High Court · 2024
Legal Reasoning
1 Cri. Appln. 1605 / 2021+IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPLICATION NO. 1605 OF 2021 1) Amey S/o Arun Jadhav2) Anjali W/o Arun Jadhav3) Shivanand S/o Sangram ButterPatil.. Applicants Versus1] The State of Maharashtra Through Ramanand Nagar Police Station, Jalgaon, Vide C.R. No. 0387 of 20202] Swapna W/o Amey Jadhav.. Respondents WITH CRIMINAL WRIT PETITION NO. 542 OF 20211] Mrs. Sneha Buttepatil2] Mr. Mahesh Krishnarao Khedkar3] Mrs. Madhuri Mahesh Khedkar.. Petitioners Versus1] The State of Maharashtra Through Ramanand Police Station2] Mrs. Swapna Amey Jadhav.. Respondents ...Advocate for applicant / petitioner : Mr. Amit A. YadkikarAPP for the respondent – State : Mr. V.K. KotechaAdvocate for the respondent no. 2 in both matters : Mr. Atmaram J. Patil... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 05 APRIL 2024PRONOUNCED ON : 15 APRIL 2024JUDGMENT (MANGESH S. PATIL, J.) :These are Criminal Application and Criminal Writ Petitionfiled under section 482 of the Code of Criminal Procedure and Article226 of the Constitution of India, by the husband of respondent no. 2
Decision
2 Cri. Appln. 1605 / 2021+and his relatives seeking quashment of crime no. 387 of 2020registered with Ramanand Nagar Police Station, Jalgaon for theoffences punishable under section 498-A, 354, 323, 504, 506 readwith section 34 of the Indian Penal Code and the consequentchargesheet bearing no. 218 of 2023 and Regular Criminal Case no.162 of 2023 pending in the Court of Chief Judicial Magistrate,Nandurbar and Regular Criminal Case no. 422 of 2021 pending in theCourt of Chief Judicial Magistrate, Jalgaon. 2.We have heard both the sides finally at the stage ofadmission, on their request. 3.In order to avoid rigmarole, both the matters are beingdisposed of by this common judgment. 4.Criminal Application has been filed by the husband, hismother and the husband of his real sister, whereas the writ petition hasbeen filed by the married sister and the husband’s maternal uncle andhis wife. 5.The sum and substance of the allegations, as can bediscerned from the chargesheet, is to the effect that respondent no. 2and applicant no. 1 - Amey solemnized marriage on 03-12-2019. Bothwere divorcees. After marriage, she started cohabiting with him in hishouse together with his mother Anjali at Aundh, Pune. Her sister in law 3 Cri. Appln. 1605 / 2021+- petitioner - Sneha and her husband - applicant Shivanand were alsoresiding at Aundh in the vicinity of her matrimonial home. While herhusband was out for work throughout the day, Sneha used to stay inthe matrimonial home of respondent no. 2. Even the maternal uncle ofthe husband and his wife also have been staying in Aundh area andused to frequent to the matrimonial home. It is then alleged that whenrespondent no. 2 was to come back to her parental home according tothe custom soon after the marriage and her brother had come to takeher, the mother-in-law told her brother that she was his only sister, herin-laws should have been offered gold ornaments at the time ofmarriage and demanded dowry in the form of gold. On 27-12-2019,when her husband had been to her parental home to take her back,even at that time there was an insistence that he should have beengifted with a gold ornament. It is thus alleged that since inception therewas direct demand of dowry and she was subjected to physical andmental harassment on that count. 6.It is then alleged that on 01-01-2020, when she was asleepin the midnight, applicant - Shivanand entered into her bedroom,pressed her breasts and was about to kiss her but she woke up andwhen she was about to raise alarm, he smothered her with hand andthreatened not to disclose the incident to anybody else he woulddefame her and would make her life miserable. He also declared that 4 Cri. Appln. 1605 / 2021+he would not hesitate in killing her and also said that in similar way hehad not allowed the first wife of husband Amey to cohabit as she wasnot listening to him. He then took her downstairs where her husbandAmey and her mother were present with her sister in law - Sneha.In their presence, Shivanand told all of them that the respondent no. 2should not be allowed to sleep unless he reached home. Such episodeshook her mental condition. Apprehending the consequences, she didnot disclose the incident as already every one was against her. 7.The FIR then alleges that husband - Amey, sister-in-law -Sneha and Shivanand were compelling her to dress inappropriately.When she questioned about such insistence to her mother-in-law -Anjali, the latter declared that she will have to live up to theexpectations of her son-in-law and no one would go against his wish.The mother-in-law used to repeat the demand of dowry in the form ofgold. When she declared that it was impossible for her father toconcede to the demands, the maternal uncle of the husband and hiswife suggested her to have an employment. When she refused, theytold her that it was her second marriage and, thereafter, there would beno such opportunity again and if she did not mend her ways accordingto their expectations, she will have to return to the parental home andthus, she was subjected to mental torture even by them. 5 Cri. Appln. 1605 / 2021+8.The FIR then alleges that her husband used to beat her onaccount of the demand for gold and money. Since it was her secondmarriage, she was afraid of informing her parents about such ill-treatment. The mother-in-law and sister-in-law - Sneha used toinstigate the husband in doing so. 9.It is then alleged that on 27-01-2020, under some falsepretext, her in-laws called her parents to her matrimonial home. Whenher parents asked as to what had happened, all the applicants and thepetitioners expressly demanded an amount of Rs.10 Lakh. When herfather expressed his inability, they declared that they would allow her tocontinue to cohabit only if the money was paid else insisted for givingthe divorce. Shivanand said that her husband - Amey could have alive-in relationship. He himself was a chartered accountant and isknowing the laws and would not be afraid of anybody. He would see toit that the evidence would be concocted and he would not allow her tocontinue the matrimonial life and drove away her parents, brother andeven her. She had to leave the matrimonial home leaving behind herStreedhan. Since she and her parents were of the view that somehowshe should continue to lead the matrimonial life, no immediate stepswere taken to lodge any complaint. They tried to engage indeliberations with the applicants and the petitioners but it yielded nofruits. On the contrary, husband - Amey sent her a notice on 6 Cri. Appln. 1605 / 2021+14-02-2020. By reply notice she asked him to take her forcohabitation. Even in that reply, with the hope that the prospect ofresuming matrimonial life should not be affected, nothing wasmentioned about the insistence of demand of dowry or even themolestation. Ultimately, she had to approach the Women’s GrievanceCell and lodged a compliant on 25-09-2020. The applicants and thepetitioners did not respond to the notice served by that cell. 10.It is alleged that on 16-11-2020, her husband, mother-in-law, sister-in-law and her husband Shivanand came to her parentalhome and started questioning her as to why she had caused a noticeto be sent to them by the Police and declaring that they were not afraidof such notices and even the Police, said that either the money be paidor should agree for divorce. When her father and she herself declaredthat she was willing to resume cohabitation, they insisted that theywould allow her to do so only if they were paid Rs.10 Lakhs. However,they did not turn up to the Women’s Grievance Cell and ultimately, theFIR was lodged on 23-12-2020. 11.Mr. Yadkikar, learned advocate for the applicants and thepetitioners would take us through the chargesheet and would narratethe afore-mentioned sequence of events and would try to impress uponus as to how there is every room to believe that the FIR is a figment ofconcoction. Attempt has been made to rope in relatives of the 7 Cri. Appln. 1605 / 2021+husband. Some serious allegations regarding demand of money andthe molestation are afterthought. Respondent no. 2 had manyoccasions to raise the issue at some earlier point of time. There is noplausible explanation coming forth even in respect of the seriousallegations against applicant - Shivanand about he having molestedher were never raked up earlier. He would also advert our attention tothe photographs annexed to the application to demonstrate as to howon that basis, taking into account the date and timing of thephotographs taken, it is evident that respondent no. 2 was leadinghappy marital life.12.He would then submit that since inception, the behaviourand conduct of the respondent no. 2 at the matrimonial home waswhimsical. She started throwing tantrums even for petty reasons. Shewas unnecessarily being inquisitive. She made every attempt to traceby examining the mobile phone of the husband as to whom he hadcalled or from whom he had received the calls. Even she used tomake enquiry about it. She was arrogant and used to insult his motherdue to which she developed blood pressure. She used to engage insome telephonic conversation daily for long duration and used to deleteit. 8 Cri. Appln. 1605 / 2021+13.She was never required to perform domestic chores asthere was a maid. When he searched from her facebook account inher phone, some unknown person was seen asking her if her husbandwas romantic. When the message was opened, he realized that therewas danger to his life. He managed to transmit a message from herphone to his own phone which he had immediately deleted from herphone. He realized that she was looking up to some black magic to beused against him and his mother and she was being assured ofsuccess. There was hardly any marital life led by the couplepeacefully. All such grievance was made by the husband by lodging acomplaint with the Commissioner of Police on 30-01-2020.14.Mr. Yadkikar would also demonstrate as to how theallegations in the FIR and the one made in the reply notice dated 25-02-2020 and the complaint lodged by the respondent no. 2 under theprovisions of the Protection of Women From Domestic Violence Act,are not compatible; rather there is material variance which is sufficientto disbelieve the entire narration of the prosecution. It would be abuseof the process of law to make the applicants and the petitioners facethe charges. The matter is squarely covered by catena of judgmentsand the crime and the criminal cases are liable to be quashed as it fitsin the parameters laid down in the matter of State of Haryana andothers Vs. Ch. Bhajan Lal and others; AIR 1992 SC 604. 9 Cri. Appln. 1605 / 2021+15.The learned APP and the learned advocate for therespondent no. 2 would oppose the proceedings. They would at theoutset remind us of the limitations on the powers of this Court underArticle 226 of the Constitution and section 482 of the Code of CriminalProcedure, in the matter of quashment of crime. They would insist thata threadbare scanning of the material cannot be undertaken.Opportunity deserves to be extended to the prosecution to substantiatethe charge at a full-fledged trial. It is not a matter of false implication.Even accepting the husband’s stand in the notice and the complaintlodged by him with the Police insinuates that all was not well in thematrimonial life, the version may be different. Precise and specificallegations have been made against each of the applicants and thepetitioners to demonstrate as to how they were acting in concert. Thetrial cannot be closed at the threshold. The applicants and thepetitioners would get every opportunity to defend the charges and boththe proceedings be dismissed. 16.Having considered the rival submissions and havingperused the papers, one indeed has to bear in mind the inherentlimitations in exercising the powers under Article 226 of the Constitutionof India and section 482 of the Code of Criminal Procedure whileentertaining a request for quashment of a crime. It is trite that no minitrial can be held by resorting to scrutiny of the material collected during 10 Cri. Appln. 1605 / 2021+the investigation. The whole exercise is restricted in ascertaining as toif ingredients of the offence can be deduced from the allegations andthe material collected by the Investigating Officer. The ultimatesuccess or failure of the prosecution is not germane to the enquiry, ashas been laid down in the matter of D.K. Ganesh Babu V. State ofTamil Nadu; 2010(2) SCALE 698. 17.Bearing in mind these settled principles, if one adverts tothe chargesheet, in our considered view, it does not seem to be amatter of concoction or false implication. The allegations in the FIRtogether with the statements of the witnesses would clearly make outthe ingredients for constituting the crime and the specific chargesattributed to each of the applicants. 18.True it is that the allegation regarding the incident ofdemand of dowry and molestation were not disclosed by therespondent no. 2 at an earlier point of time, however, her explanation inthe reply to the notice served to her by the husband and in the FIR andthe statements of her parents, make an attempt to explain it by sayingthat since she was hoping to continue the marital life, the allegationbeing serious, was not raked up at earlier point of time. At this stage,the explanation seems to be plausible and would reveal the complicityof applicant - Shivanand apart from several other allegations in the FIRand the statements of the witnesses. 11 Cri. Appln. 1605 / 2021+19.Similar is the case with respect to sister-in-law - Snehaand the maternal uncle of the husband and his wife who allegedlyinsisted the respondent no. 2 to search for a job. There are allegationsabout the maternal uncle and his wife having warned her that if sherefused to undertake a job, this being her second marriage, she wouldnot have any further opportunity and will have to permanently stay atthe parental home. This does not seem to be a mere suggestion butundesirable insistence laced with insinuations, which according to us,can easily be appreciated as an act committed with an intention toharass her mentally. 20.One cannot lose sight of the fact that the sister-in-law andher husband and the maternal uncle of the husband and his wife haveall been residing in the vicinity of matrimonial home and at thisjuncture, there is nothing to dis-believe that they all were frequenting tothe matrimonial home. So far as the attempt of the applicants and thepetitioners to belie respondent no. 2 specifically adverting our attentionto the photographs annexed with the application, in our consideredview, this piece of evidence in the form of photographs, cannot betreated at this juncture as a material of impeccable nature or sterlingcharacter, which can be resorted to, while entertaining a request forquashment of the crime. 12 Cri. Appln. 1605 / 2021+21.Variance between the FIR, the reply to the notice and thecomplaint lodged by the respondent no. 2 under the Domestic ViolenceAct also cannot be resorted to, much less to reach a conclusion thatthe allegations in the FIR are an afterthought, more so in the light of thefact that an attempt has been made even in the FIR and the statementsof the witnesses to demonstrate and come out with an explanation forabsence of allegations regarding demand and the incident ofmolestation at any earlier point of time.22.We are of the firm view that this is not a fit case covered bythe settled decision in the matters of Preeti Gupta and Anr. V. Stateof Jharkhand and anr.; AIR 2010 SC 3363, Geeta Mehrotra andAnr. V. State of U.P. And another; AIR 2013 SC 181 and KahkashanKausar @ Sonam and Ors. Vs. State of Bihar and Ors.(CriminalAppeal No.195/2022 decided on 08.02.2022); (2022) 6 SCC 599 andthere is no ground as contemplated in the matter of Bhajan Lal (supra)to quash the crime and the criminal case. 23.The Criminal Application and the Criminal Writ Petition aredismissed. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/