O. SURESH SHIKKENIS v. VAISHALI W
Case Details
914-*Cri-WP-2012-2019.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD914 CRIMINAL WRIT PETITION NO. 2012 OF 2019SARANG S/O. SURESH SHIKKENIS VERSUS VAISHALI W/O. SARANG SHIKKENIS @ VAISHALI D/O.MUKUNDRAO WAGH .…Mr. Amol R. Joshi, Advocate for the Petitioner Mr. E. K. Dhokale, Advocate for the Respondent .…CORAM: Y. G. KHOBRAGADE, J.DATE:31.01.2025PER COURT :- 1.Heard the learned counsel for the Petitioner and theRespondent, at length.2.By the present Petition, the Petitioner challenged theorder dated 16.03.2019, passed by the learned District andSessions Judge, Jalgaon below Exh.80 in Civil M.A. No.104 of2015.3.The learned counsel for the Petitioner canvassed that,the Petitioner and Respondent are the husband and wife. TheRespondent wife had moved an application under Section 25 of 1 of 8
Legal Reasoning
(( 2 ))914-*Cri-WP-2012-2019the Guardianship and Wards Act, 1980 before the District Judge,Jalgaon. The Respondent filed an affidavit Exh.25 in Civil M.A.No.104 of 2015 on 03.11.2015 denying that the Petitioner is notbiological father of female child "Swara". The petitioner’s denial ofthe child’s paternity contradicts the pleadings in Petition PE No.239 of2013 instituted under Section 125 of Cr.P.C. before the Family Court,Pune, wherein the Respondent sought maintenance for herself andthe minor daughter Swara. It is further canvassed that, theRespondent affirmed that the Petitioner had not met the minordaughter Swara even once since her birth till 03.11.2015. Thus, thesaid statement is entirely false, and the Respondent provided falseevidence before the District Judge in proceedings under theGuardianship and Wards Act. Therefore, the Respondent wife hascommitted offences u/s 193, 195, 196, 199, 200 and 209 of theIndian Penal Code. Consequently, the Petitioner/husband filed anApplication Exh.80, seeking initiation of criminal prosecution againstthe Respondent wife under Section 340 of Cri.P.C. On 16.03.2019, thelearned District Judge, Jalgaon, passed an order in Civil Misc.Application No.104 of 2015 by saying "other side to say". The saidorder is questioned by the Petitioner in the present Petition. 2 of 8
Legal Reasoning
(( 3 ))914-*Cri-WP-2012-20194.The learned counsel for the Petitioner canvassed that,when the Petitioner/Applicant filed an Application under Section 340of Cri.P.C., and prayed initiation of criminal prosecution against theRespondent / accused, in that event it is not necessary on the part ofthe District Judge to call say of the Respondent wife. However, theDistrict Judge passed the impugned order and called say of theRespondent wife. Therefore, impugned order is illegal and bad inlaw, hence, prayed to quash and set aside the same. 5.In support of these submissions, the learned counsel forthe Petitioner relied on the case of State of Punjab Vs. Jasbir Singh,2022 (6) K.L.T. 276, decided by the Hon'ble Supreme Court on15.09.2022, wherein the following questions were arose :-“(i)whether section 340 of the Code of Criminal Procedure,1973 mandates a preliminary inquiry and an opportunity ofhearing to the would-be accused before a complaint is madeunder Section 195 of the Code by a Court?(ii)what is the scope and ambit of such preliminary inquiry?”6.In order to answer the question No.(i), the Hon'bleSupreme Court considered the cases of Pritish Vs. State ofMaharashtra and Others, (2002) 1 SCC 253 and the conflict law laid 3 of 8 (( 4 ))914-*Cri-WP-2012-2019down in the case of Sharad Pawar Vs. Jagmohan Dalmiya & Ors,(2010) 15 SCC 290, as well as the case of Iqbal Singh Marwah Vs.Meenakshi Marwah, (2005) 4 SCC 370 and answered the questionNo.1 in negative, holding that no opportunity of hearing is required. 7.It is further relied on order dated 05.08.2024 passed inthe case of Ritesh Deoram Patil Vs. Kirti Ritesh Patil in Criminal WritPetition No.585 of 2023 (Coram: Shivkumar Dige, J.), wherein thecase of State of Punjab Vs. Jasbir Singh, is cited and held that it is notnecessary to call say of other side. 8.After going through the judgment of State of Punjab Vs.Jasbir Singh, cited (supra), it does not appear that, the Hon’bleSupreme Court observed in it’s judgment that, say of the adverseparty cannot be called on the application presented u/s 340 of Cr.P.C.But it appears that, as per Section 340 of Cr.P.C., it is necessary toconduct the preliminary inquiry and it is not necessary to give anopportunity of hearing to the other side prior to initiation ofpreliminary inquiry as per the ratio laid down in the case of IqbalSingh Marwah cited (supra). Therefore, the Hon'ble Supreme Courtanswered the above question that, an opportunity of hearing to the 4 of 8 (( 5 ))914-*Cri-WP-2012-2019‘would be accused’ before a complaint is made under Section 195 ofCr.P.C., not necessary. 9.In case-in-hand, the Petitioner/husband sought to initiateaction under Section 340 of Cr.P.C., against the Respondent wife in aproceeding under Section 25 of the Guardianship and Wards Act,1980 on ground that, the Respondent/wife has filed an affidavitExh.25 in Civil M.A. No.104 of 2015 on 03.11.2015, denying that thePetitioner is not biological father of minor female child Swara, whichis contradictory statement made in Petition PE No.239 of 2013 filedunder Section 125 of Cr.P.C. before the family Court, Pune, for grantof maintenance for herself and minor daughter Swara. The Petitionerfurther alleged that, the Respondent wife made a false statement onaffidavit that, the Petitioner had not met minor daughter Swara evenonce since her birth, till 03.11.2015, but the said statement iscompletely false.10.According to the Petitioner, the Respondent wife hasmade false statement in her affidavit in Petition PE No.239 of 2013before the Family Court, as under:- 5 of 8 (( 6 ))914-*Cri-WP-2012-2019“a)The Respondent mother [Respondent No.1] had stated onoath in her own Affidavit-in-chief, filed in P.E. 239/2013before Hon’ble Family Court Pune, at point 10 on page 6 inline 10 to 18 on page 7 of same Affidavit-in-chief that thePetitioner father has met Kum. Swara on 04 November2011.b)Further in point 11 of above mentioned Affidavit-in-chief inP.E. 239/2013 before Hon’ble Family Court Pune, theRespondent mother (Respondent No.1) had stated that thePetitioner Father had visited house of Respondent’s parentsat Jalgaon on 25th December 2011 to meet Kum. Swara andhis wife.c)The contents of above mentioned Point 11, in Affidavit-in-chief in P.E. 239/2013 before Hon’ble Family Court Pune,are re-affirmed on oath by Respondent No.1 herein in herCross Examination in Point no.28 on page no.21 of Exhibit22, in P.E.239/2013 on 11 December 2015 before theHon’ble Family Court Pune.d)The Respondent mother (Respondent No.1) had herselfaffirmed on oath in above same Affidavit-in-chief (Exh.22 inP.E.239/2013) at point 12 on page 8 to point 15 on page 12that Kum. Swara was living with Petitioner Father tillRespondent No.1 left the matrimonial alliance.e)The Petitioner father had submitted his photographs(document evidence) with Kum. Swara of the above twodated 04 November 2011, 25 December 2011 and ofvarious dates from 26 March 2012 to 22 June 2012 in theproceedings of P.E. 239/2013 before Hon’ble Family CourtPune, at Exh No.43 and the Respondent mother(Respondent No.1) has admitted on oath in her CrossExamination in P.E. 239/2013 before Hon’ble Family CourtPune on date 11th December 2015 on page 22 inParagraph / Point no.29 in her same Examination in Chief.” 6 of 8 (( 7 ))914-*Cri-WP-2012-201911.The Petitioner therefore seeks action against theRespondent wife under Section 340 of Cr.P.C. for the offence underSection 195 read with Sections 193, 196, 199, 200, 209 of I.P.C.Accordingly, on 16.03.2019, the learned District Judge, Jalgaon,passed the impugned order, seeking the Respondent’s response incompliance with the principles of natural justice. However, this doesnot amount to the initiation of a preliminary inquiry by the learnedDistrict Judge. Merely, the learned District Judge called say of theother side, which does not amount to initiate preliminary inquiry andcause of action arose to the petitioner. 12.Needless to say that, the observations made by this Courtin the case of Ritesh Deoram Patil, cited (supra) decided on05.08.2024 while exercising discretionary powers, cannot beconsidered a binding precedent. So also, in case of State of PunjabVs. Jasbir Singh cited (supra) it is not held that, the concerned Courtcan not call say of the adverse party. But while making preliminaryenquiry and an opportunity of hearing to the ‘would be accused’before the complaint made under Section 195 of Cr.P.C., is notnecessary. 7 of 8
Decision
(( 8 ))914-*Cri-WP-2012-201913.However, it is made clear that, if the Respondent wifesubmits her say on Exh.80 and if the District Judge prima-facie cometo the opinion about initiation of proceeding under Section 340 Cr.P.C.as against the Respondent wife, it may be the preliminary inquiry andshall comply clauses (a), (b), (c), (d) and (e) of Section 340(1) ofCr.P.C. Therefore, to my mind, no cause of action arose to the presentPetitioner at this juncture.14.In view of the above discussions, the Writ Petition isdismissed. [ Y. G. KHOBRAGADE, J. ] SMS 8 of 8