Bombay High Court
Pravin Vilasrao Gharge And Ors vs Parineeta Gulab Kharate And Anr on 20 June, 2024
Author: Neela Gokhale
Bench: A. S. Gadkari, Neela Gokhale
2024:BHC-AS:24131-DB
sns 1-WP-101-2015-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 101 OF 2015
1. Pravin Vilasrao Gharge,
Age 34 years, Occ: Self Employed.
2. Smt. Lilavati Vilasrao Gharge,
Age 58 years, Occ: Housewife.
3. Prashant Vilasrao Gharge,
Age 36 years, Occ: Self Employed.
4. Mrs. Madhuri Prashant Gharge,
Age 26 years, Occ: Housewife.
All resident of 105/3,
Triveni Sadan No. 2, Curry Road (E),
Mumbai 400 012. .....Petitioners/
Orig. Accused
Nos. 1, 2, 4 & 5
Vs.
1. Parineeta Gulab Kharate,
Age 34 years, Occ.:Service,
R/o. 137/103, Sector-5,
Tauras CHSL, Evershine City,
Vasai (East), District-Thane.
2. The State of Maharashtra
vide its C.R. No. I-222 of 2009
registered at Nalasopara Police Station. .....Respondents
Ms. Ameeta Kuttikrishnan a/w Mr. Danish Patel, Ms. Shambhavi Desai &
Ms. Shruti Jagtap for the Petitioners.
Mrs. Madhvi H. Mhatre, APP for Respondent No. 2-State.
CORAM : A. S. GADKARI AND
DR. NEELA GOKHALE, JJ.
RESERVED ON : 14th JUNE, 2024.
PRONOUNCED ON : 20th JUNE, 2024.
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sns 1-WP-101-2015-J.doc
JUDGMENT (Per Dr. Neela Gokhale, J.) :-
1) This case is yet another case that tests the sanctity of various welfare and special legislation. The provision of Section 498A of the Indian Penal Code, 1860 (IPC) is part of the category of offences against women relating to marriage. It was essentially enacted to check unconscionable demands by a greedy husband and their families which at times result in cruelty to women and leading to suicides. One of the objects was to check and curb the menace of the dowry and at the same time, to save matrimonial homes from destruction. The case at hand displays a total abuse of the process of criminal law and mocks these welfare provisions which otherwise are intended to provide succor to victims of various atrocities against them.
2) The Petitioners seek quashing of the entire criminal proceedings in RCC No.860 of 2013 arising out of CR No. I-22 of 2009 lodged by the Respondent No.1 ("Original Complainant") against the Petitioners herein and registered in Nalasopara Police Station for the offences punishable under Sections 498A, 504, 506 read with 34 of the IPC and currently pending before the Judicial Magistrate, First Class, Vasai by invoking jurisdiction of this Court under Article 226 of Constitution of India. By virtue of supplementary statements, the Petitioners also face prosecution under Sections 3(1)(x)(xi)(xv) read with Section 6 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 2/14 sns 1-WP-101-2015-J.doc ("SC & ST Act") The First Petitioner is the husband of the Complainant. The Second and Third Petitioners are the mother and brother of the First Petitioner respectively and the Fourth Petitioner is the wife of the Third Petitioner.
3) Vide Order dated 15th January 2015, notice was issued to the Respondents. The Second Respondent, being State waived notice and is represented by the learned APP, Smt. Madhavi Mhatre. On 9 th December 2015, this Court was pleased to stay the impugned proceedings and the matter was admitted vide order dated 4 th May 2016. The Complainant was duly served but has failed to appear in the matter. Even today, despite service she remains absent.
4) The case of the complainant as discerned from the FIR is that, she married the first Petitioner on 8 th December 2008 in the presence of her family members. It is a love marriage. Since the parties belong to different castes, the family members of the Petitioner being of orthodox mindset were unwilling to accept the complainant and hence, the first Petitioner requested her that, she should continue to stay at her maternal house till such time he was able to convince his family members regarding their marriage. As per the Complainant, the family members of her husband refused to accept her as his wife and abused her. The fourth Petitioner also threatened to destroy the Complainant and her family members through her influential builder brother. The Complainant shared this harassment 3/14 sns 1-WP-101-2015-J.doc with her own family members. The first Petitioner and the Complainant then decided to reside separately from his family members and accordingly, they started staying at B-304, Regal Palace, Evershine City, Vasai (East). According to the Complainant, her husband suspected her character and treated her with physical and mental cruelty. Merely after eight days of staying together, the Complainant was dropped by her husband to her maternal home telling her that he was not interested in continuing marital relationship with her. In these circumstances, the Complainant lodged the FIR impugned herein.
5) Ms. Ameeta Kuttikrishnan, learned counsel appearing for the Petitioners, drew our attention to the statements dated 19th June 2009 of the Complainant, her mother and her brothers recorded by the Police pursuant to the FIR. According to the counsel, the allegations in the FIR do not disclose commission of any offence, least of all the offences as alleged. Even the charge sheet dated 22 nd September 2013 does not indicate commission of any offence. She submitted that, admittedly all concerned were aware that the Complainant belonged to a reserved category and yet the first Petitioner married her. It is only after a period of four years that the Complainant improved her story and sought to include offences under the SC & ST Act in the present case. The counsel also refers to a Petition for divorce filed by the first Petitioner against the Complainant in April 2010 in the Family Court at Bandra and the Judgment and Order dated 18 th May 4/14 sns 1-WP-101-2015-J.doc 2013 passed by the learned Judge dissolving the marriage by a Decree of divorce. It is argued that, despite appearing in the divorce proceedings and filing Written Statement, the Complainant chose to remain absent during the trial leading to an ex-parte divorce decree. Although there is no appeal preferred by the Complainant against the divorce decree, it is only after the grant of divorce that the Complainant woke up from a long slumber to bestir the police into recording supplementary statements of herself and her family members containing drastic improvements from her earlier statements. Ms. Kuttikrishnan thus, argues that the contents of the original FIR vastly defer from the supplementary statements recorded four years after the initial statement. She further submitted that, the allegations cannot be believed since even as per the FIR, the Complainant had resided with the first Petitioner only for a period of eight days and has returned to her maternal house on account of incompatibility with her husband. Thus, she urges us to quash the criminal proceedings against the Petitioners.
6) The Respondent No.1 is absent. Smt. Mhatre, the learned APP opposed the Petition. She pointed out the witness statements from the charge sheet filed against the Petitioners.
7) We have heard the counsels and perused the documents with their assistance. As observed supra, Section 498A of the IPC was inserted in the statute with a laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had 5/14 sns 1-WP-101-2015-J.doc potential to result in suicide or murder of a woman as mentioned in the statement of objects and reasons of the Act 46 of 1983. The expression 'Cruelty' in Section 498A covers conduct which may drive women to commit suicide or cause grave injury or danger to life or harassment with a view to coerce her to meet unlawful demands1. Similarly, the sanctity of the provisions of the SC & ST Act cannot be undermined. A plain reading of the FIR and the statements of the complainant, her mother, and brothers dated 19th August 2009 clearly indicate that the grievance of the complainant was essentially that her husband had not taken her to his house for cohabitation and that his family members refused to accept her as his wife. She has further alleged physical and oral abuse by the Petitioners. Admittedly, it transpires from the FIR and the statements that, the complainant and the Petitioners No. 2 to 4 never shared residence. According to the complainant, the physical harassment took place when she visited their house. Similarly, the actual shared residence with even the first Petitioner was merely for eight days. The fact that the first Petitioner took a separate residence to live with the complainant indicates his genuine intention of cohabiting and leading a married life with her publicly. This belies the allegation of the complainant that, he wanted to conceal the marital relations from his family members. Moresoever, we find the allegations of physical and oral abuse by the Petitioners to be quite vague and generic and hence, difficult 1 Explanation to Section 498A 6/14 sns 1-WP-101-2015-J.doc to believe.
8) Admittedly, post the FIR and the statements recorded by the police in 2009, a divorce petition was filed by the first Petitioner. The Complainant appeared in the matter and filed her Written Statement but later, failed to contest the same leading to grant of an ex-parte Decree of divorce. The Family Court, Bandra in its order dated 18 th May 2013 has recorded that the averments of the Petitioner are uncontroverted. This Order has neither been challenged in appeal nor has the complainant applied for setting aside the same before the Family Court. It is pertinent to note that, the divorce proceeding was pending for a period of three long years during which the complainant chose to remain absent and not contest the same. She had ample opportunity to adduce her own evidence and cross-examine the Petitioners to prove her case of physical and mental cruelty as well as the further allegations under the SC & ST Act. She chose to remain silent in the proceedings before a jurisdictionally competent Court and instead, pursued the Police in recording fresh statements with drastic improvements. Strangely, these new allegations under the SC & ST Act are made five years after recording the original statements. Supplementary statements are recorded twice the first on 20 th March 2013 and thereafter on 15th September 2013. The original statements of 2009 are gradually improved with fresh allegations, some even contradicting the original statements. A plain reading of the improved statements appears 7/14 sns 1-WP-101-2015-J.doc that the improved version is narrated only to invoke provisions of SC & ST Act and none else. It also raises a doubt about the credibility of the invocation of the provisions of the SC & ST Act. Howsoever natural it is for an aggrieved person to seek legal counsel to combat a legal wrong, the fact of adding grave and serious allegations by way of supplementary statements recorded after five years seems to be quite unnatural. The earlier statements narrate a specific chronology of events leading to filing of the FIR wherein the Complainant has admitted the fact of the First Petitioner agreeing to reside separately with her. Unfortunately, the marital cohabitation lasted only for eight days. The allegations of physical abuse even during those eight days are vague and prima facie do not constitute offences as alleged. This coupled with her failure to contest the divorce petition further renders her statements implausible and highly improbable. The act of recording supplementary statement after five years to include offences under the SC & ST Act impels us to take a dim view of the statements collectively. The proximity of the supplementary statements to the passing of the divorce decree lead to an irrefutable probability of the same being a counter-blast to the divorce decree passed by the Family Court at Bandra. Additionally, we also find various contradictions in the supplementary statements of 2013 from the initial statements of 2009.
9) Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. 8/14
sns 1-WP-101-2015-J.doc Bhajanlal,2 this Court held:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
2 1992 Supp (1) SCC 335.
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sns 1-WP-101-2015-J.doc (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance 6 of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.."
10) In the factual matrix of the present matter, observations of the Supreme Court in paragraph 10 of its decision in the matter of Iqbal @ Bala 10/14 sns 1-WP-101-2015-J.doc & Ors v. State of Uttar Pradesh and Ors. 3 are also relevant, which read as thus:
"10. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in
3 Criminal Appeal No.2342 of 2023.
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sns 1-WP-101-2015-J.doc between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation."
11) Insofar and inasmuch as interference in cases involving the SC & ST Act is concerned, we may only point out that a 3-Judge Bench of the Supreme Court in the matter of Ramavatar v. State of Madhya Pradesh,4 has held that the mere fact that the offence is covered under a special statute would not inhibit the High Court from exercising their powers under Section 482 of the Code in the terms below:
"15. Ordinarily, when dealing with offences arising out of special statutes such as the SC/ST Act, the Court will be extremely circumspect in its approach. The SC/ST Act has been specifically enacted to deter acts of indignity, humiliation and harassment against members of Scheduled Castes and Scheduled Tribes. The SC/ST Act is also a recognition of the depressing reality that despite undertaking several measures, the Scheduled Castes/Scheduled Tribes continue to be subjected to various atrocities at the hands of upper castes. The Courts have to be mindful of the fact that the SC/ST Act has been enacted keeping in view the express constitutional safeguards enumerated in Articles 15, 17 and 21 of the Constitution, with a twin-fold objective of
4 (2021) SCC OnLine SC 966.
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sns 1-WP-101-2015-J.doc protecting the members of these vulnerable communities as well as to provide relief and rehabilitation to the victims of caste-based atrocities.
16. On the other hand, where it appears to the Court that the offence in question, although covered under the SC/ST Act, is primarily civil or private where the alleged offence has not been committed on account of the caste of the victim, or where the continuation of the legal proceedings would be an abuse of the process of law, the Court can exercise its powers to quash the proceedings. On similar lines, when considering a prayer for quashing on the basis of a compromise/settlement, if the Court is satisfied that the underlying objective of the SC/ST Act would not be contravened or diminished even if the felony in question goes unpunished, the mere fact that the offence is covered under a 'special statute' would not refrain this Court or the High Court, from exercising their respective powers under Article 142 of the Constitution or Section 482 Cr.P.C."
12) Thus, considering the entire factual matrix in the case at hand, including the attending circumstances on record, the conduct of the complainant, and the settled legal position, we are of the considered view that even if the allegations of the complainant are taken to be true at their face value, it is not discernible that any offence can be said to have been made out under either the IPC or under the SC & ST Act against the Petitioners. The complaint and the FIR are frivolous, vexatious, and 13/14 sns 1-WP-101-2015-J.doc oppressive. We clarify that our remarks are in no manner to dilute the applicability of special/stringent statutes but only to remind the Police not to mechanically apply the law, dehors reference to the factual position.
13) Consequently, the criminal proceedings in RCC No. 860 of 2013 arising out of CR No. I-22 of 2009 registered with Nalasopara Police Station lodged by the Respondent No.1 against the Petitioners herein for the offences punishable under Sections 498A, 504, 506 read with 34 of the IPC and Sections 3(1)(x)(xi)(xv) read with Section 6 of the SC & ST Act, 1989, pending before the Judicial Magistrate First Class, Vasai are quashed and set aside.
14) Petition is allowed in the aforesaid terms. Rule is accordingly, made absolute.
(DR. NEELA GOKHALE, J.) (A. S. GADKARI, J.)
Signed by: Raju D. Gaikwad
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Designation: PS To Honourable Judge
Date: 20/06/2024 22:19:54