the matter

is on the board/cause-list of the learned Magistrate for framing charge. In

such circumstances, we are not inclined to nod in favour of

petitioner/applicants. Moreover, the material placed on record, prima

facie, make out a cognizable case against the petitioner/applicants and

pursuent to guidelines laid down in Bhajanlal's case ( referred supra) the

inherent powers under Section 482 cannot be exercised in favour of

petitioner/applicants, for quashment of criminal proceedings pending

against them. There is no error apparent on the face of record or the

proceeding could not be termed to be malafide in nature for exercise of

writ jurisdiction of this court in favour of petitioner for relief prayed in

these proceedings.

15] The petitioner - Amol also raised objection that there was no

compliance under Section 154 of Cr.P.C. in this case. Therefore, the

impugned order directing investigation under Section 156(3) of Cr.P.C. passed

by the learned trial court, is erroneous, illegal and deserves to be set aside.

In this regard, the learned counsel for petitioner placed reliance on the

judicial pronouncement of the Full Bench of this court in the matter of

Panchabhai Popatbhai Butani vs. State of Maharashtra and others,

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(2010)1 Mh.L.J.421. In the matter in hand, the complaint filed before the

learned Magistrate on behalf of complainant Rohini, reflects that she had

filed an application to the Ahmedpur Police Station on 26.11.2014 but the

police did not take any action and eventually she knocked the door of trial

court. Moreover, it is essential to take into consideration that the stage of

the proceeding. After investigation, I.O. filed charge sheet against the

petitioner/applicants and the matter is pending for framing of charge.

Therefore, we do not find any substance in such objections raised on behalf

of petitioner/applicants. It is also preposterous to appreciate that the

impugned penal action would be an "legal terrorism" against present

petitioner/applicants, as discussed by Honourable Apex Court in Sushil Kumar

Sharma's case referred supra.

16] Now, turning to the core question as to whether the allegations

made in the FIR constitute a continuing offence to confer jurisdiction on the

learned Magistrate, Ahmedpur to deal with the trial of the applicant Tukaram

and Smt. Vijayabai for the charges pitted against them.

It is to be noted that the provisions of Section 177 of Cr.P.C.

contemplates that every offence shall ordinarily be inquired into and tried

by a court within whose local jurisdiction it was committed. The term

"ordinarily" will have to be considered having regard to the provisions

contained in Section 178 of Cr.P.C., which are reproduced hereinbelow :-

"178. Place of inquiry or trial. (a) When it is uncertain in which

of several local areas an offence was committed, or

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(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas,

it may be inquired into or tried by a Court having jurisdiction over any of such local areas."

The Apex Court in the matter of State of Bihar vs. Deokaram Nenshi and

another1, had an occasion to describe the term "continuing offence" and in

para. 5, elucidated that :-

"5. Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes and offence once and for all and an act or omission which continues and therefore, constitutes and offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasioned on which it continues. In the case of a continuing a fresh offence every time or occasioned on which it continues. In the case of the continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission in committed once and for all."

1AIR 1973 SC 908

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17] In the case of Sujata Mukherjee (Smt.) vs. Prashant Kumar

Mukherjee 2 relied upon on behalf of respondent/complainant, the

Honourable Supreme Court, dealt with the allegations of continuing offence

committed in more local areas than one. There were allegations made in the

complaint that the complainant was subjected to cruelty persistently at

Raigarh and also at Raipur and incident taking place at Raipur is not isolated

event but consequential to the series of incidents taking place at Raigarh.

Therefore, in view of the provision of Section 178 of Cr.P.C. it was held that

the offence of cruelty meted out to the complainant was continuing one. It

was also observed that the High Court was wrong in appreciating the scope

of the proceeding on the footing that several isolated events had taken place

at Raigarh and one isolated incident had taken place at Raipur. Hence, the

criminal case filed in the court of Chief Judicial Magistrate was only

maintainable against the respondent husband, against whom some overt act

at Raipur was alleged. While appreciating the circumstances on record, the

Honourable Supreme Court observed in para.7 as under :-

"7. Despite service being effected on the private respondents, no one has appeared for any of the accused respondents. We have taken into consideration the complaint filed by the appellant and it appears to us that the complaint reveals a continuing offence of the maltreatment and humiliation meted out to the appellant in the hands of all the accused respondents and in such continuing offence, on some occasions all the respondents had taken part and on other occasion, one of the respondents had taken part. Therefore,clause (C) of Section 2(1997)5 SCC 30,

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178 of the Code of Criminal Procedure is clearly attracted. We, therefore, set aside the impugned order of the High Court and direct the learned Chief Judicial Magistrate, Raipur to proceed with the criminal case. Since the matter is pending for long, steps should be taken to expedite the hearing. The appeals are accordingly allowed."

18] In the matter in hand, complainant Rohini cast the allegations

that she was mal-treated and harassed by the husband and in-laws at

matrimonial home in Aurangabad. She has also categorically stated in the

complaint that on 23.9.2014, her mother-in-law had taken out the gold

ornaments from her person under the pretext that the spouses are going for

excursion at Nanded. Thereafter, the husband Amol took the complainant

Rohini at Ahmedpur on 24.9.2014 and left her at the mercy of parents. There

are allegations nurtured against the husband that when the wife insisted the

husband to accompany with him, that time, the petitioner Amol

reprimanded her and stated that he had no desire to cohabit with her and he

refused to take her back for cohabitation. He had also given threat of life to

her, in case she forced to accompany with him. These allegations made in

the complaint categorically indicate that the offence of cruelty was

continuing one, as contemplated under clause (c) of Section 178 of Cr.P.C.

It is evident from the complaint that the complainant Rohini was subjected

to cruel treatment at Aurangabad and also at Ahmedpur when she had been

to her parent's home with husband Amol. Therefore, the incident taking

place at Ahmedpur cannot be considered as isolated event but it occurred

consequential to the series of incidents taking place at Aurangabad. The

{20} crwp 792.15 w appln 920.15.odt

applicant Vijayabai had knowledge that her son petitioner Amol with his

spouse was not going for excursion at Nanded but they are going to

Ahmedpur to leave the complainant to her parent's home. The

circumstances indicate that the mother and son hatched a conspiracy to take

complainant Rohini to her parent's house at Ahmedpur and she should not be

allowed for cohabitation with petitioner Amol. Therefore, the circumstances

in which the events occurred as disclosed in the complaint, adumbrate that

there was an continuing offence of ill-treatment and humiliation meted out

to wife/complainant Rohini at the hands of all the accused and in such

continuing offence on several occasions, the husband and in-laws had taken

part and on one occasion, only the husband had taken part. In view of

clause (C) of Section 178 of Cr.P.C, the offence alleged against the

petitioner/applicants is continuing one. Therefore, we are of the considered

opinion that the learned Magistrate at Ahmedpur has a jurisdiction to deal

with the trial against the petitioner and applicants within the ambit of law.

19] The judicial pronouncements relied on behalf of the petitioner

in the case of Y. Abraham Ajith and others as well as Bhuraram and others

(supra) are totally distinguishable on the facts and circumstances of the

present case and same appear misplaced. In those cases, the factual

position seems totally different in nature. There were no allegations or

whisper about any cruelty or commission of any act constituting offence at

the place where the complainant was residing and filed the complaint.

{21} crwp 792.15 w appln 920.15.odt

20] In the above premises, we are of the considered opinion that

the allegations nurtured against the petitioner/applicants in the FIR prima

facie constitute a cognizable offence against them. The impugned

proceeding is at the stage of framing of charge. Therefore, it would be

unjust and improper to quash and set aside the criminal proceedings prior to

detail trial of the petitioner/applicants on the anvil of merit. It is also

evident from the factual aspect that the court of learned Magistrate at

Ahmedpur has a jurisdiction to entertain the criminal proceedings filed

against the petitioner/applicants being an continuing offence. In such

circumstances, both, the proceedings i.e. Criminal Writ Petition and Criminal

Application, deserve to be dismissed. Accordingly, both, Criminal Writ

petition and Criminal application, stand dismissed. Rule is discharged. No

orders as to costs. Trial to proceed in accordance with law expeditiously.

Needless to state that during the course of trial, the learned trial Judge

should not be influenced by the observations made by this Court which are

confined only to the extent of adjudication of present proceeding.

In view of dismissal of Criminal Application No.920 of 2015,

filed by applicant Tukaram and his wife, taking exception to charge-sheet,

wherein petitioner Amil is also one of the accused, Criminal Application No.

4691 of 2015 filed by petitioner Amol for requisite amendment to take

exception to the charge sheet, stands disposed of.

        [K.K.SONAWANE]                                  [S.S. SHINDE]
          JUDGE                                           JUDGE
grt/-