Prabha Vijay Dhoke And 4 Others vs State Of Mha. Thr. Pso Ps Walgaon ...
2022 Latest Caselaw 12760 Bom

                                                    27judg APL 1254.2022.odt
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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH : NAGPUR

               CRIMINAL APPLICATION (APL) NO. 1254/2022

1.       Prabha Vijay Dhoke,
         aged 57 years, Occ. Household,

2.       Karan Rahul Dhoke,
         aged 28 years, Occ. Service,
         Both R/o Rama Saur, Walgaon
         Tq. & Dist. Amravati.

3.       Jayashree Rohit Tadiwale,
         aged 34 years, Occ. Household,
         R/o Ulhasnagar, Dist. Thane,
         Mumbai, New Mumbai.

4.       Pinki @ Priya Pradip Shirke,
         Aged 32 years, Occ. Household,

5.       Pradip Maroti Shirke,
         aged 41 years, Occ. Service,

         No. 4 & 5 R/o Bhivandi, Thane,
         Mumbai, New Mumbai.                        ..... APPLICANT(S)

                                // VERSUS //

1.       State of Maharashtra,
         Through Police Station Officer,
         Police Station Walgaon,
         Tq. & Dist. Amravati.

2.       Mrs. Sadhana Dharam Dhoke,
         aged 30 years, Occ. Household,
         R/o C/o Ambadas Wankhede,
         Behind Buddha Vihar, Savarkhed,
         Tq. Morshi, Dist. Amravati.           .... NON-APPLICANT(S)




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Mr. R.G. Kavimandan, Advocate for the applicants Mr. I.J. Damale, APP for non-applicant no. 1 Smt. S.W. Deshpande, Advocate for non-applicant no. 2

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CORAM : SUNIL B. SHUKRE AND M. W. CHANDWANI, J.J.

DATED : 08/12/2022

ORAL JUDGMENT : (PER:- SUNIL B. SHUKRE, J.)

Rule. Rule made returnable forthwith. Heard finally by

consent.

2. We have gone through the First Information Report (FIR)

filed by non-applicant no. 2 against the applicants. Our prima facie

impression is that the allegations made in the FIR do prima facie make

out the offences registered against each of the applicants. The offence

which is prima facie made out against each of the applicants is of cruelty

punishable under Section 498-A of the Indian Penal Code, 1860 (for

short the "IPC'). As regards the other offences, like offences punishable

under Sections 323, 504 and 506 of the IPC, there might be some or the

other deficiencies regarding their being made out against each of the

applicants. But, when the main offence of cruelty is prima facie made

out against each of the applicants, it would not be necessary for this

Court to go into the aspect as to whether or not the other offences which

are the offences under Sections 323, 504 and 506 of the IPC are also

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prima facie made out. That would be something which would have to be

considered by the trial Court at the time of framing of charge and at that

time, the applicants can make an attempt to convince the trial Court that

not only the other offences but, even the offence punishable under

Section 498-A of the IPC is not made out against all of them or any of

them. After all, the object of invocation of inherent power of this Court

under Section 482 of the Criminal Procedure Code, 1973 is to prevent

the abuse of process of law or miscarriage of justice, and so we find that

by leaving the matter to the discretion of the trial Court, there is not

going to occur any miscarriage of justice nor is there going to be any

abuse of process of law.

3. The learned Counsel for the applicants has invited our

attention to Notes taken and order passed by Mahila Assistance Cell,

Amravati (page 85) in order to support his argument that whole dispute

arises only because non-applicant no. 2's unreasonably demanding to her

husband to take her straight way to Mumbai and not to village Rama

Saur and then to Mumbai. The notes so taken do indicate that there was

an attempt made by Mahila Assistance Cell for resolution of matrimonial

differences between the husband and wife but, those differences could

not be sorted out for the reasons noted therein. One of the reasons was

of difference of opinion between two regarding the place where wife

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should be first taken. According to the husband, the wife should be

taken by him to his village Rama Saur and according to wife, it was duty

of the husband to take her to Mumbai, which was the place of ordinary

residence of the husband and not to his parents' village Rama Saur. The

reasons for such differences, of course, have not come out in the open

but, that would be something which would have to be considered and

appreciated only at the time of trial of the applicants by the trial Court, if

any. Only because of those differences of opinion existing between the

husband and wife, it cannot be inferred by this Court that the criminal

complaint filed by the wife i.e. non-applicant no. 2 is a result of refusal

of her husband to take her directly to Mumbai and not to the parents'

place of the husband at village Rama Saur.

4. The learned Counsel for the applicants also submits that

notice under Section 9 of the Hindu Marriage Act, 1955 for restitution

of conjugal rights has been issued by the husband to non-applicant no. 2

and this fact is also indicative of the good intention of the husband.

5. We are of the view that only because the notice under

Section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights

is sent by husband to his wife, it would not necessarily mean that the

allegations made against the husband by the wife in a specific manner

do not constitute any offence of cruelty. In fact, physical and mental

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harassment of the wife, which prima facie amounts to cruelty within the

meaning of Section 498-A IPC, itself could be a good ground for the wife

to refuse to join the company of her husband till the time, he improves

his behaviour and learns to treat his wife with respect and love. But,

again this is a matter to be considered at the time of trial on the basis of

evidence available on record.

6. It is also submitted by the learned Counsel for the applicants

that there are no specific allegations made against any of the applicants

as the dates or the specific instances have not been mentioned in the FIR

in question.

7. We beg to differ with the submission of the learned Counsel

for the applicants. A careful perusal of FIR would show that specific

instances have been cited and the period when the harassment was

meted out to non-applicant no. 2 has also been referred to. After all, an

FIR is not an encyclopedia of the criminal incident and that an oral

report becomes the First Information Report only when it discloses the

commission of cognizable offence and only requirement is that it should

disclose the commission of cognizable offence and nothing more, and

this requirement of the report is more than fulfilled in the present case.

Details of the incident can be sought and are generally sought during the

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course of investigation, provided the accused allows the police to carry

out investigation and do not do anything to stall the investigation.

8. The learned Counsel for the applicants relies on the case of

Kahkashan Kausar Alias Sonam and Ors. Vs. State of Bihar and ors.

[(2022) 6 SCC 599], wherein the allegations levelled against the

appellants were of general nature. But, this is not so in the present case.

This could be seen from the allegations made in the complaint. They

show that since the time when non-applicant no. 2 started cohabiting

with her husband at Mumbai, she was being subjected to mental

harassment by Jayashree Tadiwale and Pinki Pradip Shirke (Applicant

nos. 3 and 4) when they used to visit intermittently their Mumbai home

and taunt her by saying that she was not a woman who deserved her

residence in Mumbai and that they used to say to her husband that she

should be taken back to her maternal home. Then, it is also alleged that

one day, applicant no. 5, Pradip Maroti Shirke, beat the non-applicant

no. 2 in the presence of her husband and sister-in-law. She has also

specifically referred to a series of incidents that took place in December

2020. They show that during that period of time, her husband used to

pick up quarrels on petty matters with her and used to subject her to

beating and during those episodes of beatings, her mother-in-law i.e.

applicant no. 1 used to encourage and instigate her husband in

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continuing with his cruel acts. She has also stated that her mother-in-law

i.e. applicant no. 1 also used to taunt her by saying that she possessed no

worth to continue to cohabit with her husband and that applicant no. 1

used to instigate her husband by saying that she should be dropped in

her maternal home which in fact, was done by her husband. There are

many such instances which are specifically narrated in the FIR, we,

therefore, find it too difficult to agree with the submission of learned

Counsel for the applicants when he says that there are no specific

instances of cruelty or any specific allegations made against each of the

applicants.

9. Thus, we find no substance in the submissions of learned

Counsel for the applicants. This is not a fit case for making any

interference in the matter. The criminal application stands dismissed. No

costs.

                                          (M. W. CHANDWANI, J.)          (SUNIL B. SHUKRE, J.)



SANDIP
MAHADEV
GATE
Personal Assistant to the
Hon'ble Judge
Digitally signed by
SANDIP MAHADEV GATE
Date: 2022.12.09 16:59:48
+0530




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