Bombay High Court
Raviraj Chintamani Kambale vs State Of Maharashtra on 30 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:4433
PMB 902.revnst.22896-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION ST. NO.22896 OF
2023
WITH
INTERIM APPLICATION ST. NO.22897 OF 2023
WITH
INTERIM APPLICATION ST. NO.1957 OF 2024
RAVIRAJ CHINTAMANI KAMBALE ..APPLICANT
VS.
1. THE STATE OF MAHARASHTRA
2. XYZ ..RESPONDENTS
------------
Adv. Laxmikant Shukla a/w Adv. Asha Joshi for the
applicant.
Ms. S. D. Shinde, APP for the State.
Adv. Sushan Mhatre for respondent No.2.
ASI Sanap, Wadala Police Station.
------------
CORAM : M. S. KARNIK, J.
DATE : JANUARY 30, 2024
ORAL JUDGMENT :
1. Learned counsel for the Revisional applicant seeks
leave to amend. Amendment to be carried out forthwith.
2. Heard learned counsel for the applicant, learned APP
for the State and learned counsel for respondent No.2.
3. This Criminal Revision Application filed under Sections
397 read with 482 of the Code of Criminal Procedure
(hereafter "Cr.P.C.", for short) challenges the order dated
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31.10.2023 passed by the Court of Sessions for Greater
Bombay below Exhibit 10 rejecting the application for
discharge filed under Section 227 of the Cr.P.C.
4. This Court on the previous occasion had issued notice
to the respondent No.2. The notice was duly served. The
respondent No.2's father is present in the Court is duly
identified by the Investigating Officer. It is informed by him
that the respondent No.2 does not wish to proceed with the
criminal case as she has moved on with life having
solemnised marriage, happily staying with her family. It is
submitted by learned counsel appointed by this Court on
instructions of respondent No.2's father that proceeding any
further with the criminal case before the trial Court and in
this Court will cause serious prejudice to the respondent
No.2. It is urged that any further participation of the
respondent No.2 in these proceedings may disrupt her
matrimonial life and therefore respondent No.2's father
submits that the present application be allowed and that the
respondent No.2 has no objection to the applicant being
discharged.
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5. The FIR is dated 11.10.2016. It was the case of
respondent No.2-complainant that sometime in the year
2014 she had seen the applicant on the website Shadi.com.
A friend request on facebook was sent by the respondent
No.2 to the applicant which he accepted. They started
interacting initially on facebook. After a few months of
interaction with each other on facebook, whatsApp and on
telephone, the applicant and respondent No.2 decided to
meet. The applicant promised that he would marry the
respondent No.2. Thereafter on the pretext that the couple
in any case was to get married, the applicant induced the
respondent No.2 into a physical relationship which
constitutes the offence alleged in the FIR. Thereafter the
respondent No.2 realised that the applicant is avoiding to
take her calls or meeting her. On 16.08.2016 she was told
by the applicant that as the family members are opposed to
the marriage, it may not be possible for him to proceed
further with the prospect of marriage. It is alleged that on
28.09.2016 the applicant informed her that as his family
members are not ready for this proposal, she should stay in
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a separate room so that they could get married. Even the
preparation for marriage progressed and haldi ceremony
was solemnised. However the marriage ceremony could not
take place as the applicant could not be contacted. Hence,
the FIR was lodged under the provisions of Sections 376
and 420 of the Indian Penal Code.
6. Learned counsel for the applicant relied upon the
decision of the Supreme Court in Pramod Suryabhan
Pawar vs. State of Maharashtra and another 1 to
contend that the breach of a promise cannot be said to be a
false promise as in the present case the promise was made
in good faith. It is submitted that from the allegations made
in the FIR it would reveal that it is not as if the applicant did
not have the intention of upholding his words at the time of
giving it. There were circumstances which compelled the
applicant to commit breach of the promise, however, the
promise could not be said false since inception as the
allegations would demonstrate that the applicant had every
intention of marrying the respondent No.2 and towards that
end he made every possible effort.
1 (2019) 9 SCC 608
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7. Learned APP and learned counsel appointed by this
Court to represent respondent No.2 submitted that the
order passed by the trial Court rejecting the application for
discharge is a well reasoned order and which does not call
for any interference. It is submitted that the allegations in
the FIR constitute the ingredients of the alleged offence.
8. As stated by the respondent No.2's father, the
complainant is not willing to proceed any further with the
criminal case before the trial Court, the reason being that
she has moved on in life having happily settled in
matrimony. She does not want to be exposed to the risk of
disrupting her matrimonial life as any further participation
in the proceedings may be detrimental to her interest and
at the cost of her matrimonial life.
9. The Supreme Court in Pramod Suryabhan Pawar
(supra) in paragraph 6 emphasised on the scope and ambit
of the powers of this Court under Section 482 of the Cr.P.C.
The observations in paragraph 6, 7, 8 provide a valuable
guidance for this Court while exercising its powers under
Section 482 of the Cr.P.C. The same reads thus :-
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"6. Section 482 is an overriding section which saves the
inherent powers of the court to advance the cause of
justice. Under Section 482 the inherent jurisdiction of the
court can be exercised (i) to give effect to an order under
the CrPC; (ii) to prevent the abuse of the process of the
court; and (iii) to otherwise secure the ends of justice. The
powers of the court under Section 482 are wide and the
court is vested with a significant amount of discretion to
decide whether or not to exercise them. The court should
be guarded in the use of its extraordinary jurisdiction to
quash an FIR or criminal proceeding as it denies the
prosecution the opportunity to establish its case through
investigation and evidence. These principles have been
consistently followed and re-iterated by this Court. In Inder
Mohan Goswami v. State of Uttaranchal, this Court
observed : (SCC p.10, paras 23-24)
"23. This Court in a number of cases has laid down the
scope and ambit of courts' powers under Section 482
CrPC. Every High Court has inherent powers to act ex
debito justitiae to do real and substantial justice, for the
administration of which alone it exists, or to prevent
abuse of the process of the court. Inherent power under
Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court,
and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though
wide have to be exercised sparingly, carefully and with
great caution and only when exercise is justified by the
tests specifically laid down in this section itself.
Authority of the court exists for the advancement of
justice. If any abuse of the process leading to injustice
is brought to the notice of the court, then the court
would be justified in preventing injustice by invoking
inherent powers in absence of specific provisions in the
statute."
7. Given the varied nature of cases that come before
the High Courts, any strict test as to when the court's
extraordinary powers can be exercised is likely to tie the
court's hands in the face of future injustices. This Court in
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State of Haryana v. Bhajan Lal conducted a detailed study
of the situations where the court may exercise its
extraordinary jurisdiction and laid down a list of illustrative
examples of where quashing may be appropriate. It is not
necessary to discuss all the examples, but a few bear
relevance to the present case. The court in Bhajan Lal
noted that quashing may be appropriate where : (SCC
pp.378-79, para 102)
"102. ...(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2).
* * *
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge."
8. In deciding whether to exercise its jurisdiction under
Section 482, the Court does not adjudicate upon the
veracity of the facts alleged or enter into an appreciation of
competing evidence presented. The limited question is
whether on the face of the FIR, the allegations constitute a
cognizable offence. As this Court noted in Dhruvaram
Murlidhar Sonar v. State of Maharashtra, (Dhruvaram
Sonar) : (SCC para 13)
"13. It is clear that for quashing proceedings,
meticulous analysis of factum of taking cognizance of an
offence by the Magistrate is not called for. Appreciation
of evidence is also not permissible in exercise of
inherent powers. If the allegations set out in the
complaint do not constitute the offence of which
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cognizance has been taken, it is open to the High Court
to quash the same in exercise of its inherent powers."
10. Bearing in mind these principles, in my opinion the
stand of the respondent No.2 will have to be duly regarded.
This is one of the circumstance which has prevailed upon
me in deciding the Criminal Revision Application. In order to
secure the interest of justice, I find it necessary in the facts
of the present case to give due importance to the wishes of
the respondent No.2 so that the cause of justice does not
suffer. The events subsequent to the filing of the FIR need
to be taken into consideration to prevent miscarriage of
justice coupled with the other circumstances on record
which I will advert to. The applicant is facing the
proceedings since 2016.
11. Furthermore, even the reading of the allegations in
the FIR would reveal that the applicant had demonstrated
his intent to marry the respondent No.2 and taken steps in
that direction. The applicant's parents had opposed the
marriage despite which the applicant had shown his
inclination to marry the respondent No.2. Therefore, it
cannot be said that there was false promise and that the
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applicant had no intention of upholding his words at the
time of giving it. In my opinion, the FIR and the materials
on record do not on their face indicate that the promise
given by the applicant was false or that the respondent
No.2 engaged in sexual relations on the basis of such
promise. There is no allegation in the FIR that when the
appellant promised to marry the respondent No.2, it was
done in bad faith or with the intention to deceive her.
Hence, in my opinion, the allegations on the face of the FIR
did not constitute a cognizable offence.
12. The Criminal Revision Application deserves to be
allowed. The impugned order is set aside. The application
Exhibit 10 filed by the applicant for discharge before the
trial Court is allowed. The applicant is discharged.
13. Criminal Revision Application is disposed of. Interim
Applications are also disposed of.
14. I express my gratitude for the able assistance
rendered by the Advocate Sushan Mhatre who represented
the respondent No.2 at my request. The Legal Aid Services
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Authority may regularize the engagement of Advocate
Sushan Mhatre.
(M. S. KARNIK, J.)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
Date: 30/01/2024 19:18:53
