Vikas S/O Kisanji Sakhare And 7 ... vs The State Of Maharashtra, Through ...
2021 Latest Caselaw 2456 Bom

                                        1          21-J-APL-601-14.odt

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

             CRIMINAL APPLICATION (APL) NO. 601 OF 2014

 1. Vikas s/o Kisanji Sakhare,
    Aged about : 34 years,
    Occ : Private Service,
    Applicant No. R/o Plot No.18,
    New Thawre Colony, Nagpur.
 2. Smt. Kaushalyabai wd/o Kisan            (Deleted as per Hon'ble
    Sakhare, Aged about : 85 years,         Court's order dtd.05.01.18)
    Occ : Household.
 3. Avinash s/o Kisanji Sakhare,
    Aged about : 39 years,
    Occ : Private Service.
 4. Sau. Warsha w/o Avinash Sakhare,
    Aged about : 32 years,
    Occ : Business.
    (Applicant No.2,3 and 4)
    all R/o Vidya Vihar, Bhandara.
 5. Pramod s/o Kisanji Sakhare,
    Aged about : 54 years,
    Occ : Private Service,
    R/o Yerwada, Pune.
 6. Arvind s/o Kisanji Sakhare,
    Aged about : 48 years,
    Occ : Private Service,
    R/o Baramati, Pune.
 7. Smt. Sharda wd/o Bhagwanji
    Dhawale, Aged about : 60 years,
    R/o Ramnagar, Gondia.
 8. Smt. Panchafula w/o Tukaramji
    Wasnik, Aged about : 57 years,
    Occ : Household, R/o Civil Lines,
    Gondia.                                          ... APPLICANTS




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                                                     2              21-J-APL-601-14.odt


                  VERSUS
 1. The State of Maharashtra,
    Through PSO, Police Station,
    Jaripatka, Nagpur.

 2. Sau. Padma w/o Vikas Sakhare,
      Aged about : 44 years,
      Occ : Service, R/o Plot
      No.34, Gopichand Upadhye,
      Vijay Chhawani, Katol Road,
      Sadar, Nagpur.                                          ... NON-APPLICANTS
 -------------------------------------------------------------------------------------------
 Shri Anirudh Ananthakrishnan, Advocate h/f Shri Anand Parchure,
 Advocate for applicants.
 Shri T. A. Mirza, Additional Public Prosecutor for non-applicant
 No.1.
 Shri J. M. Gandhi, Advocate for non-applicant No.2.
 -------------------------------------------------------------------------------------------
                  CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.

DATED : 08/02/2021.

ORAL JUDGMENT : (PER : AMIT B. BORKAR, J.)

1. This is an application under Section 482 of the

Code of Criminal Procedure challenging the First Information

Report No.411/2014 dated 29/07/2014 under Section 498-A read

with Section 34 of the Indian Penal Code and consequent charge

sheet No.283/2016 pending before the Judicial Magistrate First

Class, Court No.7, Nagpur for the offence punishable under

Section 498-A read with Section 34 of the Indian Penal Code.

3 21-J-APL-601-14.odt

2. The First Information Report came to be registered

against the applicants on 29/07/2014 with the accusation that the

marriage between the non-applicant No.2 and the applicant No.1

was performed on 09/07/2010. It is further alleged that after the

marriage, the applicants treated the non-applicant No.2 with

cruelty by physically and mentally harassing the non-applicant

No.2. It is alleged in the First Information Report that the non-

applicant No.2 resided with the applicant No.1 and other family

members of the applicant No.1 till 14/05/2011. It is further

alleged that it is only when in the month of March, 2014 when the

non-applicant No.2 got knowledge about the second marriage

performed by the applicant No.1, the non-applicant No.2 filed

First Information Report which is challenged in the present

application. It is alleged in the report by the non-applicant No.2

that the applicants treated the non-applicant No.2 with cruelty

from 09/07/2010 till 14/05/2011. It is alleged that the applicants

have directly or indirectly called upon the non-applicant No.2 and

her father to pay an amount of Rs.7,00,000/- to Rs.8,00,000/- for

the construction of house. It is further alleged that since the non-

applicant No.2 and her father refused to pay amount of

Rs.7,00,000/- to Rs.8,00,000/- for the construction of house of the

4 21-J-APL-601-14.odt

applicant No.1, the applicants harassed physically and mentally to

the the non-applicant No.2.

3. The applicants have, therefore, filed present

application challenging the registration of First Information

Report. This Court on 18/09/2014 issued notice to the non-

applicants and by way of ad-interim relief, it was directed that no

coercive action be taken against the applicants. This Court on

25/11/2014 issued Rule and continued the interim relief which

was already granted by order dated 18/09/2014.

4. The non-applicant No.1 has filed reply on

05/11/2014 and it is stated in the reply that the Investigating

Agency had recorded the statements of witnesses which support

the case of prosecution. It is further stated that on perusal of the

statements of the complainant and three witnesses, prima facie,

case against the applicants is made out.

5. The non-applicant No.2 has also filed her reply and

it is stated that material on the record discloses the offences under

Section 498-A and 34 of the Indian Penal Code. It is further stated

that the applicant No.1 has performed second marriage during the

subsistence of first marriage. It is further stated that the

5 21-J-APL-601-14.odt

Investigating Agency had not registered the offence on the basis of

original report filed by her dated 06/06/2014. She, therefore,

prayed for dismissal of the application.

6. We have carefully considered the contents of the

First Information Report and the material produced by the

applicants in the form of charge sheet. On carefully reading of the

First Information Report, it is undisputed that the period

mentioned by the non-applicant No.2 in her report dated

29/07/2014 is between 09/07/2010 till 14/05/2011. The non-

applicant No.2 herself has stated in her report that she was

residing along with the applicants till 14/05/2011. The allegations

which according to the non-applicant No.2 constitute the offence

under Section 498-A of the Indian Penal Code is to the effect that

the applicants have directly or indirectly forced her and her father

for payment of Rs.7,00,000/- to Rs.8,00,000/- for the purpose of

construction of house of the applicant No.1 and it is due to refusal

of the non-applicant No.2 to pay the said amount to the

applicants, the non-applicant No.2 meted with physical and

mental harassment. Having considered the said allegations, we are

satisfied that the allegations regarding demand of money is vague

in nature. The non-applicant No.2 has not mentioned the month

6 21-J-APL-601-14.odt

or year or has not attributed specific role to any of the applicants

which who had demanded the said amount. The allegations

regarding abuses to her is also vague as the non-applicant No.2

has stated that the applicants have abused her from time to time.

On the basis of vague allegations, we are satisfied that the

prosecution launched by the non-applicant No.2 cannot be said to

be legitimate prosecution.

7. Apart from the above reason, as per the accusation

in the First Information Report itself, the period of physical and

mental harassment caused to the non-applicant No.2 is from

09/07/2010 to 14/05/2011. The First Information Report has

been registered on 29/07/2014 which is after a period of more

than three years. There is no explanation provided by the non-

applicant No.2 which can be said to be sufficient explanation to

justify delay in filing the First Information Report. From the

averments in the First Information Report, it appears that it is only

when the non-applicant No.2 got knowledge about the second

marriage performed by the applicant No.1, the non-applicant No.2

has registered First Information Report on 29/07/2014 i.e. after

three months from the knowledge of the second marriage of the

applicant No.1.

7 21-J-APL-601-14.odt

8. Shri Gandhi, learned Advocate appearing for the

non-applicant No.2 has relied upon the judgment of the Hon'ble

Apex Court in the case of Taramani Parakh Vrs. State of Madhya

Pradesh and others, reported in AIR 2015 SC (supp) 704. We

have carefully considered the facts of the case before the Hon'ble

Apex Court where marriage was performed on 18/11/2009 and

wife left matrimonial home on 02/04/2010. The complaint in the

said case was filed on 19/05/2011. In the meantime, there was

mediation proceeding between the parties in the said case. Having

taken consideration of the facts of the present case, there is

unexplained delay of more than three years in filing the First

Information Report.

9. Taking into consideration the vague nature of

allegations made against the applicants and unexplained delay of

more than three years in registration of First Information Report,

we are satisfied that continuation of proceedings against the

applicants would amount to abuse of process of Court.

10. It will be open for the non-applicant No.2 to take

steps according to law to pursue the complaint dated 06/06/2014

8 21-J-APL-601-14.odt

filed with the Police Inspector, Police Station, Sadar, Nagpur in

accordance with law.

11. We, therefore, pass the following order :-

First Information Report No.411/2014 dated

29/07/2014 and the charge sheet No.283/2016

pending before the Judicial Magistrate, First Class,

Court No.7, Nagpur in Regular Criminal Case

No.2717/2016 for the offences punishable under

Sections 498-A and 34 of the Indian Penal Code are

quashed and set aside.

12. Rule is made absolute in the above terms.

                      JUDGE                        JUDGE

 Choulwar