High Court

Legal Reasoning

( 1 ) 20 cri wp 1638.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1638 OF 2024Kondiram Manjabapu Guldagad,Age: 76 years, Occ : Nil,R/o At post Rahuri (Tanpurewadi Road),Dist. Ahmednagar....PETITIONERV/s.1.The State of MaharashtraThrough Rahuri Police Station, Rahuri, Dist. Ahmednagar.2.Sheetal Karbhari Guldagad,Age : 32 years, Occ: Household, R/o Tanpurewadi Road, Rahuri,Tq. Rahuri, District Ahmednagar....RESPONDENTS.....Mr. C.K. Shinde & Tushar Shinde, Advocate for the PetitionerMs. Chaitali Chaudhari Kutti, APP for the Respondent-StateMr. D.R. Markad h/f. B.B. Shelke, Advocate for the Respondent No.2...…CORAM : Y.G. KHOBRAGADE, J.DATE :10.02.2025ORAL JUDGMENT:-1.At the outset it is submitted that, on 14th December, 2024, both thecounsels appearing for the Petitioner and Respondent No.2 jointly submittedabout amicable settlement of dispute as both are blood relatives, however, ( 2 ) 20 cri wp 1638.24today they have fairly stated that the parties are not willing to settle thedispute, hence, they wanted to argue the matter on merits.2.Rule. Rule made returnable forthwith and with the consent ofboth sides heard finally.3.Heard Mr. Shinde, the learned counsel appearing for thePetitioner, Mr. Markad h/f. Advocate Mr. B.B. Shelke, the learned counselappearing for the Respondent No.2 and the learned APP for the RespondentNo.1-State.4.By the present petition under Article 227 of the Constitution ofIndia, the Petitioner seeks challenge to the order dated 30.07.2024 passed bythe learned Sessions Judge, Ahmednagar in Criminal Revision ApplicationNo.31/2024, whereby the learned Revisional Court affirmed the order passedby the learned JMFC, Rahuri below Exh.9 in RCC No.12/2022, therebydeclined to discharge the Petitioner/Accused for the offence punishable underSection 354, 323, 504, 506 of the I.P.C.5.Having regard to the submissions canvassed on behalf of both thesides, I have gone through the record. On face of record, it appears that on22.10.2021, the Respondent No.2/Informant lodged a report with RahuriPolice Station alleging that, on 22.10.2021 at about 10.30 a.m., she with her ( 3 ) 20 cri wp 1638.24husband, brother in law and sister in law visited their field to see erection ofelectric pole in their field. At that time, the Accused visited there and told as towhy they are erecting Electric Pole on bund of his field and asked them to erectsuch pole by leaving two feet distance from bund of his field. Thereafter, theAccused abused them in filthy language and assaulted her husband with fistand blows, therefore, the Respondent No.2, her sister in law-Vaishaliintervened in said quarrel to separate both of them but the Accused caughthold of her hand with an intention to outrage her modesty. It is further allegedthat, the Accused issued life threats to Respondent No.2 and her familymembers. On the basis of the said FIR, Crime No.0887/2021 came to beregistered against the present Petitioner/Accused for the offence punishableunder Section 354, 323, 504, 506 of the I.P.C.6.The learned counsel appearing for the Petitioner canvassed that,on 22.10.2021, the Petitioner also lodged a FIR No.0885/2021 with RahuriPolice Station alleging that, on 22.10.2021 when he was doing agriculturaloperation work at that time, the Accused persons- Devrao Guldagad, SanjayGuldagad, Karbhari Guldagad, Sheetal Guldagad (Respondent No.2) andVaishali Guldagad quarreled with him on account of erection of electric pole onbund of his field and assaulted him with iron object, stick, fist and blows, dueto which he sustained grievous injuries. Therefore, he was hospitalized withRural Hospital, Rahuri, District Ahmednagar. According to the Petitioner, he ( 4 ) 20 cri wp 1638.24sustained injuries on head at right side frontal bone, over back and chest.However, the Respondent No.2 (Complainant) lodged a FIR bearing CrimeNo.887/2021, afterthought subsequent to the lodging of the FIR by him.7.It is further canvassed that, the Respondent No.2 has not stated inher complaint that, the Petitioner outraged her modesty with an intention tosexual overtures but said incident of caught holding hand allegedly occurredwhile intervening in quarrel between the Petitioner and Shri KarbhariGuldagad, the husband of the Respondent No.2. Therefore, the FIR lodgedagainst the present Petitioner is concocted and continuation of criminalprosecution on the basis of said FIR would certainly amount to abuse of processof the Court, hence, prayed for quashing and setting aside the FIR.8.In support of these submissions the learned counsel appearing forthe Petitioner placed reliance on the case of Nitin Upadhyay and Anr. V/s.State of Maharashtra; 2024 All M.R. (Cri) 3164 : 2024 DGLS (Bom.) 3779,wherein, it is held that, a sudden quarrel took place and it was not apremeditated act. The act of pulling Petitioner No.2’s hair and assaulting herwith fist blows also appears to be a sudden act and not a premeditated act. Soalso, the said act of pushing her was accompanied by any utterances or gesturesor indecent touch which would underscore sexual overtures. Neither there isany allegation made by the Petitioner No.2 (Informant) that the Accused had ( 5 ) 20 cri wp 1638.24an evil eye or had touched her inappropriately. Thus, even if the prosecutioncase is taken as it stands, the existence of mens rea, a prerequisite to attractSection 354 is amiss in the given facts.9.It further relied on the judgment dated 19.08.2022 passed byCoordinate Bench of this Court at Principal Seat in Criminal ApplicationNo.1269/2017 (Sudhir Vitthal Medhekar Vs. State of Maharashtra & Ors.),wherein this Court held in paragraph Nos.16 to 18 as under:“16.On the aforesaid touchstone, reverting to the facts of the case, on acareful perusal of the allegations in the first information report and thestatements of the alleged eye witnesses to the occurrence, the followingsituation emerges.(1) Truptesh, the husband of the first informant and his friends MahendraPratap Singh and Manjunath Krushnapal were standing in the campus of thesociety near the water tank. The first informant was little afar and allegedlytaking a walk.(ii) Truptesh claimed that the applicant came thereat and while approachingtowards lift, the applicant bumped into him. When Truptesh asked theapplicant to be more careful, the applicant returned to the said spot.(iii) An alternation ensued. The applicant caught hold of the shirt ofTruptesh. Despite being asked to leave Truptesh, the applicant allegedlyslapped Truptesh.(iv) At that stage, according to Truptesh, the witnesses Shashikant Shenoy,Mahendra Pratap Singh, Manjunath Krushrapal and the first informant camein the frame. When the first informant tried to rescue her husband Truptesh,the applicant touched her chest and pushed her aside.17. In the light of the aforesaid sequence of events, the question thatcrops up for consideration is whether the act of pushing the first informantaside can be said to be attended with intent to outrage, or knowledge that ( 6 ) 20 cri wp 1638.24the applicant would thereby outrage, the modesty of the first informant. Thefollowing factors, in my considered view, bear upon the determination.18. First and foremost, it is pertinent to note that the quarrel was, in asense, sudden. It does not appear that there was pre-meditation especiallyqua the role attributed to the applicant of pushing the first informant.Secondly, even altercation between the applicant and Truptesh appeared tohave taken place at the spur of the moment. Truptesh and the applicant havedifferent versions as to what caused the applicant to turn back to the placewhere Truptesh and his friends were standing. However, what is of salienceis the fact that something made the applicant to return back to the said placeand thereupon altercation ensued. Thirdly, Truptesh was accompanied bytwo of his friends and it was natural on their part to intervene in the quarrelso as to pacify Truptesh and the applicant, also a resident of the samesociety. Fourthly, it is the claim of the first informant and witnesses that thefirst informant came thereat while a scuffle was on between the applicantand Truptesh. Fifthly, at that moment, the applicant allegedly pushed thefirst informant who claimed to have intervened to rescue Truptesh from theclutches of the applicant. Sixthly, the act of pushing the first informant wasin the course of the scuffle, while the applicant was evidently grapplingwith her husband. Seventhly, the first informant and witnesses do not allegethat the said act of pushing the first informant was accompanied by anyutterances or gestures which would underscore sexual overtures. Lastly,there is no allegation of any prelude to the occurrence which would indicatethat the applicant had either an evil eye or had behaved with the firstinformant in a manner which would appear to be indecent. If all thesefactors are considered in conjunction with each other, even if theprosecution case is taken as it stands, the existence of mens rea to outragethe modesty of the first informant can not be inferred.”10.The learned counsel for the Petitioner further relied on thejudgment dated 10.10.2024 passed by the Kerala High Court in CRL MCNo.6103 of 2024 (Dr. P.K. Baby V/s. Vs. State of Kerala), wherein it is held inparagraph Nos.15 and 16 as under:“15. As I have already discussed, the most essential ingredient to attractan offence under Section 354 of IPC is assault or use of criminal force to ( 7 ) 20 cri wp 1638.24any woman with intent to outrage or knowing it to be likely that he willthereby outrage her modesty. As per Section 354A(1) of IPC, when a mancommits the acts of (i) physical contact and advances involving unwelcomeand explicitly sexual overtures; or (ii) a demand or request for sexualfavours; or (iii) showing pornography against the will of a woman; or (iv)making sexually coloured remarks, shall be guilty of the offence of sexualharassment, he is punishable for he offence of sexual harassment. Section354A(1)(i) provides that an act involving unwelcoming and explicit sexualovertures, is an offence. Section 503 of IPC defines criminal intimidationas, whoever threatens another with any injury to his person, reputation orproperty, or to the person or reputation of any one in whom that person isinterested, with intent to cause alarm to that person, or to cause that personto do any act which he is not legally bound to do, or to omit to do any actwhich that person is legally entitled to do, as the means of avoiding theexecution of such threat, commits criminal intimidation.16. Summarising the factual matrix in this case, it is discernible thatwhen the defacto complainant attempted to move towards the auditorium onthe pretext of taking an oil lamp, after completion of the programmeoverstepping the outer time limit fixed as 9.00 pm, as per the guidelines, aspart of the strict compliance of the discipline, the petitioner herein objectedthe same and there was, altercation as part of conductance and resistance. Insuch a situation, it could not be held, prima facie, that the petitioner hereinhad any intention to outrage modesty of the defacto complainant in anymanner or to harass her sexually. That apart, the physical contact as part ofsuch resistance could not be held as the one which advanced unwelcomeand explicit sexual overtures. Failure to lodge a complaint in this regard atleast to the University Authorities, soon after the occurrence would showthat the allegations in the complaint and in the FIS are afterthought events.Viewing the facts in this case from the above perspective, none of theoffences are made out, prima facie. In view of the matter, the FIR registeredafter 4 months and 6 days after 3 months and 26 days of lodging thecomplaint before the Vice Chancellor as an afterthought lacks bona fidesand the prayer to quash the FIR is liable to succeed.”11.Per contra, the learned counsel appearing for Respondent No.2supported findings recorded by both the Courts below. It is submitted that, theRespondent No.2 and Petitioner both have filed counter FIRs against each other ( 8 ) 20 cri wp 1638.24for one and the same incident. Therefore, if the Petitioner is discharged on thebasis of the allegations made in the FIR it would certainly made effect on thetrial which has been initiated against the Respondent No.2 and her relatives.Further, the intention to outrage modesty of the Respondent No.2 cannot beascertained at this preliminary stage without a trial. Therefore, prayed fordismissal of the petition.12.It is a matter of record that, on the basis of report lodged byRespondent No.2/Informant, a Crime No.887/2021 was registered against thePetitioner/Accused for the offence punishable under Section 354, 323, 504 and506 of the I.P.C. After the investigation was over, the Investigating Officer filedcharge-sheet against the present Petitioner for the offence punishable underSection 354, 323, 504 and 506 of the I.P.C. The said charge-sheet is registeredvide RCC No.12/2022.13.It is an admitted fact that, on the basis of report lodged by thepresent Petitioner the Crime No.885/2021 was registered against theRespondent No.2, her Husband, brother in law and sister in law for theoffences under Section 324, 323, 143, 147, 148, 149, 504, 506 of the I.P.C. Itnot in dispute that, the Investigating Officer also filed the charge-sheet againstRespondent no. 2 and her relatives in Crime No.885/2021, which is registered ( 9 ) 20 cri wp 1638.24as RCC No.132/2022. The trial of both crimes are pending before the learnedJMFC, Rahuri.14.It is well settled principle of law that, if two counter FIRs areregistered against each other in that circumstance trials in both the offences arerequired to be conducted by one and the same Court simultaneously. Needlessto say that, intention of the accused to outrage modesty of the Respondent/Informant can only be gathered after a full-fledged trial. However, in the casein hand, as per the ratio laid down in cases of Nitin Upadhyay and Anr., SudhirVitthal Medhekar and Dr. P.K. Baby cited (supra), the Petitioner cannot bedischarged only for the offence punishable under Section 354 of the I.P.C.,when Crime No. 887/2021 is registered against the present Petitioner/Accusedfor other offences under Sections 323, 504, 506 of the I.P.C. It is not the caseof the Petitioner that, only offence under Section 354 of the I.P.C., is registeredagainst him for outraging of modesty due to allegedly caught holding hand ofthe victim while separating her husband and the Accused.15.Needless to say that, on 16.02.2024, the learned JMFC, Rahuripassed an order below Exh.12 and rejected prayer for discharge. On30.07.2024, the learned Revisional Court passed the impugned order inCriminal Revision Application No.31/2024 holding that, as per report dated22.10.2021 the dispute arose while erecting electric pole on bund in agriculture ( 10 ) 20 cri wp 1638.24field and when there was resistance on part of the Petitioner and out anger hestarted abusing and beat the Informant’s Husband. Thereafter, when she(Informant) with her sister-in-law and brother-in-law tried to separate herHusband at that time the Petitioner outraged her modesty and gave criminalintimidation to kill. Therefore, I find that, findings recorded by both theCourts below are just, proper and based on material available on record.Therefore, no interference is called at the hands of this Court, hence, thepetition is dismissed. Rule is discharged. [Y.G. KHOBRAGADE, J.]mub