Vishwas S/O Rameshrao Hirulkar ... vs State Of Maharashtra, Thr. P.S.O. ...
2017 Latest Caselaw 9054 Bom

                                                    1                  J-APL-553-16.odt

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

                 CRIMINAL APPLICATION (APL) NO.553/2016

 1. Vishwas s/o Rameshrao Hirulkar,
    Aged about : 33 years, Occ. Service,

 2. Ramesh s/o Mahadeorao Hirulkar,
    Aged about : 71 years, Occ. Business.

 3. Sau. Rajni w/o Ramesh Hirulkar,
    Aged about : 60 years, Occ. Household.

 4. Darshan s/o Ramesh Hirulkar,
    Aged about : 31 years, Occ. Business.

      All 1 to 4 are R/o Walkar Road,
      Badkas Chowk, Mahal, Nagpur.

 5. Sau. Mayuratai Mangesh Dharamkar,
    Aged about : 36 years, Occ. Household,
    R/o Hiwarkhed, Tq. Morshi,
    Dist. Amravati.                                          ..... APPLICANTS

                               ...V E R S U S...

 1. State of Maharashtra,
    Through P.S.O., P.S. Rajapeth,
    Amravati City, Amravati.

 2. Sau. Neha w/o Vishwas Hirulkar,
    Aged about : 31 years, occ.
    R/o Gangotri Colony, Sai Nagar,
    Rajapeth, Amravati.                                      ... NON-APPLICANTS

 -------------------------------------------------------------------------------------------
 Shri C. G. Barapatre, Advocate, for the applicants.
 Ms.Archana Kulkarni, APP for respondent No.1-State.
 Shri Raj Damodar Wakode, Advocate for respondent No.2.
 -------------------------------------------------------------------------------------------

                                CORAM:-    
                                            PRASANNA B. VARALE &
                                             ARUN D. UPADHYE, JJ.

DATED :

27/11/2017.

2 J-APL-553-16.odt

JUDGMENT : (PER PRASANNA B. VARALE, J.)

1. Applicants are before this Court for quashment and

setting aside the First Information Report No.478/2016 registered at

Rajapeth Police Station dated 01/07/2016 for the offence punishable

under Section 498-A r/w Section 34 of the Indian Penal Code on the

complaint lodged by non-applicant No.2.

2. The non-applicant No.2 approached the office of Police

Commissioner, Women Cell on 16/04/2016. It was submitted in the

report that non-applicant No.2 and applicant No.1 both were possessing

Degree of Engineering. The marriage between the non-applicant No.2

and applicant No.1 was solemnized on 12/06/2015 at Amravati. The

non-applicant No.2 after her marriage was residing at her matrimonial

place i.e. Nagpur along with the applicants. It was stated in the report

that the applicants soon after the marriage, started ill-treating and

abusing non-applicant No.2. It is further stated that applicant No.1 told

non-applicant No.2 that for some company work, he was to proceed to

Punjab and though applicant No.1 was insisting upon non-applicant

No.2 to stay at Nagpur. She proceeded to Punjab along with applicant

No.1. The couple stayed at Punjab for one month and even in that

period of one month, non-applicant No.2 was subjected to ill-treatment

and abuses. It is stated that the applicants also levelled allegations on

the character of non-applicant No.2. It is stated that there was

3 J-APL-553-16.odt

consistent demand for money and on account of demand, non-applicant

No.2 was subjected to ill-treatment and subjected to physical and

mental ill-treatment.

3. On 08/08/2015, the applicants gave abuses to non-

applicant No.2 and told non-applicant No.2 to vacate the house. As non-

applicant No.2 was under state of depression and she was very

frightened. She called her parents to Nagpur from Amravati. Though

the parents made an attempt to give understanding to the applicants,

their attempt failed. The applicants forcefully driven out non-applicant

No.2 from her matrimonial home and since then, she was residing at

Amravati.

4. The learned counsel for the applicants vehemently

submitted that non-applicant No.2 on false and baseless allegations,

dragged the applicants in a criminal report. He then submitted that in

the process of conciliation and counselling, the applicants submitted

their say and their statements were recorded. The learned counsel

submitted that non-applicant No.2 was not ready and willing to stay

with applicant No.2, 3, 4 and 5 and she was insisting upon and she was

picking up quarrels with the applicants. Non-applicant No.2 was also

giving threats of dire consequences and she used to humiliate the

applicant Nos.2 and 3, who are in their advance age. The learned

counsel submitted that in the report lodged against the applicants, non-

applicant No.2 stated that incidents of ill-treatment and abuses took

4 J-APL-553-16.odt

place either at her matrimonial home i.e. at Nagpur or at Punjab where

the couple was residing for a period of one month. The learned counsel

submitted that the police authorities of Rajapeth Police Station,

Amravati ought not have entertained the complaint and lodged the

report. He further submitted that at the most, the police authorities of

Rajapeth Police Station ought to have referred the matter to the

appropriate police authorities at Nagpur.

5. The learned counsel then submitted that applicant No.1

was apprehending that non-applicant No.2 may take some steps against

these applicants and may drag them to the Court of Law. As such,

applicant No.1 submitted his report / representation to Kotwali Police

Station on 14/12/2015. The learned counsel for the applicants then

invited our attention to the order dated 18/09/2017. The order dated

18/09/2017 reads thus :-

"The question involved is of the jurisdiction of police station Rajapeth, Amravati, to register the offence punishable under section 498-A r/w section 34 of the Indian Penal Code against the applicants/accused. Prima facie reading of the F.I.R. and the oral complaint show that the alleged offence was committed either at Nagpur or at Barnala in State of Punjab. In such situation, according to the learned counsel for the applicants the investigation should have been transferred to the concerned police station at Nagpur, and therefore, subsequent filing of charge-sheet would of no consequence.

Put up this matter after two weeks. The learned APP to file reply on this aspect."

The learned counsel submits that as the report lodged

against these applicants and the proceedings initiated on the basis of

5 J-APL-553-16.odt

the report are clearly unsustainable. The report and proceedings be

quashed.

6. The non-applicant No.1 - State of Maharashtra opposed

the application. Two affidavits-in-reply are filed on 21/09/2016 and

03/11/2017 respectively.

7. Shri Wakode, learned counsel for non-applicant No.2

while opposing the application, submitted that in similar circumstances,

this Court, thought it fit to transfer the proceedings. Shri Wakode, the

learned counsel thus, submitted that the same course be adopted in the

present matter.

8. We have gone through the material placed on record.

Perusal of the record shows that though the matter was referred for

mediation, the mediation failed. It is stated in the reply filed by non-

applicant No.1 - State dated 21/09/2016 that on receiving the

complaint from non-applicant No.2, the offence came to be registered

against the present applicants and the Investigating Agency was set in

motion. The statement of witnesses are recorded. On the backdrop of

the allegations in the report that non-applicant No.2 was subjected to

virginity test, the medical papers in that relation are also seized. In the

additional affidavit dated 3 rd November, 2017, non-applicant No.1 -

State admits that the offence was committed either at Nagpur or at

Barnala in State of Punjab and non-applicant No.2 lodged complaint

against these applicants at Amravati. It is stated that as non-applicant

6 J-APL-553-16.odt

No.2 was residing with her parents at Amravati, as she had no other

option to take the shelter of her parents. The report came to be lodged

at Amravati. It is submitted in the additional affidavit that the

investigation was concluded and the charge sheet was filed on

16/12/2016 and the criminal case is already registered in Amravati

Court on 16/04/2016.

9. Considering the above referred facts, we find merit in

the submission of the learned counsel Shri Wakode appearing for non-

applicant No.2. It would be useful to refer to the observations of this

Court in the case of Shekhar Shivdas Mahire and others Vrs. Sou.

Sarikabai Shekhar Mahire and another, reported in 2010 Criminal

Law Journal 3607. Facts in the present matter are nearly identical to

the facts in the case of Shekhar Shivdas Mahire (supra). In the case of

Shekhar Shivdas Mahire, the entire instances have taken place within

the jurisdiction of Court at Nashik and the report was lodged at Sahada

Police Station. The learned Single Judge in the case of Shekhar Shivdas

Mahire, referred to the observations made by the Hon'ble Apex Court, in

the case of Manish Ratan and others Vrs. State of Madhya Pradesh

and another, reported in (2007) 1 SCC 262. It was observed thus :-

"It can thus be clearly seen that the Hon'ble Apex Court in clear terms had held that the offence under Section 498-A is not a continuing offence, merely because the complainant has left the matrimonial house on account of ill-treatment by her husband and resides with her parents, cannot be ground to bestow the Court at the place where the parents reside, a jurisdiction to entertain the complaint."

7 J-APL-553-16.odt

Then considering the facts of the matter, the learned

Single Judge, thought it fit to transfer the proceedings. It was observed

in para 15 in the case of Shekhar Shivdas Mahire.

"15 - In the present case as already discussed herein above, there are no allegations of any ill- treatment at the place where the parents of the complainant resided. The entire allegations pertain to the matrimonial home of the complainant i.e. Nashik. In that view of the matter, the proceedings before the court at JMFC, Sahada are not tenable. However, I find that in spite of quashing the proceedings, it would be in the interest of justice to transfer the proceedings from the court of JMFC Sahada to the court of learned Chief Judicial Magistrate, Nashik. The application is therefore allowed by directing the proceedings being CR.No.126/2006 registered with Sahada Police Station and charge sheet No.9 of 2007 filed in RCC No.14/2017 pending before the learned J.M.F.C., Sahada to be transferred to the court of the learned Chief Judicial Magistrate, Nashik, who shall allot the same to the court of competent jurisdiction at Nashik. It is needless to state that the proceedings shall stand transferred from the present stage along with the evidence, if any, recorded."

10. Considering the facts of the present case and

considering the Judgment in the matter of Shekhar Shivdas Mahire

(supra), we allow the application by directing the proceeding being

Crime No.478/16 registered at Rajapeth Police Station, Amravati and

the proceedings being Regular Criminal Case No.1542/2016 on the

basis of the charge sheet filed by Rajapeth Police Station pending before

the learned Chief Judicial Magistrate, Amravati to be transferred to the

Court of learned Chief Judicial Magistrate, Nagpur who shall allot the

same to the court of competent jurisdiction at Nagpur.

8 J-APL-553-16.odt

Needless to state that the proceedings shall stand

transferred from the present stage along with evidence, if any, recorded.

11. Learned counsel appearing for the applicants prays for

liberty to file an application seeking discharge, before the appropriate

Court.

Liberty, as prayed for, is granted.

                      JUDGE                                   JUDGE




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