Bombay High Court
Srushty Rahul Shinde & Others vs State Of Maharashtra & Ors on 6 March, 2009
Author: S.S. Shinde
Bench: S.S. Shinde
1
//REPORTABLE//
CRIMINAL APPLICATIN NO.1131 OF 2007.
Date of decision : 06th MARCH, 2009.
For approval and signature.
THE HONOURABLE SHRI JUSTICE S.S. SHINDE.
1. Whether Reporters of Local Papers }
may be allowed to see the judgment? } Yes.
2. To be referred to the Reporter or not? } Yes
3.
Whether Their Lordships wish to see
the fair copy of the judgment? } No.
4. Whether this case involves a substantial }
question of law as to the interpretation }
of the Constitution of India, 1950 or }
any Order made thereunder? } No.
5. Whether it is to be circulated to the }
Civil Judges? } No.
6. Whether the case involves an important }
question of law and whether a copy of }
the judgment should be sent to Mumbai, }
Nagpur and Panaji offices? } No.
[Prakash Kadam]
Private Secretary to
the Honourable Judge.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPLICATIN NO.1131 OF 2007.
Srushty Rahul Shinde & others. .... APPLICANTS.
VERSUS
State of Maharashtra & ors. .... RESPONDENTS.
RESPONDENTS
...
Shri V.B. Patil, Advocate for applicants.
Shri R.M. Deshmukh, Advocate for R.No.2.
Smt. R.R. Mane, A.P.P. for R.No.1 - State.
...
CORAM: S.S. SHINDE, J.
RESERVED ON : 10.02.2009.
JUDGMENT:
JUDGMENT ig PRONOUNCED ON: 06.03.2009.
1. Rule. Rule is made returnable forthwith and taken up for hearing.
. This application is filed for quashing and setting aside the complaint / FIR registered as Crime No.15/2007 with Police Station, Deopur, Dhule for offence punishable under Sections 498-A, 406, 504, 506 r.w. 34 of I.P.C. and further proceedings thereof.
2. It is the case of the applicants that applicant no.1 is a deserted woman, who has been dragged by her husband in the dark without any valid reason. The applicants 2 and 3 are father and ::: Downloaded on - 09/06/2013 14:23:52 ::: 2 mother of the applicant No.1. Applicant no.4 is brother of the applicant no.1 and other applicants are uncles of applicant no.1. On 21.3.2000 the marriage of the applicant no.1 was solemnised with one Mr. Rahul Shinde and out of the said wedlock, one son namely Jay @ Dhruv was born.
. On 15.12.2006 husband and in-laws of the applicant no.1 started giving ill-treatment to her.
Therefore, she filed a complaint which is registered as Crime No.166/2006 for offence punishable under Section 498-A, 323, 504, 506, 420 of I.P.C. against the husband and her in-laws. On 14.2.2007 the husband was arrested in connection with the said crime.
3. The husband of the applicant no.1 filed HMP No.217/2006 under Section 13(B)(1) of the Hindu Marriage Act on the basis of false and bogus documents. On 29.11.2006 the C.J.S.D., Dhule passed order below Exh.1 in said H.M.P. and thereby rejected the said application for divorce.
4. The applicant no.1 filed Criminal Application No.41/2007 under Section 125 of Cr.P.C. for maintenance. On 3rd February, 2007, the husband and in-laws of the applicant no.1 filed criminal ::: Downloaded on - 09/06/2013 14:23:52 ::: 3 complaint through respondent no.2 who is wife of brother of the husband of applicant no.1 at Police Station being Crime No.15/2007 under Section 498-A, 504, 506 r.w. 34 of I.P.C. against all the applicants. It is the case of the applicants that respondent no.2 wife of brother of her husband filed false complaint without any basis.
5. The learned Counsel for applicants submitted that in fact, complaint under Section 498-A and other sections of I.P.C. by respondent no.2 against the applicants cannot be registered because the ingredients of section 498-A itself are not attracted against the applicants since the applicants are not husband or relatives of the husband of respondent no.2. The complaint filed by respondent no.2 is filed to counter blast earlier complaint filed by the applicants against the members of the family for cruel treatment being Crime No.166/2006 for offences punishable under Sections 498-A, 323, 504, 506, 420 of I.P.C.
against the husband and in-laws. The said complaint was filed on 24.9.2006. He further submitted that the provisions of section 498-A or other sections of I.P.C. which are invoked in the present matter are not attracted since the applicants are not relatives of the husband of respondent no.2. He further ::: Downloaded on - 09/06/2013 14:23:52 ::: 4 submitted that so far as applicants 2 to 7 are concerned, they are not connected at all with the allegations in the crime. Even, against applicant no.1 false complaint is filed since earlier complaint was filed by the applicant no.1 against the husband and in-laws. He further submitted that taking into consideration the arguments advanced by him and the contents of the application, this Court granted interim relief to the applicants on 17.4.2007 and since then, the investigation in pursuance to Crime No.15/2007 is stayed and yet charge-sheet is ig not filed. He further submitted that even if the allegations in the complaint are taken on its face value, no offence is made out against the applicants. No further proceedings can go on, on the basis of such allegations, there is no basis for such allegations in law and, therefore, relying on reported judgment of this Court in case of Abasaheb Yadav Honmane vs. State of Maharashtra and Ashwini Abasaheb Honmane (2008(2) Mh.L.J. 856),
856) the learned Counsel for the applicants submitted that any further proceedings based upon Crime No.15/2007 will be abuse of process of court and therefore, the same deserves to be quashed and set aside. The learned Counsel took me through the contents of the application and annexures thereto and various statements recorded by the police during ::: Downloaded on - 09/06/2013 14:23:52 ::: 5 investigation and submitted that by any stretch of imagination, the said allegations in the complaint cannot be sustained and any further proceedings would be abuse of process of court.
6. The learned Counsel for the respondent no.2 invited my attention to the contents of the affidavit-in-rply filed on behalf of respondent no.2 and submitted that investigation is completed, though charge-sheet is not filed. Since the investigation is completed, this Court may not entertain the application. The learned Counsel for the respondent no.2 submitted that the allegations made in the present application are afterthought.
In fact, the applicant no.1 had given consent for divorce. However, subsequently she withdrew that consent. Applicant no.1 was not ready and willing to reside with her husband and in-laws and she wanted to reside with her parents and, therefore, she filed false complaint against the husband and in-laws with an intention to implicate them false.
He further submitted that the applicant no.1 has alleged that there are illicit relations between respondent no.2 and husband of applicant no.1 and on her allegation and suspicion, the father,mother, brother, uncle and maternal uncle were also ill-treating to Respondent No.2. It is submitted ::: Downloaded on - 09/06/2013 14:23:52 ::: 6 that in fact there were illicit relations in between applicant no.1 and servant namely Bhatesh Patil who was working in the shop of father-in-law of the respondent no.2 and on that ground applicant no.1, her parents, and her relatives were threatening that, they will not allow her to stay in matrimonial house and they were insisting her to bring Rs.1,00,000/- from her parents. On 18.9.2006 when respondent no.2 was in the house on that day mother of respondent no.2 and brother Pankaj were also present in the house, at that time applicants 1 to 7 entered in the ig house and they removed golden ornaments i.e. bangles of Rs.40,000/- and Mangalsutra worth Rs.50,000/- and chain of Rs.10,000/- and they asked her to leave the house.
However, respondent no.2 believing that they will return golden ornaments to her and they will treat her properly, she did not file complaint immediately. The learned Counsel for respondent no.2 took me through each and every statement made in the affidavit-in-reply filed by him on behalf of respondent no.2 and submitted that if contents of the F.I.R. are perused, clear offence is disclosed under Section 498-A and other sections of IPC.
Therefore, this application may not be entertained.
7. After hearing the learned Counsel appearing ::: Downloaded on - 09/06/2013 14:23:52 ::: 7 for the applicant, the learned A.P.P. and the learned Counsel for the respondent no.2, I am of the considered view that so far applicants no.2 to 7 are concerned, any further proceedings based on Crime No.15/2007 would be abuse of process of law and abuse of process of court. Firstly, it is to be noted that there is considerable force in the contention of the Counsel for the applicant that said Crime No.15/2007 is filed by the respondent no.2 just to counter blast the earlier complaint of the present applicant no.1 i.e. Crime No.166/2006 in the month of September, 2006. The learned Counsel is right in contending that the complaint itself filed by the respondent no.2 was filed on 3rd February, 2007. The applicant is right in contending that the said complaint is filed afterthought, belatedly, just to counter blast the earlier complaint filed by the applicant no.1. If the contents of the complaint are perused, so far as the allegations against applicants no.2 to 7 are concerned, the said incident happened even according to the complainant - respondent no.2, on 18.9.2006.
The complaint was filed on 3rd February, 2007. If at all the incident of snatching the golden ornaments and torture to the complainant had happened on 18.9.2006, the complainant should have lodged complaint immediately on the next day or ::: Downloaded on - 09/06/2013 14:23:52 ::: 8 within one or two weeks. However, the complaint for the alleged incident came to be filed on 3rd February, 2007 which itself creates clear doubt in the mind about the said incident in question.
8. After hearing the learned Counsel for the applicants and knowing the relationship of the applicants 2 to 7 with the applicant no.1, it is clear that the applicants 2 and 3 are parents, applicant no.4 is brother, applicants 5 & 6 are uncles and applicant no.7 is maternal uncle of applicant no.1.
ig They are not residing at the place of the incident in ordinary course. They are from different place and, therefore, to rope in the applicants 2 to 7 in the alleged incident stated in the complaint that they have committed offence punishable under Section 498-A of I.P.C. It is difficult to accept and digest the same for the simple reason that Section 498-A of IPC is attracted against husband or his relatives. The relation of the applicant no.1 with respondent no.2 is that the applicant no.1 is wife of brother of the respondent no.2' 's husband. I find considerable substance in the contention of the Counsel for the applicants that to attract section 498-A of I.P.C., "husband and his relatives" cannot be read as to book the applicants 2 to 7 in the said offence since, they ::: Downloaded on - 09/06/2013 14:23:52 ::: 9 are relatives of the applicant no.1 and not the ordinary residents of the said house where alleged incident took place.
9. On careful perusal of the contents of the complaint, so far as the allegations against the applicants 2 to 7 are concerned, those seem to be afterthought and the falsehood is strengthened by the fact that the complaint is lodged on 3rd February, 2007 though the alleged incident in question is said to have taken place on 19.9.2006.
10. Yet the charge-sheet is not filed in the matter, according to the learned A.P.P., because of stay to the further proceedings granted by this Court. According to the A.P.P., now the investigation is completed and charge-sheet is ready. However, because of the interim relief, charge-sheet is not filed. So this Court may vacate interim relief to enable the police to file charge-sheet.
11. In my considered view, so far the applicants no.2 to 7 are concerned, they are not ordinary residence of the same house where the alleged offence has taken place. Secondly, the complaint has been filed belatedly, just to counter blast the ::: Downloaded on - 09/06/2013 14:23:52 ::: 10 earlier complaint filed by the applicant no.1 in the month of September, 2006, no satisfactory explanation has been offered by the respondent no.2 for filing belated complaint. Even if the statements of witnesses are taken into consideration, any further proceedings on the basis of the Crime No.15/2007 against the applicants no.2 to 7 would be a futile exercise consuming time of the investigating machinery or the court and it will be sheer abuse of process of law and court. Such proceedings should not be allowed to be continued.
The learned Counsel for the applicants is absolutely right in placing reliance in the case of Abasaheb Yadav Honmane (supra) in which this court held that inherent powers under section 482 include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case.
These powers are neither limited nor curtailed by any other provisions of the Code including Section 320 of the Code.
::: Downloaded on - 09/06/2013 14:23:52 ::: 11. So far as applicant no.1 is concerned, till filing of complaint by her, she was staying in the said house and allegations in the subsequent complaint by respondent no.2 are in substance against the applicant no.1. The applicant no.1 used to reside in the said house and she is wife of brother of respondent no.2' 's husband. Therefore, further investigation or the further proceedings so far it relates to applicant no.1 can proceed and at this stage, this court is not expressing any opinion about merits of the case so far applicant no.1 is concerned.
Suffice it to say that since
investigation is complete and charge-sheet is ready
to be filed, as contended by the learned A.P.P., the concerned Court may take into consideration the evidence available on record. However, in case of applicants no.2 to 7, on careful reading of the contents of the complaint, the contents of the application and annexures thereto, affidavit-in-reply filed by the learned A.P.P. and respondent no.2 and on perusal of the papers made available by the A.P.P., I am of the considered view that the provisions of any of the sections which are mentioned in the said F.I.R. are, prima facie, not attracted and any further proceedings so far as applicants 2 to 7 are concerned, will be only abuse of process of court.
::: Downloaded on - 09/06/2013 14:23:52 ::: 1212. Therefore, application is allowed partly.
The Complaint / F.I.R. in Crime No.15/2007 with Police Station, Deopur, Dhule for offence punishable under Sections 498-A, 406, 504, 506 r.w. 34 of I.P.C. so far it relates to applicants no.2 to 7, is quashed and set aside.
. So far as applicant no.1 is concerned, the application is rejected with clarification that this Court has not expressed any opinion on merits of the matter so far as applicant no.1 is concerned and it is for the concerned Court to look into the allegations and evidence against applicant no.1.
Since the matter is pending for considerable period, the concerned police officer to file charge-sheet within one week and, thereafter, further proceedings in the matter should be disposed of, expeditiously by the concerned Court, preferably within three months from filing of the charge-sheet.
. Rule is made absolute partly.
[ S.S. SHINDE, J ]
PLK/
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