High Court

Legal Reasoning

902(A)-Cri-Appln-3309-2023.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD902 CRIMINAL APPLICATION NO. 3309 OF 2023GANPAT DATTATRAY SAPRE AND OTHERS VERSUSTHE STATE OF MAHARASHTRA AND ANOTHER.…Ms M. V. Narwade, Advocate for the Petitioners Mr. N. D. Batule, APP for Respondent No.1 Mr. S. R. Andhale, Advocate for Respondent No.2 .…CORAM: Y. G. KHOBRAGADE, J.DATE:11.12.2024PER COURT :- 1.Heard learned Counsel for the Applicants, learned APPfor Respondent No.1 and learned Counsel for Respondent No.2, atlength. 2.By the present Application under Section 482 of theCode of Criminal Procedure,1973 (for brevity “Cr.P.C.”) filed bythe father-in-law, mother-in-law and sister-in-law of present non-applicant No.2 (original aggrieved person) within the meaning ofthe Protection of Women from Domestic Violence Act, 2005 (forbrevity “D.V. Act”), prayed to quash and set aside the D.V.proceeding bearing Criminal Misc. Application No. 92 of 2023, 1 of 9 (( 2 ))902(A)-Cri-Appln-3309-2023pending on the file of the learned J.M.F.C. Jamkhed, DistrictAhmednagar.3.The learned Counsel for the Applicants canvassed invehemence that the non-applicant No.2 (original aggrieved person)has filed a Criminal Misc. Application No. 92 of 2023, before thelearned J.M.F.C. Jamkhed, District Ahmednagar, alleging that on07.05.2017, her marriage solemnized and after marriage, she went toher matrimonial house for cohabitation. Thereafter she and herhusband went to Goa, but after two days from returning from Goa,her husband raised a demand of Rs. 25,00,000/- (Rupees Twenty FiveLakh) from her for purchasing a flat in Pune. Though she gaveunderstanding to her husband that the financial condition of herparents is not sound, but it was in vain. She further alleged that thepresent applicant Nos. 1 and 2 her parent in-laws, tortured her andinstigated to her husband to raise domestic violence against her.Though her husband went for his job, but he used lock the door fromoutside and lock her up for the entire day. She further alleged thather husband raised a demand of dowry for purchasing a new car, butshe told her husband that her parents are already in debt but at thattime her husband beaten her. Therefore, on 05.02.2018, her father 2 of 9 (( 3 ))902(A)-Cri-Appln-3309-2023allegedly given Rs. 20,000/- for payment of installment of the car.Inspite of these she was tortured and her in laws raised domesticviolence against her. 4.The learned Counsel for the Applicants canvassed invehemence that the non-applicant No.2 was not residing with theApplicants and they have not share the same house. The presentapplicant No. 3 is married and she is residing with her husband atBelwandi. There is no specific allegations against the presentapplicants. The allegations made against them in the complaint are"u.kan Eg.kwu rksjk fejor o lkeusokyk dz- 1 o 2 ;kuk vtZnkj fg dkgh,d dke/kankdjr ukgh] fryk vkbZ ofMykauh dkgh,d f’kdoys ukgh] fryk ekgsjhp ikBokÞ] vlsEg.kwu lkeusokyk dz-1 ;kapsdMs dkuHkj.kh d:u frps lkax.kso:u lkeusokyk dz-1 gkvtZnkj fgl =kl nsr". Therefore, the learned Counsel for the Applicantssubmits that there is no substantial material to proceed against thepresent applicants under the D.V. Act. So also, in absence of specificallegations continuing the proceeding as against the presentapplicants amount to abuse of process of law. 5.To buttress these submission, the learned Counsel for theApplicants has placed his reliance on the case of Preeti Gupta &Another Vs. State of Jharkhand & Another, 2010 AIR (SC) 3363, 3 of 9 (( 4 ))902(A)-Cri-Appln-3309-2023wherein it has been held that implication of other relatives of thehusband in the complaint under Section 498 A of I.P.C., is meant toharass and humiliate the husband's relatives and permitting thecomplainant to pursue with said complaint would amount to abuse ofprocess of law.6.Further he relied on the case of Mohd. Nawaz IqbalShaikh Vs. State of Maharashtra and another, 2023 ALL MR (Cri)2182, wherein in paragraph Nos. 13, 14 and 15, the co ordinateBench of this Court has held thus:-“13. I shall frst deal with the preliminary objection ofMr.Hussein to the effect that when remedy of fliing RevisionApplication under Section 397 of Cr.P.C. is available, theinvocation of Section 482 cannot be justified.The objection deserve a rejection in limine, in light of thedecision of the Apex Court in case of Prabhu Chawla Vs. Stateof Rajasthan & Anr. 2016(16) SCC 30, where it has beencategorically held that nothing in the Code of CriminalProcedure, not even Section 397, can affect the amplitude ofinherent power preserved in so many terms, in Section 482.The law which prevail is to the effect that only because aRevision Application is maintainable, the same by itself wouldnot constitute a bar for entertaining an application underSection 482 of Cr.P.C., as abuse of the process of the Court orany extra ordinary situation justify it’s invocation and in thewords of Justice Krishna Iyer, “the limitation is self restrained,nothing more”.The objection, therefore, deserve no consideration and Imust proceed with the merits of the applications. 4 of 9 (( 5 ))902(A)-Cri-Appln-3309-202314. Section 482 of the Cr.P.C., which save the inherent powerof the Court, contemplate it’s exercise to advance the cause ofjustice. The exercise of the power can be justified in thefollowing situations; (a) to give effect to an order under thisCode; (b) to prevent the abuse of the process of the Court; and(c) to otherwise secure the ends of justice.It is trite position of law, that the Court should beguarded in exercise of this extra ordinary jurisdiction to quashany criminal proceedings fled through an FIR, as it denies theprosecution an opportunity to establish it’s case on productionof evidence. The position of law as regards the exercise of power havebeen eloquently spelt out in the case of State of Haryana Vs.Bhajan Lal, 1992 Supp(1) SCC 335, where the Apex Courtpermitted exercise of it’s ordinary jurisdiction and set it outthrough distinct illustrations, where quashing of the criminalproceedings may be a proper exercise of the power and thequashing has been held to be appropriate, in the followingcontingencies :-“(1) where, the allegations made in the first informationreport or the complaint, even if they are taken at theirface value and accepted in their entirety do not primafacie constitute any offence or make out a case againstthe accused;(2)where the allegations in the frst information reportand other materials, if any, accompanying the FIR do notdisclose a cognizable offence, justifying an investigationby police officers under Section 156(1) of the Codeexcept under an order of a Magistrate within the purviewof Section 155(2);… (7)where a criminal proceeding is manifestly attendedwith mala fide and/or where the proceeding ismaliciously instituted with an ulterior motive forwreaking vengeance on the accused and with a view tospite him due to private and personal grudge.” 5 of 9 (( 6 ))902(A)-Cri-Appln-3309-202315.In exercising the jurisdiction under Section 482, theCourt would thus look into whether on the face of the FIR, theallegations constitute a cognizable offence and whether thereexist sufficient material to proceed ahead and if the allegationsdo not constitute an offence, of which cognizance is to betaken, it is open to the High Court to quash the same inexercise of it’s inherent power.”7.He further relied on the case of Munish Jai Pal Sharda Vs.Partha Sarathy Sarkar, 2023 ALL MR (Cri) 80, wherein, it has beenheld that exercising of inherent powers under Section 482 Cr.P.C. forissuance of process in a criminal case is a serious matter and criminallaw cannot be set into motion as a matter of course. 8.Per contra, the learned Counsel for non-applicant No.2canvassed that after the marriage, the non applicant No.2 cohabitedwith her husband at her matrimonial house / shared house alongwith the present Applicants and ruling her cohabitation. All thepresent Applicants / original non-applicants raised domestic violenceagainst her as contemplated under Section 3 of the D.V. Act. The non-applicant No.2 has made specific allegation against present applicantsand the role played by each of them. Therefore, the complaint underSection 12 of the D.V. Act is an abuse of process of law, but it is for thesubstantial cause. Hence, prayed for dismissal of the present 6 of 9 (( 7 ))902(A)-Cri-Appln-3309-2023Application.9.No doubt, on 26.02.2024, the co ordinate bench of thisCourt at Principal Seat has passed an order in Criminal ApplicationNo. 928 of 2022 (Lincen Louis Thommana & Ors. Vs. Leena LincenThommana) and referred the issue about maintainability of thePetition either under Article 226, 227 of the Constitution of Indiaand / or under Section 482 of Cr.P.C. Said issue is still sub-judicebefore the Larger Bench. These Applicants have not raised theirdefense that they never resided in shared house as provided underSection 2(s) of the D.V. Act, because they have not filed their reply.The present Applicants have also not raised the pleading that theywere not in domestic relationship with the non-applicant No.2 /aggrieved party within the meaning of Section 2(f) of the D.V. Act. 10.Section 3 of the D.V. Act provides the definition ofDomestic Violence. In the case in hand, the non-applicant No.2 /aggrieved party specifically made averments in her application thatafter solemnisation of her marriage on 07.05.2017, she cohabitedwith her husband and thereafter, her husband raised domesticviolence against her by raising an illegal demand of dowry topurchase a flat in Pune. Further, the parents in-laws of the non- 7 of 9 (( 8 ))902(A)-Cri-Appln-3309-2023applicant No. 2 have insulted her and used to instigate her husbandagainst her. The present Applicant No.3 who is sister-in-law, also usedto taunt her for not giving proper treatment and used to say her thatshe was not taught by her parents to perform domestic work.11.Needless to say that though the learned Counsel for theApplicants canvassed that omnibus allegations have been madeagainst the present applicants. However, on perusal of averment ofcomplaint, it prima facie appears that, the non-applicant No. 2 havepleaded the role played by each of the applicants / original non-applicants. The fact which is raised in the present Application for thefirst time cannot be adjudicated unless the present Applicants appearbefore the trial Court and file their replies and to lead the evidence tothat effect. Therefore, I am of view that the present Applicants havenot set out the substantial grounds for quashment of the proceedingsunder Section 12 of the D.V. Act by invoking the inherent powerunder Section 482 of Cr.P.C. 12.Accordingly, the present Criminal Application is dismissedwith cost of Rs.10,000/- payable by the present Applicants to the non-applicant No.2 / aggrieved party. 8 of 9 (( 9 ))902(A)-Cri-Appln-3309-2023 [ Y. G. KHOBRAGADE, J. ] SMS 9 of 9