High Court

Legal Reasoning

{1} CRAPLN 678.22-1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 678 OF 20221.Macchindra S/o. Sajan Garje,Age 50 years, Occ. Agril.R/o. Babhalgaon, Tal. Shevgaon,Dist. Ahmednagar.2.Sharda W/o. Macchindra Garje,Age 43 yeas, Occ. Household,R/o. Babhalgaon, Tal. Shevgaon,Dist. Ahmednagar.3.Pallavi D/o. Macchindra Garje,Age 20 years, Occ. Agril.R/o. Babhalgaon, Tal. Shevgaon,Dist. Ahmednagar... APPLICANTS.VERSUS1. The State of Maharashtra,through – Investigation Officer,Crime No. 0156 dated 22.3.2021,Pathardi Police Station, Ahmednagar.Tq. And Dist. Ahmednagar2.Ashrabai W/o. Sayaji Nagargoje,Age 71 years, Occ. Housewife,R/o. Akola, Tq. Pathardi,Dist. Ahmednagar... RESPONDENTS.Mr. P.A. Bharat, Advocate for the applicants.Mr. V.K. Kotecha, APP for respondent State. CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. {2} CRAPLN 678.22-1.odt DATE : 12th SEPTEMBER, 2024. JUDGMENT [ PER S.G. CHAPALGAONKAR, J] :-1.The applicants have approached this court under Section482 of the Code of Criminal Procedure with a prayer to quash and setaside the FIR No. 156 of 2021, dated 22.3.2021, registered with PoliceStation, Pathardi, Dist. Ahmednagar for the offence under Section 380 ofI.P.C. as well as charge sheet No. 219 of 2022 dated 21.3.2022 andconsequential criminal proceeding pending before the JMFC at Pathardi.2.Respondent No.2 lodged report dated 22.3.2021 allegingthat she resides at Akola, Taluka Pathardi, alongwith her son Ankush,Daughter in law Thakubai, grandsons Popat and Malhari, grand daughterin law Rohini etc. On account of trifle reason differences arose betweengrand daughter in law Rohini and her husband Popat. Since then Rohiniresides at Babhalgaon at her maternal home alongwith her son. On27.1.2021, at about 3.00 p.m., while informant was alone at home,family members of Rohini i.e. parents, namely, Machindra and ShardaGarje, her sister Pallavi and Ghanshyam Munje arrived at home with agoods carriage vehicle (Chota Hatti) and asked her that they want to takeback gifts articles given at the marriage of Rohini. Thereafter, theyentered in the house and despite her opposition took away SofaSet,Cupboard, T.V. Set, racks, suit cases, gas cylinder, mixer and otherhousehold articles. They also took away Nose Ring worth Rs.9,000/- andCash amount of Rs. 2000/-.It is accordingly alleged that aforesaid accused persons have {3} CRAPLN 678.22-1.odtcommitted theft of cash and articles worth Rs. 15,800/-. On the basis ofaforesaid complaint, Crime No. 156 of 2021 has been registered withPolice station, Pathardi, Dist. Ahmednagar under Section 380 of IPCagainst in all 3 accused persons – applicants. On completion ofinvestigation, charge sheet has been filed in the Court of JMFC atPathardi. Consequently, RCC No. 216 of 2022 is pending trial.3.Mr. P.A. Bharat learned advocate for the applicants submitsthat the applicants have been falsely implicated in aforesaid crime onaccount of matrimonial dispute between Rohini and Popat i.e. granddaughter in law and grand-son of respondent No.2. He would submitthat on 14.3.2021 crime No. 121 of 2021 has been registered with policestation, Shevgaon on the basis of complaint given by Rohini i.e. daughterof applicants No. 1 and 2 and sister of applicant No.3.4.By way of counter blast, present compliant has been lodged,thereby implicating all family members of Rohini. He would furthersubmit that even taking contents of FIR as it is, no offence can be madeout against applicants as the gifts of marriage given to Rohini were takenback. He would further point out that alleged incident is dated27.1.2021. The FIR is lodged on 22.3.2021. There is delay of almost of2 months in lodging the FIR. In the intervening period, crime No. 121 of2021 has been registered on complaint given by Rohini against her in-laws. He would therefore urge to quash and set aside impugned FIR andcriminal proceeding.5.Per contra, learned APP and the learned advocate appearingfor respondent No.2 vehemently opposes the prayers, contending that thestipulations in the FIR are sufficient to make out offence under Section {4} CRAPLN 678.22-1.odt380 of IPC. The contents of the FIR are supported by statement of thewitnesses cited in the charge sheet. Consequently, there is triablematerial against the applicants.6.We have carefully considered the submissions advanced bylearned advocates appearing for respective parties alongwith documentstendered into service. Apparently, it is a case of matrimonial dispute andconsequential complaints against each other. Initially, Rohini PopatNagargoje filed FIR in crime No. 121 of 2021 dated 4.3.2021 allegingoffence under Section 498-A, 323, 504, 506 r/w. 34 of IPC against herhusband Popat, father in law - Ankush, mother in law Thakubai andbrother in law Machindra. The impugned FIR is filed by Ashrabai SayajiNagargoje – grandmother in law of Rohini against her family members.It appears that Rohini married with Popat in the year 2012. Out of thematrimonial relationship, she has two children. The matrimonial disputestarted some time in the year 2019. The impugned FIR has been lodgedon 22.3.2021 pertaining to incident dated 27.1.2021. There is noexplanation for delay of more than 2 months in lodging the FIR.Obviously, there is reason to believe that on registration of Crime No. 121of 2021 on 4.3.2021 at instance of Rohini, the impugned FIR has beeninstituted through grandmother in law of Rohini to implicate her familymembers. The deeper scrutiny of FIR would suggest that allegation isthat of taking away married articles presented at the time of marriage ofRohini and Popat. Admittedly, now Rohini is residing alongwith herparents. They took away gift articles kept at her matrimonial home.Rohini appears to be the possessor of those articles while she wasresiding in the matrimonial home.7.In this background, it is necessary to examine whether there {5} CRAPLN 678.22-1.odta case of theft in dwelling house can be made out, which is punishableunder Section 380 of IPC. Section 378 of IPC defines “Theft”. Toconstitute “theft”, movable property must be dishonestly taken awayfrom the possession of the person without his consent. In the facts of thepresent case, it would be difficult to hold that the property was inpossession of respondent No.2-informant. Rohini had every right to takeaway gift articles received at marriage from her parents. Pertinently, nocomplaint was made as regards to incident for a period of about twomonths from the date of incident, particularly, till Rohini lodged reportagainst her in-laws for offence under Section 498-A.8.At this stage, it would be apposite to refer to the guidelineslaid down in the case of State of Haryana vs. Ch. Bhajanlal and others”reported in AIR 1992 S.C. 604, as to exercise of jurisdiction underSection 482 of Cr.P.”C. particularly, in para. 108, which reads thus :-“108.In the backdrop of the interpretation of the variousrelevant provisions of the Code under Chapter XIV and of theprinciples of law enunciated by this Court in a series of decisionsrelating to the exercise of the extra-ordinary power under Article226 or the inherent powers under Section 482 of the Code whichwe have extracted and reproduced above, we give the followingcategories of cases by way of illustration wherein such powercould be exercised either to prevent abuse of the process of anyCourt or otherwise to secure the ends of justice, though it maynot be possible to lay down any precise, clearly defined andsufficiently channelised and inflexible guidelines or rigidformulae and to give an exhaustive list of myriad kinds of caseswherein such power should be exercised. 1.Where the allegations made in the First Information {6} CRAPLN 678.22-1.odtReport or the complaint, even if they are taken at theirface value and accepted in their entirety do not primafacie constitute any offence or make out a case against theaccused. 2.Where the allegations in the First Information Report andother materials, if any, accompanying the F.I.R. do notdisclose a cognizable offence, justifying an investigationby police officers under Section 156(1) of the Code exceptunder an order of a Magistrate within the purview ofSection 155(2) of the Code. 3.Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of thesame do not disclose the commission of any offence andmake out a case against the accused. 4.Where, the allegations in the F.I.R. do not constitute acognizable offence but constitute only a non-cognizableoffence, no investigation is permitted by a police officerwithout an order of a Magistrate as contemplated underSection 155(2) of the Code. 5.Where the allegations made in the FIR or complaint areso absurd and inherently improbable on the basis ofwhich no prudent person can ever reach a just conclusionthat there is sufficient ground for proceeding against theaccused. 6.Where there is an express legal bar engrafted in any ofthe provisions of the Code or the concerned Act (underwhich a criminal proceeding is instituted) to theinstitution and continuance of the proceedings and/orwhere there is a specific provision in the Code or theconcerned Act, providing efficacious redress for thegrievance of the aggrieved party. 7.Where a criminal proceeding is manifestly attended withmala fide and/or where the proceeding is maliciouslyinstituted with an ulterior motive for wreaking vengeanceon the accused and with a view to spite him due toprivate and personal grudge. {7} CRAPLN 678.22-1.odt.Clause No.7 of the aforesaid guidelines refers that wherecriminal proceeding is manifestly attended with malafide and/or wherethe proceeding is maliciously instituted with an ulterior motive forwreaking vengeance on the accused and with a view to spite him due toprivate and personal grudge, the power under Section 226 of theConstitution of India and inherent powers under Section 482 of the Codecan be invoked.9.Applying the aforesaid principles of law espoused by theSupreme Court, if allegations in the FIR and material in the charge sheetis scanned, it can be gathered that there is serious matrimonial disputebetween the family of the applicants and respondent No.2. InitiallyRohini instituted complaint against husband and in-laws and to counterblast the said complaint, the belated FIR has been instituted thorough therespondent No.2 against the applicants. Even assuming the contents ofthe FIR to be true and correct, the ingredients of Section 378 of IPC toconstitute theft cannot be made out against applicants, since articlesgifted in the marriage to Rohini by the applicants were taken away fromher matrimonial home. The respondent No.2 or her family members cannot claim independent ownership and possession in respect of thosearticles.10.We therefore hold that the impugned FIR is merely a counterblast against the FIR lodged by Rohini against husband and in-laws.Therefore, it becomes necessary for this Court to check the frivolouscomplaints or allegations and prevent the abuse of process of law andprocedure. In the result, we deem it appropriate to exercise our inherentpowers to secure the ends of justice. Hence, we pass the following {8} CRAPLN 678.22-1.odtorder :-O R D E R[I]Criminal application is allowed;[ii]FIR No. 156 of 2021 dated 22.3.2021 registered with PoliceStation, Pathardi, Dist. Ahmednagar for the offence under Section 380 ofI.P.C. as well as charge sheet No. 219 of 2022 dated 21.3.2022 andconsequential criminal proceeding pending before the JMFC at Pathardi.is hereby quashed and set aside to the extent of applicants herein.[iii]The application stands disposed of.[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J] grt/-