Satish Vakil Bagade And Others vs The State Of Maharashtra, P.S.O. ...
2022 Latest Caselaw 6844 Bom

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                                    1


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                 NAGPUR BENCH : NAGPUR.



           CRIMINAL APPLICATION [APL] No. 676/2019.

1.Satish Vakil Bagade,
Aged about 42 years, Occupation
Labour;

2.Vakil Ganpat Bagade,
Aged about 68 years, Occupation
Labour;

3.Sau.Panchfula Vakil Bagade,
Aged about 62 years, Occupation
Household;

4.Deepa Milind Bagade,
Aged about 27 years, Occupation
Household;

resident of Bhimnagar, Borgaon
Manju, Tahsil and District Akola.       ...   APPLICANTS.


                              VERSUS


1.The State of Maharashtra,
Police Station Officer,
Borgaon Manju, Tq. Murtizapur,
District Akola.

2.Sau. Sujata Satish Bagade,
Aged about 33 years, Occupation
Household, resident of C/o.

Rgd.
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                                    2

Pandurang Pundlik Gavai,
Bhim Nagar, Borgaon Manju,
Tq. and District Akola.            ...    NON-APPLICANTS.


                     ---------------------------------
           Mr. U.J. Deshpande, Advocate for Applicants.
        Ms. M.S. Deshmukh, A.P.P. for Non-applicant No.1.
       Mr.M.R. Deshmukh, Advocate h/f. Mr.S.K. Wankhede,
                Advocate for Non-applicant No.2.
                     ----------------------------------

                                   CORAM : VINAY JOSHI, J.

                                   DATE     :   JULY 19, 2022.


ORAL JUDGMENT :

Heard finally by consent of the learned Counsel for the

parties at the stage of admission. Admit.

2. Applicants have invoked inherent powers of this Court for

setting aside the order dated 06.11.2017 passed by the Judicial

Magistrate First Class, Akola in Regular Criminal Case No.659/2014

and consequential order dated 03.04.2019 passed by the Additional

Sessions Judge-3, Akola in Criminal Revision No.34/2018,

confirming the rejection of discharge as regards applicants.

Rgd.

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3. At the instance of a report dated 23.05.2014, lodged by

the non-applicant no.2 lady, a crime was registered with Borgaon

Manju Police Station vide crime No.54/2014 for the offence

punishable under Sections 498-A, 506 read with Section 34 of the

Indian Penal Code. Initially crime was registered against in all 9

accused for the aforesaid offences. After completion of the

investigation, charge sheet has been filed. All the accused have

applied for discharge, however, the learned Magistrate has declined

to discharge them. Being aggrieved by the said order all the accused

have filed Criminal Revision seeking discharge, in which the Sessions

Judge has discharged accused nos. 5 to 9, however, declined to

discharge accused nos. 1 to 4, who are applicants in the present

application.

4. The learned Counsel for applicants would submit that

perusal of entire police papers does not disclose to constitute an

offence punishable under Section 498-A of the Indian Penal Code. It

is submitted that the allegations leveled in the police report are quite

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vague from which an inference about matrimonial cruelty cannot be

drawn. The learned Magistrate, as well as the learned Sessions

Judge felt in error in holding that the prosecution has made out a

case to proceed further as regards the present applicants are

concerned. It is argued that the allegations in the police papers does

not disclose that there was a demand relating to dowry, nor the

allegations are sufficient to constitute the offence of cruelty. In

support of said contention reliance has been placed on the decisions

of the Supreme Court in cases of (2002) 5 SCC 177 - Girdhar

Shankar Tawade .vrs. State of Maharashtra and (2009) 10 SCC 604

- Bhaskarlal Sharma and another .vrs. Monica.

5. On the other hand the learned A.P.P. has supported the

impugned order by stating that it is a matter of trial to find out

whether the allegations are sufficient to convict the accused.

According to the learned A.P.P., the police report and various

statements are sufficient to hold that the trial can be proceeded

against applicants.

Rgd.

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6. Briefly stated, non-applicant no.2 [informant], stated

that she got married with applicant no.1 on 20.11.1995, and has two

issues from the said wedlock. In the year 2010, her son as well as

brother-in-law met with an accidental death. Thereafter, applicant

no.1 i.e. her husband has developed illicit relations with applicant

no.4, who is widow of brother of applicant no.1. It is her contention

that all the time applicants have pressurized her to give divorce, as

they were intending to perform marriage of applicant no.1 with

applicant no.4. She stated that on 14.03.2021, applicant no.1/

husband tried to smoother her as well as made effort to kill her by

way of hanging. After said incident, she left her matrimonial house

and started to reside with her parents. It is stated that thereafter

also applicants used to harass her at the instance of pressurizing her

for divorce.

7. Contextually statement of parents, brother and sister of

informant were gone into. None of the statement speaks about the

matrimonial harassment of such nature which could be termed as

cruelty within the meaning of Section 498-A of the Code. The

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informant in her supplementary statement has leveled general

allegations like the police report. The report specially states the role

of applicant no.1 / husband, that he was harassing her and on

specific date tried to kill her. Thus, at this juncture it cannot be said

that there is no material to proceed against applicant no.1 /

husband.

8. As regards other applicants, the entire police papers are

on the line that they have harassed the informant for giving divorce.

The police report makes a general grievance against all of them

without specifying any incidence. In order to constitute an offence of

cruelty, the conduct of accused must be willful of such a nature that

as is likely to drive the woman to commit suicide or to cause injury

to her life. Moreover, there shall be a reasonable nexus with the

alleged occurrence with the report. Mere general statement

regarding wear and tear in the family would not suffice the purpose.

9. The law is fairly well settled that at the time of framing

charge there must be sufficient material to proceed further. The

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entire police papers are based on vague allegations against rest of

the applicants. Continuation of such prosecution against them

would be an abuse of the process of law. Though at this stage,

deeper evaluation of material is not necessary, however, the Court

can sift the material to find out the sufficiency for proceedings with

the case. Since there are vague allegations against rest of the

applicants, it is not in the interest of justice to continue the trial

against them. In the result, applicant nos. 2 to 4 have made out a

case for discharge.

10. In view of above, Criminal Application is partly allowed to

the extent of applicant nos. 2 to 4. The impugned order dated

06.11.2017 passed by the Magistrate and order of Sessions Judge

dated 03.04.2019, is hereby quashed and set aside to the extent of

applicant nos. 2 to 4 only, and they are discharged. The trial shall

proceed against applicant no.1 Satish Vakil Bagade.

11. Criminal Writ Petition stands disposed of in above terms.

JUDGE

Rgd.

Signed By:RAKESH GANESHLAL DHURIYA Private Secretary High Court of Bombay, at Nagpur Signing Date:21.07.2022 17:40