Suresh S/O. Bajarang Zarekar vs The State Of Maharashtra And Anr on 25 January, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD

CRIMINAL WRIT PETITION NO. 1453 OF 2017

Sau. Pushpalata w/o Suresh Zarekar,
age 59 years, occ. housewife,
R/o Anmol Bangla no.5,
Behind Chhatrapati Bajaj Showroom,
Nagar-Pune Road, Ahmednagar … Petitioner

VERSUS

1] The State of Maharashtra,
through Kotwali police Station,
Ahmednagar,

2] Renu Ajit Zarekar,
age 29 years, occ. Advocate,
R/o Abhijeet Monot Estate,
Station, Ahmednagar … Respondents
[No.2 Orig.Complt.]

…..
Mr. R.N.Dhorde, Senior advocate for the petitioner
Mr. A.P.Basarkar, A.G.P for respondent/State
Mr. U.S.Malte, advocate for respondent no.2
…..

CRIMINAL WRIT PETITION NO. 1456 OF 2017

Milind s/o Suresh Zarekar,
age 38 years, occ. advocate,
R/o Anmol Bangla no.5,
Behind Chhatrapati Bajaj Showroom,
Nagar-Pune Road, Ahmednagar … Petitioner

VERSUS

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1] The State of Maharashtra,
through Kotwali police Station,
Ahmednagar,

2] Renu Ajit Zarekar,
age 29 years, occ. Advocate,
R/o Abhijeet Monot Estate,
Station, Ahmednagar … Respondents
[No.2 Orig.Complt.]

…..
Mr. S.J.Salunke, advocate for the petitioner
Mr. A.P.Basarkar, A.G.P for respondent/State
Mr. U.S.Malte, advocate for respondent no.2
…..

CRIMINAL WRIT PETITION NO. 1454 OF 2017

Suresh s/o Bajarang Zarekar,
age 65 years, occ. advocate,
R/o Anmol Bangla no.5,
Behind Chhatrapati Bajaj Showroom,
Nagar-Pune Road, Ahmednagar … Petitioner

VERSUS

1] The State of Maharashtra,
through Kotwali police Station,
Ahmednagar,

2] Renu Ajit Zarekar,
age 29 years, occ. Advocate,
R/o Abhijeet Monot Estate,
Station, Ahmednagar … Respondents
[No.2 Orig.Complt.]

…..
Mr. A.C.Darandale, advocate for the petitioner
Mr. A.P.Basarkar, A.G.P for respondent/State
Mr. U.S.Malte, advocate for respondent no.2
…..

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CRIMINAL WRIT PETITION NO. 1455 OF 2017

Sau. Sarika w/o Milind Zarekar,
age 33 years, occ. housewife,
R/o Anmol Bangla no.5,
Behind Chhatrapati Bajaj Showroom,
Nagar-Pune Road, Ahmednagar … Petitioner
VERSUS

1] The State of Maharashtra,
through Kotwali police Station,
Ahmednagar,

2] Renu Ajit Zarekar,
age 29 years, occ. Advocate,
R/o Abhijeet Monot Estate,
Station, Ahmednagar … Respondents
[No.2 Orig.Complt.]

…..
Mr. R.A.Tambe, advocate for the petitioner
Mr. A.P.Basarkar, A.G.P for respondent/State
Mr. U.S.Malte, advocate for respondent no.2
…..

CORAM : K.L.WADANE, J.

RESERVED ON : 22.01.2018
PRONOUNCED ON : 25.01.2018

JUDGMENT :

Rule. Rule is made returnable

forthwith. With the consent of the learned

counsel for the parties, these four Writ

Petitions are taken up together for final

hearing, having common subject matter involved

in all the Petitions. Heard Mr. R.N.Dhorde,

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learned Senior counsel for the petitioner in

Writ Petition No. 1453 of 2017, Mr.

S.J.Salunke, learned counsel for the petitioner

in Writ Petition No. 1456 of 2017, Mr.

A.C.Darandale, learned counsel for the

petitioner in Writ Petition No. 1454 of 2017,

and Mr. R.A.Tambe, learned counsel for the

petitioner in Writ Petition No. 1455 of 2017,

as also Mr. A.P.Basarkar, learned counsel for

respondent no.1/State and Mr. U.S.Malte,

learned counsel for respondent no.2 in all the

Writ Petitions.

2. Brief facts of the case may be stated

as follows.

On 14.5.2011, respondent no.2 married

with one Ajit Zarekar, son of the petitioners

in Writ Petition Nos. 1453 and 1454 of 2017.

Immediately, on 10.7.2011 the couple shifted to

Aurangabad, as both were practicing as

advocates at Aurangabad.

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3. On 14.10.2013, the husband of

respondent no.2, namely Ajit committed suicide

by hanging himself in his house at Aurangabad.

Ajit left the suicide note with certain

allegations against respondent no.2. After the

suicide, the brother of Ajit lodged complaint

with Jawaharnagar police station, Aurangabad,

for the offence punishable under Section 306 of

the Indian Penal Code against respondent no.2

and her parents.

4. It is alleged that on 18.2.2014, to

give counter blast to the complaint under

Section 306 of the Indian Penal Code,

respondent no.2, after a period of four months,

lodged present complaint against the

petitioners accused nos. 1 to 4 in these Writ

Petitions, for the offences punishable under

Sections 498A, 323, 504, 506 r/w 34 of the

Indian Penal Code.

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5. Criminal Writ Petition No. 1378 of 2014

was filed by the petitioners/accused nos. 1 to

4 on 14.11.2014 for quashing the complaint

filed by respondent no.2 and same was disposed

of as withdrawn on 24.3.2015. Criminal Writ

Petition No. 1151 of 2014 was filed by the

sisters-in-law of respondent no.2 namely Smita

and Nita i.e. accused nos. 5 and 6, which was

allowed and complaint against them came to be

quashed.

6. After the investigation, charge sheet

was filed in the Court.

7. The petitioners/accused nos. 1 to 4

moved an application under Section 239 of

Criminal Procecdure Code before the Judicial

Magistrate, First Class, Aurangabad seeking

discharge, which was rejected. The said order

was challenged in appeal before the learned

Additional Sessions Judge. Learned Additional

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Sessions Judge has also confirmed the finding

recorded by the learned Judicial Magistrate,

First Class, Aurangabad. Hence, these Writ

Petitions.

8. Mr. Dhorde, learned Senior counsel

appearing for the petitioner/original accused

has pointed out certain infirmities in the

statement of witnesses in relation to golden

ornaments, its taking away by the accused

persons and its places. Mr. Dhorde, learned

Senior counsel argued that one of the accused

namely Milind Zarekar, after the suicide of his

brother Ajit, immediately on the next day of

the incident lodged complaint against

respondent no.2 and her parents and after about

four months, to give counter blast to the said

complaint, respondent no.2 filed the first

information report, which is the subject matter

of the present Petitions.

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9. Learned counsel appearing for the

petitioners in the connected Writ Petitions

have adopted the arguments advanced by Mr.

Dhorde, learned Senior counsel.

10. Learned A.P.P. opposed the Petitions on

the ground that the offence committed by the

petitioners/accused persons is very serious.

Mr. Malte, learned counsel appearing for

respondent no.2 has pointed out the contents of

the first information report in detail and has

argued that there are specific allegations

against each accused, therefore, there is

sufficient material to frame the charge against

the petitioners. Mr. Malte, learned counsel

further submits that there were series of

instances of illtreatment given to respondent

no.2 at the hands of petitioners.

11. I have carefully gone through the

contents of the first information report and

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the statements of witnesses, namely (1)

advocate Sujata Kothari, aunt, (2) advocate

Mangala Rajesh Kothari, mother, (3) advocate

Rajesh Kothari, father and other witnesses

namely Ashok Gandhi, Asif Pathan, Vimlesh

Gandhi and Rajendra Shinde. From the contents

of the first information report/complaint and

the statements of these witnesses, it appears

that on 20.5.2011 the mother-in-law and

sisters-in-law slapped respondent no.2 by

saying that there is no custom in their

community to go for outing after the marriage.

In the month of August, 2011, the mother-in-law

and sisters-in-law assaulted respondent no.2 on

account of not bringing acquaguard. It further

reveals that the mother-in-law and father-in-

law also assaulted respondent no.2 on the

ground of not bringing golden ring. On

14.5.2012, when respondent no.2 and her husband

were intending to go to Mahabaleshwar, they

were not allowed to go to Mahabaleshwar. It

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further reveals that on number of occasions,

the in-laws of respondent no.2 insulted, abused

and beat respondent no.2. There are

allegations against the brother-in-law about

sending certain messages on the mobile of

respondent no.2, by which he gave mental

torture to respondent no.2. Those messages and

photographs were regarding commission of

suicide by her husband.

12. From the statements of witnesses,

referred above, it appears that respondent no.2

disclosed to the witnesses about the

illtreatment given by accused persons to her,

particularly the statement of witness Mangala

Kothari i.e. mother-in-law of respondent no.2

exactly supports the contents of the

complaint/first information report. From the

statement of witness Asif Pathan, a rickshaw

driver, it appears that respondent no.2 was

seen weeping, therefore, he took her in his

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rickshaw and left at her house. From the

statement of witness Rajendra Shinde, it

appears that, after the death of husband of

respondent no.2, when he visited the house of

parents of respondent no.2, they were

threatened not to attend last ceremony of

deceased Ajit. So, from the contents of the

first information report as well as the

statements of other witnesses, prima facie it

appears that there is sufficient material to

frame charge against the petitioners and to

proceed further with the trial.

13. At this stage, it is not necessary to

scrutinize the statements of informant and the

witnesses minutely as if this Court is sitting

in appellate jurisdiction. The Court has to

see whether there is sufficient material

against the accused persons to frame charge and

if it is found so the accused cannot be

discharged.

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14. Mr. Dhorde, learned Senior counsel

tried to harp upon the point of delay in

lodging the complaint by respondent no.2.

However, it is material to mention that the

copy of complaint filed by respondent no.2 on

record. On perusal of the same, it appears

that on 14.10.2013 respondent no.2 had filed

complaint to the police station with

allegations of illtreatment at the hands of

petitioners. Unfortunately, that was on the

day when her husband committed suicide.

15. Mr. Dhorde, learned Senior counsel

relied upon the observations in the case of

Savitri Devi vs Ramesh Chand and others,

reported in 2003 CR.L.J. 2759, particularly

para 16 thereof, which reads thus :

” 16. For the purpose of Section 498A
IPC which is peculiar to Indian
families victim spouse is always the
‘wife’ and guilty is the husband and
his relatives-near or distant, living
together or separately. Ingredients of
‘cruelty’ as contemplated under Section

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498A are of much higher and sterner
degree than the ordinary concept of
cruelty applicable and available for
the purposes of dissolution of marriage
i.e. Divorce. In constituting ‘cruelty’
contemplated by
Section 498A IPC the
acts or conduct should be either such
that may cause danger to life; limb or
health pr cause ‘grave’ injury or of
such a degree that may drive a woman to
commit suicide. Not only that such acts
or conduct should be “willful” i.e
intentional. So to invoke provisions of
Section 498A IPC the tests are of
stringent nature and intention is the
most essential factor. The only test is
that acts or conduct of guilty party
should have the sting or effect of
causing grave injury to the woman or
are likely to cause danger of life,
limb or physical or mental health.
Further conduct that is likely to drive
the woman to commit suicide is of much
graver nature than that causing grave
injury or endangering life, limb or
physical or mental health. It involves
series of systematic, persistent and
willful acts perpetrated with a view to
make the life of the woman so
burdensome or insupportable that she
may be driven to commit suicide because
of having been fed up with marital
life. ”

The observations in the cited case are

not applicable to the facts of present case,

because from the record it appears that there

are certain allegations against the petitioners

and there are series of instances with

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particulars of illtreatment given by each of

the accused to respondent no.2. Therefore, the

allegations as to the illtreatment to

respondent no.2 are not vague. As such, the

petitioners are not entitled for discharge.

16. I have gone through the reasons

recorded by the learned Judicial Magistrate,

First Class, Aurangabad, as well as the learned

Additional Sessions Judge, Aurangabad. Both

the Courts below have considered the legal

aspect of the matter. Learned Judicial

Magistrate, First Class, Aurangabad has rightly

rejected the application filed by the

petitioners for discharge and same is rightly

confirmed by the learned Additional Sessions

Judge, Aurangabad.

17. In the result, there is no substance in

these Writ Petitions. Consequently, all the

Writ Petitions are liable to be rejected.

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Accordingly, the Writ Petitions are rejected.

No costs. Rule is discharged accordingly.

(K.L.WADANE, J.)

After pronouncement of the judgment in

the aforesaid Writ Petitions, the learned

counsel appearing for the petitioners submit

that they want to assail the order passed in

these Writ Petitions before the Apex Court.

Therefore, they prayed to extend the interim

relief granted by this Court on 13 th October,

2017.

In view of the submissions made on

behalf of the petitioners, the interim relief

granted by this Court on 13 th October, 2017 is

extended for a period of two weeks from today.

(K.L.WADANE, J.)

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