Vishal Philip Gaikwad vs The State Of Maharashtra
2017 Latest Caselaw 7545 Bom

                                               1998.2017 Cri.Appln.odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.1998 OF 2017 


          1.       Vishal Philip Gaikwad, 
                   Age 36 yrs. Occ. Service, 
                   R/o.Nashik Road, Tq. and 
                   Dist. Nashik.  

          2.       Kunda Danial Shinde 
                   Age 46 yrs. Occ. Nil 
                   R/o. Ashvini Society,  
                   Samangaon Road, Sinnar Phata,  
                   Nashik.  

          3.       Sarika Sandeep Rathod, 
                   Age 33 yrs. Occ. Nil, 
                   R/o. Ashvini Society,  
                   Samangaon Road, Sinnar Phata 
                   Nashik.  

          4.       Lukas Philip Gaikwad,  
                   Age 47 yrs. Occ. Service,  
                   R/o. Haregaon, Tq. Shrirampur 
                   Dist. Ahmednagar.  

          5.       Teresa Dagadu Gaikwad 
                   Age 65 yrs. Occ. Nil 
                   R/o. Ward No.6, Shrirampur 
                   Tq. Shrirampur, Dist. Ahmednagar. 
                                                  APPLICANTS
                        VERSUS 

          1.       The State of Maharashtra 
                   Through the Police Inspector 
                   Pathardi Police Station, 
                   Tq. Pathardi, Dist. Ahmednagar.  

          2.       Priyanka Vishal Gaikwad,  
                   Age 26 yrs. Occ. Service,  




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               R/o. Shankar Nagar, Pathardi,  
               Tq. Pathardi, Dist. Ahmednagar 
                                                RESPONDENTS
                                  ...
          Mr.S.B.Kadu, Advocate for the applicants 
          Mr.V.M.Kagne, APP for the respondent-State
          Mr.Sandip   R.Andhale,   Advocate   for   respondent 
          no.2.
                                  ...
                            CORAM:  S.S.SHINDE & 
                                    A.M.DHAVALE,JJ.      

Reserved on : 19.09.2017 Pronounced on : 26.09.2017

JUDGMENT: [Per S.S.Shinde, J.]:

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. The Application is filed with

following prayer:

B] To quash and set aside the F.I.R.

and proceeding bearing Crime No. 0123/2016 registered at Pathardi Police Station Tq. Pathardi, Dist. Ahmednagar for the offences punishable U/sec. 498-A, 323, 504,

1998.2017 Cri.Appln.odt

506 r/w.34 of I.P.C. and chargesheet RCC no. 159 of 2016 pending before Ld. J.M.F.C. Pathardi, Dist. Ahmednagar and for that purpose issue necessary order.

4. Respondent no.2 herein alleged in

the First Information Report [for short

'FIR'] that her marriage was solemnized with

applicant no.1-Vishal Philip Gaikwad on 29th

December, 2013, as per Christian Rites and

Rituals. Thereafter, she went for co-

habitation at Haregaon i.e. matrimonial

house. It is further alleged that for 8 days

after she went to Haregaon she was properly

treated by the members of the matrimonial

house. Thereafter, applicants told the

informant that since she has completed the

course of Nursing, she will have to join

employment somewhere, and they are not

prepared to maintain her without doing any

work. It is further alleged that they told

her that if the informant is not inclined to

1998.2017 Cri.Appln.odt

work, in that case she should bring Rs.3 lacs

from her parents. The applicants used to ill-

treat and beat her. They used to insult her.

She was carrying pregnancy of 9 months, and

at that time when she left the matrimonial

home so as to go to the parents place; her

ATM card was taken from her, and she was

driven out of the matrimonial home on 17th

December, 2014. At the place of parents, she

delivered a baby. Thereafter, on 27th May,

2015, she along with her father, maternal

uncle and other relatives went to Nashik at

husband's place, at that time also the

members of matrimonial home came there and

asked for Rs.3 lacs from her so as to

purchase a flat. It was stated by them that

unless the amount of Rs.3 lacs is given by

the parents of the informant, they will not

allow the informant to co-habit with

applicant no.1. Then at Pathardi a meeting

was arranged on 01.06.2015 where her in-laws

1998.2017 Cri.Appln.odt

came and reiterated demand of Rs.3 lacs. On

08.06.2015, she filed application to

counselling centre but the husband and in-

laws did not come for mediation and then

lodged the FIR at Pathardi Police Station,

Pathardi, District Ahmednagar on 05.04.2016.

5. Learned counsel appearing for the

applicants, on instructions, submits that

applicant no.1 is the husband and is not

claiming any relief in the present Criminal

Application. Therefore, application of

applicant no.1 stands rejected as not

pressed.

6. So far as applicant nos.2 to 5 are

concerned, it is submitted that, applicant

no.2-Kunda Danial Shinde is an elder sister

of applicant no.1 and got married on

05.05.1993 and resides at Ashvini Society,

Samangaon Road, Sinnar Phata, Nashik, which

is 15 kilo meters away from the matrimonial

1998.2017 Cri.Appln.odt

house. Applicant no.3 - Sarika Sandeep Rathod

is the sister of applicant no.1 and married

on 28th December, 2011, and also resides at

Ashvini Society, Samangaon Road, Sinnar

Phata, Nashik. Applicant no.4 - Lukas Philip

Gaikwad is the elder brother of applicant

no.1 and resides at Haregaon, Taluka

Shrirampur, District Ahmednagar, which is 150

kilo meters away from the Nashik City.

Applicant no.5 is the paternal aunt, who is

senior citizen and also resides at Ward No.6,

Shrirampur, Taluka Shrirampur, District

Ahmednagar. It is submitted that the

applicants are residing separately and they

have no concern with the alleged matrimonial

dispute of applicant no.1 and respondent

no.2. Respondent no.2 with an ulterior motive

tried to rope in the relatives of applicant

no.1. It is submitted that though it is

alleged in the FIR that respondent no.2 left

the matrimonial home on 27.05.2015, the FIR

1998.2017 Cri.Appln.odt

is registered belatedly on 5th April, 2016.

There is delay of 10 months in lodging the

FIR. The allegations in the FIR and also the

statements of the witnesses are general in

nature without mentioning any specific

incident as such. Learned counsel pressed

into service exposition of law by the Supreme

Court in the case of Geeta Mehrotra and

another Vs. State of Uttar Pradesh and

another1 and submits that, if the allegations

in the FIR do not disclose specific incident

or overt act qua each accused more-so against

relatives, who are not residing in

matrimonial home, in that case so as to avoid

abuse of process of law, the FIR deserves to

be quashed. Learned counsel also placed

reliance on the ratio laid down by the

Supreme Court in the case of Rajesh Sharma &

Ors. Vs. State of U.P. & Anr. in Criminal

Appeal No.1265 of 2017, decided on 27th July,

1 [2012] 10 SCC 741

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2017, and submits that it has been observed

in the said judgment that in many cases the

complaints under Section 498-A are not bona

fide and such complaints lead to uncalled for

harassment not only to accused but also to

the complainant. Learned counsel invites our

attention to the proof of residence of

applicant nos.2 to 5 in the nature of their

addresses mentioned on the Aadhar Card.

Learned counsel further submits that no cause

of action has arisen at Pathardi, and

therefore, the Court of Judicial Magistrate

First Class at Pathardi has no jurisdiction

to try the case. Learned counsel appearing

for the applicants has also placed reliance

on the case of Rajesh Sharma [supra] and in

particular para 18 thereof wherein the

Supreme Court has given various directions

to be followed while dealing with the

complaints arising out of matrimonial

discord.

1998.2017 Cri.Appln.odt

7. On the other hand, learned APP

appearing for the respondent-State, and

learned counsel appearing for respondent no.2

relying upon the allegations in the FIR, and

the statements of the witnesses, and also

other material collected during the course of

investigation, submit that, the alleged

offences are disclosed, and therefore, the

Investigating Officer reached to the

conclusion to file the charge-sheet, and

accordingly charge-sheet has been filed. It

is further submitted that the allegations in

the FIR and the statements of the witnesses

will have to be read as it is, and while

exercising jurisdiction under Section 482 of

the Criminal Procedure Code, it is not

desirable to undertake exercise of

adjudication of the disputed questions of

facts and appreciation of the defence taken

by applicant nos.2 to 5 that, they are

residing at different places and not at

1998.2017 Cri.Appln.odt

matrimonial home. Therefore, it is submitted

that the application deserves to be rejected.

8. We have given careful consideration

to the rival submissions of the learned

counsel appearing for the parties. With their

able assistance, we have perused the

allegations in the FIR, charge-sheet and it's

accompaniments, and also other documents

placed on record. Upon careful perusal of the

statements of the witnesses, who are the

relatives of respondent no.2 and are residing

at Pathardi; their statements are also in

tune with the contents of the FIR. It is

alleged in the FIR that on 1st June, 2015 at

Pathardi there was endeavour to settle the

dispute with the help of mediator, and on

that day the members of the matrimonial home

came at Pathardi. According to the learned

counsel appearing for the applicants,

applicant no.1 issued two notices through

Advocates on 16th May, 2015, and also on 1st

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June, 2015, and therefore, assertion of the

informant that the members of the matrimonial

home came at Pathardi on 1st June, 2015, is

ruled out. We have carefully perused the

entire material placed on record, and we find

that, no cause of action arose within the

jurisdiction of Pathardi Police Station and

also Judicial Magistrate First Class,

Pathardi, so as to entertain the FIR and

further proceedings arising out of the said

FIR.

9. It is not in dispute that applicant

nos.2 and 3 are married sisters of applicant

no.1. Their marriages were performed even

prior to the date of solemnization of the

marriage of respondent no.2 with applicant

no.1. Upon careful perusal of the copies of

Aadhar Cards, which are placed on record,

applicant nos.2 and 3 are residing separately

at different places at Nashik. Applicant

no.4, who is elder brother of applicant no.1,

1998.2017 Cri.Appln.odt

resides at Haregaon, Taluka Shrirampur,

District Ahmednagar, which is 150 kilo meters

away from Nashik City. Applicant no.5 is the

senior citizen and paternal aunt of applicant

no.1, who resides at Shrirampur. All

applicants are residing separately.

10. Upon careful perusal of the

allegations in the FIR, and the statements of

the witnesses, there are omnibus allegations

without attributing any specific overt acts

qua each of the applicants, without

mentioning any specific incident/incidents.

Upon careful perusal of the allegations in

the FIR, it appears that, initially for few

days after the marriage, respondent no.2

stayed at Haregaon, and then she shifted at

Nashik wherein applicant no.1 was working.

The allegations that the applicants came at

Nashik and demanded Rs.3 lacs for purchase of

a flat, are inherently improbable, inasmuch

as those are general in nature, and the

1998.2017 Cri.Appln.odt

applicants are residing at different places.

Upon careful perusal of the allegations in

the FIR, and the statements of the witnesses,

an alleged offence punishable under Section

498-A of the IP Code has not been disclosed

qua applicant nos.2 to 5. The basic

ingredients of Section 498-A are not

attracted. There is growing tendency of

making omnibus allegations against all

relatives of the husband, which cannot be

taken at face value when in normal course it

may only be the husband or at best his

parents who may be accused of demanding dowry

or causing cruelty. The Supreme Court in the

case of Geeta Mehrotra and another [supra],

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

1998.2017 Cri.Appln.odt

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 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

2 (2000) 3 SCC 693

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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."

11. In the light of discussion in the

foregoing paragraphs, the further

proceedings/investigation based upon the FIR

bearing Crime No.0123/2016 registered at

Pathardi Police Station, Taluka Pathardi,

District Ahmednagar, for the offences

punishable under Sections 498-A, 323, 504,

506 r/w.34 of the IP Code and the charge-

sheet bearing RCC No.159 of 2016, pending

before the Judicial Magistrate First Class,

Pathardi, would be exercise in futility so

far applicant nos.2 to 5 are concerned.

Therefore, the application to the extent of

applicant nos.2 to 5 is allowed in terms of

prayer clause-B, and the FIR bearing Crime

No.0123/2016, registered at Pathardi Police

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Station, Pathardi, for the offences

punishable under Sections 498-A, 323, 504,

506 r/w.34 of the IP Code, and the charge-

sheet bearing RCC No.159 of 2016, to the

extent of applicant nos.2 to 5, stands

quashed and set aside.

12. So far applicant no.1-Vishal Philip

Gaikwad [husband] is concerned, his

application is not pressed by the learned

counsel appearing for the applicants,

nevertheless we find that the cause of action

for filing the FIR mainly arose at Nashik,

and therefore, in the peculiar facts and

circumstances of this case, the proceedings

of RCC No.159 of 2016, pending on the file of

Judicial Magistrate First Class, Pathardi,

District Ahmednagar, shall stand transferred

to the Competent Court of the Judicial

Magistrate First Class at Nashik Road. The

registry of the Judicial Magistrate First

Class at Pathardi and the Principal District

1998.2017 Cri.Appln.odt

Judge, Ahmednagar, shall take immediate steps

to transfer the proceedings of RCC No.159 of

2016 to the registry of the Principal

District Judge at Nashik. In turn, the

Principal District Judge, Nashik, to assign

the said proceedings to the concerned

Judicial Magistrate First Class in whose

jurisdiction the cause of action arose

leading for filing the FIR.

13. The Application is partly allowed.

Rule is made absolute on above terms.

Accordingly, application stands disposed of.

              [A.M.DHAVALE]              [S.S.SHINDE]
                  JUDGE                      JUDGE  
          DDC