Bombay High Court
Babanrao S/O. Namdeo Karad And Others vs The State Of Maharashtra And Others on 10 June, 2019
Author: V.L. Achliya
Bench: V.L. Achliya
765.18WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.765 OF 2018
BABANRAO S/O. NAMDEO KARAD AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Mr.N.V. Gaware, Advocate for petitioners.
Mr.A.P. Basarkar, A.P.P. for the State.
Mr.D.R. Bhadekar, Advocate for respondent No.2.
...
CORAM: V.L. ACHLIYA,J.
DATE : 10.06.2019
ORAL ORDER:
By this Petition filed under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioners have prayed for quashment of private complaint bearing SCC No.3566/2016 filed by Respondent No.2 for the offences punishable U/Sec 323, 504, 506 read with Section 34 of the Indian Penal Code.
2. Heard the learned counsel for the petitioners and learned counsel representing the respondent No.2. Perused the complaint and order passed by learned Chief Judicial Magistrate.
3. In short, it is the contention of ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/07/2019 03:39:31 ::: 765.18WP.odt 2 the learned counsel for the petitioners that the private complaint filed by Respondent No.2 is a counter blast to the proceedings filed by the petitioner No.2, seeking divorce. The marriage between petitioner no.2 and Respondent No.2 was solemnized on 8th February, 2013. In the month of November, 2015, the wife of petitioner no.2 deserted him. Petitioner no.2 filed proceedings for divorce. As a counter blast to the proceedings initiated by petitioner no.2, Respondent No.2 filed proceedings U/Sec 9 of the Hindu Marriage Act, 1955 and later on filed proceedings U/Sec 125 of the Code of Criminal Procedure as well as under the Protection of Women from Domestic Violence Act, 2005. Apprehending the false complaint to be lodged, petitioner nos.2 and 3 made representation to the concerned Police Station. It is the contention of the petitioners that the complaint filed is nothing but abuse of process of law. The private complaint case was initiated after a period of about one year of alleged incident. The allegations made in the complaint are nothing but exaggerations of earlier version of the complaint made to Police, which was ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/07/2019 03:39:31 ::: 765.18WP.odt 3 treated as non-cognizable. The complaint has been filed with malafide intention to harass the petitioners.
4. On the other hand, learned counsel for Respondent No.2 opposed the admission of the Petition with contention that the petitioners have alternate remedy by way of revision to challenge the order of issuance of process by the learned Chief Judicial Magistrate. It is submitted that the private complaint was filed as the Police refused to take cognizance of the complaint lodged by the complainant. It is pointed out that the complaint was lodged immediately after the incident, however, the Police have refused to take cognizance of the same. It is further submitted that the veracity of the allegations made in the complaint cannot be examined in exercise of writ jurisdiction under Article 226 and 227 of the Constitution of India as well as exercise of inherent powers U/Sec. 482 of the Code of Criminal Procedure.
5. By referring to the decisions of the Apex Court in the case of State of Haryana ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/07/2019 03:39:31 ::: 765.18WP.odt 4 and others V/s Bhajanlal and others reported in 1992 Supp(1) SCC 335, Dhariwal Tobaco Products Ltd. And others V/s State of Maharashtra and another reported in 2009 AIR (SC) 1032 and Prabhu Chawla V/s State of Rajasthan and another reported in 2016 AIR (SC) 4245, learned counsel submits that the Petition is maintainable and availability of alternate remedy by way of revision does not preclude this Court to entertain the Petition.
6. I have carefully considered the submissions advanced in the light of overall facts of the case, nature of the allegations attributed to petitioners in the complaint filed by Respondent No.2. It appears that there is matrimonial discord between petitioner no.2 and Respondent No.2, which leads to filing of various proceedings against each other. Filing of cases and pendency of such cases itself not sufficient to draw inference that the accusations made in the complaint filed by Respondent No.2 are false and the complaint has been filed with malafide intention to harass the petitioners. It is apparent from the face of record that ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/07/2019 03:39:31 ::: 765.18WP.odt 5 immediately after incident the complaint was filed by Respondent No.2 with Police Station, Tophkhana. The Police have refused to take cognizance of the complaint and directed to approach the Court of law for taking legal recourse. Accordingly the private complaint case has been filed. The trial Court has passed the order of issuance of process after due examination of complaint. In the light of fact that immediately after the incident the complaint was lodged with the Police Station, it can be inferred that the complaint filed by the complainant can not said to be filed with malafide intention to harass the petitioners. The veracity of the allegations made in the complaint cannot be examined in exercise of powers U/Sec. 482 of the Code of Criminal Procedure.
7. It is quite settled position in law that jurisdiction U/Sec. 482 of the Code of Criminal Procedure to be exercised with great care that too sparingly and in cases of exceptional in nature. So also the exercise of powers U/Sec. 482 of the Code of Criminal Procedure is exception and not the rule. In general the powers under the said provision ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/07/2019 03:39:31 ::: 765.18WP.odt 6 is expected to be exercised, where the Court is satisfied that (i) to give effect to the order under the Code, or (ii) to prevent the abuse of process of law and (iii) to otherwise secure the ends of justice, it is expedient to invoke such powers. Although no hard and fast rule has been made applicable to exercise the inherent jurisdiction U/Sec. 482 of the Code of Criminal Procedure, but by and large, it is settled that, such exercise be made sparingly, carefully and with caution and case of exceptional in nature.
8. Applying the above discussed principles as to exercise of powers U/Sec. 482 of the Code of Criminal, I have carefully considered the submissions advanced in the light of allegations made in the complaint. On the face of complaint made supported with the documents, I am of the view that no inference can be drawn that the complaint is false and filed with malafide intention to harass the petitioners. Immediate filing of a complaint after the incident with the Police Station, which was treated as non-cognizable, itself rules out the possibility of complaint being filed with malicious intention to ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/07/2019 03:39:31 ::: 765.18WP.odt 7 harass the petitioners. In absence of strong case being made out to exercise the powers to quash the complaint as per the guidelines laid down in the case of State of Haryana and others V/s Bhajanlal and others (supra), I am not inclined to entertain the Petition. The circumstances on record are not sufficient to draw inference that the proceedings have been initiated with malafide intention or instituted with ulterior motive to take vengeance against them. Pendency of matrimonial proceedings between the parties itself not sufficient to draw such inference.
9. No doubt in the case of Dhariwal Tobaco Products Ltd., and others V/s State of Maharashtra and another (supra) as well as Prabhu Chawla V/s State of Rajasthan and another (supra), the Apex Court has held that availability of alternate remedy by way of revision U/Sec. 397 of Code of Criminal Procedure by itself not sufficient to refuse to entertain the application U/Sec. 482 of the Code of Criminal Procedure, but no case as such has been made out by the petitioners to exercise such powers and quash the complaint. As discussed, the complaint filed ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/07/2019 03:39:31 ::: 765.18WP.odt 8 by respondent cannot be termed as filed with malafide intention to harass the petitioners. Pendency of matrimonial dispute amongst the parties itself not sufficient to infer that the complaint has been filed with malafide intention to harass the petitioners-accused. Lodging of complaint with the concerned Police Station immediately after the incident itself rules out the possibility that the complaint is false and made with malafide intention to harass the petitioners-accused. In absence of strong case being made out to exercise powers U/Sec. 482 of the Code of Criminal Procedure, I am not inclined to entertain the Petition. Accordingly the Petition is dismissed.
10. However, it is made clear that the refusal to entertain the Petition U/Sec. 482 of Code of Criminal Procedure would not affect the rights of the petitioners to invoke alternate remedies available to them in law including the remedy U/Sec. 397 of Code of Criminal Procedure.
[V.L. ACHLIYA] JUDGE SGA ::: Uploaded on - 15/06/2019 ::: Downloaded on - 15/07/2019 03:39:31 :::