Bombay High Court
Vivek Sherbahadur Singh And Anr vs The State Of Maharashtra And Anr on 20 January, 2025
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2025:BHC-AS:3836-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1701 OF 2024
1. VIVEK SHERBAHADUR SINGH
2. SANJAY SHERBAHADUR SINGH ..APPLICANTS
VS.
THE STATE OF MAHARASHTRA & ANR. ..RESPONDENTS
----
Mr. P. D. Kavale for the Applicants.
Ms. P. N. Dabholkar, APP for Respondent No.1 - State.
----
CORAM : RAVINDRA V. GHUGE &
RAJESH S. PATIL, JJ.
DATE : 20th JANUARY 2025.
JUDGMENT (PER RAJESH S. PATIL, J.) :
-
1. This Application is filed under Section 482 of the Code of
Criminal Procedure, 1973, by the Applicants (original accused)
seeking quashing of First Information Report (F.I.R.) No. 14 of
2023 dated 9th January, 2023 registered at Mahatma Phule Chowk
Police Station, Kalyan, at the behest of Respondent No.2, for the
offence punishable under Sections 376-B, 354-A, 354-D, 509, 323,
504, 506 read with 34 of the Indian Penal Code.
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2. It is the case of the prosecution in the subject F.I.R., that
Respondent No.2/ Complainant had pursued her 11th and 12th
standard education from Wamanrao College, Mulund, Mumbai.
While studying in junior college, she had joined private tuition
classes known as "Wakankar Classes". In the said classes Applicant
No.1 herein/Accused no.1 was a teaching faculty for Physics. After
being in contact with the Complainant, the Applicant No.1 started
chatting with her on Whats App and soon on 2nd June 2017 sent her
a proposal message, to which the Complainant refused. In spite of
such refusal of the Complainant, the Applicant No.1 kept on sending
her flirtatious messages and used to stalk her. Frustrated, with the
acts of Applicant no.1, the Complainant's mother registered F.I.R.
under Sections 354, 354-D of the I.P.C. read with Section 8 and 12
of the POCSO ( for convenience referred as "the first FIR"). It is
further case of the prosecution that in the year 2018, Applicant No.1
requested the Complainant to withdraw the case filed against him.
However during the pendency of the POCSO case, on 21st August,
2018 the Complainant and Applicant No.1 got married, against the
wishes of the parents of the Complainant. After marriage the
complainant started residing with Applicant No.1's family.
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3. It is the case of the prosecution that after one week of the
marriage, Applicant No.1 started pressurising the Complainant to
withdraw the POCSO case and also started doubting her character.
So also the Complainant's father-in-law, mother-in-law and brother-
in-law were constantly pressurizing her to withdraw the POCSO
case and started assaulted her. They also started demanding monies
from her. As the physical and mental torture to the Complainant
went unbearable, hence, on 16th March, 2019, the Complainant
registered a F.I.R. against the Applicants and her in-laws under
Section 498-A, 420, 406, 354, 323, 504, 506 read with 34 of the
I.P.C. at Manpada Police Station, Dombivali ( for convenience
referred as "the second FIR"). Since then the Complainant started
staying separately from her husband/Petitioner No.1.
4. On her father's insistence the complainant joined a law
course in Vivekanand College. Thereafter, somewhere around June
2019, Applicant No.1 managed to contact the Complainant through
social media platforms. He requested her to reside with him, to
which the Complainant refused. However, on 7th December, 2019,
the Applicant No.1 landed at the Complainant's college premises
and under the pretext of his mother being unwell, requested the
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Complainant to visit her matrimonial house. The Complainant was
not ready to trust Applicant No.1 and did not wanted to accompany
him. However, as the Applicant no.1 repeatedly insisted the
Complainant, trusting him she eventually agreed to meet her
mother-in-law. The Complainant specifically told the Applicant
No.1 that after meeting her mother-in-law, she has to go back to her
parents' home. Ultimately at around 15:00 hours, she accompanied
the Applicant No.1 to her mother-in-law's at Dombivli. However,
the Applicant No.1 took the Complainant to Korum Mall, at Thane
and started talking about their matrimonial life and reconciling the
disputes between them. The Applicant No.1 insisted upon having
food at the Mall and thereafter they would be going to his house.
The Applicant No.1 kept on delaying the process of going to his
house, and as the complainant didn't return home the father of the
Complainant lodged a Complaint at Navghar Police Station,
Mulund.
5. From the Mall the Complainant, along with Applicant
No.1, reached the matrimonial home at Dombivli at around 23.30
hours. The Applicant No.1 asked the Complainant to wait
downstairs, on the pretext that he will first consult his mother
whether wants to meet the complainant. After a while, the Applicant
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No.1 returned back and informed the Complainant that his mother
was not ready to meet her. Thereafter, Applicant No.1 told the
Complainant that it was too late in night, hence they will stay at a
lodge in Kalyan, and next morning she can go back to her parental
house. The Complainant refused the idea of staying at the lodge, but
as it was too late, hence she without realizing the intentions of
Applicant No.1, accompanied him to a lodge in Kalyan on his
motorcycle. At the lodge, the Applicant No.1 committed a forceful
sexual intercourse with the Complainant. On 9 th December, 2019,
the Applicant No.1 told the Complainant that they will stay
separately from his mother and would take rental accommodation so
that they will have peaceful matrimonial life. Believing the
Applicant No.1, the Complainant borrowed a sum of Rs.25,000/-
from her mother and gave the said amount to Applicant No.1 to take
rental accommodation. For next four days, Applicant No.1
pretended that he is searching for accommodation in Dombivali.
However, on 15th December, 2019, he again took the Complainant to
a guest house at Kalyan and again forcefully committed sexual
intercourse without her consent. Even during this period, Applicant
No.1 was pressurising the Complainant to withdraw the cases filed
against him. When the Complainant refused to withdraw the cases,
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Applicant No.1 assaulted her with his hands and told her that she
should commit suicide. It is further alleged in the Complaint that
during the relevant time, Applicant No.2(who is the brother-in-law
of Complainant) had a telephonic communication with the
Complainant, when he told her that if she has intention to stay with
Applicant No.1, she must withdraw all the cases. Further he also
demanded sexual favors, due to which the Complainant's modesty
was outraged.
6. It is further alleged in the F.I.R. that Applicant No.1 again
took her to a hotel "Stay Inn" and committed forceful sexual
intercourse without her consent. And next day i.e., on 18 th
December, 2019, Applicant No.1 suddenly left the hotel. The
Complainant tried to contact him but applicant No.1 was not
receiving her calls, hence the Complainant called her mother-in-law.
However the mother-in-law of the Complainant told her not to call
her again and hence forth she should directly communicate with her
husband. Being desperate the Complainant somehow again
contacted the Applicant No.1 and during this conversation, her
husband/Applicant No.1 told her that she had no connections with
the matrimonial home and disconnected the phone.
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7. Further somewhere around June 2022, Applicant No.1
again started contacting the Complainant and was trying to reconcile
with her. The complainant had no trust left in the Applicant no.1,
pursuant to earlier incidents, occurring again and again, therefore
the complainant on 9th January 2023 lodged F.I.R. No.0014,
registered with the Mahatma Phule Chowk Police Station, Kalyan.
( for convenience referred as "the third FIR"). The applicant no.1
and 2, have filed the present criminal application under section 482
of Cr.P.C. seeking quashing the third FIR.
8. Further it is also pertinent to note that the Complainant
in her statement recorded by police on 27th June, 2022 (enclosed to
the Application at page no.163) has stated that after her marriage,
when she visited her parental house in the month of January, 2019,
to meet her parents, at that time her uncle, Upendra Kamlaprasad
Dubey visited her parents home, and while her mother was in the
kitchen, her uncle caught her hand and pulled her towards him and
while uttering words he touched her chest. When the Complainant
shouted for help, her mother came out of kitchen, and her mother
started conversing with the Complainant's uncle, as to why did he
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acted in this manner. At that time complainant's father intervened,
and both the Complainant's father and uncle physically assaulted the
Complainant's mother. Next day she went back to her matrimonial
house. However, since she was not properly treated by her husband
and in laws, she in the month of February, 2019, came back to her
parents' home, and in a very filthy language abused the
Complainant. To which Complainant's mother objected and opposed
the language used by the Complainant's uncle. He left their home
after having narrated a false and fabricated story to the father of the
Complainant. On instance of father, the Complainant joined law
course in Vivekanand Law College, Chembur. Thereafter in the
month of October 2019, while she was about to go to her college she
asked for some money from her father. To her surprise, her father
abused her and asked her for sexual favors. The Complainant was
stunned with the words spoken by her father. The Complainant after
overcoming her fears and gathering courage approached Police to
file a separate Complaint against her own father and her uncle. The
police have received the complaint and had lodged the F.I.R. against
the father for offence committed under Section 354, 354 A, 323 and
504 of the Indian Penal Code. ( for convenience referred as "the
fourth FIR").
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9. It is vehemently submitted on behalf of the Applicants
that mere perusal of the subject F.I.R. and the Charge-sheet it
appears that the complainant has a habit of making multiple
frivolous complaints against the Applicant no 1 and his family
members. The subject F.I.R. is also filed with the ulterior motive
and with mala fide intention.
10. It is further submitted that the subject F.I.R. was filed after
delay of more than 3 years and lacks reasonable explanation as to
why there was gross delay in registering F.I.R. for the incidences
which were alleged being committed on 8 th December 2019 to 18th
December 2019. The allegations in the F.I.R. and the statements of
witnesses appears that the Applicant no.1 and the complainant
stayed in various Hotels being husband and wife and whatever
relations is claimed by the complainant seems to have been
allegedly done with the consent of both being husband and wife and
therefore the allegations under section 376B of IPC is nothing but
farce created by the complainant. Thus, F.I.R. raises questions about
veracity of the allegations. There is no plausible explanation for
delay of 3 years in registering the F.I.R.. So also multiple F.I.R's. are
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filed by the complainant wife is an abuse of process of law. Thus,
F.I.R. filed with such mala fide intention just to harass Applicants
should be quashed.
11. Per contra, the learned A.P.P. strongly opposed the
Criminal Application and submitted that the perusal of the entire
F.I.R. and charge-sheet would show that there is ample evidence
against both the Applicants, to convict them under the offence under
Sections 376 B, 354 A, 354 D, 509, 323, 504, 506 read with 34 of
the Indian Penal Code. It is further submitted that once Charge-
Sheet is filed this court should not entertain the present Criminal
Application. The Statement recorded of witnesses and the fact that it
has come on record that the Applicant, further proves that the
Applicant persons needs to face trial and the F.I.R. can't be quashed
at this stage.
12. We have heard the learned counsel for the parties and
with, their assistance, we have perused the documents on record.
13. For quashing criminal proceedings under Section 482
of Criminal Procedure Code, we have to see whether the allegations
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in the complaint and F.I.R. prima facie indicate that there are serious
allegations against the Applicants of having committed an offence.
14. The Supreme Court has held in (i) State of Haryana &
Ors. vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604, (ii) Rajeev
Kourav vs. Baisahab & others, (2020) 3 SCC 317 and (iii) Kaptan
Singh vs. State of Uttar Pradesh and others, (2021) 9 SCC 35, that
exercise of powers under section 482 CrPC to quash the proceedings
is an exception and not a rule. Appreciation of evidence is not
permissible at the stage of quashing of proceedings is exercise of
powers under Section 482 CrPC.
15. In the recent judgment of CBI vs. Aryan Singh, reported
in AIR 2023 SC 1987, the Supreme Court has held that while
examining the power under Section 482, the High Court should not
conduct a mini trial. Similarly in the judgment of State of Odisha
vs. Pratima Mohanty and others, reported in (2022) 16 SCC 703, the
Supreme Court has held that once the charge-sheet is filed, the High
Court should be reluctant to quash the complaint. Paragraph no.8.2
of the judgment reads as under :
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8.2 It is trite that the power of quashing should be exercised
sparingly and with circumspection and in rare cases. As per the settled
proposition of law while examining an F.I.R./complaint quashing of
which is sought, the court cannot embark upon any enquiry as to the
reliability or genuineness of allegations made in the F.I.R./complaint.
Quashing of a complaint/F.I.R. should be an exception rather than any
ordinary rule. Normally the criminal proceedings should not be quashed
in exercise of powers under section 482 CrPC when after a thorough
investigation the charge-sheet has been filed. At the stage of discharge
and/or considering the application under section 482 CrPC the courts are
not required to go into the merits of the allegations and/or evidence in
detail as if conducting the mini-trial. As held by this court the powers
under section 482 CrPC are very wide, but conferment of wide power
requires the court to be more cautious. It casts all onerous and more
diligent duty on the Court.
[Emphasis supplied]
16. In the present proceedings, the charge-sheet has already
been filed in February, 2023, and the police have recorded the
statement of witnesses, copies of which are enclosed with the
charge-sheet and forms part of the records of the present
proceedings.
17. So far as the delay in lodging F.I.R. is concern, the
delay in a case of sexual assault to a married woman cannot be
equated with the case invoking other offences. In the present
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proceedings complainant's life appears to be in turmoil, that is what
one can gather from the F.I.Rs. and statements recorded which are
part of police records. Several factors must have come in her mind,
before approaching the Police, the conduct of her husband, his
family members, and above all the unexpected demeanor of her own
father and her Uncle. Hence in our view it will be failure of justice
if the proceedings are quashed at this stage.
18. The mother of the Complainant had lodged Complaint
against the Complainant's husband, pursuant to which police lodged
the F.I.R. under Sections 354, 354-D of the Indian Penal Code read
with Section 8 and 12 of the POCSO. However, from record it
appears that due to prosecution witness not being ready to give
evidence, the Applicant No.1 was acquitted. According to us this
fact will not be enough to quash the present FIR.
19. After considering the contents of F.I.R. and the various
documents on record attached to the F.I.R., and the Charge-sheet,
we are satisfied that it constitutes the ingredients of the offences
alleged. Taking into account the law as laid down by the Supreme
Court in the judgments referred above, we find that there is no merit
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in the present Criminal Application and the same deserves to be
dismissed. Hence, the following order :-
ORDER
(i) The Criminal Application stands dismissed.
(ii) Needless to state, any observations made herein
are only for the purposes of deciding the Criminal
Application only and would have no bearing on the
final adjudication of the proceedings.
(RAJESH S. PATIL, J.) (RAVINDRA V. GHUGE, J.)
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