Bandu S/O. Budhaji Lohare And ... vs State Of Maharashtra Thr. P.S.O. ...
2017 Latest Caselaw 7668 Bom

APL  479/17                                          1                           Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.
              CRIMINAL APPLICATION (APL) No. 479/2017
1.    Bandu s/o Budhaji Lohare,
      Aged-42 yrs, Occup- Service,
      r/o Narayan City, Tah-Umrer, Dist-Nagpur.

2.    Namdeo s/o Budhaji Lohare,
      Aged-55 yrs, Occup- private,
      r/o Chamat Chowk, Dighori, 
      Umrer road, nagpur.
3.    Sou.Shobatai w/o Namdeo Lohare,
      Aged-48 yrs, Occup- Household,
      r/o Chamat Chowk, Dighori,
      Umred road, Nagpur.
4.    Sachin s/o Namdeo Lohare,
      Aged- 25 yrs, Occup-Service Bank,
      r/o Chamat chowk, Dighori,
      Umrer road, Nagpur.
5.    Ku.Yeshwarya d/o Namdeo Lohare,
      Aged- 21 yrs, Occup- Engineer,
      r/o Chamat chowk, Dighori,
      Umrer road, Nagpur.                                                   APPLICANTS
                                     .....VERSUS.....
1.    State of Maharashtra,
      Through P.S.O. Yawatmal-City,
      Dist-Yawatmal.
2.    Sou.Madhuri w/o Bandu Lohare,
      Aged-33 yrs, Occup- Household,
      r/o c/o-Vasantrao Gawande,
      Laxminagar, Dehankar Layout,
      Dhamangaon road, Dist-Yawatmal.                                    NON-APPLICA
                                                                                     NTS
                   Shri Lubesh Meshram, counsel for the applicants.
           Ms T.Khan, Additional Public Prosecutor for the non-applicant no.1.
                 Shri G.K. Bhusari, counsel for the non-applicant no.2.

                                      CORAM :SMT.VASANTI  A  NAIK AND
                                                    M.G. GIRATKAR, JJ.                

DATE : 28 TH SEPTEMBER, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

The criminal application is ADMITTED and heard finally at

the stage of admission with the consent of the learned counsel for the

parties.

APL 479/17 2 Judgment

2. By this criminal application, the applicants have sought the

quashing and setting aside of the first information report registered

against the applicants for the offences punishable under Sections 498-A,

323, 504 read with Section 34 of the Penal Code.

3. Few facts giving rise to the criminal application are stated

thus:-

The applicant no.1 and the non-applicant no.2 were married

in the year 2001. The applicant no.2 is the elder brother of the applicant

no.1 and the applicant no.3 is the wife of the elder brother of the

applicant no.1. The applicant nos.4 and 5 are the nephews of the

applicant no.1 and the applicant nos.2 to 5 reside separately from the

applicant no.1 and the non-applicant no.2. A report was lodged by the

non-applicant no.2 with the non-applicant no.1 that the applicants had

treated the non-applicant no.2 with cruelty. The non-applicant no.2 has

alleged in the report that the applicant no.1 is a drunkard and he used to

beat the non-applicant no.2 and abuse her in filthy language after he

returned to the matrimonial home in an intoxicated state. It is alleged

that the applicant no.1 used to abuse the non-applicant no.2 and threaten

that he would set her on fire. Several instances pertaining to the physical

and mental cruelty meted out by the applicant no.1 to the non-applicant

no.2 are alleged in the report. The only allegation in the first information

report against the applicant nos.2 to 5 is that on 15.11.2015, when the

APL 479/17 3 Judgment

applicant no.1 was not in the matrimonial home, the applicant nos.2 to 5

came in the courtyard at about 10.00 a.m. and since the non-applicant

no.2 did not open the door as she was scared, they started abusing and

threatening her. It is further alleged in the report lodged by the non-

applicant no.2 that since she did not open the door, the applicant no.1,

who also came home, broke the window pane and the applicant nos.2

to 5 kicked the door and left the place after abusing her. Since according

to the applicants, the allegations made by the non-applicant no.2 in the

report against the applicant nos.2 to 5 cannot prima-facie make out an

offence under Section 498-A of the Penal Code, the first information

report registered against the applicant nos.2 to 5 should be quashed and

set aside.

4. Shri Meshram, the learned counsel for the applicants, states

that the applicant no.1 is not desirous of pressing the prayer made in the

application and the prayer would be pressed only insofar as the applicant

nos.2 to 5 are concerned. It is submitted that the offences under Sections

498-A, 323 and 504 of the Penal Code cannot be made out against the

applicant nos.2 to 5 even if the allegations in the first information report

are accepted at their face value, in the entirety. It is submitted that it is

only alleged in the first information report that the applicants came to the

courtyard of the matrimonial home on 15.11.2015 at about 10.00 a.m.

and started abusing and threatening the non-applicant no.2. It is

APL 479/17 4 Judgment

submitted that the said act cannot be a 'cruelty' within the meaning of

Section 498-A of the Penal Code. It is submitted that since it is not the

case of the non-applicant no.2 that hurt was caused to her due to the acts

on the part of the applicant nos.2 to 5, the offence under Section 323 of

the penal Code could not have been registered against them. It is

submitted that the offence under Section 504 of the Penal Code also

cannot be prima-facie made out on the basis of the allegations in the first

information report as it is not the case of the non-applicant no.2 that the

applicant nos.2 to 5 had insulted her with an intent to provoke the breach

of peace.

5. Ms Khan, the learned Additional Public Prosecutor appearing

for the non-applicant no.1, submitted that after the report was lodged by

the non-applicant no.2, the first information report was registered on the

basis of the allegations made in the report. It is submitted that serious

allegations are made by the non-applicant no.2 against the applicant no.1

and the acts on the part of the applicant no.1 would surely amount to

'cruelty' within the meaning of Section 498-A of the Penal Code. It is

however, fairly stated that the only allegations made against the applicant

nos.2 to 5 are that they had come to the courtyard of the matrimonial

home at about 10.00 a.m. on 15.11.2015 and had abused and threatened

the non-applicant no.2.

APL 479/17 5 Judgment

6. Shri Bhusari, the learned counsel for the non-applicant no.2,

submitted that apart from the aforesaid allegations, the applicant no.2

had also called a relative of the non-applicant no.2 and had abused him.

It is submitted that not only the applicant no.1 but the applicant nos.2 to

5 were also harassing the non-applicant no.2 and hence, the report was

lodged against them.

7. On a reading of the first information report, we find that even

if the allegations made in the same are accepted at their face value and in

the entirety, the offences punishable under Sections 498-A, 323 and 504

of the Penal Code cannot be prima-facie made out against the applicant

nos.2 to 5. Though serious allegations are levelled in the complaint

lodged by the non-applicant no.2 against the applicant no.1, the only

allegation against the applicant nos.2 to 5 is that they had been to the

courtyard of the matrimonial home of the applicant no.1 and the non-

applicant no.2, at about 10.00 a.m. on 15.11.2015 and had threatened

and abused the non-applicant no.2. The other allegation against the

applicant no.2 is that he had called a relative of the non-applicant no.2

and had abused him. The said allegations, even if they are accepted at

their face value, cannot prima-facie make out the offence under Sections

498-A, 323 and 504 of the Penal Code. Every act of cruelty or harassment

would not be 'cruelty' within the meaning of Section 498-A of the Penal

Code. Even if we assume that the applicant nos.2 to 5 had been to the

APL 479/17 6 Judgment

courtyard of the matrimonial house and had abused and threatened the

non-applicant no.2, the offence punishable under Section 498-A of the

Penal Code cannot be prima-facie made out. It is not the case of the non-

applicant no.2 that the applicant nos.2 to 5 had caused hurt to her and it

is also not her case that the applicant nos.2 to 5 had intentionally insulted

her to provoke the breach of peace. Since the allegations in the first

information report do not prima-facie make out the offences punishable

under Sections 498-A, 323 and 504 of the Penal Code, the first

information report registered against the applicant nos.2 to 5 is liable to

be quashed and set aside.

8. Hence, for the reasons aforesaid, the criminal application is

partly allowed. The first information report registered against the

applicant nos.2 to 5 for the offences punishable under Sections 498-A,

323 and 504 read with Section 34 of the Penal Code is hereby quashed

and set aside.

Order accordingly.

              JUDGE                                         JUDGE

APTE