Harish Vasant Patil And Others vs The State Of Maharashtra And ...
2023 Latest Caselaw 3112 Bom

                                       1           Cri. Appln. 1699 / 2022


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO. 1699 OF 2022

1]   Harish Vasant Patil

2]   Kiran Vasant Patil

3]   Vasant Shriram Patil

4]   Shubhangini Amol Saner

5]   Amol Balasaheb Saner

6]   Rajkishor Laxman Pawar

7]   Yogesh Rajkishor Pawar                                    .. Applicants
                                                       (Orig. Accused No.1 to 7)
            Versus

1]   The State of Maharashtra
     Through Deopur Police Station,
     Taluka and District Dhule

2]   Vijaya Harish Patil                                     .. Respondents

                                     ...
               Advocate for applicants : Mr. Amol S. Sawant
       Addl. PP for the respondent - State : Mrs. M.A. Deshapnde
Advocate for the respondent no. 2 : Mr. Kiran Pandurang Rathod (appointed)
                                     ...

                                CORAM      : MANGESH S. PATIL &
                                             ABHAY S. WAGHWASE, JJ.

                                DATE       : 29 MARCH 2023

ORDER (MANGESH S. PATIL, J.) :

Heard both the sides.

2. Perused the record and the papers.

2 Cri. Appln. 1699 / 2022

3. The applicants are seeking quashment of crime no. 0029

of 2022 registered with Deopur Police Station, Dhule for the offences

punishable under section 498A, 323, 504, 506 r/w. 34 of the Indian

Penal Code and the consequent chargesheet and the criminal case

bearing R.C.C. no. 194 of 2022 pending before the 3 rd Joint Judicial

Magistrate First Class, Dhule, District - Dhule .

4. After hearing the arguments when we express

disinclination to grant any relief to the applicants no. 1 to 3 who happen

to be the husband and his parents, the learned advocate, on

instructions, seeks leave to withdraw the application to their extent.

5. The applicant nos. 4 to 7 are the sister of the husband and

her husband and the paternal uncle of the husband and cousin of the

husband respectively.

6. In the matter of Kahkashan Kausar @ Sonam and

others Vs. State of Bihar and others; (2022) 6 SCC 599, the

Supreme Court by taking a roving enquiry into the consistent view

expressed in catena of judgments rendered by it earlier, has pointedly

remarked about the usual tendency of a wife to rope in as many as

relatives of the husband as possible when she registers a crime for the

offences punishable under section 498A, 341, 323, 379 and 354 r/w. 34

of the Indian Penal Code.

3 Cri. Appln. 1699 / 2022

It has been specifically observed that the Courts have to

be careful in proceeding against the distant relatives in crimes

pertaining to matrimonial disputes and dowry deaths and must keep in

mind that relatives of the husband should not be roped in on the basis

of omnibus allegations unless specific instances of their involvement in

the crime are made out.

A reference was made to the decisions in the matters of

Rajesh Sharma V. State of U.P. (2018) 10 SCC 472, Arnesh Kumar V.

State of Bihar; (2014) 8 SCC 273, Preeti Gupta V. State of Jharkhand;

(2010) 7 SCC 667, Geeta Mehrotra and another Vs. State of U.P.;

(2012) 10 SCC 741, K. Subba Rao V. State of Telangana; (2018) 14

SCC 452.

The observations in paragraph no. 17 and 18 are important

which read as under:-

"17. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498-A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this Court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.

18. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 1-4-2019, it is revealed that general allegations are levelled against the appellants. The complainant alleged that 'all accused harassed her mentally and threatened her of terminating her pregnancy'. Furthermore, no specific and distinct allegations have been made against either of the appellants herein i.e. none of the

4 Cri. Appln. 1699 / 2022

appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are, therefore, general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High Court, we have not examined the veracity of allegations made against him. However, as far as the appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution."

7. Taking a blame for appearing to be predetermined, we only

feel it important to point out these observations in obedience to the

observations of the Supreme Court.

8. The FIR is not supposed to be an encyclopedia. Whatever

at that particular moment the informant feels like important to narrate,

is generally incorporated in the FIR. In a given case, the Investigating

Officer may collect further information pursuant to such FIR if he comes

across the other circumstances substantiating the basic allegations

levelled in the FIR. This could be in the form of additional evidence not

spoken about in the FIR or additional witnesses not named in the FIR.

Similarly, it is also possible that even the involvement of some persons

who have not been expressly named in the FIR could be revealed.

9. But then, in the matter of the offences arising out of the

matrimonial dispute like the present one, where the informant is a

woman who complains about having been subjected to cruelty by the

husband and his relatives, the scope for Investigating Officer to collect,

5 Cri. Appln. 1699 / 2022

some additional information during the course of investigation is

limited. The woman must have spent some time in the matrimonial

home and must be knowing the names of the in-laws which she would

refer to in the FIR.

10. Similarly having faced cruelty for some time, in all

probability, she would from time to time narrate her plight to her near

and dear ones like parents, brothers and even friends. The

Investigating Officer gets an opportunity to seek corroboration from all

these sources to lend support to the allegations being levelled in the

FIR.

11. Bearing in mind the above situation, no importance can be

attached ipso facto to the fact that names of all the applicants are

appearing in the FIR or to the fact that their names are similarly

appearing in the statements of the parental side witnesses of the

respondent no. 2. It is a common experience that if a man and woman

are leading a marital life, they would get involved in some kind of

bickering. It is only when such a bickering constitutes cruelty that has

been made punishable under section 498A of the Indian Penal Code.

Therefore, it becomes imperative to ascertain if all the relatives of the

husband can be allowed to face the prosecution unless there is

material revealing their complicity in the crime as has been laid down in

the matter of Kahkashan Kausar @ Sonam (supra).

6 Cri. Appln. 1699 / 2022

12. Similar to the situation that was obtaining before the

Supreme Court in the matter of Kahkashan Kausar (supra), the FIR

as also the statements of the witnesses jointly name all the applicants

as having raised demand for money and having subjected the

respondent no. 2 to cruelty on that count. These statements are clearly

omnibus and one cannot make out any specific role attributable to the

applicants no. 4 to 7. Applicant no. 4 is the married sister-in-law of the

respondent no. 2, applicant no. 5 is her husband and obviously this

couple must have been staying separately and not in her matrimonial

home. Similarly, the applicant no. 6 is the paternal uncle of the

husband and applicant no. 7 is the cousin brother of the husband and

have been residing in a different town than where the matrimonial

home of the respondent no. 2 situate.

13. In view of the absence of specific allegation revealing

exact role played by the applicants no. 4 to 7 in subjecting the

respondent no. 2 to cruelty, in our considered view, this case presents

a similar circumstance as was obtaining before the Supreme Court in

the matter of Kahkashan Kausar (supra) and should result in a similar

consequence.

14. The application is partly allowed.

7 Cri. Appln. 1699 / 2022

15. The application to the extent of the applicants no. 4 to 7 is

partly allowed. Crime no. 0029 of 2022 registered with Deopur Police

Station, Dhule for the offences punishable under section 498A, 323,

504, 506 r/w. 34 of the Indian Penal Code and the consequent

chargesheet and the criminal case bearing R.C.C. no. 194 of 2022

pending before the 3rd Joint Judicial Magistrate First Class, Dhule,

District - Dhule to their extent stands quashed and set aside.

16. Application to the extent of applicants no. 1 to 3 is

dismissed as withdrawn.

17. Since Shri Kiran P. Rathod, Advocate is appointed by this

Court to represent respondent no. 2 vide order dated 20 January 2023,

we quantify his fees at Rs.3000/- (Rs. Three Thousand).

  [ ABHAY S. WAGHWASE ]                         [ MANGESH S. PATIL ]
         JUDGE                                        JUDGE

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