Bombay High Court
Nivrutti S/O. Uttam Datir And Another vs The State Of Maharashtra Thr. The Police ... on 11 February, 2019
Author: P.N.Deshmukh
Bench: P.N.Deshmukh, Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.915 OF 2017
1.Nivrutti s/o. Uttam Datir,
Aged about 37 years, Occ.
Service, r/o. Darwha, Tq.
Darwha, Distt. Yavatmal.
2.Pankaj Ramdas Datir,
Aged about 30 years, Occ.
Service, r/o. Pusad, Tq.Pusad,
Distt. Yavatmal.
Now residing at Alkharj
Kingdom of Saudi Arabia. .......... APPLICANTS
// VERSUS //
1.The State of Maharashtra,
Through the Police Station
Officer, Babhulgaon, Tq.
Babhulgaon, Distt. Yavatmal.
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2.Shubhangi Vishal Datir,
Aged Major, Occ. Service,
r/o. C/o.Gajanan Manikrao
Dudhe, Near Lala Maharaj
Mandir, Bari Pura Darwha,
Tq.Darwha, Distt. Yavatmal. .......... RESPONDENTS
____________________________________________________________
Mr.Anand Deshpande, Advocate for the Applicants.
Mr.A.D.Sonak, A.P.P. for Respondent No.1.
Mr.S.V.Ingle, Advocate for Respondent No.2.
____________________________________________________________
CORAM : P.N.DESHMUKH
AND
ROHIT B. DEO, JJ.
DATE : 11.2.2019.
ORAL JUDGMENT (Per P.N.Deshmukh, J) :
1. Rule returnable forthwith. Heard finally with the consent of learned Counsel for the parties.
2. This application is for quashing of F.I.R. being F.I.R. No.0429 of 2017 registered by respondent no.1 on the strength of report lodged by respondent no.2, upon which offences punishable under Sections 498-A, 323, 504, 506 r/w. 34 of the Indian Penal Code are registered. Applicant no.1 Nivrutti Datir is cousin and ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 02:03:06 ::: 3 apl915.17.odt applicant no.2 Pankaj Datir is real brother of Vishal Datir, husband of Complainant Shubhangi.
3. To understand the controversy involved in the application, some facts as below are necessary to be stated :
Complainant was married to Vishal Datir on 10.6.2014 as per Hindu Rites and Rituals. Her husband was working as Police Head Constable attached to Babhulgaon Police Station, District Yavatmal since December, 2014 and was residing with respondent no.2. It is specific case of the applicants that respondent no.2 never resided at Pusad, native place of her husband and with applicant no.2, who is real brother of Vishal Dair since July, 2012 to July, 2015 as he was serving in Gujarat State and from July, 2015 onwards he is working in Saudi Arab in Almaraz Company at Alkharaj Kingdom (Saudi Arebia) and as such, has no occasion to interact with respondent no.2. As such, according to said applicants, since Complainant/respondent no.2 Shubhangi never resided at her matrimonial home at Pusad and as from 2012 onwards, applicant no.2 Pankaj is required to remain out of State since initially was serving at Gujarat and then in Saudi Arabia, there is no occasion for ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 02:03:06 :::
4 apl915.17.odt respondent no.2 to contact him or in that case, even family members of her husband.
4. So far as applicant no.1, who is teacher by profession and cousin brother of respondent no.2's husband Vishal Datir, it is his case that he is resident of Darwha in his joint family and at no point of time, respondent no.2 had visited them nor since she had at any time cohabited with her husband in their matrimonial home at Pusad, there is no occasion for said applicant to meet her or to provide cruelty to her as alleged.
5. Thus, it is the case of applicants that, for the reasons as aforesaid, there was no occasion for either of these applicants to provide ill-treatment of any kind to the Complainant. However, to their surprise, they learnt of report lodged by respondent no.2 against them alleging demand of Rs.1,00,000/- by her husband, and about ill-intention of applicant no.2, while there are no allegations against applicant no.1.
6. It is, therefore, prayed that the application be allowed thereby quashing of F.I.R. as aforesaid. Respondent no.1 has filed ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 02:03:06 ::: 5 apl915.17.odt affidavit-in-reply on record. Perusal of the same would reveal that it revolves with regards to alleged ill-treatment by husband of Complainant/respondent no.2 to her and of demand of Rs.1,00,000/- as dowry from her parents. The reply further reveals of vague allegations against applicant no.2 about his abusing her whenever he used to visit to his native place during Diwali or Summer Vacation. When the affidavit-in-reply was filed on 9.10.2018, investigation was still in progress. However, during pendency of this application, charge-sheet came to be filed. We have perused the documents filed along with the charge-sheet, wherefrom it is revealed that totally vague allegations are made by respondent no.2 in her report which do not attract any of the ingredients of the offences punishable under Sections 498-A, 323, 504, 506 of the Indian Penal Code. Perusal of statements of Mohan Sadashiv Pradhan, Police Constable Asif Latif Sheikh, Police Naik Anil Kotrange and Smt. Vijaya Ramesh Yende, all Police Officials residing as neighbours of respondent no.2 at Babhulgaon, in no way, implicate any of the applicants as, according to their statements, they have only named Vishal Datir, husband of respondent no.2. ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 02:03:06 :::
6 apl915.17.odt Similarly, statements of Ranjana Dudhe and Gajananrao Dudhe, parents of respondent no.2; Anup Dudhe and Rahul Dudhe, brothers of respondent no.2 and Ritesh Dudhe, cousin brother of respondent no.2 does not contain any material attracting the offences for which applicants are charge-sheeted. In fact, case of applicant no.2 Pankaj Datir of his remaining abroad for service purpose has been duly established from the documents filed with the charge-sheet and the copies of his passport filed with the application and letter of employer offering job on contract basis in Almaraz Company. Even otherwise, it is noted that, this Court, by its order dt.28.11.2018, had prima facie observed that the allegations in the report against both the applicants are vague and thus, directed prosecution to file on record copy of charge-sheet if investigation is complete. Accordingly, prosecution, below pursis dt.7.2.2019, had placed on record copy of charge-sheet.
7. In the background of facts as aforesaid, question that would be required to be considered is as to whether facts of the present case justify warranting invoking jurisdiction under Section 482 of the Code of Criminal Procedure or not. While considering this aspect, we may gainfully refer to the observations of the Hon'ble ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 02:03:06 ::: 7 apl915.17.odt Apex Court in the case of State of Haryana and Others .vs. Ch. Bhajan Lal (AIR 1992 SC 604), which read thus :
"108. 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 extra- ordinary 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 channelised 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 F.I.R. do not disclose a cognizable offence, justifying an ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 02:03:06 :::
8 apl915.17.odt investigation by Police Officers under Section 151(1) of the Code, except under an order of a Magistrate within the purview of Section 155(2) of the Code.
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 F.I.R. 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 of 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.
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7. Where a criminal proceeding is manifestly attended with malafide 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."
7. Keeping in mind guidelines as aforesaid and contents of first information report, we are of the view that even if allegations in the first information report taken at their face value are accepted to be true and correct, they do not prima facie constitute commission of offences. We, therefore, find that present case would fall within clause (1) of the guidelines laid down by the Hon'ble Apex Court."
8. For the reasons as afore-said, application is allowed in terms of prayer clause (b) of the same with no orders as to costs.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 02:03:06 ::: 10 apl915.17.odt ::: Uploaded on - 22/02/2019 ::: Downloaded on - 17/03/2019 02:03:06 :::