Sanjay Ananda Vibhute And Ors vs The State Of Maharashtra And Anr
2023 Latest Caselaw 1788 Bom

                       (4)-WP-2832-14.doc.


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          Digitally
          signed by
          BALAJI
                                     CRIMINAL APPELLATE JURISDICTION
BALAJI    GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL   Date:
          2023.02.24
          14:06:51
          +0530                         WRIT PETITION NO.2832 OF 2014

                       Mr. Sanjay Ananda Vibhute & Ors.                     ..Petitioners
                             Versus
                       The State of Maharashtra & Anr.                      ..Respondents

                       Mr. Umesh Mankapure, for the Petitioners.
                       Mr. A. R. Kapadnis, APP for the Respondent No.1/State.
                       Mr. Satyaram R. Gaud, for the Respondent No.2.

                                                    CORAM : NITIN W. SAMBRE &
                                                            S. G. DIGE, JJ.

DATE : 22nd FEBRUARY, 2023 P.C.

1. The respondent No.2 was married to the petitioner No.1 on 1st December, 2002. It is the case of the respondent No.2 that both of them were blessed with a son in 2004 subsequent to which the petitioners who happened to be husband, mother-in-law, brother-in-aw and sister-in-law have started ill-treating her for non- fulfillment of demand of dowry. It is alleged that the respondent No.2/complainant was thrice required to undergo the termination of medical pregnancy under the pressure and force of the petitioners as the petitioners have issued threats to the respondent No.2 for the same. Forming the aforesaid allegation to be basis, offence being Crime No.132 of 2013 punishable under Section 498A, 313, 494, 323, 504, 506 r/w 34 of the IPC came to be registered.

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2. During investigation since substance was found, the petitioners came to be charge-sheeted.

3. While trying to make out a case for quashing, Mr. Umesh Mankapure, learned counsel for the petitioners would invite attention of this Court to the DV Act proceedings initiated by the respondent No.2, wherein she has specifically taken a stand that she has parted the company of the petitioners on or about 15th November, 2009. According to him, the limitation prescribed for maintaining prosecution under Section 498A of the IPC is three years and as such, from the record itself it could be inferred that the prosecution under Section 498A of the IPC is barred by limitation. His further contentions are, if the statement of the neighbours namely, Mandakini Desai and Balkabai Mahadik are appreciated, no offence could be inferred as regards demand of dowry. Our attention is also invited to the statement of Dr. Pratibha Patankar and Dr. Dattatraya Bhagat so as to claim that there was no act on the part of the petitioners to infer the offence punishable under Section 313 of the IPC.

4. Mr. Umesh Mankapure would urge that the prosecution of the petitioners for an offence punishable under Section 494 of the IPC viz. bigamy is solely based on the statement of the witness namely, Geetanjali Vibhute who has stated that the petitioner No.1 has performed second marriage. According to him, the said statement is as vague as it could be, as neither the date of second

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marriage nor the investigation about the same can be inferred from the record.

5. Counsel for the respondent No.2/complainant would support the case of the prosecution, as according to him, even if limitation for an offence punishable under Section 498A of the IPC is three years, still it is continuation offence and Section 472 of the CrPC shall be attracted. His further contentions are, the statement of the second wife and the statement of the doctors can be read down to mean that the complainant was physically forced to undergo forceful medical termination of pregnancy. As such, he has sought dismissal.

6. Learned APP has supported the case of the prosecution based on the aforesaid material.

7. Having appreciated the submissions, what can be noticed is the complaint came to be lodged by the respondent No.2 after a limitation of three years, as she herself has gone before the Court of Magistrate in the DV Act proceedings stating that she has parted company on 15th November, 2009. In view of above admitted statement of the complainant, Mr. Umesh Mankapure, in our opinion was justified in relying on the judgment of this Court in the matter of Satish @ Rajendra Harbans Tiwari & Ors. Vs. State of Maharashtra & Ors. reported in 2010(2) Bom.C.R.(Cri.) 523, particularly, paragraph 11 which reads thus :-

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"11. Examining the second question raised before me regarding limitation, there is no dispute that limitation for taking cognizance of offence under Section 498-A of Indian Penal Code is three years. Perusal of the complaint and the verification statement clearly show that the last incident regarding cruelty or demand of dowry as described in para 6 is dated 20.7.2004 and thereafter there is no allegation about any incident of cruelty taking place. The complaint was filed on 15.12.2007. In the case of (Japani Sahoo v. Chandra Sekhar Mohantry)10, 2008(1) Bom.C.R. (Cri.) 545(S.C.) 2007 DGLS (soft) 791 : 2008 DGLS (Cri.) soft 992 : A.I.R. 2007 S.C. 2762 the apex court held the relevant date for computing limitation is the date of filing complaint and not the date of taking cognizance of the complaint and therefore the date 15.12.2007 is relevant looking to the date of complaint and the last incident is dated 20.7.2007 and thus it was clearly barred by limitation. The submission made by Mr. Gandhi that police having failed to file charge- sheet against all the petitioners, except petitioner no.1- husband, it was not the fault of respondent no.2-wife and therefore the wife could not be blamed does not appeal to me for reasons more than one. In the first place nothing prevented respondent no.2 from making application for taking cognizance beyond the period of limitation by applying for condonation of delay in filing private complaint. That apart, when the wife filed writ petition she never prosecuted the writ petition seriously which eventually came to be dismissed by this Court. She did not claim the relief to allow her to raise the objection to the final report filed by the police against only petitioner no.1- her husband and not against others. She never challenged the action of police in filing the charge-sheet against the petitioner no.1 alone. On the contrary, after the period of limitation she chose to file private complaint as aforesaid and obtained the order of issuance of process against all the petitioners. When petitioner no.1/husband is already being prosecuted, her attempt to prosecute others obviously after the period of limitation does not appear to be bona fide and

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is nothing but abuse of process of court. Perusal of verification statement shows, particularly para 2 that the word "all" accused persons has been inserted subsequently in different ink and hand writing in Marathi and that appears to have been done with a view to involve all other petitioners 2 to 6. The proposition canvassed by Mr. Gandhi that in case of matrimonial offence the courts should be liberal, cannot be accepted in generality and it is the duty of this Court to interfere and quash the process when there is abuse of process of law. In the facts and circumstances of the present case, I clearly find that respondent no.2 is not bona fidely prosecuting petitioners 2 to 6 in private complaint case. I, therefore, hold that the complaint was clearly barred by limitation and cold not have been entertained by the Magistrate."

As such, prima-facie it can be inferred that alleged offence under Section 498A of IPC is barred by limitation.

8. Apart from above, as far as the demand of dowry is concerned, neither the neighbour nor there is any independent iota of evidence to support the case of the complainant is available on record. The statement of the doctors prima-facie demonstrates that the medical termination which the complainant underwent in 2009 was under medical compulsion and not the act of the petitioners.

9. Apart from above, the statement of the alleged second wife which is as vague as, as could be, cannot be form basis for justifying for charge for an offence under Section 494 of the IPC in absence of detail investigation to that effect.

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10.         In view of above, Admit.

11. There shall be stay to the further prosecution.

12. Learned APP and counsel for respondent No.2 waives service of notice.

[S. G. DIGE, J.]                         [NITIN W. SAMBRE, J.]




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