Mr.Hrishikesh v. Tunkar
Legal Reasoning
12376.2023APPLN.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPLICATION NO.2376 OF 20231.Rekha W/o Raosaheb WaghmareAge : 64 years, Occ : Household,R/o Pathri, Tq. Phulambri,Aurangabad.2.Raosaheb S/o Miraji WaghmareAge : 68 years, Occ : PensionerR/o As above.3.Hemangi d/o Raosaheb WaghmareAge : 41 years, Occ : Nil,R/o As above...APPLICANTS-VERSUS-1.The State of MaharashtraThrough : Police Inspector,Police Station, Ambad,Tq.Ambad, Dist. Jalna2.Jaishree Ravi WaghmareAge : 25 years, Occ : Household,R/o Aviskar Colony, N-6, CIDCO,Aurangabadat present R/o Rohilgad, Tq.Ambad,Dist. Jalna...RESPONDENTS...Advocate for Applicants : Mr. Milind K. DeshpandeAPP for Respondent- State : Mr.G.A. KulkarniAdvocate for Respondent No.2 : Mr.Hrishikesh V. Tunkar...CORAM :SMT. VIBHA KANKANWADI ANDROHIT W.JOSHI, JJ.RESERVED ON :27 NOVEMBER, 2024PRONOUNCED ON : 11th DECEMBER, 2024. 22376.2023APPLN.odtJUDGMENT (PER ROHIT W. JOSHI, J.) :.Present criminal application is preferred under section 482of the Code of Criminal Procedure, 1973 (Hereinafter referred to as“the Cr.P.C.” for brevity), challenging F.I.R. bearing Crime No.769/2022registered with Ambad Police Station, Ambad, Dist. Jalna on10.11.2022 against the present applicants and one Ravi RaosahebWaghmare, for the offence punishable under Sections 323, 498-A, 504and 506 read with section 34 of the Indian Penal Code along with finalreport No.376/2022 dated 27.12.2022 filed by the said Police Stationunder Section 173 of the Cr.P.C. as also Regular Criminal CaseNo.276/2022 pending on the file of the learned Judicial Magistrate,First Class at Ambad registered pursuant to the said final report.2.Respondent No.2 – informant has lodged the above FIRon 10.11.2022. Applicant Nos.1 to 3 are mother-in-law, father-in-lawand sister-in-law respectively of the informant. The husband of theinformant is not party to the present application.3.It is case of the informant that her marriage with RaviWaghmare, son of applicant Nos.1 and 2, was solemnized on30.05.2019. She has daughter from the said marriage, which wasaround 2 years old on the date of lodging of FIR. The allegation in theFIR is that husband-Ravi used to demand a sum of Rs.10,00,000/- 32376.2023APPLN.odtfrom the parents of respondent No.2 - informant for purchasing a Carand since the said amount could not be arranged, he used to abuseand beat her. It is alleged that applicant Nos.1 to 3 also used to abuseher raising demand for money. In her supplementary statement dated11.11.2022, respondent No.2-informant has stated that on 01.05.2022,the applicants and her husband-Ravi abused her again reiterating thedemand for Rs.10,00,000/- and expelled her from the house. Shestates that the applicants and her husband-Ravi did not allow her totake her daughter Abha along with her. Respondent No.2-informantthus states that she has constantly subjected to harassment andcruelty, since her parents did not fulfill their demand of dowry ofRs.10,00,000/-. The statements of her parents and brothers are alsorecorded. It will also be pertinent to mention here that statement of oneKuldeep Jadhav, who is relative of the applicants, is also recorded. Hestates that respondent No.2-informant had apprised him about themental torture and harassment meted out to her by the applicants andher husband-Ravi for demand of Rs.10,00,000/-.4.It will be pertinent to mention here that respondent No.2-informant had filed a proceeding under Section 97 of the Cr.P.C. beforethe learned Judicial Magistrate, First Class, Ambad, being CriminalMisc. Application No.240/2022, seeking search warrant and custody ofher daughter. Ravi, the husband and applicant Nos.1 and 2 herein 42376.2023APPLN.odtwere arrayed as non-applicants in the said matter. Pursuant to theorder passed by the learned Magistrate, daughter Abha was producedin the Court, however, the learned Magistrate held that the daughterwas not wrongly confined by Ravi, who was her father and, therefore,the application under Section 97 of the Cr.P.C. was not maintainable,and as such, the Magistrate was pleased to reject the said applicationon 29.06.2022 granting liberty to respondent No.2-informant to seekrecourse to proper remedy under law for custody of her daughter.Respondent No.2-informant has thereafter filed proceeding underSection 25 of the Guardians and Wards Act, 1890, being Misc. CivilApplication No.14/2022, which came to be allowed by the learnedAdditional District Judge, vide order dated 28.08.2023. However, thesaid order is not complied with and the daughter is still in the custodyof Ravi, husband of respondent No.2-informant. During the course ofhearing held on 18.11.2024, we had inquired with the learnedAdvocate for the applicants about whereabouts of Ravi, who is son ofapplicant Nos.1 and 2 and brother of applicant No.3. LearnedAdvocate informed on instructions that the applicants were not awareabout whereabouts of Ravi. On a specific query, they replied that theyhad also not filed any missing report on the count that their son Raviwas not traceable. The order granting custody passed by the learnedAdditional Sessions Judge is still not complied with. 52376.2023APPLN.odt5.It is hard to believe that the applicants are not aware aboutwhereabouts of their son and have still not taken any steps to find him.It appears that as a matter of strategy, husband-Ravi is not comingbefore the Court in order to keep custody of his daughter Abha indefiance to the order of custody passed by the Competent Court. Hisparents and sister have filed the present application seeking quashingof FIR and criminal proceedings on the ground that there is no materialagainst them in order to make out a case under Section 498-A of theIPC. It is difficult to digest that they are not aware about address andwhereabouts of Ravi. It is apparent that they are deliberately notdivulging the necessary details.6.As regards the merits of the matter, Shri MilindDeshpande, learned Advocate for the applicants is strenuously arguedthat the allegations in the FIR regarding demand of dowry, harassmentand cruelty are vague in nature and lacking any material particular. Hecontends that respondent No.2 – informant has falsely implicated themin the offence. He would go on to submit that in the investigation alsono material has been gathered against them to remotely suggest theirinvolvement in the offence. Learned advocate, therefore, submits thatthis is a fit case for exercising our powers under Section 482 of theCr.P.C. in order to quash FIR and criminal case. 62376.2023APPLN.odt7.As against this, Shri G.A. Kulkarni, learned APP andMr.H.V. Tungar, learned Advocate for respondent No.2 submit thatclear and definite allegations have been levelled in the FIR and as alsoin the supplementary statement made by respondent No.2-informant.They further claimed that the statements of the witnesses particularlythat of Kuldeep Jadhav, who is relative of the applicants, would clearlydemonstrate that there is substance in the allegations levelled byrespondent No.2 against the applicants. They further go on to submitthat the veracity or otherwise of the allegations cannot be judged whileadjudicating the present application, and that, for the purposes of thepresent application all the allegations in the FIR and statements of thewitnesses will have to be assumed to be correct. Apart from this,learned Advocate for respondent No.2 has strenuously argued that thepower under Section 482 of the Cr.P.C. is discretionary power, and thathaving regard to the conduct of the applicants and Ravi, the husbandof respondent No.2 – informant, in not handing over custody ofdaughter Abha in defiance of the order of custody passed by theCompetent Court, disentitles them to invoke our jurisdiction underSection 482 of the Cr.P.C. and as such, the application is liable to berejected without going to merits of the matter.8.We have perused the FIR and charge-sheet withdocuments appended thereto with the able assistance of learned 72376.2023APPLN.odtrespective Advocates appearing in the matter.9.We are of the opinion that the parties, who do not haveregards for judicial orders passed by the Competent Court of law, arenot entitled to invoke our jurisdiction under Section 482 of the Cr.P.C.The Hon’ble Supreme Court in the case of Padal Venkata RamaReddy Alias Ramu Vs. Kovvuri Satyanarayana Reddy and othersreported in (2011) 12 SCC 431, has held that jurisdiction under section482 of the Cr.P.C. is a matter of discretion and as such the High Courtcan refuse to exercise powers under the said provision having regardto conduct of applicant/s before it. 10.We could have rejected the present application solely onthe count that the applicants have not handed over custody of thedaughter to respondent No.2 despite the order dated 28.08.2023passed by the Additional Sessions Judge in Misc. Civil ApplicationNo.14/2022. However, having regard to the age of applicant Nos.1 and2 and statement that applicant No.3 is a specially abled person, wepropose to deal with the matter on merits.11.At the outset, we would like to state that at the stage ofdeciding as to whether criminal prosecution should be continued ornipped in the bud, we are constrained to take allegations in the FIR so 82376.2023APPLN.odtalso the statements made by the witnesses before the PoliceAuthorities on their face value. We can interfere only on the face of theallegations and statements of the witnesses, essential ingredients ofthe offence are not made out. We cannot conduct a mini trial and lookinto veracity of the contents of FIR and statements.12.Respondent No.2 has narrated that her husband – Raviand applicants, who are her parents-in-law and sister-in-law used toconstantly harass her on account of her failure to collect money fromher parents as demanded by them. There is a specific allegation thatthey used to demand a sum of Rs.10,00,000/- from her for purchasinga car. The statements of witnesses i.e. parents of respondent No.2 andher brothers are recorded, which support her version with respect todemand of dowry and harassment meted out to her on account offailure to fulfill the demand. In her supplementary statement dated11.11.2022, respondent No.2 has specifically stated that on01.05.2022, she was driven out of her matrimonial house by thehusband and all three applicants by stating that unless she bringsamount of Rs.10,00,000/-, she will not be allowed to return hermatrimonial house. She has also stated that husband and applicantsalso forcibly retained custody of her daughter while expelling her fromresidential house. Most importantly the version of respondent No.2 andher parents and brothers find corroboration in the statement of
Decision
92376.2023APPLN.odtKuldeep Jadhav, who is relative of the applicants. In view of the abovestatement, it is difficult to disbelieve the version of respondent No.2and prosecution witnesses at this stage.13.As mentioned above, the daughter of respondent No.2,who is now only around four years old is kept away from her. A judicialorder passed by the Competent Court of law is also not being obeyed.Although, the daughter is with husband, we have already recordedabove that the applicants herein are assisting his husband in the sensethat his whereabouts are not being disclosed. Keeping a young child offour years old away from her mother in defiance of Court order alsoamounts to mental harassment amounting to cruelty in as much as itwould certainly cause grave injury to mental health of respondentNo.2, mother of the child. Such act of the in-laws amounts to crueltywithin the meaning of Explanation (a) to Section 498-A of IPC. Wefurther record that the said mental harassment is continuing from dayto day till date. It is a continuing wrong.14.We are therefore of the opinion that this is not a fit case forexercising our inherent jurisdiction vested under Section 482 of theCr.P.C. in order to quash the criminal prosecution against theapplicants. 102376.2023APPLN.odt15.Learned Advocate for the applicants has submitted thatapplicant No.3 is a specially abled person suffering from mentaldisorder. Our attention is drawn to documents filed on record, whichshow that she is suffering from schizophrenia. Schizophrenia affectsbehavior of patient intermittently for certain duration of time. It is not aconstant medical condition. In the event, the applicants deem it fit, theymay take recourse to provisions of Chapter XXV of the Cr.P.C. in theproceedings before learned Magistrate with respect to the allegedailment of applicant No.3. We do not deem it appropriate to quashproceedings against her on the ground that she is allegedly sufferingfrom schizophrenia. Accordingly, we pass the following order :-ORDER(i)The criminal application is dismissed.[ROHIT W. JOSHI][ SMT. VIBHA KANKANWADI] JUDGEJUDGEsga