High Court
Legal Reasoning
{1} CRWP 1155.22R.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1155 OF 20221.Chandrakant S/o. Gangadharrao Patil (Correct name)Chandrakant Gangadhar Patil (As per FIR correct name)Age 70 years, Occ. Legal Practitioner,R/o. Darshan Plaza, Flat No.A-1, Near Kamgar Chowk,N-2, CIDCO, Aurangabad.2.Sow. Suraksha w/o. Chandrakantrao Patil (Correct name)Suraksha Gangadhar Patil (as per FIR correct name)Age 60 yars, Occ. Housewife,R/o. Darshan Plaza, Flat No.A-1, Near Kamgar Chowk,N-2, CIDCO, Aurangabad.3.Vijaykumar s/o. Chandrakantrao Patil (Correct name)Vijay Gangadhar Patil (As per FIR incorrect name)Age 41 years, Occ. Legal Practitioner.R/o. Darshan Plaza, Flat No.A-1, Near Kamgar Chowk,N-2, CIDCO, Aurangabad... Petitioners( Original accused No.1 to 3)VERSUS1.The State of Maharashtrathrough its Principal Secretary,Law and Justice Department,Madam Cama Road, Hutatma Rajguru Chowk,Mantralaya, Mumbai.2.The State of Maharashtrathrough Principal SecretaryHome Department, Mantralaya, Mumbai..3.The High Court of Judicature at Bombay,through its Registrar General,High Court, Mumbai.
Legal Reasoning
{2} CRWP 1155.22R.odt4.The District Superintendent of Police,Nanded Division, Nanded.5.The investigation Officer,Bhagya Nagar Police Station, Nanded.6.Durgaprasad s/o. Rajeshwarrao Deshpande,Age 40 years Occ. Service, Serving asAd-hoc District Judge-1 and Additional Sessions Judge,at Sangamnar, Dist. Ahmednagar... RESPONDENTS.Mr. N.K. Tungar, Advocate for petitioners.Mr. A.B. Kadethankar, Advocate for respondent No.3Mr. A.V. Lavte, APP for respondent Nos. 1,2, 4 and 5Mr. Vishal A. Kakade, h/f Mr. Shaikh Majhar A. Jahagirdar,Advocate for respondent No.2withCRIMINAL APPLICATION NO. 1922 OF 20221.Madhukar s/o. Sherao Kulkarni (Kumbharikar)Age 79 years, Occ. Advocate,R/o. Behind State Bank of India, Stadium,Mangalwara, Parbhahi.2.Manoj s/o. Madhukarrao Kumbharikar( Kulkarni)Age 49 yaers, Occ. Advocate,R/o. Behind State Bank of India, StadiumMangalwara, Parbhahi.3.Sow. Renuka w/o. Manoj KumbharikarAge 39 years, Occ. Household,R/o. Behind State Bank of India, StadiumMangalwara, Parbhahi... APPLICANTS. (Ori. Accused Nos. 4 to 6) {3} CRWP 1155.22R.odtVERSUS1.The State of Maharashtrathrough Police Station Officer,Bhagya Nagar Police Station, Nanded.2.Durgaprasad s/o. Rajeshwarrao Deshpande,Age 40 years, Occ. Judicial Officer serving asAdditional Ad-hoc, District Judge present posted at Sangamner, Dist. Ahmedngar. ..RESPONDENTS.Mr. N.K. Tungar, Advocate for petitioners.Mr. A.B. Kadethankar, Advocate for respondent No.3Mr. A.V. Lavte, APP for respondent Nos. 1,2, 4 and 5Mr. Vishal A. Kakade, h/f Mr. Shaikh Majhar A. Jahagirdar,Advocate for respondent No.2 CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. RESERVED ON : 11th OCTOBER, 2024.PRONOUNCED ON : 18th NOVEMBER,2024. JUDGMENT [ PER S.G. CHAPALGAONKAR, J]. :-1.The petitioners have approached this Court under Article226 of the Constitution of India read with Section 482 of Cr.PC. seekingrelief of quashment of FIR no. 119 of 2022 registered with BhagyanagarPolice Station, for the offences punishable under Sections 109, 120B, 34,447, 451, 452, 384 of IPC. 2.Criminal Writ Petition No. 1155 of 2022 contains someadditional prayers seeking direction against respondent No.1 to initiateinquiry against respondent No.6 for alleged misuse of post and power asa Judicial Officer with help of Police authorities to register false and {4} CRWP 1155.22R.odtimaginary offence against the petitioners. One more prayer is made for adirection to initiate inquiry against the respondent No.5 (InvestigationOfficer) for registering a false and imaginary offence against thepetitioners without proper inquiry as per law laid down by Hon’bleSupreme Court of India in Lalita Kumari vs. Government of UP andothers.3.Respondent No.6 lodged FIR dated 11.9.2022 with BhagyaNagar Police station alleging that accused persons hatched conspiracywith a view to earn benefit of maintenance amount through his wifeSarika, who is a psychiatric patient. He alleges that in the month ofJune, 2019, he has been transferred as Ad-hoc District Judge Nanded.Since July, 2021, he has been posted at Biloli. It is alleged that in 2007,he married with Sarika and blessed with two children from saidmatrimonial relationship. His wife is a Schizophrenic patient and undersupervision of experts. However, taking disadvantage of the situation,her parents, brother and relatives are creating obstacles in providingmedical aid to his wife with intention to take undue benefit of her poormental health and extract financial and other consequential benefits fromthe informant. In 2023, an offence was registered against them withPolice Station, Washim. However, settlement was arrived by beforeHon’ble High Court. Despite previous settlement, the accused personsare persistent in taking disadvantage of the Schizophrenic condition ofhis wife and instigates her to file various proceedings for maintenance.Now are residing in his flat at Biloli, knowing well that he has entered into agreement for sale with Renapurkar Builders and possession is to behanded over to purchaser. Although he has been transferred toSangamner, accused persons are creating obstacles in taking his children {5} CRWP 1155.22R.odtto the School at Sangamner and blackmailing him through his wife.4.On 10.4.2022 at about 7.00 a.m., accused persons entered inhis house with criminal intention. When he visited home at Biloli so as tomeet his wife and children, the accused persons prevented his wife fromopening the door and restrained him from entering in the house.Thereafter, he gave call to police. Smt. Vathore Madam, API arrived onthe spot alongwith her co-officers and requested his wife to open thedoor. She was prevented by accused persons from doing so. The accusedpersons are creating hurdles in transfer of the flat. They are prosecutingvarious proceedings by instigating his wife against him. They are alsopreventing him from taking out important documents kept in Flat. Theyhave illegally entered in the house with criminal intent and instigated hiswife to raise false allegations and file proceeding against him withintention to earn benefit through maintenance amount. 5.On the basis of aforesaid report Crime No. 0119 of 2022 hasbeen registered with police station, Bhagyanagar Nanded, against in allsix accused persons. The investigation progressed and charge sheet hasbeen filed. Eventually, RCC No. 366 of 2023 is registered and pendingbefore JMFC, Nanded. The applicants in Criminal W.P. No. 1155 of 2022are parents and brother of Sarika-wife of the informant and applicants inCriminal W.P. NO. 1922 of 2022 are distant relatives i.e. in-laws of sisterof Sarika.6.Mr. N.K. Tungar, learned advocate for the petitioners invitesour attention to the list of civil and criminal cases arising out ofmatrimonial dispute between respondent No.6 and his wife. Mr. Tungar {6} CRWP 1155.22R.odtwould submit that respondent No.6 has consistently ill-treated his wifeunder the pretext that she is a schizophrenic patient. The applicants inCriminal W.P. No. 1155 of 2022 being parents and brother of Sarika, werestaying with her in a flat at Nanded. The respondent No.6, with ill-motive to evict Sarika from the flat, executed an agreement of sale with aBuilder. Since applicant Nos. 1 and 2 were residing with Sarika, they aremade as accused and even the other applicants, who are unconcernedwith dispute have been implicated as accused persons. Mr. Tungar wouldinvite attention of this Court to the contents of FIR and statements ofwitnesses recorded during the course of investigation, to contend thatnone of the ingredient of the alleged offences would attract in the facts ofthe case. In fact, the registration of FIR itself is illegal. The proceedingought to have been dropped by police authorities, however, theyproceeded to register false complaint owing to the power and position ofrespondent No.6 being a Judicial Officer.7.Mr. Tungar would further submit that no court has passedany order or decree granting maintenance in favour of Sarika. Therefore,the allegations that the petitioners had ill-eye on the maintenanceamount is fallacious. He would further submit that the registration ofFIR and consequential proceeding is sheer abuse of process of law, henceneeds to be contained.8.Per contra, Mr. A.V. Lavte, learned APP and Mr. VishalKakade, learned advocate for respondent No.2 justifies the registration ofFIR and consequential proceedings.9.We have considered the submissions advanced by learned {7} CRWP 1155.22R.odtadvocates for respective parties. List of litigation between respondentNo.6 and his wife Sarika shows that in all 23 criminal and civil mattershave been instituted by them against each other, which includes, criminalcases under Section 498-A, proceeding under the Protection of Womenfrom Domestic Violence Act, the proceedings for maintenance by wife,proceeding for divorce by respondent No.6, and FIRs for various offences.Previously, by intervention of this Court, the proceedings were disposedof in the light of settlement between the parties. However, it appears thatlitigation still persists.10.Prima facie, this Court is of the view that the chequeredmatrimonial dispute is taking toll of process of law. It is difficult to findout who is at fault; but, fact remains that the machinery of Police andCourts has been exerted by the parties. Be that as it may.11.So far as the present writ petitions are concerned, we areinclined to consider only prayer as regards quashment of the FIR andconsequential criminal proceedings, without touching to other prayerswhich are based on disputed questions of fact. On the basis of materialbefore us, it would be difficult to record definite finding that respondentNo.6 misused his position or Respondent No. 5 registered offence underhis influence. It can not be ignored that some incidence occurred atrelevant time but parties are canvassing same as per own angle. 12.The gist of contents of FIR depict that it pertains to incidencedated 10.4.2022. The informant alleges that when he had been to hishome at Nanded, his wife Sarika did not open door. Petitioner nos. 1 and2 were inside the house alongwith her. He alleges that petitioner Nos. 1 {8} CRWP 1155.22R.odtand 2 prevented Sarika from opening the door. His entry was restricted.Since his important documents and precious articles were inside thehouse, he attempted to take aid of the police to secure entry in the house.However, because of the instigation of respondent Nos. 1 and 2, his wifedid not open the door. The applicants took disadvantage of poor mentalhealth of Sarika, illegally entered in his flat with intention to createobstacle in the transfer of the flat as agreed by him to the builder.Informant further alleges that accused persons are instigating his wife tolodge false reports against him to exploit financial benefits.13.During the course of investigation, the statement of APIBharti Kanba Vathore, Assistant Police Inspector, Bhagyanagar PoliceStation, is recorded, wherein, she stated that wife of respondent No.6told that she has invited her parents and they are residing with her inresponse to her invitation. The said statement shows Sarika did not opendoor as she had apprehension of life and limb. The petitioner Nos. 1 and2 were present in the house. From the statement of the Police Officer, itis not discernible that petitioners had any way obstructed entry ofrespondent No.6 in the house. Pertinently, Sarika is not made accused inthe FIR. From the contents of FIR and charge sheet, presence of thepetitioner No.3 (in Criminal W.P. NO. 1155 of 2022) or petitioners in W.P.No. 1922 of 2022 is not discernible at the time of incident.14.Apparently, the charge sheet is filed for the offences underSections 341, 342, 384,451, 452, 109 r/w. 34 of IPC. From the plainreading of the FIR and allegations therein, we do not find thatingredients to make out case for aforesaid offences are present in thiscase.
Decision
{9} CRWP 1155.22R.odtSection 339 of IPC defines wrongful restraint which requiresthat person, who has a right to proceed is wrongfully restrained so as toprevent that person from proceeding in any direction. As observed inaforesaid paragraphs, it is discernible that Sarika who is wife ofrespondent No.6 did not open the door or restricted entry of respondentNo.6 in the house. No role of applicants can be seen in such act ofSarika. Section 340 defines wrongful confinement. Statement of Sarikashows that she was residing in a flat alongwith her parents and childrenon her own volition and there is nothing to show that respondent No.6was confined by any of the accused persons.15.Further to make out an offence under Section 451, there hasto be house tresspass in order to commit the offence. Section 452provides for punishment for house tresspass after preparation for hurt,assault or wrongful restraint. The allegations in the FIR or evidencecollected during the course of investigation nowhere suggest that entry ofpetitioner Nos. 1 and 2 in the house was with criminal intent. In fact,they being parents of Sarika i.e. wife of respondent No.6, they wereinvited by her and residing at her pleasure. In that view of the matter,we are of the considered view that no offence can be made out againstthe applicants in the facts and circumstances of the case. Criminalproceeding in such matters would be an abuse of process of law. Hence,we allow the writ petitions, proceed to pass the following order :- O R D E R[I]Criminal Writ petition No. 1155 of 2022 is partly allowed.[II]Criminal Application No. 1922 of 2022 is partly allowed {10} CRWP 1155.22R.odt[III]The First Information Report in Crime No. 0119 of 2022dated 11.04.2022 registered with the Bhagya Nagar Police Station,Nanded under Section 109, 120-B, 34, 447, 451, 452, 384 of IndianPenal Code, 1860 is hereby quashed and set aside alongwithconsequential criminal proceeding in Regular Criminal Case No. 366 of2023 pending before 5th Judicial Magistrate First Class, Nanded [S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J] grt/-