Bombay High Court
Sandeep S/O Gajanan Tandulje And Others vs The State Of Maharashtra And Anr on 10 January, 2025
2025:BHC-AUG:619
(1) cri apln 83.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 83 OF 2017
1. Sandeep S/o. Gajanan Tandulje
Age- 36 years, Occu- Service .... deleted vide order dated 17.01.2017
2. Gajanan S/o. Kisanrao Tandulje
Age-65 years, Occu. - Pensioner,
3. Praful S/o. Gajanan Tandulje
Age - 42 years, Occu- Business
4. Sow. Kirti W/o. Praful Tandulje,
Age- 38 years, Occu.-Household,
5. Vinod S/o. Gajanan Tandulje
Age- 37 years, Occu.-Business,
6. Sarika W/o. Vinod Tandulje
Age- 34 years, Occu- Service
Above all R/o. 115, Avishkar Colony,
CIDCO, N-6, Aurangabad. ... APPLICANTS
V/s.
1. The State of Maharashtra,
Through Police Inspector,
Tofkhana Police Station,
Tq. Ahmednagar, Dist. Ahmednagar.
2. Anjali W/o. Sandeep Tandulje
Age- 31 years, Occu- housewife,
R/o. C/o. Anuradha Dwarkanath Kulkarni
113, Anand Complex, Savedi Naka,
Savedi, Ahmednagar. ... RESPONDENTS
.....
Mr. Suvidh S. Kulkarni a/w. Rahul Chandanse a/w. Vishal S. Kadam,
Advocates for the Applicants
Mr. V.M. Chate, APP for the Respondent/State
Mr. Z.H. Farooqui h/f. N.V. Gaware, Advocate for the Respondent No.2
.....
(2) cri apln 83.17
CORAM : Y.G. KHOBRAGADE, J.
RESERVED ON : 17.12.2024
PRONOUNCED ON : 10.01.2025
JUDGMENT:
-
1. The Applicant Nos.2 to 6 have invoked jurisdiction of this Court
under Section 482 of the Cr.P.C. and prayed for quashment of criminal
proceeding bearing RCC No.602/2016 for the offence punishable under Section
498-A, 323, 324 read with Section 34 of the I.P.C., consequently, setting aside
the order of issuance of summons dated 22.11.2016 passed by the learned
JMFC, Ahmednagar, Court No.7.
2. The Applicant No.1 is the husband of Non-Applicant No.2 but his
name was deleted from the array of the Applicants. The Applicant No.2 is the
father-in-law, Applicant No.3 is the brother-in-law, Applicant No.4 is married
sister-in-law, Applicant No.5 is brother-in-law and Applicant No.6 is the sister-
in-law of the Non-Applicant No.2/Wife- Ori. Applicant in RCC No. 602 of 2016.
For the sake of brevity, parties to the present application will be referred in
their original capacity as Complainant and Accused.
3. Facts giving rise to the present application are that the
Complainant/ wife of Applicant No.1 has filed a complaint RCC No.602/2016
before the learned JMFC, Ahmednagar, on the ground that on 04.07.2006 her
marriage was solemnised with Applicant No.1 (deleted) as per Hindu Customs
(3) cri apln 83.17
and Rites. After marriage she co-habited with the Applicant No.1 in tenanted
premises at Ahmednagar (now Ahilyanagar). Since, the Complainant and
Accused No.1 got married out of love affair, therefore, the Applicants/original
Accused Nos. 2 to 6 were not happy, hence, they were insulting her on the
ground of not getting proper treatment on the eve of marriage. She further
alleged that the Applicant No.1/original Accused No.1 was working with Bajaj
Finance Company, however, the Applicant No.1 committed some financial
misappropriation and was removed from the service. Thereafter, the Accused
No.1 raised demand of dowry of Rs. Ten Lakhs which was fulfilled by her
father. She further alleged that the Accused Nos.2 to 6 were used to
telephonically instigate the Applicant No.1, due to which the Accused No.1
raised ill-treatment against her. She was conceived out of matrimonial
relations but the Accused No.1 was not interested to have a child, therefore,
she was taken to the hospital for termination of pregnancy but the Medical
Officer refused to terminate the pregnancy. Ultimately, she delivered a baby
boy- Mayank on 18.04.2013. Thereafter, she visited the Accused persons with
her child for co-habitation at her matrimonial house but behaviour of the
Accused persons never changed even though she delivered a male child. Lastly,
on 08.06.2013, the Accused Nos.1 to 6 mercilessly beat her without any reason
and drove her out of her matrimonial house after removing all the ornaments
(4) cri apln 83.17
from her person. Therefore, the accused have committed offences punishable
under Section 498-A, 323 read with Section 34 of the I.P.C.
4. On 24.11.2016, the learned JMFC examine the complaint u/s Sec.
200 of Cri. P.C., and on satisfaction, on 21.11.2016, issued process under
Section 202 of the Cr.P.C., against the Accused Nos.1 to 6/ present Applicants
for the offence punishable under Section 498-A, 323 read with Section 34 of
the I.P.C.
5. The learned counsel appearing for the Applicants/Accused submits
that the Non-Applicant No. 2/Complainant specifically made averments about
cause of action arising lastly on 08.06.2013, when these Applicants allegedly
drove her out of the matrimonial house and raised demand of dowry of Rupees
Ten Lakhs on part of the Applicant No.1/Husband when the accused No.1 and
complainant were residing in tenanted premises at Ahmednagar, however, no
specific date of the alleged incident has been narrated in the complaint.
Section 498-A of IPC provides punishment of three years. Section 323 of I.P.C.
provides one year imprisonment. However, the Complainant has instituted the
complaint after a lapse of three years from the date of alleged incident i.e.
08.06.2013. Therefore, the learned JMFC could have refused to take
cognizance due to lapse of period of three years as the complaint is barred by
Section 468 of the Cr.P.C. However, the learned trial Court failed to consider
(5) cri apln 83.17
Section 468 of Cri. P.C., and issued the process, which is illegal, bad in law and
continuing of proceeding would be an abuse process of law, therefore, prayed
for quashing and setting aside the same.
6. The learned counsel appearing for the Applicants further
canvassed that the Non-Applicant No.2/Complainant has made omnibus
allegations that her father gave dowry of Rs. Ten Lakhs to the Applicant
No.1/Accused No.1 to start Internet Cafe and the Applicant Nos.2 to 6 always
instigated the Applicant No.1 but no specific date of incident has been specified
and the Non-applicant No. 2/Complainant never cohabited with the Accused
Nos.1 to 6 together at any time before. So also, these accused persons have
driven out the complainant from her matrimonial house. Therefore, essential
ingredients of offences punishable under Section 498-A, 323 read with Section
34 of the I.P.C. are not constituted, hence, prayed to quash and set aside the
entire criminal proceeding as well as the order of issuance of process.
7. It is further canvassed on behalf of the applicants that the
Complainant/Wife herself filed the HMP No. 120 of 2015 against the Accused
No.1/Husband and prayed for decree of divorce u/s 13 (1) (ia) (i) of Hindu
Marriage Act. After conclusion of trial, on 10.05.2016, the learned 2 nd CJSD,
Ahmednagar passed the judgment and decree in HMP No.120/2015 and
dissolved the marriage between the Non-Applicant No.2. However, the
(6) cri apln 83.17
Complainant/N.A. No.2 filed a criminal complaint RCC No.602/2016 after four
months of decree of divorce. Therefore, matrimonial relations between the
complainant and the Accused No.1 were not in existence on the day of filing of
complaint, hence, offences u/s 498-A, 323 read with Section 34 of the I.P.C.,
are not constituted. Therefore, continuance of criminal proceeding as against
the Accused /Applicants will amount to abuse of process of law. So also, the
complaint is groundless, hence, prayed for quashment of the proceeding.
8. In support of these submissions the learned counsel appearing for
the Applicants placed reliance on the following cases:
i) Dhariwal Tobaco Products Ltd. & Ors.; AIR 2009 SC 1032
ii) Prabhu Chawla V/s. State of Rajasthan & Ors.; AIR 2016 SC 4245
iii) Geeta Mehrotra & Anr. V/s. State of U.P. & Anr.; AIR 2013 SC 181
iv) Judgment dated 10.12.2024 passed by the Hon'ble Supreme Court in the
case of Dara Lakshmi Narayana & Ors. V/s. State of Telangana and Anr.
in Criminal Appeal No._____ 2024 (Arising out of SLP (Cri.)
No.16239/2024)
v) Judgment dated 04.12.2024 passed by the Hon'ble Supreme Court in the
case of Akanksha Arora V/s. Tanay Maben in Criminal Appeal No.
___________/2024 (Arising out of SLP (Cri.) No.15909/2023
9. Per contra, the learned counsel appearing for the Non-Applicant
No.2/Complainant canvassed in vehemence that marriage of the Complainant
was solemnized with Accused No.1 on 04.07.2006. During subsistence of
(7) cri apln 83.17
marriage, the Accused have raised demand of dowry of Rs. Ten Lakhs to start
Internet Cafe after the Accused No.1 was dismissed from service and for
fulfillment of said demand, the complainant was subjected to cruelty.
Ultimately, the father of complainant fulfilled said demand of dowry. On
18.04.2013, the Complainant/Non-Applicant No.2 with her child visited at her
matrimonial house for co-habitation with the Applicant No.1 but the
Applicants/Accused drove her out of the matrimonial house on 08.06.2013.
Therefore, the Complainant filed a complaint and after considering the material
available on record, the learned trial Court passed the impugned order and
issued summons against the Applicants/Accused for the offence punishable
under Section 498-A, 323 read with Section 34 of the I.P.C., which is just and
proper, hence, prayed for dismissal of the application.
10. The learned counsel appearing for the Complainant/Non-Applicant
No.2 further canvassed that on 10.05.2016 the learned 2 nd CJSD, Ahmednagar
passed the judgment and decree in HMP No.120/2015 and dissolved the
marriage between the Complainant and Accused No.1, however, the
Applicants/Accused harassed and subjected the Complainant to cruelty for
demand of dowry during the subsistence of marriage, therefore, merely the
dissolution of marriage subsequently can not be the ground for non prosecution
of the former husband and in laws for raising cruelty, harassment for non-
fulfillment of demand of dowry and causing hurt as contemplated under
(8) cri apln 83.17
Section 498-A, 323 read with Section 34 of the I.P.C., hence, prayed for
dismissal of the application.
11. To buttress these submissions, the learned counsel for the
complainant relied on Meer Akbar Ali and Anr. V/s. State of Maharashtra and
Anr.; 2024 SCC OnLine Bom. 885, wherein, the Division Bench of this Court
considered case of Mohammad Miyan V/s. State of Uttar Pradesh; 2019 13 SCC
398 and held that, the alleged demand of dowry and harassment attributed to
the Applicants is of the period prior to dissolution of marriage on 19.02.2023.
The allegations for offence under Section 498-A of the I.P.C. are not post
Khulanama or post dissolution of marriage. When the informant was residing
with the Applicants, she was subjected to cruelty as contemplated under
Section 498-A of the I.P.C., therefore refused to exercise jurisdiction under
Section 482 of the Cr.P.C.
12. He further relied on Vanka Radhamanohari (Smt.) V/s. Vanka
Venkata Reddy & Ors.; (1993) 3 SCC 4, wherein the Hon'ble Supreme Court
held in para 6 & 7 as under:
"6. At times it has come to our notice that many courts are treating the
provisions of Section 468 and Section 473 of the Code as provisions parallel
to the periods of limitation provided in the Limitation Act and the
requirement of satisfying the court that there was sufficient cause for
condonation of delay under Section 5 of that Act. There is a basic difference
between Section 5 of the Limitation Act and Section 473 of the Code. For
exercise of power under Section 5 of the Limitation Act, the onus is on the
appellant or the applicant to satisfy the court that there was sufficient cause
(9) cri apln 83.17
for condonation of the delay, whereas Section 473 enjoins a duty on the
court to examine not only whether such delay has been explained but as to
whether it is the requirement of the justice to condone or ignore such delay.
As such, whenever the bar of Section 468 is applicable, the court has to
apply its mind on the question, whether it is necessary to condone such
delay in the interests of justice. While examining the question as to whether
it is necessary to condone the delay in the interest of justice, the Court has
to take note of the nature of offence, the class to which the victim belongs,
including the background of the victim. If the power under Section 473 of
the Code is to be exercised in the interests of justice, then while considering
the grievance by a lady, of torture, cruelty and inhuman treatment, by the
husband and the relatives of the husband, the interest of justice requires a
deeper examination of such grievances, instead of applying the rule of
limitation and saying that with lapse of time the cause of action itself has
come to an end. The general rule of limitation is based on the Latin maxim:
vigilantibus, et non, dormientibus, jura subveniunt (the vigilant, and not the
sleepy, are assisted by the laws). That maxim cannot be applied in
connection with offences relating to cruelty against women.
7. It is true that the object of introducing Section 468 was to put a bar
of limitation on prosecutions and to prevent the parties from filing cases
after a long time, as it was thought proper that after a long lapse of time,
launching of prosecution may be vexatious, because by that time even the
evidence may disappear. This aspect has been mentioned in the statement
and object, for introducing a period of limitation, as well as by this Court in
the case of State of Punjab v. Sarwan Singh¹. But, that consideration cannot
be extended to matrimonial offences, where the allegations are of cruelty,
torture and assault by the husband or other members of the family to the
complainant. It is a matter of common experience that victim is subjected to
such cruelty repeatedly and it is more or less like a continuing offence. It is
only as a last resort that a wife openly comes before a court to unfold and
relate the day-to-day torture and cruelty faced by her, inside the house,
which many of such victims do not like to be made public. As such, courts
while considering the question of limitation for an offence under Section
498-A i.e. subjecting a woman to cruelty by her husband or the relative of
her husband, should judge that question, in the light of Section 473 of the
Code, which requires the Court, not only to examine as to whether the delay
has been properly explained, but as to whethr "it is necessary to do so in the
interests of justice"."
( 10 ) cri apln 83.17
13. He further relied on the case of Asha Ahuja V/s. Rajesh Ahuja &
Ors.; 2003 (68) DRJ 437, wherein, it is held that in cases relating to
matrimonial offences, the bar of Section 468 of the Code should not be
automatically applied and effort should be to lift it by invoking Section 473 of
the Code which casts a duty upon the Court to consider the reasons for delay
for condoning or even ignoring the same in the absence of proper explanation.
The question of invoking the bar of Section 468 of the Code in relation to
matrimonial offences, therefore, must be decided by the Courts in the light of
Section 473 of the Code which has an over riding effect. The decision should be
taken after taking into consideration the facts and circumstances of the case,
reasons for delay and the situation in which the complainant wife had been put
when she was suffering cruelty in her matrimonial home and thereafter when
she was out of her matrimonial home.
14. Reverting back to the facts of the present case and perusal of
record, it prima facie appears that on 07.09.2016, the complainant/Non-
Applicant No.2 instituted a complaint bearing RCC No.602/2016. It is not in
dispute that on 04.07.2006 the Complainant and Accused No.1 got married out
of their love and affection. It seems that the Accused/ Applicants Nos.2 to 6
were not happy with the love marriage. On perusal of contents of the
complaint, it does not reveal that the Accused have made any demand of dowry
at the time of marriage or even prior to solemnization of marriage between the
( 11 ) cri apln 83.17
Complainant and Accused No.1. The Complainant has made an omnibus
statement that the Accused Nos.2 to 6 insulted her because of not getting better
treatment on the occasion of marriage but the Complainant has not specified as
to how ill-treatment was raised against her at the hands of the Accused Nos.2
to 6. The Complainant herself made a statement that after the marriage she co-
habited with her husband Accused No.1 in tenanted premises at Ahmednagar.
Her husband was working in Bajaj Finance Company but due to committing
some misappropriation he was removed from the service. Thereafter, her
Husband/Accused no.1 raised demand of dowry of Rupees Ten Lakhs to open
Internet Cafe and said demand was fulfilled by her father. However, there is no
statement in the complaint that the Accused Nos. 2 to 6 raised any demand of
dowry and for non-fulfillment of said demand she was subjected to cruelty at
their hands.
15. Needless to say that the Complainant has not given any specific
date about raising of demand of dowry by Accused Nos.2 to 6 and they
subjected her to cruelty for non-fulfillment of demand of dowry of Rupees Ten
Lakhs. On the contrary, it appears that the Complainant made a statement that
her father fulfilled the demand of Rs. Ten Lakhs of the Accused No. 1/Husband
but how the said amount was arranged / paid has not been stated. So also,
whether the Accused No.1 has started the Internet Cafe or not is also not clear.
The Complainant has made omnibus allegations about raising torture against
( 12 ) cri apln 83.17
her by the Accused No. 1 and the Accused Nos. 2 to 6 instigated the Accused
No.1. But there is no specific allegations against the Accused Nos.2 to 6 that
they have raised demand of dowry and due to non-fulfillment of illegal
demand, they subjected the Complainant to cruelty. The Complainant has not
given any specific date and particulars of occurrence of incidents at the hands
of the Accused Nos. 2 to 6.
16. In para no.5 of complaint, the Complainant made a statement that
on 08.06.2013, she was driven out of her matrimonial house with her child
after removal of all ornaments from her person but no details of ornaments
have been given. On 22.11.2016, the learned trial Court passed the impugned
order and issued process against the present Applicants for the offence
punishable under Section 498-A, 323 read with Section 34 of the I.P.C.,
however, the accused were discharged for the offence punishable under Section
324 read with Section 34 of the I.P.C.
17. Section 468 of the Cr.P.C. provides limitation for taking
cognizance of offence after expiry of period of limitation as under:
"(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term
not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years."
( 13 ) cri apln 83.17
Sub-section 3 of Section 468 provides as under:
"(3) For the purposes of this section, the period of limitation, in relation
to offences which may be tried together, shall be determined with reference
to the offence which is punishable with the more severe punishment or, as
the case may be, the most severe punishment."
Section 473 of Cri. P.C. provides as under:
S. 473 Extension of period of limitation in certain cases
Notwithstanding anything contained in the foregoing provisions of this
Chapter, any Court may make cognizance of an offence after the expiry of
the period of limitations, if it is satisfied on the facts and in the
circumstances of the case that the delay has been properly explained or
that it is necessary so to do in the interests of justice.
18. In the case in hand, the Complainant/Non-Applicant No.2 alleged
that the accused have committed an offence under Section 498-A when she was
co-habiting with her Husband/Accused No.1 in tenanted premises at
Ahmednagar but no specific date, month and year is given. The Non-Applicant
No.2 stated in para no.5 that the Accused Nos.2 to 6 beat her mercilessly and
drew her out of the matrimonial house on 08.06.2013. Therefore, to my mind,
period of limitation under Section 468 of the Cr.P.C., would start w.e.f.
08.06.2013 and maximum period of three years of punishment provided under
Section 498-A, which expires on 07.06.2016. However, the Non-Applicant
( 14 ) cri apln 83.17
No.2 filed a complaint RCC No.602/2016 on 07.09.2016 which is beyond the
period of three years.
19. Irrespective of above facts, the Complainant has not denied that
she filed HMP No.120 of 2015 and prayed for decree of dissolution of her
marriage. It is not in dispute that on 10.05.2016, the learned 2 nd CJSD,
Ahmednagar passed the Judgment and decree in HMP No.120/2015 and
dissolved the marriage between her the Accused No.1. On 07.09.2016, the
Complainant/N.A.No.2 filed a complaint seeking prosecution of the
Applicants/Accused after lapse of four months from passing of the decree of
divorce. Therefore, in my view continuing such prosecution would certainly
amount to abuse process of law and misusing the Court machinery. Therefore,
to prevent the abuse of process of law and to secure ends of justice, it will be
just and proper to quash and set aside the criminal proceeding as against these
accused persons.
20. It will be worthwhile to mention here that the Applicants have
produced the copy of DV proceeding no.445/2015 lodged by the present Non-
Applicant No.2 before the CJM, Ahmednagar, wherein, the Non-Applicant No.1
prayed for protection order. On 21.04.2015, the complainant/N.A. No.1 filed a
statement before the CJM alleging that the Applicants have raised cruelty on
account of demand of dowry. The Complainant further alleged that when she
( 15 ) cri apln 83.17
was cohabiting with her husband in the tenanted premises her husband was
having illicit relations with another girl who was residing being a paying guest
near their rented premises. When she came to know about illicit relations of
her husband/Accused No.1 with said lady, her husband allegedly beat her.
Therefore, it appears that there was another reason for matrimonial discord
between the Complainant and Accused No.1 but the Complainant has made
omnibus allegations about demand of dowry and for want of said demand she
was subjected to cruelty, which does not appear to be substantial and bona
fide. Therefore, continuing the criminal prosecution of the Applicants/Accused
would certainly amount to abuse of process of law.
21. In case of Preeti Gupta and Anr. V/s. State of Jharkhand; AIR 2010
SC 3363, it has been held as under:
"28. It is a matter of common knowledge that unfortunately matrimonial
litigation is rapidly increasing in our country. All the courts in our country
including this court are flooded with matrimonial cases. This clearly
demonstrates discontent and unrest in the family life of a large number of
people of the society.
29. The courts are receiving a large number of cases emanating from
section 498-A of the Indian Penal Code which reads as under:-
"498-A. Husband or relative of husband of a woman subjecting her to
cruelty.--Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine. Explanation.--For the purposes of this section, `cruelty'
means:-
( 16 ) cri apln 83.17
(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life,
limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by her
or any person related to her to meet such demand."
30. It is a matter of common experience that most of these complaints
under section 498-A IPC are filed in the heat of the moment over trivial
issues without proper deliberations. We come across a large number of such
complaints which are not even bona fide and are filed with oblique motive.
At the same time, rapid increase in the number of genuine cases of dowry
harassment are also a matter of serious concern.
.....
.....
33. The ultimate object of justice is to find out the truth and punish the
guilty and protect the innocent. To find out the truth is a herculean task in
majority of these complaints. The tendency of implicating husband and all
his immediate relations is also not uncommon. At times, even after the
conclusion of criminal trial, it is difficult to ascertain the real truth. The
courts have to be extremely careful and cautious in dealing with these
complaints and must take pragmatic realities into consideration while
dealing with matrimonial cases. The allegations of harassment of husband's
close relations who had been living in different cities and never visited or
rarely visited the place where the complainant resided would have an
entirely different complexion. The allegations of the complaint are required
to be scrutinized with great care and circumspection. Experience reveals
that long and protracted criminal trials lead to rancour, acrimony and
bitterness in the relationship amongst the parties. It is also a matter of
common knowledge that in cases filed by the complainant if the husband or
the husband's relations had to remain in jail even for a few days, it would
ruin the chances of amicable settlement altogether. The process of suffering
is extremely long and painful."
22. In case of Central Bureau of Investigation V/s. Ravi Shankar
Srivastava; (2006) 7 SCC 188, the Hon'ble Supreme Court held as under:
( 17 ) cri apln 83.17
"7. Exercise of power under Section 482 of the Code in a case of this
nature is the exception and not the rule. The Section does not confer any
new powers on the High Court. It only saves the inherent power which the
Court possessed before the enactment of the Code. It envisages three
circumstances under which the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of
the process of court, and (iii) to otherwise secure the ends of justice. It is
neither possible nor desirable to lay down any inflexible rule which would
govern the exercise of inherent jurisdiction. No legislative enactment
dealing with procedure can provide for all cases that may possibly arise.
Courts, therefore, have inherent powers apart from express provisions of
law which are necessary for proper discharge of functions and duties
imposed upon them by law. That is the doctrine which finds expression in
the section which merely recognizes and preserves inherent powers of the
High Courts. All courts, whether civil or criminal possess, in the absence of
any express provision, as inherent in their constitution, all such powers as
are necessary to do the right and to undo a wrong in course of
administration of justice on the principle "quando lex aliquid alicui
concedit, concedere videtur et id sine quo res ipsae esse non potest" (when
the law gives a person anything it gives him that without which it cannot
exist). While exercising powers under the section, the court does not
function as a court of appeal or revision. Inherent jurisdiction under the
section though wide has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex debito justitiae to do real
and substantial justice for the administration of which alone courts exist.
Authority of the court exists for advancement of justice and if any attempt is
made to abuse that authority so as to produce injustice, the court has power
to prevent abuse. It would be an abuse of process of the court to allow any
action which would result in injustice and prevent promotion of justice. In
exercise of the powers court would be justified to quash any proceeding if it
finds that initiation/continuance of it amounts to abuse of the process of
court or quashing of these proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is sought to be quashed, it
is permissible to look into the materials to assess what the complainant has
alleged and whether any offence is made out even if the allegations are
accepted in toto."
( 18 ) cri apln 83.17
23. In the case in hand, the Applicants have invoked jurisdiction of this
Court under Section 482 of the Cr.P.C. and prayed for quashment of
proceeding, which has been lodged by the N.A. No.2/Complainant on the basis
of omnibus allegations after obtaining decree of divorce, which does not appear
to be substantial and bona fide. So also, the Trial Court passed the impugned
order of issuance of process mechanically without considering the scope of Sec.
468 of Cri. P.C., though the complainant has not made any prayer under Sec.
473 of Cri. P.C. Therefore, considering the facts and circumstances of the case
coupled with the law laid down by the Hon'ble Supreme Court, I am of the
view that this is a fit case to invoke jurisdiction of this Court under Section 482
of the Cr.P.C. for quashing and setting aside Regular Criminal Case (RCC) No.
602 of 2016, as well as impugned order dated 22.11.2016 passed by the
learned Judicial Magistrate First Class, Court No. 7, Ahmednagar, whereby
process has been issued against the Accused Nos. 2 to 6. In view of above, I
proceed to pass the following order:
ORDER:
i) Criminal Application No.83 of 2017 is hereby allowed.
ii) The complaint RCC No.602/2016 is hereby quashed and set aside in
respect of the present Applicant Nos.2 to 6. Resultantly, impugned order dated
22.11.2016 passed by the learned JMFC, Court No.7, Ahmednagar is hereby
quashed and set aside in respect of present Applicant Nos.2 to 6/original
Accused Nos.2 to 6 in RCC No.602/2016.
( 19 ) cri apln 83.17
iii) Rule is made absolute in above terms.
iv) No order as to cost.
[Y.G. KHOBRAGADE, J.]
mub
