Bombay High Court
Shirish Subhash Kekan And Others vs The State Of Maharashtra And Anr on 5 January, 2021
Bench: T.V. Nalawade, M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 479 OF 2019
1) Shirish Subhash Kekan
Age; 31 years, Occ; Business,
2) Subhash Genaji Kekan
Age; 63 years, Occ; Nil,
3) Kaushalya Subhash Kekan
Age; 58 years, Occ; Nil, ...PETITIONERS
(Orig. Accused)
All R/o Rameshwar Colony, Pimpargavan,
Road, Dist. Beed.
VERSUS
1) The State of Maharashtra
Through Police Inspector,
Shivajinagar Police Station,
Beed.Tq. & Dist. Beed.
2) Shilpa Chandan Kekan
Age; 30 years, Occ; Nil, ..RESPONDENTS
R/o; C/o; Dinkar Tandale, (Resp. No. 2 is
Near Asha Talkies, Pingle Nagar, Original
Dhanora Road, Beed, Complainant)
Tq. & Dist. Beed.
..........................................
Advocate for the Petitioners : Shri. A.S. Kale h/f Shri Mewara Rajesh H.
A.P.P.for Respondent No. 1: Shri M.M. Nerlikar
Advocate for Respondent No. 2 : Shri C.V.Dharurkar
.......................................
CORAM : T.V. NALAWADE &
M.G. SEWLIKAR, JJ.
DATE : 05/01/2021
JUDGMENT : [PER : M.G. SEWLIKAR, J.]
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1. Rule. Rule made returnable forthwith. With the consent of
the parties, heard finally at the admission stage.
2. This writ petition is preferred by the petitioners for
quashing of the First Information Report (F.I.R.) under Article 226 and
227 of the Constitution of India and under Section 482 of the Code of
Criminal Procedure.
3. Facts giving rise to this petition are that respondent No. 2
(the informant herein) is the wife of Chandan Subhash Kekan. Their
marriage was solemnized on 29.5.2011. Petitioner No. 1 is the
brother-in-law, Petitioner No. 2 is the father-in-law and petitioner No. 3
is the mother-in-law of respondent No. 2.
4. After marriage, respondent No. 2 started cohabitation at
her matrimonial place. She was maintained well by the petitioners for
about six months. Her husband Chandan Kekan, at the time of
marriage was serving at Panvel, District Raigad. In the month of
October, 2011, her husband Chandan Kekan shifted to Goa as he got
job there. Respondent No. 2 also moved to Goa along with her husband
Chandan Kekan. It is alleged that after her delivery in the month of
August, 2012, on the day of Dasra she was mercilessly beaten by her
husband Chandan Kekan. Her husband dropped her at her maternal
place at Beed, till the month of February, 2013. In the month of April,
2014, she was driven out of the house from Goa along with her
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daughter. In the month of July, 2015 she was dropped at her maternal
place when she had been to attend the marriage of her maternal sister.
Her husband used to chat with his girl friend on mobile. Whenever,
respondent No. 2 objected to it, her husband beat her by means of
belt, cable wire and by means of other article that came handy. On
3.4.2016, her husband said to her that she should bring Rs. 5,00,000/-
from her parents for the repayment of installments of car loan and on
that count, beat her by means of belt and with kicks and fist blows. He
was demanding divorce from her. While beating, he had kept his
mobile phone on, so that her father could hear sounds of beating. On
6.4.2016 her father along with his three friends had been to Goa to
convince her husband but her husband assaulted them. On 7.4.2016
at 10.30 p.m., her husband beat her with fists and kick blows,
therefore, she dialed No. 100 and called the police. On 9.4.2016 she
came to her maternal place with her father. On 11.4.2016 at 3.00
p.m., she went to her husband and sought time for making
arrangement of amount. Thereupon, her husband beat her and
petitioner No. 3 held her by her hair. On 12.4.2016 at 5.00 p.m., her
husband came home drunk and did not allow her to enter his house. On
these allegations she lodged a report with the police station, on the
basis of which offences punishable under Sections 498-A, 323, 504, 506
read with Section 34 of the I.P.C. have been registered against
petitioners and others.
5. Heard Shri A.S. Kale h/f Shri Mewara Rajesh H., the learned
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counsel for the petitioners, Shri M.M. Nerlikar, the learned A.P.P. for
Respondent No. 1 and Shri C.V.Dharurkar, the learned counsel for
Respondent No.2.
6. Shri Kale, the learned counsel for the petitioners submitted
that all the allegations are against the husband of respondent No. 2.
Not a single allegation is made against petitioner Nos. 1 to 3. He
submitted that the whole grievance of the respondent No. 2 is against
her husband Chandan Kekan. Therefore, no offence is made out
against petitioner Nos. 1 to 3.
7. Shri Dharurkar, learned counsel for respondent No. 2
submitted that petitioner Nos. 1 to 3 have subjected her to cruelty. He
further submitted that trial has commenced in the Trial Court. The
statements of the informant and her parents have been recorded. If
any order is passed in this matter, it will have direct bearing on the
merits of the matter. He further submitted that specific allegation
against petitioner No. 3 is to the effect that she had held respondent
No. 2 by her hair. He submitted that the date of this incident is
11.4.2016. He submitted that this clearly shows that offence under
Section 498-A is clearly made out against petitioner Nos. 1 to 3.
Therefore, no relief can be granted to them.
8. Perusal of papers and the FIR clearly indicate that all the
allegations are against the husband of respondent No. 2. Not a single
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allegation is made against petitioner Nos. 1 to 3 for the ill-treatment
being meted out to her. A bald statement is made against petitioner
No. 3 that she had held respondent No. 2 by her hair. Thus, when
there are no allegations against petitioner Nos. 1 to 3, it will be an
exercise in futility, if prosecution is allowed to continue against them.
Even if, trial is commenced, there is no bar for exercising powers under
Section 482 of the Cr.P.C. by this Court. In the case of Anand Kumar
Mohatta and Another Vs. State (NCT of Delhi) Department of
Home and Another (2019) 11 Supreme Court Cases 706 held as
under :
"30. It is necessary here to remember the words of
this Court in State of Karnataka v. Muniswamy
(1977) 2 SCC 699 : 1977 SCC (Cri) 404 which
read as follows :
"7.... In the exercise of this wholesome
power, the High Court is entitled to quash a
proceeding if it comes to the conclusion that
allowing the proceeding to continue would be an
abuse of the process of the Court or that the ends
of justice require that the proceeding ought to be
quashed. The saving of the High Court's inherent
powers, both in civil and criminal matters, is
designed to achieve a salutary public purpose
which is that a court proceeding ought not to be
permitted to degenerate into a weapon of
harassment or persecution. In a criminal case, the
veiled object behind a lame prosecution, the very
nature of the material on which the structure of the
prosecution rests and the like would justify the
High Court in quashing the proceeding in the
interest of justice."
9. Thus, even if, trial is commenced and if this Court comes to
the conclusion that continuation of prosecution would be an abuse of
process of law, power under Section 482 of Cr.P.C. can be invoked.
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Section 482 of Cr.P.C. does not create a Bar for exercising powers
under Section 482 of Cr.P.C., once trial is commenced. What the Court
has to see, while exercising of powers under Section 482 of Cr.P.C. is
whether continuation of prosecution is an abuse of process of the
Court. Section 482 of Cr.P.C. is designed to achieve a salutary public
purpose which is that a court proceeding ought not to be permitted to
degenerate into a weapon of harassment or persecution. In the case
at hand, not only in FIR but also in the statements of father of
respondent No. 2 and her mother, there is nothing to indicate that they
had inflicted any cruelty on respondent No. 2. In this view of the
matter, continuation of prosecution against petitioner Nos. 1 to 3,
would be an abuse of process of law. We are therefore, inclined to
quash the proceedings against petitioner Nos. 1 to 3. Hence, the
following order is passed :
ORDER
1) Petition is allowed.
2) Relief is granted in term of prayer clause (C).
3) Rule is made absolute in those terms.
( M.G. SEWLIKAR ) ( T.V. NALAWADE )
JUDGE JUDGE
mahajansb/
