High Court · 2023
Legal Reasoning
1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPLICAITON NO. 1043 OF 2023SANJAYKUMAR SAMPATRAO BORSEVERSUSTHE STATE OF MAHARASHTRA AND OTHERS....Advocate for Applicants : Ms. Harshita M. ManglaniAPP for Respondent Nos. 1 & 2 : Mr. V.K. KotechaAdvocate for Respondent No. 3 : Mr. J.M. Murkute… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. DATE : 30 JANUARY 2024PER COURT (PER : SHAILESH P. BRAHME, J.) :Heard both the sides finally. 2.The applicant by invoking powers under Section 482 of theCode of Criminal Procedure, is seeking quashment of First InformationReport, bearing Crime No. 011/2019 for the offences punishable underSections 498-A, 323, 504, 506 read with 34 of the Indian Penal Code,Charge-sheet No. 30 A/2020 dated 07.04.2020 and RCC No. 54/2020pending before Judicial Magistrate First Class, Selu. The offence inquestion has been registered at the instance of respondent no.3 who is thewife of accused no. 1 – Dr. Ajaykumar Borse. 2 3.The applicant is elder brother-in-law of respondent no. 3.Respondent no. 3 has filed First Information Report against her husband,mother-in-law, sister-in-law, husband of the sister-in-law and the presentapplicant with Selu Police Station. The marriage of respondent no. 3with accused no. 1 – Dr. Ajaykumar, was solemnized on 01.11.2011. It isalleged that the accused created a seen at the time of marriage on accountof impure gold gifted to them. On that account, she was subjected tophysical and mental cruelty after the marriage also. She was being ill-treated on various grounds and she was being threatened and abused. It isfurther alleged that she was being beaten by husband. She wasconstrained to leave the matrimonial home as she was unable to bear thetorture.4.After completion of the investigation, the charge-sheet wasfiled on 07.04.2020. It was culminated into RCC No. 54 of 2020 whichis pending before Judicial Magistrate First Class, Selu.5.It is brought to our notice that mother-in-law of respondentno. 3 – Subhadrabai Sampatrao Borse had filed application forquashment of FIR, charge-sheet and consequential proceedings. Byjudgment dated 29.03.2022, the application was rejected by High Court.Being aggrieved, Criminal Appeal No. 3228/2023 was preferred beforethe Supreme Court. By judgment and order dated 16 October 2023, 3 Appeal was allowed. FIR, charge-sheet and consequential proceedings toher extent were quashed. It is recorded by Supreme court that allegationsagainst mother-in-law are general in nature and distinguishable from theallegations made against her son (husband of respondent no. 3). A copyof order dated 16.10.2023 passed by the Supreme Court is placed onrecord for our perusal.6.Learned counsel for the applicant submits that applicant isbrother-in-law and is resident of Indore. Our attention is invited tovarious documents produced on record to show that he is resident ofIndore. She would submit that there was no occasion for the applicant tostay with the couple either at Deulgaon Raja or Delhi where theycohabited. It is further submitted that the allegations are vague and theapplicant is falsely implicated. She would further submit that in factthere are absolutely no allegation against the applicant to attract theoffence under challenge.7.Learned counsel for the applicant would submit that it is anabuse of process of law to proceed against the applicant. The applicantwas not concerned with the couple when they resided at Delhi andSolapur together. The allegations are eminently improbable. Theapplicant seeks to rely upon the following judgments :
Legal Reasoning
4 i.Pramod Uttam Shinde and others Versus State of Maharashtra,2015 ALL MR (CRI) 4232 ;ii.Varala Bharath Kumar and another Versus State of Telangana andanother, (2017) 9 Supreme Court Cases 413 ;iii.Chandralekha and others Versus State of Rajasthan and others,(2013) 14 SCC 374 ;iv.Tukaram S/o. Bhagwan Sawant and another Versus State ofMaharashtra, 2019 ALL MR (Cri) 1123 ;v.Kamlesh Ghanshyam Lohia and others Versus State ofMaharashtra and others, order dated 23.08.2019 passed by BombayHigh Court.8.Per contra, learned APP and learned counsel Mr. J.M.Murkute for the respondent no. 3, have vehemently opposed thesubmissions. According to them, there is incriminating role played bythe applicant. With a common intention the respondent no. 3 was beingharassed and tortured. The statements recorded during the course ofinvestigation would also show the involvement of the applicant.According to them, this is not a fit case to thwart the prosecution at thisstage. They would further submit that the applicant was present in themarriage ceremony where the first confrontation took place on accountof purity of gold. With these submissions, they pray to dismiss theapplication. 5 9.We have considered rival submissions of the parties andwith their assistance, we have gone through the papers of investigation.Respondent no. 3 appears to have resided with the co-accused husband –Dr. Ajaykumar at Delhi and Solapur. The marriage was solemnized atDeulgaon Raja. While deciding Criminal Appeal No. 3228 of 2023Supreme Court recorded findings that allegation against the mother-in-law of respondent no. 3 are general in nature and distinguishable fromthe allegations made against her son (husband of respondent no. 3). Thefirst information report and the proceedings have been quashed by theSupreme Court to the extent of mother-in-law.10.We have carefully perused the compliant. No specificallegations or role is attributable to the applicant. The applicant appearsto have been present at the time of marriage. After marriage, respondentno. 3 went to Delhi to cohabit with her husband. Thereafter, noincriminating overt act is alleged against the applicant. Except presenceof the applicant at the time of marriage and his participation in theconfrontation, we do not notice any overt act on his part.11.The applicant has produced on record Aadhar Card,electricity bill, certificate issued by SMEC Private Limited, No DuesCertificate, extracts of the pass book showing place of residence of theapplicant as Indore. It is pleaded by the applicant that he is resident of 6 Indore since 1992. The contention and the documents produced onrecord have not been controverted by the respondents. The applicant isresident of Indore. The couple after the marriage resided at Delhi andSolapur which is also recorded by Supreme Court. The complaint andthe papers of investigation do not spell out a case that the applicant hadan occasion to visit to Delhi or Solapur to cause ill-treatment. Similarly,there is no material on record to suggest that the applicant is instrumentalin abating the offence in question. 12.We have considered the complaint made by respondent no.3to Police Inspector, Selu. The said compliant is also silent regardinginvolvement of the applicant. In view of the papers of investigation, weare of the considered view that the applicant has been falsely implicatedin the offence in question to wreck vengeance. Present case is squarelycovered by ratio laid down by Supreme Court in the matter of GeetaMahrotra and others Versus State of U.P. and others, (2012) 10 SCC741.13.The applicant has relied upon the judgment in the matter ofPramod Uttam Shinde (supra) especially paragraph no. 8. Furtherreliance is placed on the judgment of Supreme Court in Varala BharathKumar (supra) in paragraph no. 8 which reads as follows : 7 “8.We are conscious of the fact that, Section 498Awas added to the Code with a view to punish thehusband or any of his relatives, who harass or torturethe wife to coerce her or her relatives to satisfyunlawful demands of dowry. Keeping the afore-mentioned object in mind, we have dealt with thematter. We do not find any allegation of subjecting thecomplainant to cruelty within the meaning of Section498A of IPC. The records at hand could not discloseany willful conduct which is of such a nature as islikely to drive the complainant to commit suicide or tocause grave injury or danger to life, limb or health(whether mental or physical) of the complainant. Soalso, there is nothing on record to show that there wasa demand of dowry by the appellants or any of theirrelatives, either prior to the marriage, during themarriage or after the marriage. The record also doesnot disclose anywhere that the husband of thecomplainant acted, with a view to coerce her or anyperson related to her to meet any unlawful demand ofany property or valuable security. ”14.We do not find that ingredient of Section 498-A of IPC areattracted in the present case, considering the papers of investigation.Learned counsel for the applicant has rightly cited judgment in thematter of Chandralekha (supra), Tukaram Bhagwant Sawant (supra) andKamlesh Ghansham Lohia (supra). We are of the considered view that 8 the FIR, Charge-sheet and consequential proceedings are liable to bequashed. For the reasons stated above we pass following order: ORDERi.First Information Report bearing No. 011/2019of Selu Police Station, Charge-sheet No. 30 A/2020dated 07.04.2020 and RCC No. 54 of 2020 pendingbefore Judicial Magistrate First Class, Selu, arequashed and set aside to the extent of applicant,Sanjaykumar Sampatrao Borse.ii.Criminal Application is allowed in above terms.[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ] Thakur-Chauhan/-