Bombay High Court
Kondiram Manjabapu Guldagad vs The State Of Maharashtra on 10 February, 2025
2025:BHC-AUG:4565
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1638 OF 2024
Kondiram Manjabapu Guldagad,
Age: 76 years, Occ : Nil,
R/o At post Rahuri (Tanpurewadi Road),
Dist. Ahmednagar. ... PETITIONER
V/s.
1. The State of Maharashtra
Through Rahuri Police Station,
Rahuri, Dist. Ahmednagar.
2. Sheetal Karbhari Guldagad,
Age : 32 years, Occ: Household,
R/o Tanpurewadi Road, Rahuri,
Tq. Rahuri, District Ahmednagar. ... RESPONDENTS
.....
Mr. C.K. Shinde & Tushar Shinde, Advocate for the Petitioner
Ms. Chaitali Chaudhari Kutti, APP for the Respondent-State
Mr. D.R. Markad h/f. B.B. Shelke, Advocate for the Respondent No.2.
.....
CORAM : Y.G. KHOBRAGADE, J.
DATE : 10.02.2025
ORAL JUDGMENT:-
1. At the outset it is submitted that, on 14th December, 2024, both the
counsels appearing for the Petitioner and Respondent No.2 jointly submitted
about amicable settlement of dispute as both are blood relatives, however,
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today they have fairly stated that the parties are not willing to settle the
dispute, hence, they wanted to argue the matter on merits.
2. Rule. Rule made returnable forthwith and with the consent of
both sides heard finally.
3. Heard Mr. Shinde, the learned counsel appearing for the
Petitioner, Mr. Markad h/f. Advocate Mr. B.B. Shelke, the learned counsel
appearing for the Respondent No.2 and the learned APP for the Respondent
No.1-State.
4. By the present petition under Article 227 of the Constitution of
India, the Petitioner seeks challenge to the order dated 30.07.2024 passed by
the learned Sessions Judge, Ahmednagar in Criminal Revision Application
No.31/2024, whereby the learned Revisional Court affirmed the order passed
by the learned JMFC, Rahuri below Exh.9 in RCC No.12/2022, thereby
declined to discharge the Petitioner/Accused for the offence punishable under
Section 354, 323, 504, 506 of the I.P.C.
5. Having regard to the submissions canvassed on behalf of both the
sides, I have gone through the record. On face of record, it appears that on
22.10.2021, the Respondent No.2/Informant lodged a report with Rahuri
Police Station alleging that, on 22.10.2021 at about 10.30 a.m., she with her
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husband, brother in law and sister in law visited their field to see erection of
electric pole in their field. At that time, the Accused visited there and told as to
why they are erecting Electric Pole on bund of his field and asked them to erect
such pole by leaving two feet distance from bund of his field. Thereafter, the
Accused abused them in filthy language and assaulted her husband with fist
and blows, therefore, the Respondent No.2, her sister in law-Vaishali
intervened in said quarrel to separate both of them but the Accused caught
hold of her hand with an intention to outrage her modesty. It is further alleged
that, the Accused issued life threats to Respondent No.2 and her family
members. On the basis of the said FIR, Crime No.0887/2021 came to be
registered against the present Petitioner/Accused for the offence punishable
under Section 354, 323, 504, 506 of the I.P.C.
6. The learned counsel appearing for the Petitioner canvassed that,
on 22.10.2021, the Petitioner also lodged a FIR No.0885/2021 with Rahuri
Police Station alleging that, on 22.10.2021 when he was doing agricultural
operation work at that time, the Accused persons- Devrao Guldagad, Sanjay
Guldagad, Karbhari Guldagad, Sheetal Guldagad (Respondent No.2) and
Vaishali Guldagad quarreled with him on account of erection of electric pole on
bund of his field and assaulted him with iron object, stick, fist and blows, due
to which he sustained grievous injuries. Therefore, he was hospitalized with
Rural Hospital, Rahuri, District Ahmednagar. According to the Petitioner, he
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sustained injuries on head at right side frontal bone, over back and chest.
However, the Respondent No.2 (Complainant) lodged a FIR bearing Crime
No.887/2021, afterthought subsequent to the lodging of the FIR by him.
7. It is further canvassed that, the Respondent No.2 has not stated in
her complaint that, the Petitioner outraged her modesty with an intention to
sexual overtures but said incident of caught holding hand allegedly occurred
while intervening in quarrel between the Petitioner and Shri Karbhari
Guldagad, the husband of the Respondent No.2. Therefore, the FIR lodged
against the present Petitioner is concocted and continuation of criminal
prosecution on the basis of said FIR would certainly amount to abuse of process
of the Court, hence, prayed for quashing and setting aside the FIR.
8. In support of these submissions the learned counsel appearing for
the Petitioner placed reliance on the case of Nitin Upadhyay and Anr. V/s.
State of Maharashtra; 2024 All M.R. (Cri) 3164 : 2024 DGLS (Bom.) 3779,
wherein, it is held that, a sudden quarrel took place and it was not a
premeditated act. The act of pulling Petitioner No.2's hair and assaulting her
with fist blows also appears to be a sudden act and not a premeditated act. So
also, the said act of pushing her was accompanied by any utterances or gestures
or indecent touch which would underscore sexual overtures. Neither there is
any allegation made by the Petitioner No.2 (Informant) that the Accused had
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an evil eye or had touched her inappropriately. Thus, even if the prosecution
case is taken as it stands, the existence of mens rea, a prerequisite to attract
Section 354 is amiss in the given facts.
9. It further relied on the judgment dated 19.08.2022 passed by
Coordinate Bench of this Court at Principal Seat in Criminal Application
No.1269/2017 (Sudhir Vitthal Medhekar Vs. State of Maharashtra & Ors.),
wherein this Court held in paragraph Nos.16 to 18 as under:
"16. On the aforesaid touchstone, reverting to the facts of the case, on a
careful perusal of the allegations in the first information report and the
statements of the alleged eye witnesses to the occurrence, the following
situation emerges.
(1) Truptesh, the husband of the first informant and his friends Mahendra
Pratap Singh and Manjunath Krushnapal were standing in the campus of the
society near the water tank. The first informant was little afar and allegedly
taking a walk.
(ii) Truptesh claimed that the applicant came thereat and while approaching
towards lift, the applicant bumped into him. When Truptesh asked the
applicant to be more careful, the applicant returned to the said spot.
(iii) An alternation ensued. The applicant caught hold of the shirt of
Truptesh. Despite being asked to leave Truptesh, the applicant allegedly
slapped Truptesh.
(iv) At that stage, according to Truptesh, the witnesses Shashikant Shenoy,
Mahendra Pratap Singh, Manjunath Krushrapal and the first informant came
in the frame. When the first informant tried to rescue her husband Truptesh,
the applicant touched her chest and pushed her aside.
17. In the light of the aforesaid sequence of events, the question that
crops up for consideration is whether the act of pushing the first informant
aside can be said to be attended with intent to outrage, or knowledge that
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the applicant would thereby outrage, the modesty of the first informant. The
following factors, in my considered view, bear upon the determination.
18. First and foremost, it is pertinent to note that the quarrel was, in a
sense, sudden. It does not appear that there was pre-meditation especially
qua the role attributed to the applicant of pushing the first informant.
Secondly, even altercation between the applicant and Truptesh appeared to
have taken place at the spur of the moment. Truptesh and the applicant have
different versions as to what caused the applicant to turn back to the place
where Truptesh and his friends were standing. However, what is of salience
is the fact that something made the applicant to return back to the said place
and thereupon altercation ensued. Thirdly, Truptesh was accompanied by
two of his friends and it was natural on their part to intervene in the quarrel
so as to pacify Truptesh and the applicant, also a resident of the same
society. Fourthly, it is the claim of the first informant and witnesses that the
first informant came thereat while a scuffle was on between the applicant
and Truptesh. Fifthly, at that moment, the applicant allegedly pushed the
first informant who claimed to have intervened to rescue Truptesh from the
clutches of the applicant. Sixthly, the act of pushing the first informant was
in the course of the scuffle, while the applicant was evidently grappling
with her husband. Seventhly, the first informant and witnesses do not allege
that the said act of pushing the first informant was accompanied by any
utterances or gestures which would underscore sexual overtures. Lastly,
there is no allegation of any prelude to the occurrence which would indicate
that the applicant had either an evil eye or had behaved with the first
informant in a manner which would appear to be indecent. If all these
factors are considered in conjunction with each other, even if the
prosecution case is taken as it stands, the existence of mens rea to outrage
the modesty of the first informant can not be inferred."
10. The learned counsel for the Petitioner further relied on the
judgment dated 10.10.2024 passed by the Kerala High Court in CRL MC
No.6103 of 2024 (Dr. P.K. Baby V/s. Vs. State of Kerala), wherein it is held in
paragraph Nos.15 and 16 as under:
"15. As I have already discussed, the most essential ingredient to attract
an offence under Section 354 of IPC is assault or use of criminal force to
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any woman with intent to outrage or knowing it to be likely that he will
thereby outrage her modesty. As per Section 354A(1) of IPC, when a man
commits the acts of (i) physical contact and advances involving unwelcome
and explicitly sexual overtures; or (ii) a demand or request for sexual
favours; or (iii) showing pornography against the will of a woman; or (iv)
making sexually coloured remarks, shall be guilty of the offence of sexual
harassment, he is punishable for he offence of sexual harassment. Section
354A(1)(i) provides that an act involving unwelcoming and explicit sexual
overtures, is an offence. Section 503 of IPC defines criminal intimidation
as, whoever threatens another with any injury to his person, reputation or
property, or to the person or reputation of any one in whom that person is
interested, with intent to cause alarm to that person, or to cause that person
to do any act which he is not legally bound to do, or to omit to do any act
which that person is legally entitled to do, as the means of avoiding the
execution of such threat, commits criminal intimidation.
16. Summarising the factual matrix in this case, it is discernible that
when the defacto complainant attempted to move towards the auditorium on
the pretext of taking an oil lamp, after completion of the programme
overstepping the outer time limit fixed as 9.00 pm, as per the guidelines, as
part of the strict compliance of the discipline, the petitioner herein objected
the same and there was, altercation as part of conductance and resistance. In
such a situation, it could not be held, prima facie, that the petitioner herein
had any intention to outrage modesty of the defacto complainant in any
manner or to harass her sexually. That apart, the physical contact as part of
such resistance could not be held as the one which advanced unwelcome
and explicit sexual overtures. Failure to lodge a complaint in this regard at
least to the University Authorities, soon after the occurrence would show
that the allegations in the complaint and in the FIS are afterthought events.
Viewing the facts in this case from the above perspective, none of the
offences are made out, prima facie. In view of the matter, the FIR registered
after 4 months and 6 days after 3 months and 26 days of lodging the
complaint before the Vice Chancellor as an afterthought lacks bona fides
and the prayer to quash the FIR is liable to succeed."
11. Per contra, the learned counsel appearing for Respondent No.2
supported findings recorded by both the Courts below. It is submitted that, the
Respondent No.2 and Petitioner both have filed counter FIRs against each other
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for one and the same incident. Therefore, if the Petitioner is discharged on the
basis of the allegations made in the FIR it would certainly made effect on the
trial which has been initiated against the Respondent No.2 and her relatives.
Further, the intention to outrage modesty of the Respondent No.2 cannot be
ascertained at this preliminary stage without a trial. Therefore, prayed for
dismissal of the petition.
12. It is a matter of record that, on the basis of report lodged by
Respondent No.2/Informant, a Crime No.887/2021 was registered against the
Petitioner/Accused for the offence punishable under Section 354, 323, 504 and
506 of the I.P.C. After the investigation was over, the Investigating Officer filed
charge-sheet against the present Petitioner for the offence punishable under
Section 354, 323, 504 and 506 of the I.P.C. The said charge-sheet is registered
vide RCC No.12/2022.
13. It is an admitted fact that, on the basis of report lodged by the
present Petitioner the Crime No.885/2021 was registered against the
Respondent No.2, her Husband, brother in law and sister in law for the
offences under Section 324, 323, 143, 147, 148, 149, 504, 506 of the I.P.C. It
not in dispute that, the Investigating Officer also filed the charge-sheet against
Respondent no. 2 and her relatives in Crime No.885/2021, which is registered
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as RCC No.132/2022. The trial of both crimes are pending before the learned
JMFC, Rahuri.
14. It is well settled principle of law that, if two counter FIRs are
registered against each other in that circumstance trials in both the offences are
required to be conducted by one and the same Court simultaneously. Needless
to say that, intention of the accused to outrage modesty of the Respondent/
Informant can only be gathered after a full-fledged trial. However, in the case
in hand, as per the ratio laid down in cases of Nitin Upadhyay and Anr., Sudhir
Vitthal Medhekar and Dr. P.K. Baby cited (supra), the Petitioner cannot be
discharged only for the offence punishable under Section 354 of the I.P.C.,
when Crime No. 887/2021 is registered against the present Petitioner/Accused
for other offences under Sections 323, 504, 506 of the I.P.C. It is not the case
of the Petitioner that, only offence under Section 354 of the I.P.C., is registered
against him for outraging of modesty due to allegedly caught holding hand of
the victim while separating her husband and the Accused.
15. Needless to say that, on 16.02.2024, the learned JMFC, Rahuri
passed an order below Exh.12 and rejected prayer for discharge. On
30.07.2024, the learned Revisional Court passed the impugned order in
Criminal Revision Application No.31/2024 holding that, as per report dated
22.10.2021 the dispute arose while erecting electric pole on bund in agriculture
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field and when there was resistance on part of the Petitioner and out anger he
started abusing and beat the Informant's Husband. Thereafter, when she
(Informant) with her sister-in-law and brother-in-law tried to separate her
Husband at that time the Petitioner outraged her modesty and gave criminal
intimidation to kill. Therefore, I find that, findings recorded by both the
Courts below are just, proper and based on material available on record.
Therefore, no interference is called at the hands of this Court, hence, the
petition is dismissed. Rule is discharged.
[Y.G. KHOBRAGADE, J.]
mub
