SAURABH SHIVHAR YELURKAR AND OTHERS v. THE STATE OF MAHARASHTRA AND ANOTHER
Legal Reasoning
(( 7 ))908-Cri-WP-1985-2024lies upon the prosecution to prove the said cruelty and if theprosecution failed to discharge the burden, the prosecution requiredto face the consequences.11.No doubt, the present Petitioners carried the order dated26.03.2024 passed below Exh.146 in Criminal Revision No. 43 of2024. 12.It is well settled principle of law that if under theinterlocutory order, the rights of the parties are being determined,then the remedy under Section 397 of Cr.P.C., is available. However,in case in hand, merely rejection of the application of the presentPetitioners seeking to refer Respondent No. 2/informant for medicalexamination, right of the parties were not finally adjudicated.Therefore, to my mind, the said order is itself is not revisionable.However, the learned revisional Court entertained the revision andpassed the impugned order dated 27.09.2024. 13.The learned revisional court observed in Para No. 15 andheld that the revision is not maintainable as against the said order.The learned revisional Court further held that the observations madeby this Court in the judgment dated 26.08.2023 passed in Second 7 of 9 (( 8 ))908-Cri-WP-1985-2024Appeal No. 851 of 2018 are in respect of the petition under the HinduMarriage Act, in which divorce was sought on the ground of cruelty atthe hands of Respondent No. 2/informant and same allegations aboutincapability of maintaining physical relations was raised. Under thesecircumstances the learned Single Judge of this Court has held that insuch circumstances, the Respondent No. 2/wife could have been sendfor medical examination. 14.However, in the case in hand, the petitioners are charge-sheeted for the offences punishable under Sections 498-A, 504, 506read with Section 34 of I.P.C., on the ground that the informant wassubjected to cruelty/harassment due to non fulfillment of demand ofdowry as well as she was criminally intimated and she was insulted.Therefore, to prove the allegations made in the F.I.R. burden lies uponthe prosecution to prove the said charges against the presentPetitioners/accused persons beyond reasonable doubt. Since the caseof the prosecution does not based on the allegations made by thepresent Petitioner No.1 regarding incapability ofinformant/Respondent No.2 to establish physical relations with thePetitioner No.1 / husband. Not only this, but in judgment and orderdated 26.10.2023, passed by this Court in Second Appeal No.851 of 8 of 9
Arguments
908-Cri-WP-1985-2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD908 CRIMINAL WRIT PETITION NO. 1985 OF 2024SAURABH SHIVHAR YELURKAR AND OTHERS VERSUS THE STATE OF MAHARASHTRA AND ANOTHER .…Mr. L. H. Kawale, Advocate for the Petitioners Mr. C. V. Bhadane, APP for the Respondent/State .…CORAM: Y. G. KHOBRAGADE, J.DATE:11.12.2024PER COURT :- 1.Heard Mr. Kawale, learned Counsel for the Petitionersand the learned APP for the Respondent/State.2.By the present Petition, the Petitioners who are facingthe trial in R.C.C. No. 253 of 2018, for the offences punishableunder Sections 498-A, 504, 506 of the Indian Penal Code, 1860prayed to quash and set aside the order dated 26.03.2024 passedbelow Exh. 46 in R.C.C. No. 253 of 2024, passed by the learnedJ.M.F.C., Latur and order dated 27.09.2024 passed by the learnedRevisional Court in Criminal Revision Application No. 43 of 2024. 1 of 9 (( 2 ))908-Cri-WP-1985-20243.The facts leading to filing of present Petition are that theRespondent No. 2/wife lodged an FIR on 16.11.2014 with GangakhedPolice Station alleging that on 14.02.2013, her marriage wassolemnized with the present Petitioner No. 1 (accused No. 1) as perthe Hindu customs and rites. After marriage, she was subjected tocruelty and harassment due to non fulfillment of demand of dowry.Further, she was compelled to fetch water from the water tank afterremoval of domestic servant, due to which she suffered spinal cordproblem, hence she has to undergo a surgery. So also, she wascriminally intimated and intentionally insulted at the hands of theaccused persons. On the basis of said allegations, Crime No. 291 of2014 was came to be registered with Gangakhed Police Station.4.After due investigation, a charge-sheet came to be filedagainst all the accused persons/present Petitioners. During the courseof trial, the Petitioner No.1 / husband who is a medical practitioner,filed an application Exh.146 and prayed for referring the informant /wife for medical examination as per the judgment and order dated26.10.2023 passed by the co ordinate bench of this Court in SecondAppeal No. 851 of 2018. However, on 26.03.2024, the learned trialCourt passed an order and rejected said application on the groundthat, the prosecution was lodged on the basis of police report for the 2 of 9 (( 3 ))908-Cri-WP-1985-2024offences punishable under Sections 498-A, 504, 506 read with 34 ofI.P.C. Therefore, the burden lies upon the prosecution to prove thecase beyond all the reasonable doubt and if the prosecution failed todo so, the accused may get the benefit of doubt. Further, theevidence of the prosecution is not closed. Hence, the application forreferring the complainant / wife for medical examination is notmaintainable.5.Being aggrieved by the said order, the Petitioners/accusedinvoked the jurisdiction under Section 397 of Cr.P.C. and challengedthe interlocutory order before the learned Revisional Court. On27.09.2024, the learned Sessions Court passed the impugned orderholding that the judgment and order dated 01.10.2018 passed by thisCourt in Second Appeal No. 851 of 2018 deals with the issue regardsto Hindu Marriage petition, but the present Petitioners/accused arefacing trial for the offences punishable under Sections 498-A, 504,506 read with 34 of I.P.C. Therefore, to prove the charges, it is notnecessary to refer the complainant / wife for medical examination.6.The learned Counsel for the Petitioners canvassed invehemence that while deciding the issue in Marriage Petition underSection 13(ia) (ib) of the Hindu Marriage Act, desertion and cruelty 3 of 9 (( 4 ))908-Cri-WP-1985-2024required to be considered as per the evidence available on record andthis Court granted divorce in Second Appeal, by observing that thelearned trial Court could have refer the complainant / wife forexamination when there is specific allegations about physical abilityfor consumption of marriage. Therefore, the accused has filed anapplication for referring the informant victim for medicalexamination, however he submits that both the Courts below wronglyrejected the said application. 7.Per contra, the learned APP canvassed that the orderdated 26.03.2024 passed below Exh.146 in R.C.C. No.253 of 2018 isan interlocutory order. It has not attained the finality, because there isno adjudication of rights of the parties. Therefore, the revision underSection 397 Cr.P.C., is not maintainable. However, the Petitionersapproached before the Sessions Court under Section 397 of Cr.P.C. Soalso, on 27.09.2024, the learned Sessions Court passed the impugnedorder and affirmed the order passed by the learned trial Courtrefusing to refer the informant for medical examination. Therefore,no bona fide and substantial grounds have been set out to interferewith the findings of both the Courts below, hence prayed for dismissalof the Petition. 4 of 9 (( 5 ))908-Cri-WP-1985-20248.Having regard to the submissions canvassed on behalf ofboth the sides, I have gone through the Petition paper-book, includingthe judgment and order dated 26.10.2023 passed by the learnedSingle Judge of this Court in Second Appeal No. 851 of 2018, whichwas referred in an application Exh. 146 by the presentPetitioners/accused persons. It is not in dispute that on 13.02.2013,the marriage between the Respondent No. 2 and Petitioner No.1 wassolemnized as per the Hindu customs and rites. However, due tomatrimonial differences, the present Petitioner No. 1 / husband hadfiled Hindu Marriage Petition bearing No. 25 of 2016 under Section13(ia) (ib) of the Hindu Marriage Act, which was decided by thelearned trial Court. The said judgment and decree was assailed inRegular Civil Appeal No. 40 of 2017. However, the learned appellateCourt affirmed the said judgment and decree. Being aggrieved by theconcurrent findings of both the Courts, the present Petitioner No.1had filed Second Appeal No.851 of 2018 before this Court. On26.10.2023, the learned Single Judge of this Court, passed thejudgment and order and observed thus in Para No. 15:-“15. So far as the cruelty is concerned this Court finds that ithas clearly come on record that there is no physical contactbetween husband and wife. Denying physical relations by wifealso amounts to cruelty. The wife in this case could not bring on 5 of 9 (( 6 ))908-Cri-WP-1985-2024record anything contrary to the allegations of the husband onthis point. It is further seen that there was a specific prayer tosend the wife for examination, but the said was not accepted.The husband was required to file writ petition in this Court.However, before decision of the said petition, marriage petitioncame to be decided. When a case was made out to send thewife for physical examination, it was necessary for the Court tosend the wife for medical examination. Filing of several casesagainst husband without substance also amounts to cruelty.”9.Needless to say that in a proceeding for the offencespunishable under Sections 498-A, 504, 506 of I.P.C., the PetitionerNo.1/husband filed Exh. 146 and prayed for referring theinformant /the present Respondent No. 2 for medical examination inpursuance of observations made by the learned Single Judge of thisCourt as observed above in Second Appeal to prove that he has notraised cruelty against Respondent No. 2, but the Respondent No. 2was refusing to have physical relationship with him and madecriminal complaint against him.10.On 26.03.2024, the learned J.M.F.C. passed an orderbelow Exh. 146 holding that this Court has passed a judgment andorder in respect of question involved in the Hindu Marriage Petitionfiled by the present Petitioner No. 1/accused Dr. Saurabh againstRespondent No. 2/informant Mayuri, praying for decree of divorce.However, to prove the cruelty alleged by the prosecution, the burden 6 of 9
Decision
(( 9 ))908-Cri-WP-1985-20242018, this Court has not permitted the Petitioners to examine theRespondent No. 2 informant through the medical examination by themedical practitioner. Therefore, I do not find that the impugnedorders are illegal and bad in law and hence no perversity is found insaid orders. Therefore, no case is made out even for issuance of thenotices. The Writ Petition is therefore dismissed. [ Y. G. KHOBRAGADE, J. ] SMS 9 of 9