Nishigandha S/O Ramnath Chobhe vs The State Of Maharashtra And … on 13 September, 2017

Cri.W.P.105/2017
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 105 OF 2017

Sow. Nishigandha Ramnath Chobhe,
Age 42 years, Occu. Advocate,
R/o N-9, M-2, HUDCO, Aurangabad,
CIDCO, Aurangabad .. Petitioner

Versus

1. The State of Maharashtra,
through Osmanpura Police Station,
Aurangabad

2. Rahul s/o Shankar Wadhwe,
Age 34 years, Occu. not known,
R/o C/o Bharat Fulare,
Gat No.52/1, Wadgaon Kolhati,
Ranjangaon, Waluj MIDC,
Aurangabad

(3) Sow. Archana w/o Rahul Wadhwe, } Resp.no.3 deleted
Age 32 years, Occu. Shyam Adhav, } as per leave of the
Plot No.101, Dwarkapuri, Eknath } Court dt.25.1.2017
Nagar, Osmanpura, Aurangabad .. Respondents

Mr A.M. Gholap, Advocate for petitioner
Respondent no.2 – in person
Respondent no.3 is deleted as per leave granted by the Court on
25.1.2017

CORAM : S.S. SHINDE AND
A.M. DHAVALE, JJ

DATE OF RESERVING
THE JUDGMENT : 31st August 2017

DATE OF PRONOUNCING THE
JUDGMENT : 13th September 2017

JUDGMENT (Per A.M. Dhavale, J.)

1. Rule. Rule returnable forthwith. With the consent of parties,

petition is taken up for final disposal at admission stage.

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2. This is a petition under Article 226 of the Constitution and under

Section 482, Cr.P.C., for quashing F.I.R No.231/2016, registered

against the petitioner and one person, on 10.10.2016 at Osmanpura

Police Station, Aurangabad under Sections 420, 467, 464, 468, 471,

177, 181, 182 read with Sec.34 of the Indian Penal Code.

3. Heard learned Advocate Mr Gholap for the petitioner, Mrs

Diggikar, learned A.P.P. for respondent no.1 and respondent no.2 – in

person.

4. For deciding this petition, the essential facts may be stated as

follows :

5. Respondent no.3 – Archana (now deleted), married to

respondent no.2 – Rahul in 2009 as per Baudha religion. The couple

was blessed with one daughter and had normal married life up to

2012. Thereafter, there were severe differences between their

matrimonial relations, which resulted in filing of various types of

litigations. Petitioner Nishigandha Chobhe is Advocate and was

representing Archana in various matters. Respondent no.2 – Rahul

filed a divorce petition and also petition for restitution of conjugal

rights and for custody of child in Family Court, Aurangabad.

Respondent no.3 – Archana appeared in the matter through the

applicant – Advocate Chobhe. In the said proceedings, relief of interim

injunction was claimed by Archana under the provisions of the

Protection of Women from Domestic Violence Act, 2005 (hereinafter

referred to as ‘D.V. Act’ for brevity). She produced one report

submitted by her to the Protection Officer appointed under the D.V.

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Cri.W.P.105/2017
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Act. This report was sent by the petitioner by R.P.A.D. to the

Protection Officer, namely Child Development Project Officer,

Aurangabad. The information in this application relating to domestic

violence and the reliefs claimed by Archana was filled up by Archana

or her Advocate and it was signed by Archana. She also mentioned

the various types of reliefs, she wanted to claim. At the end of the

page, a rubber stamp having words ‘Tahsildar, Aurangabad’ is

impressed on the letter of Protection Officer. It was not original copy

but photocopy of the paper bearing stamp showing words ‘Tahsildar,

Aurangabad’. The postal receipt of acknowledgment showed that it

was forwarded by the petitioner. These facts are not in dispute.

Respondent no.2 lodged F.I.R. dated 10.10.2016 at Osmanpura Police

Station, Aurangabad alleging that by sending such application bearing

stamp of Tahsildar, his wife Archana and her Advocate Chobhe

(petitioner) have committed offences of forgery cheating etc. Police

Inspector, Osmanpura Police Station, Aurangabad registered crime for

the offences punishable under Sections 420, 467, 464, 468, 471, 177,

181, 182 read with Sec. 34 of Indian Penal Code. Hence this petition.

6. Respondent no.2 and learned A.P.P. Mrs Diggikar argued that

the act of the petitioner and respondent no.3 amounts to forgery and

other offences. They have misrepresented that Tahsildar had sent the

said application and they have cheated the Protection Officer.

Respondent no.2 as party-in-person also made several submissions

making certain allegations against the petitioner, which has no

concern while deciding the present petition.

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7. It is not disputed that Tahsildar was a Protection Officer till

2012. Thereafter Child Development Project Officer has been

appointed as Protection Officer and Tahsildar has no role to play under

the provisions of D.V. Act.

8. The only question for our consideration is whether the sending

of impugned communication by respondent no.3 through the

petitioner to the Protection Officer amounts to the offences alleged or

not ?

9. We find that the Tahsildar had no authority whatsoever under

the D.V. Act since 2012. The explanation by the petitioner and her

client is that photocopies of old form having rubber stamp of

‘Tahsildar, Aurangabad’ were available in photocopy centres and same

was inadvertently used. The words ‘Tahsildar, Aurangabad’ remained

to be scored.

10. We find that respondent no.3 Archana was not going to get any

benefit by sending a form bearing words ‘Tahsildar, Aurangabad’ at

the bottom, to the Protection Officer under D.V. Act. Tahsildar has no

authority, no concern in any proceedings under D.V. Act since 2012.

The form was sent in 2016. In fact, when Archana was in a position to

file the application before the Judicial Magistrate, First Class, it was

unnecessary for them to forward the application to the Protection

Officer. The provisions of Section 12 of the D.V. Act, which permit the

Protection Officer to file report on behalf of the victim are made with

an intention that when the aggrieved person is unable to approach the

Court any person can move the Protection Officer for securing the

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necessary reliefs to the victim. Section 9 of the D.V. Act reads as

follows :

“9. Duties and functions of Protection Officers – (1) It
shall be the duty of the Protection Officer –

(a) to assist the Magistrate in the discharge of his
functions under this Act;

(b) to make a domestic incident report to the
Magistrate, in such form and in such manner as may be
prescribed, upon receipt of a complaint of the domestic
violence and forward copies thereof to the police officer in
charge of the police station within the local limits of whose
jurisdiction domestic violence is alleged to have been
committed and to the service providers in that area;

(c) to make an application in such form and in such
manner as may be prescribed to the Magistrate, if the
aggrieved person so desires, claiming relief for issuance of
a protection order;

(d) to ensure that the aggrieved person is provided
legal aid under the
Legal Services Authorities Act, 1987
(39 of 1987) and make available free of cost the
prescribed form in which a complaint is to be made;

(e) to maintain a list of all service providers providing
legal aid or counselling, shelter homes and medical
facilities in a local area within the jurisdiction of the
Magistrate;

(f) to make available a safe shelter home, if the
aggrieved person so requires and forward a copy of his
report of having lodged the aggrieved person in a shelter

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home to the police station and the Magistrate having
jurisdiction in the area where the shelter home is situated;

(g) to get the aggrieved person medically examined, if
she has sustained bodily injuries and forward a copy of the
medical report to the police station and the Magistrate
having jurisdiction in the area where the domestic
violence is alleged to have been taken place;

(h) to ensure that the order for monetary relief under
section 20 is complied with and executed, in accordance
with the procedure prescribed under the Code of Criminal
Procedure, 1973 (2 of 1974);

(i) to perform such other duties as may be prescribed.

2. The Protection Officer shall be under the control and
supervision of the Magistrate, and shall perform the duties
imposed on him by the Magistrate and the Government
by, or under, this Act.”

11. The entire Act shows that it is the Judicial Magistrate who has all

the powers to grant the reliefs and the role of Protection Officer is

subsidiary. When the aggrieved person can directly approach the

Magistrate, the role of Protection Officer becomes insignificant.

12. The respondent no.3 and the petitioner, by sending this

application to the Protection Officer, nowhere represented that this

application was sent by the Tahsildar, Aurangabad. The statement of

Protection Officer shows that there was no misrepresentation made to

it and he was no way misled on receiving such report. Even the

Judicial Magistrate, before whom the relief of injunction was claimed

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was also not misled by production of copy of this communication. The

order of learned Judge, Family Court, Aurangabad shows that it is

based on other material and in no way based on this report.

13. It is nobody’s case that report was to be sent by Tahsildar.

14. The definition of forgery as per Section 463 of I.P.C. is as

follows:

“463. Forgery – Whoever makes any false documents or
false electronic record of part of a document or electronic
record, with intent to cause damage or injury, to the public
or to any person, or to support any claim or title, or to
cause any person to part with property, or to enter into
any express or implied contract, or with intent to commit
fraud or that fraud may be committed, commits forgery.”

15. Thus, forging a signature on a document or alteration in the

document either by way of deletion of any part or addition of any part

or changes in any material particulars will amount to forgery, if and

only if those are made with mens rea i.e. an intention or knowledge to

cause damage or injury to any person or to support any claim or title

or to commit fraud. In the present case, the petitioner or respondent

no.3 were not likely to get any benefit by using the form bearing

photocopy impression of rubber stamp of ‘Tahsildar, Aurangabad’.

The petitioner and respondent no.3 Archana cannot be said to have

any mens rea to commit forgery.

16. For commission of any offence, there is necessity of actus reus

and mens rea. We find that in the present case, both the ingredients

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are missing. There is no forgery of signature or use of round stamp of

Tahsildar or attempt to mislead anybody that the letter was issued by

Tahsildar. Besides, the Tahsildar had no authority. Hence, there was

no actus reus. Since respondent no.2 was very much aggrieved by the

proceedings filed by his wife with the help of the petitioner and

various reliefs obtained by her, he has filed the F.I.R. The police

should have applied their mind and should not have mechanically

registered the crime and investigated the same. We find that

continuation of these proceedings will be abuse of the process of

Court. The facts taken at the face value do not make out all

ingredients of any offence. Hence, the present proceedings are liable

to be quashed. Hence the order :

ORDER

(I) The Criminal Writ Petition is allowed. The proceedings initiated

by F.I.R. No.231/2016 registered at Osmanpura Police Station,

Aurangabad 10.10.2016 against the petitioner under Sections 420,

467, 464, 468, 471, 177, 181, 182 read with Sec.34 of the Indian

Penal Code are hereby quashed as against the petitioner.

(II) Rule is made absolute in above terms. There shall be no order

as to costs.

( A.M. DHAVALE, J.) ( S.S. SHINDE, J.)

vvr

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