Suresh S/O Gondu Tayde And Anr vs The State Of Maharashtra And Anr
2017 Latest Caselaw 1323 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                    CRIMINAL WRIT PETITION NO. 1334 OF 2016

1.     Suresh s/o Gondu Tayde
       Age : 66 years, Occ. Nil

2.     Shadubai w/o Suresh Tayde
       Age : 61 years, Occ. Household
       Both R/o Padalse village,
       Tal. Yawal, Dist. Jalgaon.                               ...APPELLANT


       versus

1.     The State of Maharashtra,
       Through,
       Police Inspector, Faizpur police
       station, Faizpur, Tal. Yawal, Dist. Jalgaon

2.     Haribhau Arjun Salwe,
       Age : 52 years, Occ. Driver,
       R/o Nimbhora Budruk,
       Police Station Fekri, Bhusawal,
       Tal. Bhusawal, Dist. Jalgaon.
                                                             ...RESPONDENTS


                                     .....
Mr. G.R. Syed, Advocate h/f Mr. Girish Nagori, Advocate for petitioner
Mr. S.G. Karlekar APP for Respondent-State
Mr. G.M. More, Advocate for Respondent No. 2
                                     .....

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

RESERVED ON : 23RD MARCH, 2017.

PRONOUNCED ON :31st MARCH, 2017.

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

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

of parties.

2] This writ petition is preferred by the petitioners invoking the

remedy under Article 226 of the Constitution of India r/w. Section 482 of

Cr.P.C. to quash and set aside the impugned FIR bearing Crime No. 49 of 2016

registered at Police Station, Faijpur, District Jalgaon against the petitioners

under Section 498-A, 306 r/w. 34 of IPC on the accusations that the

petitioners maltreated and harassed their daughter in law - victim Kavita

during her cohabitation at matrimonial home and fed up with the mental and

physical torture, the victim Kavita committed suicide by hanging to the

ceiling hook of the house.

3] It has been alleged on behalf of prosecution that the first

informant Shri Haribhau Arjun Salve approached to the Faijpur Police

station and alleged that his daughter Kavita was married to Yogesh - son of

petitioner Suresh Tayde. After the marriage, the victim Kavita joined the

company of husband for cohabitation at village Padalsa. She begotten one

son and daughter during the wedlock from husband Yogesh. All the things

were normal up till the year 2011 and both spouses were leading happy

married life. But, the petitioner No.1 Suresh retired from Indian Military

service in the year 2011, and returned at village Padalsa. He started residing

with the Joint family members. According to the first informant, the

petitioners maltreated and harassed the victim Kavita on account of

domestic reasons. They also insisted victim Kavita to bring Rs. 50,000/- from

the parents for purchasing the auto-rickshaw for her husband. Whenever

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victim Kavita received opportunity to see the parents and other relatives,

she used to disclose about her sordid tells to them. Fed up with the extreme

cruelty on the part of petitioners, the victim Kavita took the drastic step to

snuff out her own life by hanging in the matrimonial home. The parents

received the message about the death of victim Kavita in the noon hours on

9th September, 2016. They immediately rushed to the matrimonial home of

daughter Kavita. They saw the plight of the deceased Kavita who was no

more. The parents were in grief due to the sudden death of daughter

Kavita. They attended the funeral and returned to their village.

4] On receipt of information about the death of deceased Kavita

owing to hanging, the police of Faijpur police station registered the A.D. No.

24 of 2016, and visited to the scene of occurrence. Police dealt with the

mortal remains of victim Kavita and drawn the inquest panchanama. The

I.O. referred corpus of the victim Kativa to Rural Hospital Yaval for autopsy

to determine the cause of death. The I.O. also drawn panchanama of scene

of occurrence and seized the incriminating articles from the spot under

panchanama.

5] Meanwhile, after regaining from the grief, the first informant

rushed to the police and filed FIR. Pursuant to FIR, police of Faijpur police

station, registered the Crime No. 49 of 2016 against the petitioners for the

offence punishable under sections 498A, 306 r/w. 34 of IPC and set the

criminal law in motion. The I.O. recorded statements of witnesses

acquainted with the facts of the case. The I.O. collected certificate

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regarding the cause of death of deceased from the concerned Doctor. It was

opined that the deceased died due to asphyxia owing to hanging. The

investigation is in progress. Pending investigation, petitioners preferred

the present writ petition, availing remedy to quash and set aside the

impugned FIR, bearing Crime No. 49 of 2016 registered at Faijpur police

station for the offences punishable under sections 498-A, 306 r/w. 34 of IPC

against them.

6] The learned counsel for the petitioners vehemently submitted

that the entire allegations nurtured against the petitioners in the FIR are

false, baseless and not sustainable at all. The ingredients of Section 107 for

abatement to suicide are not attracted. In this case, the marriage of victim

Kavita was solemnized with the son of petitioners in the year 2008 and since

then there was no complaint of maltreatment or harassment to the deceased

at the hands of members of her matrimonial home. There was no medical

evidence about the physical assault to deceased Kavita. According to

learned counsel for petitioners, the First Informant, Shri Haribhau Savale

embroiled them by making false allegations in the FIR only due to grave

anger and grudge towards petitioners owing to sudden death of his daughter

Kavita. The respondent No.2, first informant, filed an affidavit before the

learned Sessions Court, at the time of bail applications of petitioners that

the FIR lodged by him was out of revengeful attitude and under such

influence. He has no grudge or complaint against the petitioners. It has

been contended that the respondent No.2 withdrawn all the allegations

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made in the FIR due to misunderstanding and grave anger. The learned

counsel for the petitioners laid much more emphasis on the affidavit in reply

filed by the respondent No.2 in this petition. He submitted that the first

informant Haribhau has categorically withdrawn all the allegations and

deposed that he has no objection to quash and set aside the impugned FIR

registered against the petitioners. The learned counsel for petitioners

also submitted that the petitioners are the senior citizens. The petitioner

No.1 is the ex-military man and FIR came to be filed due to

misunderstanding and revengeful advice to the first informant. Hence, they

knocked the door of this Court and preferred the present application to

absolve from the criminal proceeding initiated against them. Learned

counsel for petitioners vehemently contended that in view of the settlement

of matter in between the petitioner and first informant Haribhau Savale, the

impugned FIR be quashed and set aside by exercising the inherent

jurisdiction under Article 226 of the Constitution of India r/w. Section 482 of

the Cr.P.C.

7] The learned counsel for first informant - respondent No.2

herein, also stepped into the shoe of learned counsel for the petitioners and

supported the contention about amicable settlement of the controversy in

between the parties. Learned counsel submitted that the first informant -

respondent No.2 has withdrawn the entire allegations nurtured in the FIR on

his behalf against the petitioners and, therefore, there would not be any

impediment to quash and set aside the impugned FIR filed against the

petitioners.

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8] In refutal, learned APP raised the objection to the contentions

put forth on behalf of petitioners and asserted that the allegations against

the petitioners are serious in nature. The petitioners maltreated and

harassed the daughter in law, which constrained her to commit suicide. The

offence is of serious in nature. Therefore, it would unjust and improper to

quash and set aside the impugned FIR on the ground of settlement in

between the accused and the first informant. The act of withdrawing the

allegations on the part of the first informant is objectionable and cannot be

considered. The learned APP contended that the victim of the crime i.e.

Kavita is no more. Therefore, it would not desirable to quash and set aside

the FIR for the alleged offence of cruelty and abatement to commit suicide

as envisaged under Section 306 of IPC. Therefore, the learned APP prayed to

dismiss the petition.

9] We have given anxious considerations to the arguments

advanced on behalf of both sides. We have also delved into the relevant

documents produced on record including investigation papers of the Crime

No. 49 of 2016. Admittedly, the petitioners are arraigned for the offence

punishable under Sections 498-A, 306 r/w. 34 of IPC, on the allegations that

the petitioners subjected their daughter in law victim Kativa to mental and

physical cruelty which goaded her to commit suicide by hanging herself at

the matrimonial home. The First informant Haribhau Salve in his FIR alleged

that his daughter Kavita was ill-treated and harassed on account of domestic

reasons. The petitioners used to scold and maltreated her for demand of Rs.

50,000/- to purchase auto-rickshaw for their son. It is worth to mention that

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the first informant, Haribhau Salve casted the aspersions only against the in-

laws of daughter Kavita. There are no any allegations against the husband of

victim Kavita, i.e. son of petitioners, or any other inmates of the

matrimonial home except the petitioners. It cannot be ignored that the

victim Kavita was the mother of two teen aged children. She was

cohabiting with the husband at matrimonial home since marriage in the year

2008. It has been alleged in the FIR that the petitioner No.1 Suresh retired

from military service and returned to his home in the year 2011 and since

then there was hostile atmosphere for the deceased in the matrimonial

home. Obviously, these circumstances, if taken into consideration at its face

value and in its entirety, it transpired that there are prima facie

circumstances to constitute a cognizable offence, as alleged against the

petitioners. Therefore, in view of the guidelines delineated by the Apex

Court in the matter of Gian singh Vs. State of Pubjab and others, AIR

1992 SC 604 and particularly, the 7 categories enumerated therein, it would

improper and unjustifiable to exercise the inherent powers under Section

482 of Cr.PC. to quash and set aside the impugned FIR registered against the

petitioners.

10] Now, in regard to another aspect of the petition, pertains to

settlement of controversy in between first informant and the petitioners, we

find that the arguments advanced on behalf of learned counsel for the

petitioners, as well as learned counsel for the respondent No.2 first

informant Haribhau, appears much more attractive but not sustainable and

appreciable to favour the petitioners. Obviously, the offences under

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Sections 306 and 498-A are serious and social in nature. Both the offences

are non-compoundable offences, as prescribed under Section 320 of Cr.P.C.

However, the Supreme Court, in series of cases, has delineated that the

High Court has wide powers to quash and set aside the proceedings, even in

non compoundable offences notwithstanding the bar contained under Section

320 of Cr.P.C. to prevent the abuse of process of law and to secure ends of

justice. In serious nature of offences, the quashing of criminal proceeding

on the basis of compromise is within the discretionary powers of the High

Court under Section 482 of Cr.P.C. Albeit, the powers of quashing the

criminal proceeding is required to be exercised taking into consideration the

material on record to ascertain as to whether ends of justice would justify

such exercise of power although the ultimate consequence may be acquittal

or dismissal of the accusations. In the case of Gian Singh Vs. State of

Punjab and others reported in (2012)10 SCC 303, in para 57, the

Honourable Court has enunciated the principle as under :-

57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment."

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11] The Full Bench of this Court in the matter of Abasaheb Yadav

Hanumane Vs. State of Maharashtra, reported in 2008(2)Mh.L.J.856 has

referred various judicial pronouncements and held in para.14 as under :-

"14. The power of compounding on one hand and quashing of criminal proceedings in exercise of inherent powers on the other, are incapable of being treated as synonymous or even inter-changeable in law. The conditions precedent and satisfaction of criteria in each of these cases are distinct and different. May be, the only aspect where they have any commonality is the result of exercise of such power in favour of the accused, as acquittal is the end result in both these cases. Both these powers are to be exercised for valid grounds and with some element of objectivity. Particularly, the power of quashing the FIR or criminal proceedings by the Court by taking recourse to inherent powers is expected to be used sparingly and that too without losing sight of impact of such order on the criminal justice delivery system. It may be obligatory upon the Court to strike a balance between the nature of the offence and the need to pass an order in exercise of inherent powers, as the object of criminal law is protection of public by maintenance of law and order. Edmund Davies, J. (Smith and Hogan Criminal Law, 5th Edition) has said :

"It seems to me that accordingly every Court sentence should primarily be surveyed in the light of one test : is that the best thing to do in the interest of the community ? Always remembering, of course, that the convicted person, despite his wrongdoing remains a member of the community."

This Court at its principal seat, in case of Mohd. Asgar

Choudhari and others Vs. State of Maharashtra and another, (Writ Petition

No. 31 of 2017 decided on 2nd March, 2017) had an opportunity to deal with

the circumstance of settlement between the parties and quashing the FIR on

the basis of said settlement and it has been observed that as the victim of

the alleged offences is no more, the settlement in between the petitioner

and first informant cannot be entertained for quashing the FIR registered

under Section 306 of IPC.

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12] In the light of aforesaid legal guidelines, it is imperative that

the powers under Section 482 are to be exercised for valid grounds and for

genuine reasons as well as with some element of objectivity and its impact

on the social justice delivery system. It is incumbent on the part of Court to

strike a balance in between the nature of offences and need to pass such

order by exercising inherent powers under Section 482 of Cr.P.C. as the

object of criminal law is to protect the members of the society at large and

to maintain law and order in the society.

13] In the present case, much more emphasis is laid on the

circumstance that the first informant Haribhau Salve ventured to withdraw

the entire allegations of mental and physical cruelty to his daughter at the

hands of petitioners, which goaded the victim Kavita to take drastic step of

committing suicide by hanging. No doubt, the first informant has filed

affidavit about the innocence of petitioner in the Sessions Court at the time

of their bail applications. Moreover, he has also filed such nature of

affidavit in reply in the present petition and specifically deposed that the

petitioners are innocent of the charges pitted against them. Therefore, he

has no objection for quashing the impugned FIR registered on his behalf with

Faijpur police station, District Jalgoan.

14] It is true that the first informant came forward in support of

petitioners and made a bold statement in his affidavit filed before the

Sessions Court, Bhusawal as well as in this petition that the petitioners are

innocent and they have not committed any crime of cruelty or demand of

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money etc. His daughter Kavita was leading happy married life with her

family members. The relevant portion of the affidavit in reply filed in the

present petition is reproduced hereinbelow :-

               "1]      xxxxxx xxxxx xxxxx

               2]     I say and submit that, the present complainant

was called by Faizpur Police on 12.9.2016 and has asked about the reason of death of her daughter, at that time the complainant said that, there was minor discrepancies over the issue of cleanliness and cooking etc. and nothing beyond that, there was love and affection with entire family and all were residing together since last 8-9 years, even two child were begotten out of the said wedlock of Kavita and Yogesh Suresh Tayde and were living happily.

3] I say and submit, that the Police has took signatures on some papers from me and has not read it over to me, as I was in depression due to death of my daughter I simply signed it under sadness of demise of my daughter Kavita.

4] I say and submit, that later on I came to know through my relatives that the FIR has been registered under section 306, 498-A of Indian Penal Code and above petitioner have applied for bail before the Session Court at Jalgaon bearing number 405/2016 and I appeared before the session court and has given my affidavit that the said FIR and its ingredients are absolutely not as per my version to the Police and are completely baseless, there was no any demand of 50,000/- nor any torture to my daughter Kavita, she was living happily with all family members.

5] I say and Submit that, I am also annexing the copy may earlier affidavit I have made and submitted before the Session court Jalgaon which are the real facts of the case and again I am adopting the same version before this Hon'ble High Court by filling my affidavit in present writ petition.

6] I say and submit that I have no objection if the above mentioned FIR bearing number 49/2016 registered with Faizpur Police Station Faizpur, Tal. Yawal, Dist. Jalgaon under section 306, 498-A of Indian Penal Code."

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15] In view of the aforesaid affidavit in reply, it seems that the first

informant attempted to blame the police of Faijpur police station and stated

that he had verbalized only about trifle instances of squabble in between the

petitioners and his daughter on account of domestic reasons, of not cooking

properly, not keeping the house clean etc. According to first informant,

there was no torture or harassment of any kind to his daughter at the

matrimonial home. He further casted aspersions on the police that on

12.9.2016, the police of Faijpur police station called him in the police

station and made enquiry about his complaint in regard to death of his

daughter. He narrated some trifle instances. Thereafter, the police reduced

into writing some matter on the paper and obtained his signature. He had

not verified its contents as he was in grief and mourning due to sudden death

of his daughter. He affirmed that there was no complaint against the

petitioners and he has no objection to quash and set aside the impugned FIR.

16] In the pleadings of present petition, there are assertions on

behalf of petitioners that they are embroiled in this case falsely by the first

informant, under the influence of grave anger. The averments in Para.V of

the grounds of petition are reproduced hereinbelow :-

"V. That, the respondent No.2 has made an affidavit and submitted it before the learned lower court where he has clearly stated that the FIR lodged by him is out of revengeful attitude and under influence and now has no grudge against the present petitioners Dated 20.9.2016."

17] The scrutiny of pleadings mentioned above and the contentions

propounded in the affidavit in rely of the respondent No.2 i.e. First

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informant Haribhau Salve, filed on record as referred supra, reflects that

there is dichotomy in between the pleadings of the petitioners and

contentions put forth on behalf of respondent No.2 first informant, in regard

to cause of filing FIR and innocence of the petitioners. The pleadings are

totally inconsistent with the affidavit in reply of respondent No.2. The

petitioners stated that respondent No.2 filed FIR due to revengeful attitude

and under influence of anger whereas the first informant shown ignorance of

contents of FIR and he put signatures on written paper given by police. It

creates doubt about its veracity and truthfulness.

18] The version of respondent No.2 contained in the affidavit in

reply filed in the present petition as well as before the Sesions Court at the

time of bail petitions, demonstrates that the first informant did not support

for quashing the FIR on the basis of amicable settlement of controversy in

between himself and the petitioners. But, he categorically denied the

recitals of the FIR relating to allegations nurtured against the petitioners.

According to first informant, he had not verbalized to the police the

allegations as mentioned in the FIR against the petitioners. But, the police

obtained his signatures on the papers, the contents of which were not read

over to him, nor he had verified it as he was under depression and mourning

on account of death of his daughter. In short, the first informant, refused to

budge for quashing the FIR on the basis of settlement of controversy in

between them. But, he attempted to pass the buck and blamed the police

to facilitate petitioners to escape from the clutches of law. We can

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understand that if there was any fair and just compromise in between the

petitioners and first informant and prayed to exercise inherent powers under

Section 482 of Cr.P.C., there may be an possibility to appreciate the

circumstances in favour of petitioners. While quashing the FIR on the basis

of compromise it is necessary to consider that no party is taking undue

benefit and there was sincere efforts to restore the relationship by bringing

peace and harmony in the families.

19] In the instant case, it appears that there was no settlement of

controversy in between the first informant and petitioners but the relief to

quash the FIR under Section 482 Cr.P.C. is prayed on the solitary ground that

the police played the mischief to fabricate the FIR by making false and

spurious allegations against the petitioners which were not at all verbalized

by the first informant in his impugned FIR. Obviously, these allegations

against the police of Faijpur Police Station are serious in nature. It casted

doubt about the integrity and performance of the police of Faijpur police

station, while registration of impugned crime against the petitioners. In

case, the police of Faijpur police station has really committed any mischief,

action is required to be initiated against them. But, for that purpose, the

version of the first informant is essential to be tested on the anvil of merit.

Definitely, the appreciation of imputations against the police about the

blemish integrity and performance is subject to cross-examination of first

informant, by the prosecution agency during the course of detail trial. In

case, it is found that the first informant has made fake and false allegation

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against the police only to favour the petitioners, then his prosecution for

the offence of perjury could not be ruled out; and in case he succeed in his

attempt to show that the police of Faijpur police station committed mischief

as alleged, the action will have to be initiated against them.

In such circumstances, we are of the considered opinion that

there is no settlement or compromise in between the petitioners and first

informant, for exercising inherent powers under Article 226 of the

Constitution of India and Section 482 of Cr.P.C. But, the first informant

pointed out needle of suspicion towards integrity and performance of police,

and attempted to shield himself while facilitating the petitioners to get scot-

free from the allegations nurtured against them. These circumstances on

record do not permit us to act upon the version of petitioners as well as

respondent No.2 to utilize the discretion for exercise of powers under

Section 482 of Cr.P.C The version of the respondent No.2 supporting to

quash the FIR registered against the petitioners would not satisfy the

conscious of this Court. It would not be considered as settlement for valid

reasons to meet the ends of justice. In contrast, the petitioners and

respondent No.2 attempted to misuse the provisions of law for personal gain,

which is nothing but an abuse of process of law. Therefore, the petition

being devoid of merit deserves to be dismissed. In sequel, the petition is

dismissed. Rule is discharged.

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