Bombay High Court
Machindra Sajan Garje And Others vs The State Of Maharashtra And Another on 12 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:23454-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 678 OF 2022
1. Macchindra S/o. Sajan Garje,
Age 50 years, Occ. Agril.
R/o. Babhalgaon, Tal. Shevgaon,
Dist. Ahmednagar.
2. Sharda W/o. Macchindra Garje,
Age 43 yeas, Occ. Household,
R/o. Babhalgaon, Tal. Shevgaon,
Dist. Ahmednagar.
3. Pallavi D/o. Macchindra Garje,
Age 20 years, Occ. Agril.
R/o. Babhalgaon, Tal. Shevgaon,
Dist. Ahmednagar.
.. APPLICANTS.
VERSUS
1. The State of Maharashtra,
through - Investigation Officer,
Crime No. 0156 dated 22.3.2021,
Pathardi Police Station, Ahmednagar.
Tq. And Dist. Ahmednagar
2. Ashrabai W/o. Sayaji Nagargoje,
Age 71 years, Occ. Housewife,
R/o. Akola, Tq. Pathardi,
Dist. Ahmednagar.
.. RESPONDENTS.
Mr. P.A. Bharat, Advocate for the applicants.
Mr. V.K. Kotecha, APP for respondent State.
CORAM : SMT. VIBHA KANKANWADI
& S.G. CHAPALGAONKAR, JJ.
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DATE : 12th SEPTEMBER, 2024.
JUDGMENT [ PER S.G. CHAPALGAONKAR, J] :-
1. The applicants have approached this court under Section
482 of the Code of Criminal Procedure with a prayer to quash and set
aside the FIR No. 156 of 2021, dated 22.3.2021, registered with Police
Station, Pathardi, Dist. Ahmednagar for the offence under Section 380 of
I.P.C. as well as charge sheet No. 219 of 2022 dated 21.3.2022 and
consequential criminal proceeding pending before the JMFC at Pathardi.
2. Respondent No.2 lodged report dated 22.3.2021 alleging
that she resides at Akola, Taluka Pathardi, alongwith her son Ankush,
Daughter in law Thakubai, grandsons Popat and Malhari, grand daughter
in law Rohini etc. On account of trifle reason differences arose between
grand daughter in law Rohini and her husband Popat. Since then Rohini
resides at Babhalgaon at her maternal home alongwith her son. On
27.1.2021, at about 3.00 p.m., while informant was alone at home,
family members of Rohini i.e. parents, namely, Machindra and Sharda
Garje, her sister Pallavi and Ghanshyam Munje arrived at home with a
goods carriage vehicle (Chota Hatti) and asked her that they want to take
back gifts articles given at the marriage of Rohini. Thereafter, they
entered in the house and despite her opposition took away Sofa
Set,Cupboard, T.V. Set, racks, suit cases, gas cylinder, mixer and other
household articles. They also took away Nose Ring worth Rs.9,000/- and
Cash amount of Rs. 2000/-.
It is accordingly alleged that aforesaid accused persons have
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committed theft of cash and articles worth Rs. 15,800/-. On the basis of
aforesaid complaint, Crime No. 156 of 2021 has been registered with
Police station, Pathardi, Dist. Ahmednagar under Section 380 of IPC
against in all 3 accused persons - applicants. On completion of
investigation, charge sheet has been filed in the Court of JMFC at
Pathardi. Consequently, RCC No. 216 of 2022 is pending trial.
3. Mr. P.A. Bharat learned advocate for the applicants submits
that the applicants have been falsely implicated in aforesaid crime on
account of matrimonial dispute between Rohini and Popat i.e. grand
daughter in law and grand-son of respondent No.2. He would submit
that on 14.3.2021 crime No. 121 of 2021 has been registered with police
station, Shevgaon on the basis of complaint given by Rohini i.e. daughter
of applicants No. 1 and 2 and sister of applicant No.3.
4. By way of counter blast, present compliant has been lodged,
thereby implicating all family members of Rohini. He would further
submit that even taking contents of FIR as it is, no offence can be made
out against applicants as the gifts of marriage given to Rohini were taken
back. He would further point out that alleged incident is dated
27.1.2021. The FIR is lodged on 22.3.2021. There is delay of almost of
2 months in lodging the FIR. In the intervening period, crime No. 121 of
2021 has been registered on complaint given by Rohini against her in-
laws. He would therefore urge to quash and set aside impugned FIR and
criminal proceeding.
5. Per contra, learned APP and the learned advocate appearing
for respondent No.2 vehemently opposes the prayers, contending that the
stipulations in the FIR are sufficient to make out offence under Section
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380 of IPC. The contents of the FIR are supported by statement of the
witnesses cited in the charge sheet. Consequently, there is triable
material against the applicants.
6. We have carefully considered the submissions advanced by
learned advocates appearing for respective parties alongwith documents
tendered into service. Apparently, it is a case of matrimonial dispute and
consequential complaints against each other. Initially, Rohini Popat
Nagargoje filed FIR in crime No. 121 of 2021 dated 4.3.2021 alleging
offence under Section 498-A, 323, 504, 506 r/w. 34 of IPC against her
husband Popat, father in law - Ankush, mother in law Thakubai and
brother in law Machindra. The impugned FIR is filed by Ashrabai Sayaji
Nagargoje - grandmother in law of Rohini against her family members.
It appears that Rohini married with Popat in the year 2012. Out of the
matrimonial relationship, she has two children. The matrimonial dispute
started some time in the year 2019. The impugned FIR has been lodged
on 22.3.2021 pertaining to incident dated 27.1.2021. There is no
explanation for delay of more than 2 months in lodging the FIR.
Obviously, there is reason to believe that on registration of Crime No. 121
of 2021 on 4.3.2021 at instance of Rohini, the impugned FIR has been
instituted through grandmother in law of Rohini to implicate her family
members. The deeper scrutiny of FIR would suggest that allegation is
that of taking away married articles presented at the time of marriage of
Rohini and Popat. Admittedly, now Rohini is residing alongwith her
parents. They took away gift articles kept at her matrimonial home.
Rohini appears to be the possessor of those articles while she was
residing in the matrimonial home.
7. In this background, it is necessary to examine whether there
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a case of theft in dwelling house can be made out, which is punishable
under Section 380 of IPC. Section 378 of IPC defines "Theft". To
constitute "theft", movable property must be dishonestly taken away
from the possession of the person without his consent. In the facts of the
present case, it would be difficult to hold that the property was in
possession of respondent No.2-informant. Rohini had every right to take
away gift articles received at marriage from her parents. Pertinently, no
complaint was made as regards to incident for a period of about two
months from the date of incident, particularly, till Rohini lodged report
against her in-laws for offence under Section 498-A.
8. At this stage, it would be apposite to refer to the guidelines
laid down in the case of State of Haryana vs. Ch. Bhajanlal and others"
reported in AIR 1992 S.C. 604, as to exercise of jurisdiction under
Section 482 of Cr.P."C. particularly, in para. 108, which reads thus :-
"108. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions
relating to the exercise of the extra-ordinary power under Article
226 or the inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of any
Court or otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
1. Where the allegations made in the First Information
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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 F.I.R. 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) of the Code.
3. Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.
6. Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
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.
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. Clause No.7 of the aforesaid guidelines refers that where
criminal proceeding is manifestly attended with malafide 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, the power under Section 226 of the
Constitution of India and inherent powers under Section 482 of the Code
can be invoked.
9. Applying the aforesaid principles of law espoused by the
Supreme Court, if allegations in the FIR and material in the charge sheet
is scanned, it can be gathered that there is serious matrimonial dispute
between the family of the applicants and respondent No.2. Initially
Rohini instituted complaint against husband and in-laws and to counter
blast the said complaint, the belated FIR has been instituted thorough the
respondent No.2 against the applicants. Even assuming the contents of
the FIR to be true and correct, the ingredients of Section 378 of IPC to
constitute theft cannot be made out against applicants, since articles
gifted in the marriage to Rohini by the applicants were taken away from
her matrimonial home. The respondent No.2 or her family members can
not claim independent ownership and possession in respect of those
articles.
10. We therefore hold that the impugned FIR is merely a counter
blast against the FIR lodged by Rohini against husband and in-laws.
Therefore, it becomes necessary for this Court to check the frivolous
complaints or allegations and prevent the abuse of process of law and
procedure. In the result, we deem it appropriate to exercise our inherent
powers to secure the ends of justice. Hence, we pass the following
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order :-
ORDER
[I] Criminal application is allowed;
[ii] FIR No. 156 of 2021 dated 22.3.2021 registered with Police
Station, Pathardi, Dist. Ahmednagar for the offence under Section 380 of
I.P.C. as well as charge sheet No. 219 of 2022 dated 21.3.2022 and
consequential criminal proceeding pending before the JMFC at Pathardi.
is hereby quashed and set aside to the extent of applicants herein.
[iii] The application stands disposed of.
[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J]
grt/-
