Bombay High Court
Avinash Tejrao Adhav And Others vs The State Of Maharashtra on 19 April, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
(1) aba320.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ANTICIPATORY BAIL APPLICATION NO. 320 OF 2022
1. Avinash s/o. Tejrao Adhav, .. Applicants
Age.32 years, Occ. Private job, [ori.accused
R/o. Chintamani CHS MAHADA Colony, Nos.1 to 3]
Chandvali Saki Naka, Mumbai.
2. Pushpabai w/o. Tejrao Adhav,
Age. 51 years, Occ. Household,
R/o. As above.
3. Tejrao s/o. Sheshrao Adhav,
Age.60 years, Occ. Private job,
R/o. As above.
Versus
State of Maharashtra .. Respondent
Through Modha Police Station,
Parbhani, Tq. & Dist. Parbhani.
Mr.K.R. Doke, Advocate for the applicants.
Mr.A.M. Phule, APP for the respondent/State.
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 29.03.2022
PRONOUNCED ON : 19.04.2022
P.C. :-
01. The applicants are apprehending their arrest in connection with
Crime No.46 of 2022 registered with New Mondha Police Station, Parbhani,
Dist. Parbhani, for the offences punishable under section 420 read with
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section 34 of the Indian Penal Code (IPC).
02. Heard Mr. K.R. Doke, learned Advocate for the applicants and
Mr.A.M. Phule, learned APP for the respondent/State.
03. It has been vehemently submitted on behalf of the applicants that
applicant No.1 is the husband and applicant Nos.2 and 3 are the in-laws of the
informant. She has already lodged an FIR vide CR No.984 of 2020 with Saki
Naka Police Station, Mumbai. The charge-sheet has been filed with learned
66th Metropolitan Magistrate, Andheri, Mumbai for the offences punishable
under sections 498-A, 494, 495, 323, 504 of the IPC. In the said FIR same
contentions, which have been taken in the present FIR, have been stated and
therefore it would amount to the doctrine of double jeopardy for the
applicants to undergo the process again. The offence under section 420 of the
IPC is absolutely not made out against the applicants. The marriage between
the informant and applicant No.1 was solemnized on 19.06.2020 at Parbhani
and the relationship is still subsisting. It is alleged that within 15 days of the
marriage, the informant came to know from Facebook message that applicant
No.1 was previously married and has child and there is no divorce between
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them. When this part of the allegations are also stated as cruelty covered
under section 498-A of the IPC in the earlier proceedings, then the second
proceedings is not maintainable. She has also taken up proceedings under the
Protection of Women From Domestic Violence Act with the same contentions.
The custodial interrogation of the applicants is not required. The applicants
will abide by the terms of the bail.
04. The learned Advocate for the applicant has relied on the decision
in Navnit K. Mehta Vs. State of Maharashtra and Anr. 2018 (3) ABR (Cri) 239,
wherein it has been stated that the second complaint filed against the
applicant on same set of fact and against same persons and therefore custodial
interrogation is not necessary. The grant of anticipatory bail in subsequent
complaint is proper.
05. Learned APP has strongly opposed the application and submitted
that it was specifically stated by Saki Naka Police Station that offence under
section 420 of the IPC will not be entertained by them in view of the fact that
the offence of cheating has not taken place within the jurisdiction of Saki
Naka Police Station and she would be entitled to lodge FIR only for section
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498-A and other sections. She was constrained to file application under
section 156(3) of the Cr.P.C. Thereafter, the offence under section 420 of the
IPC has been registered. Therefore, it cannot be said that there is any bar for
the second FIR. The offences are different. Inspite of being married earlier,
applicant No.1 got married to the informant and applicant Nos.2 and 3 being
father and mother of applicant No.1, though having knowledge about the
earlier marriage of son, had taken part in the marriage between applicant
No.1 and the informant and thereafter she has been treated with cruelty and
therefore, prima facie, offence can be said to be made out against all the
applicants. They do not deserve discretionary relief.
06. At this stage, this Court may not go much deep into the aspect as
to whether second FIR is maintainable or not, but prima facie things will have
to be considered. It has been stated in the petition itself by the applicants that
the charge-sheet against them has been filed under section 498-A, 494, 495,
323, 504 of the Indian Penal Code. Section 420 of the IPC has not been
included in that and then in this FIR it has been clearly stated by the
informant that the police refused to add section 420 of the IPC and therefore
she had lodged application for investigation under section 156(3) of the
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Cr.P.C. which has been allowed by the concerned Magistrate. Therefore,
practically even if the contents may be including the contents in the earlier
complaint, yet the second FIR appears to be maintainable and it will not
amount to double jeopardy because there is no acquittal of the applicant in
the earlier instituted case.
07. The contents of the FIR would disclose that it was represented to
the informant and her family members that applicant No.1 is unmarried and
therefore she might have given consent for the marriage, but then after 15
days of the marriage itself, it was revealed to her that applicant No.1 was
already married and had child.
08. The custodial interrogation of the applicant is not necessary. They
have fixed place of their abode and therefore they deserve to be protected
under section 438 of the Cr.P.C. Hence, the following order :-
ORDER
i) The application stands allowed.
ii) In the event of arrest of applicants viz. (1) Avinash s/o.
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Tejrao Adhav (2) Pushpabai w/o. Tejrao Adhav and (3) Tejrao s/o. Sheshrao Adhav, in connection with Crime No.46 of 2022 registered with New Mondha Police Station, Parbhani, Dist. Parbhani, for the offence punishable under section 420 read with section 34 of the Indian Penal Code, they be released on P.R. bond of Rs.30,000 (Rupees Thirty Thousand) with two sureties of Rs.15,000/- (Rupees Fifteen Thousand) each.
iii) They shall not tamper with the evidence of the prosecution in any manner.
iv) They shall not indulge in any criminal activity.
[SMT. VIBHA KANKANWADI, J.] snk/2022/APR22/aba320.22 ::: Uploaded on - 20/04/2022 ::: Downloaded on - 21/04/2022 06:48:41 :::