Mr. S. R. Zambre, Advocate for the v. K. Kotecha, APP for
Facts
(1) appln-1504-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1504 OF 20231.Vithoba @ Vitthal S/o Suryabhan Barde Age: 58 years, Occu: Service, (Father-in-Law of Res no-2 )R/o. Survey no.32/1, Plot no. 20 Nandanvan nagar, Tapovan Road, Bhistbag, Savedi, Ahmednagar, Tal & Dist. Ahmednagar.2.Mandakini W/o Vitthal Barde (Mother-in-Law of Res no-2)Age: 53 years, Occu: Household, R/o. Survey no.32/1, Plot no. 20 Nandanvan nagar, Tapovan Road, Bhistbag, Savedi, Ahmednagar, Tal & Dist. Ahmednagar. 3.Ravikiran S/o Vitthal Barde (Brother-in-Law of Res no-2)Age: 31 years, Occu: Private Service, R/o. B-7, Koregaon Road, Tal- Khed, Dist- Satara.4.Ganesh S/o Sahebrao Akolkar(Uncle-in-law of Res no.2)Age: 41 years, Occu: Agri, R/o. Karanji, Tal. Pathardi, Dist. Ahmednagar.5.Bandu S/o Sahebrao Akolkar(Uncle-in-law of Res no.2)Age: 51 years, Occu: Agri, R/o. Karanji, Tal. Pathardi, Dist. Ahmednagar...Applicants(Accused) Versus1.The State of MaharashtraThrough Police Station Officer Pathardi Police Station, Tal. Pathardi, Dist. Ahmednagar. 2.Ashwini W/o Rajkiran BardeAge: 28 years, Occu: Household,R/o. Behind Sagar Hotel, Madhavnagar, Tisgaon,Tal- Pathardi, Dist- Ahmednagar..Respondents (Org. Complainant) …Mr. S. R. Zambre, Advocate for the Applicants.Mr. V. K. Kotecha, APP for Respondent No.1.Mr. Y. B. Bolkar h/f Mr. A. C. Sisodiya, Advocate for RespondentNo.2.
Legal Reasoning
(6) appln-1504-2023.odt“17.The above-mentioned decisions clearly demonstratethat this court has at numerous instances expressed concernover the misuse of section 498A IPC and the increasedtendency of implicating relatives of the husband inmatrimonial disputes, without analysing the long termramifications of a trial on the complainant as well as theaccused. It is further manifest from the said judgments thatfalse implication by way of general omnibus allegationsmade in the course of matrimonial dispute, if left uncheckedwould result in misuse of the process of law. Therefore, thiscourt by way of its judgments has warned the courts fromproceeding against the relatives and in-laws of the husbandwhen no prima facie case is made out against them.”10.Similarly, in the case of Sushil Kumar Sharma vs. Unionof India and others3, the Supreme Court observed in paragraphno.19 as under :-“19.The object of the provision is prevention of the dowrymeance. But as has been rightly contended by the petitionermany instances have come to light where the complaints arenot bonafide and have filed with obligue motive. In suchcases acquittal of the accused does not in all cases wipe outthe ignomy suffered during and prior to trial. Sometimesadverse media coverage adds to the misery. The question,therefore, is what remedial measures can be taken toprevent abuse of the well-intentioned provision. Merelybecause the provision is constitutional and intra vires, doesnot give a licence to unscrupulous persons to wreck personalvendetta or unleash harassment. It may, therefore, becomenecessary for the legislature to find out ways how themakers of frivolous complaints or allegations can beappropriately dealt with. Till then the Courts have to takecare of the situation within the existing frame work. Asnoted the object is to strike at the roots of dowry menace.But by misuse of the provision a new legal terrorism can beunleashed. The provision is intended to be used a shieldand not assassins' weapon. If cry of "wolf" is made too oftenas a prank assistance and protection may not be availablewhen the actual "wolf" appears. There is no question ofinvestigating agency and Courts casually dealing with theallegations. They cannot follow any strait jacket formula inthe matters relating to dowry tortures, deaths and cruelty.It cannot be lost sight of that ultimate objective of everylegal system is to arrive at truth, punish the guilty and3(2005) 6 SCC 281. (7) appln-1504-2023.odtprotect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by thepetitioner that the investigating agencies and the courtsstart with the presumption that the accused persons areguilty and that the complainant is speaking the truth. Thisis too wide available and generalized statement. Certainstatutory presumption are drawn which again arereputable. It is to be noted that the role of the investigatingagencies and the courts is that of watch dog and not of abloodhound. It should be their effort to see that in innocentperson is not made to suffer on account of unfounded,baseless and malicious allegations. It is equallyindisputable that in many cases no direct evidence isavailable and the courts have to act on circumstantialevidence. While dealing with such cases, the law laid downrelating to circumstantial evidence has to be kept in view.”11.Keeping in mind aforesaid observations of Supreme Court ofIndia, we find that stipulations in the FIR are bereft to make outany offence against applicant nos.3 to 5. We have also consideredstatements of witnesses recorded during the course of investigationand. The charge-sheet contains statements of father, mother,brother and maternal uncles of respondent no.2. All thestatements are stereotype and does not stipulate specific role ofany of the applicants. On the basis of such unspecific, omnibusstipulation in the FIR and statements of witnesses, offence underSection 498-A of the Indian Penal Code cannot be made out.Pertinently, FIR nowhere stipulates about demand of dowry at thetime of marriage or same was fixed or in pursuance of suchagreement further demand was raised by in-laws. The FIR simplystipulates that after few months of marriage, in-laws raiseddemand of money for business purpose. Such allegations arelimited against husband and mother-in-law. The particulars of ill-treatment are unspecific, particularly no role is attributed againstapplicant nos.3 to 5, who are residing at different places and neverresided together in shared accommodation with respondent no.2.In that view of the matter, we find that continuation of criminal (8) appln-1504-2023.odtproceeding as against applicants no.3 to 5 would be abuse ofprocess of law. Consequently, we find this to be a fit case forexercising jurisdiction under Section 482 of the Criminal ProcedureCode. Hence, we proceed to quash FIR and consequential criminalproceeding as against applicant nos.3 to 5. Hence, we proceed topass following order:ORDERa.Criminal Application is partly allowed.b.The FIR in Crime No.175/2023 dated 15.02.2023 registeredwith Pathardi Police Station, Tal. Pathardi, Dist. Ahmednagar foroffences punishable under Sections 498-A, 323, 504, 506 r/w 34 ofthe Indian Penal Code as well as consequential criminal proceedingin R.C.C. No.137/2023 pending before Judicial Magistrate FirstClass, Pathardi to the extent of applicant nos.3 to 5, are herebyquashed and set aside.c.The application to the extent of applicants no.1 and 2 standsdisposed as withdrawn and proceeding in R.C.C. No.137/2023 tocontinue against time in accordance with law.d.Criminal Application is disposed of.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/September-2024
Arguments
(2) appln-1504-2023.odt … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATED : 25th SEPTEMBER, 2024.ORDER (Per S. G. Chapalgaonkar, J):-1.The applicants have approached this Court under Section482 of the Criminal Procedure Code thereby praying to quash andset aside FIR in Crime No.175/2023 dated 15.02.2023 registeredwith Pathardi Police Station, Tal. Pathardi, Dist. Ahmednagar foroffences punishable under Sections 498-A, 323, 504, 506 r/w 34 ofthe Indian Penal Code as well as consequential criminal proceedingin R.C.C. No.137/2023 pending before Judicial Magistrate FirstClass, Pathardi, Dist. Ahemednagar.2.Mr. Zambre, learned Advocate appearing for applicants oninstructions seeks permission to withdraw application on behalf ofapplicant nos.1 and 2. Accordingly application stands disposed aswithdrawn to the extent of applicant nos.1 and 2.3.The respondent no.2 reported Police Station Pathardi that on18.09.2021 she married with Rajkiran Vitthal Barde as per Hindurites and customs. She went to her matrimonial home aftermarriage. She was treated well for initial period of six month.Thereafter, her mother-in-law and husband used to tease hersaying that she is not good looking. Occasionally she was assaultedby fists and kick blows. Her husband is in the habit of drinkingliquor. She had complained to her parents regarding ill treatmentmeted towards her by in-laws. However, they advised her to bearit for some time. She alleges that although her brother-in-lawRavikiran is serving at Satara, during his telephonic conversation,he instigates her husband and mother-in-law to raise quarrelagainst her. She further alleges that demand of Rs.10,00,000/- had (3) appln-1504-2023.odtbeen raised by in-laws for investments in new business. When sherefused to accede with such demand, in-laws again tortured her.Therefore, she left matrimonial home and residing alongwithparents. Her parents asked applicant nos.4 and 5 i.e. maternaluncles of her husband about said torture but they supported in-laws and also advised her husband to perform second marriage. Inconcluding paragraphs she alleges that on 03.01.2023 and03.07.2023 her in-laws had assaulted and mentally tortured her. 4.On the basis of aforesaid report, Crime No.175/2023 has beenregistered against applicants for offences punishable underSections 498-A, 323, 504, 506 r/w 34 of the Indian Penal Code. Theinvestigation progressed and finally charge-sheet has been filed inthe Court of Judicial Magistrate First Class, Pathardi for aforesaidoffences against in all six accused persons. At present trial inR.C.C. No.137/2023 is pending.5.Mr. Zambre, learned Advocate appearing for applicant nos.3to 5 submits that applicants have been falsely implicated inaforesaid crime. The applicant no.3 is in private service andresides at Koregaon, Tq. Khed, Dist. Satara. The applicant nos.4and 5 are not family members of respondent no.2. They arematernal uncles of husband of respondent no.2 and residing atvillage Karanji, Tq. Pathardi, Dist. Ahmednagar. He would submitthat matrimonial home of respondent no.2 is at Bhistbag, Savedi,Dist. Ahmednagar. He would further submit that allegations inthe FIR are vague and omnibus. The ingredients of offencesalleged cannot be made out against applicants. Becauserespondent no.2 has matrimonial dispute with her husband,applicants have been falsely implicated in crime with intention topressurize husband. The respondent no.2 is residing with her (4) appln-1504-2023.odtparents since 03.07.2022 and lodged FIR on 15.02.2023. Theintention of respondent no.2 is writ large. He would further submitthat on 13.11.2022, applicant no.1 had lodged complaint foroffences punishable under Section 504 and 506 of the Indian PenalCode against father of respondent no.2. Consequently, NC bearingno.2190/2022 is registered. Therefore he urges that present FIR isnothing but misuse of process of law to ventilate personalvengeance against the applicants. He would, therefore, urge thatFIR and consequential criminal proceeding may be quashed andset aside as against applicant nos.3 to 5.6.Per contra, Mr. Kotecha, learned APP appearing forrespondent-State and Mr. Bolkar, holding for Mr. Sisodiya, learnedAdvocate appearing for respondent no.2 vehemently opposed theapplication contending that FIR and evidence collected duringcourse of investigation makes out triable case against all theapplicants, hence urges to reject the application.7.We have considered submissions advanced on behalf oflearned Advocate appearing for respective parties. We haveminutely perused the contents of FIR and statements of witnessesrecorded during course of investigation as well as other materialtendered before us. Apparently, respondent no.2 married with sonof applicant nos.1 and 2 and brother of applicant no.3. Theapplicant nos.4 and 5 are not family members of applicants. Thepresent application is pressed only to the extent of applicant nos.3to 5. Perusal of FIR reveals that only allegation incorporatedagainst applicant no.3 is that although he resides at Satara, duringtelephonic conversation with in-laws, he instigated them to raisequarrel against respondent no.2. So far as allegations againstapplicant nos.4 and 5 are concerned, it is stated that when meeting (5) appln-1504-2023.odtwas arranged for reconciliation between respondent no.2 and herhusband, applicant nos.4 and 5 were present and they stood by sideof her in-laws and uttered that second marriage of husband can beperformed. Assuming the allegations against applicant nos.3 to 5are true and correct, on its face value, no offence can be made outagainst them. 8.At this stage, reference can be given to the observationsmade by the Supreme Court in case of Preeti Gupta andAnother and Another Vs. State of Jharkhand and Another1,wherein the Apex Court observed in paragraph nos.30, 32 and 34as under :-“30.It is a matter of common knowledge thatunfortunately matrimonial litigation is rapidly increasingin our country. All the courts in our country including thiscourt are flooded with matrimonial cases. This clearlydemonstrates discontent and unrest in the family life of alarge number of people of the society.32. It is a matter of common experience that most of thesecomplaints under section 498-A IPC are filed in the heat ofthe moment over trivial issues without proper deliberations.We come across a large number of such complaints whichare not even bona fide and are filed with oblique motive. Atthe same time, rapid increase in the number of genuinecases of dowry harassment are also a matter of seriousconcern. 34. Unfortunately, at the time of filing of the complaintthe implications and consequences are not properlyvisualized by the complainant that such complaint can leadto insurmountable harassment, agony and pain to thecomplainant, accused and his close relations.”9.In yet another judgment in case of Kahkashan Kausar @Sonam and Others Vs. State of Bihar and Others2, theSupreme Court after taking stock of various earlier decisions in thesubject matter, observed in paragraph no.17 as under:1(2010) 7 SCC 667.2(2022) 6 SCC 599.