Bombay High Court

Surekha Prabhu Kamble And Others vs The State Of Maharashtra And ... on 29 November, 2021

Bench: V.K. Jadhav, Sandipkumar Chandrabhan More

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

              37 CRIMINAL APPLICATION NO.435 OF 2021

          SUREKHA PRABHU KAMBLE AND OTHERS
                            VERSUS
        THE STATE OF MAHARASHTRA AND ANOTHER
                               ...
     Advocate for Applicants:Mr. D. Ingole h/f N S Ghanekar
            APP for Respondent 1: Mr. M M Nerlikar
       Advocate for Respondent 2 : Mr. Dagadkhair D.K.
                               ...
     CORAM : V.K. JADHAV & SANDIPKUMAR C. MORE, JJ.

Dated: November 29, 2021 ...

PER COURT :-

1. Heard fnally with consent of parties, at admission

stage.

2. The applicants/original accused are seeking

quashing of the FIR in Crime No.12 of 2021 registered

with Khultabad Police Station, District Aurangabad for

the offence punishable under sections 498-A, 323, 504,

506, 34 of the Indian Penal Code. By order dated

2.3.2021 this Court has directed the Investigating offcer

to proceed with the investigation in connection with the

crime but shall not submit the charge-sheet against the

applicants till the next date of hearing and said interim

order remained continued till today. It thus appears

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that though investigation is completed, charge-sheet as

against these applicants is not fled.

3. Learned counsel submits that the applicants are

the married sisters-in-law. The learned counsel submits

that the allegations have been made mainly against co-

accused husband and mother-in-law, who are not the

applicants before this Court. So far as the applicants

before the Court are concerned, allegations as against

them are general in nature, without quoting any specifc

incident. Learned counsel submits that, these

applicants got married long back and they are residing

with their respective husband in Aurangabad. It is a

case of over implication, since all the family members

have been implicated in connection with the present

crime.

4. Learned counsel for respondent no.2 submits that,

names of the applicants are mentioned in the FIR with

the specifc role attributed to them. It has been

specifcally alleged in the complaint that the applicants

herein when they come to their parents house, they

used to instigate co-accused/husband against

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respondent no.2 for various reasons. So far as the

applicant no.2 is concerned, she has instigated co-

accused husband for the reason that respondent no.2

has delivered a female child instead of a male child.

Further, respondent no.2 was also subjected to cruelty

on the count that the parents of the respondent no.2

had given less amount of dowry at the time of marriage.

Learned counsel submits that there is a triable case

against the applicants. There is no substance in this

application and the application is liable to be dismissed.

5. We have also heard the learned APP for the

respondent no.1-State.

6. We have carefully gone through the contents of the

FIR and also perused the police papers. Though, we

fnd names of the applicants are mentioned in the FIR,

however, allegations as against them are general in

nature, without quoting any specifc incident. The

applicants are the married sisters-in-law residing at

Aurangabad with their respective husband. It is not

clear from the allegations made in the complaint nor

from the investigation papers as to when these

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applicants had been to their parents house and

instigated co-accused husband in the manner as alleged

in the complaint. It is a classic example of over

implication since almost all the family members have

been implicated in connection with the present crime

including the married sisters of co-accused husband. It

further appears from the contents of the complaint that

allegations have been made mainly against co-accused

husband and mother-in-law. However, they are not

before us as the applicants.

7. In the case of Geeta Mehrotra and others vs.

State of U.P. and others, reported in AIR 2013 SC

181, the Supreme Court has observed that "Courts are

expected to adopt a cautious approach in matters of

quashing specially in cases of matrimonial dispute

whether the FIR in fact discloses commission of an

offence by the relatives of the principal accused or the

FIR prima facie discloses a case of over-implication by

involving the entire family of the accused at the

instance of the complainant, who is out to settle her

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scores arising out of the teething problem or skirmish

of domestic bickering while settling down in her new

matrimonial surrounding."

8. In the case of Neelu Chopra and others v.

Bharti, reported in 2010 CrLJ 448, the Supreme

Court has observed that, "In order to lodge a proper

complaint, mere mention of the sections and the

language of those sections is not be all and end of the

matter. What is required to be brought to the notice of

the Court is the particulars of the offence committed

by each and every accused and the role played by

each and every accused in committing of that offence.

The complaint in the instant case is sadly vague. It

does not show as to which accused has committed

what offence and what is the exact role played by

these appellants in the commission of offence. There

could be said something against Rajesh, as the

allegations are made against him more precisely but

he is no more and has already expired. Under such

circumstances, it would be an abuse of process of law

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to allow the prosecution to continue against the aged

parents of Rajesh, the present appellants herein on

the basis of vague and general complaint which is

silent about the precise acts of the appellants".

9. In the case of Taramani Parakh Vs. State of

Madhya Pradesh and others, reported in (2015) 11

SCC 260, in para 10, 14 and 15 the Supreme Court

has made the following observations :-

"10. The law relating to quashing is well settled. If the allegations are absurd or do not make out any case or if it can be held that there is abuse of process of law, the proceedings can be quashed but if there is a triable case the court does not go into reliability or otherwise of the version or the counter-version. In matrimonial cases, the courts have to be cautious when omnibus allegations are made particularly against relatives who are not generally concerned with the affairs of the couple. We may refer to the decisions of this Court dealing with the issue.

11. to 13. .....

14. From a reading of the complaint, it cannot be held that even if the allegations are taken as proved no case is made out. There are allegations against Respondent 2 and his parents for harassing the complainant which forced her to leave the matrimonial home. Even now she continues to be separated from the matrimonial home as she apprehends lack of security and safety and proper environment in the matrimonial home. The question whether the appellant has in fact been harassed and treated with cruelty is a matter of trial but at this stage, it cannot be said that no case is made out. Thus, quashing of proceedings before the trial is not permissible.

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15. The decisions referred to in the judgment of the High Court are distinguishable. In Neelu Chopra v. Bharti, (2009) 10 SCC 184, the parents of the husband were too old. The husband Rajesh had died and main allegations were only against him. This Court fond no cogent material against the other accused. In Manoj Mahavir Prasad Khaitan v. Ram Gopal Poddar, (2010) 10 SCC 673 the appellant before this Court was the brother of the daughter-in-law of the accused who lodged the case against the accused for theft of jewellery during pendency of earlier Section 498-A IPC case. This Court found the said to be absurd. In Geeta Mehrotra v. State of U.P. (2012) 10 SCC 741, case was against brother and sister of the husband. Divorce had taken place between the parties. The said cases neither purport to nor can be read as laying down any infexible rule beyond the principles of quashing which have been mentioned above and applied to the facts of the cases therein which are distinguishable. In the present case the factual matrix is different from the said cases. Applying the settled principles, it cannot be held that there is no triable case against the accused."

10. It is well settled that, if the allegations are absurd

in nature and do not make out any case, the

proceedings can be quashed. In the instant case, from

reading of the complaint and even after going through

the investigation papers, even if the allegations as

against the applicants are taken as proved, no case is

made out. There is no triable case against the

applicants. In this backdrop, continuation of the

proceedings in terms of the allegations made in the FIR

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as against the applicants would amount to abuse of the