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Dr. Saurabh S/O. Shivhar Yelurkar … vs The State Of Maharashtra And Anr on 11 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.443 OF 2017

1. Dr. Saurabh s/o Shivhar … Petitioners
Velukar,
Age 32 years, Occu: Medical
Practitioner Student

2. Adv. Surekha Shivhar Yelurkar
Age 53 yars, Occu: Advocate

3. Dr. Shivhar s/o Kerba Yelurkar
Age 62 years, Occu: Retired

All R/o Meghdoot, Kava Naka,
Katpur Road, Latur

VERSUS

1. The State of Maharashtra

2. Dr. Mayuri Saurabh Yelurkar
Age 29 years, Ocu: Medical
Practitioner,R/o C/o Venkatrao
Shete, Vakil Colony, Near
Hanuman Temple, Gangakhed,
District Parbhani.
… Respondents
S/Shri S. H. Jagiasi, D. S. Gagiasi and N. D. Jagiasi,
Advocates for the petitioners,
Shri A.P. Basarkar, APP for the Respondent/State
Mr. S. V. Mundhe, Advocate for respondent No.2.

CORAM : K. L. WADANE, J.

RESERVED ON : 6th April, 2018.
PRONOUNCED ON : 11th April, 2018.

JUDGMENT:

1. Rule. Rule made returnable forthwith. With

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consent of parties, the petition is taken up for final

disposal.

2. Present writ petition is filed by the

petitioners/original accused for following relief:

“(B) By issuing a writ of mandamus or any other
appropriate writ, order or direction of like
nature, the order dated 18.02.2017, passed by the
learned Additional Sessions Judge, Gangakhed in
Criminal Revision No. 21/2016 so also the order
passed below Exh.27 in R.C.C. No. 26/2015 by the
learned Judicial Magistrate, First Class,
Gangakhed, dated 19.09.2016 may kindly be quashed
and set aside.”

3. Brief facts of the case may be stated as

follows:

(1)Petitioner No.1 is husband of respondent no.2 and

petitioner Nos. 2 and 3 are parents of petitioner No.1.

Marriage of petitioner No.1 and respondent No.2 took

place on 14.02.2013. According to the petitioners,

after the marriage, respondent No.2 resided with

petitioner No.1 for about three months and thereafter

she left the matrimonial house on her own accord.

Petitioners requested respondent No.2 to come and

resume company of petitioner No.1, however, there was

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no response.

(2)On 07.08.2014, respondent No.2 lodged complaint with

Women’s Grievances Redressal Forum. Thereafter, on

16.11.2014, respondent No.2 again lodged complaint with

the Police Station, Gangakhed alleging that the

petitioners were ill-treating respondent No.2 on

various counts and they were also demanding an amount

of Rs.20 lakhs for higher education of petitioner

no.1, who is Doctor by profession. It is alleged that

due to ill-treatment given by the petitioners,

respondent no.2 was required to be admitted in the

Hospital. On the basis of complaint lodged by the

complainant/respondent No.2 offence came to be

registered against petitioners at Crime No.291/2014 for

the offence punishable under section 498-A, 504, 506

read with section 34 IPC with the Police Station,

Gangakhed Dist.Parbhani where the parents of respondent

No.2 are residing.

(3)After registration of crime, concerned police have

conducted investigation and submitted charge sheet.

Petitioners filed application for discharge but the

learned Judicial Magistrate, First Class, Gangakhed

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rejected the application on 19.09.2016. Being

aggrieved with the same, the petitioners have preferred

Criminal Revision Application No.21/2016 before the

Additional Sessions Judge, Parbhani. Learned

Additional sessions Judge rejected the revision

application. Hence this writ petition.

4. I have heard arguments of Mr. Jagiasi, Advocate

for the petitioners, Mr. Mundhe, learned counsel for

respondent No.2 and learned APP for the State.

5. Learned counsel for the petitioners has argued

on following points:

(1)Jurisdiction of the Criminal Court with reference

to place on trial;

(2) Inordinate delay in filing of complaint; and

(3)Earlier complaint filed by respondent No.2 before

the Women’s Grievance Redressal Forum was closed.

During the course of argument, leaned counsel for

the petitioners invited my attention to the contents of

the complaint as well as supplementary statement of

respondent No.2. Looking to the entire contents of the

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complaint as well as supplementary statements and

statements of other witnesses all the alleged ill-

treatment given to the respondent No.2 was at her

matrimonial place i.e. at Latur. Admittedly, the

petitioners are resident of Latur whereas, parents of

respondent No.2 are resident of Gangakhed, Dist.

Parbhani. Therefore, according to the learned counsel

for the petitioner, the Criminal Court at Gangakhed

has no jurisdiction to take cognizance of the alleged

offence. Therefore, on this count itself, the first

information report and the charge-sheet needs to be

quashed.

6. Learned counsel for the petitioners has relied

on the provisions of sections 177, 178 and 179 of the

Criminal Procedure Code, which reads as under:

“177. Ordinary place of inquiry and trial.-
Every offence shall ordinarily be inquired
into and tried by a Court within whose lo
local jurisdiction it was committed.

178. Place of inquiry or trial.- (a) When it
is uncertain in which of several local areas
an offence was committed, or

(b) where an offence is committed, partly in

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one local area and partly in another, or

(c) where an offence is a continuing one, and
continues to be committed in more local areas
than one, or

(d) where it consists of several acts done in
different

local areas, it may be inquired into or tried
by a Court having jurisdiction over any of
such local areas.

179. Offence triable where act is done or
consequence ensues.:- When an act is an
offence by reason of anything which has been
done and of a consequence which has ensued,
the offence may be inquired into or tried by a
Court within whose local jurisdiction such
thing has been done or such consequence has
ensued. ”

7. I have carefully gone through the First

Information Report/complaint and statements recorded

by the Investigating Officer during investigation. On

perusal of the same, it appears that entire allegations

are with reference to the ill-treatment given by

petitioners to respondent No.2 at Matrimonial place

i.e. at Latur. There is no allegation against the

petitioners about ill-treatment to respondent no.2 when

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she was residing at her parental house nor it is stated

by any of the witnesses that the petitioners have

demanded money when respondent No.2 was residing at her

parental house.

8. Learned counsel appearing for the petitioner

has relied upon the observations of Gujrat High Court

in the case of Jagdishprasad Ramshwarupprasad Gupta

ors. Vs. State of Gujrat and another in Cri. Misc.

Application No.11014/2015, which reads thus:

“21.A plain reading of the FIR and the charge-
sheet papers reveal that the allegations
levelled by the respondent No.2 are quite
vague, general and sweeping, specifying no
instances of criminal conduct. Although the
Respondent No.2 is much more annoyed with her
husband, with an obvious motive, has arrayed
all the close relatives of her husband in the
FIR. The Police also seems to have recorded
stereo-type statements of the witnesses who
are none other than the parents and other
relatives of the respondent No.2 and has filed
a charge-sheet. If a person is made to face a
criminal trial on some general and sweeping
allegations without bringing on record any
specific instances of criminal conduct, it is
nothing but abuse of process of the Court.

The Court owes a duty to subject the

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allegations levelled in the complaint to a

thorough scrutiny to find out prima facie
whether there is any grain or truth in the
allegations or involving certain individuals
in a criminal charge. To prevent abuse of
process of the Court; and to save the
innocent from false prosecutions at the hands
of unscrupulous litigants, the criminal
proceedings even if they are at the stage of
framing of the charge, if they appear to be
frivolous and false, should be quashed at the
threshold.

9. Aforesaid observations are inapplicable to the

facts of the present case because, there are specific

allegations against each of the accused/petitioners

with reference to ill-treatment to respondent no.2 and

an offence punishable under 498-A IPC is registered.

Therefore, it is not desirable to quash and set aside

the F.I.R. Besides the complaint, there are specific

allegations made by various witnesses in their

statements before the Police. Therefore, it cannot be

termed that the allegations against the petitioners are

vague.

10. As referred above, certainly none of the acts

alleged by respondent No.2 had taken at the place

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where the offence is registered i.e. at Gangakhed,

Dist. Parbhani. The entire series of instances,

allegations took place at Latur. In such circumstances,

it was for the investigating officer to register the

office at Crime No.0 and then transfer it to the police

station at Latur, where the petitioners are residing.

Instead of doing so, the Gangakhed police registered

the offence, carried out the investigation and

submitted charge sheet. Apparently, it seems that

Criminal Court at Gangakhed Dist. Parbhani has no

jurisdiction to try and decide the criminal case

against the present petitioners in view of provisions

of section 177, 178 and 179 Cr.PC. Merely because

the charge sheet was submitted in the criminal Court

where the Criminal Court has no jurisdiction to try

and decide the case, on that count alone the criminal

proceeding cannot be quashed and set aside. That

proceeding can be transferred from the Court of

Judicial Magistrate First Class, Gangakhed to criminal

Court at Latur.

11. Learned counsel or respondent No.2 has rightly

relied upon the observation of this Court in the case

of Shekhar Shivdas Mahire ors. Vs. Sau. Sarikabai

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Shekhar Mahire and Anr., reported in 2010 ALL MR (Cri)

1766, wherein it is observed that FIR alleging that

petitioners has physically and mentally ill-treated

complainant on account of unlawful demand of dowry and

thereby committed offence under section 498A. There are

no allegations of any ill treatment at place where

parents of complainant resided. Entire allegations

pertain to matrimonial home of the complainant.

Therefore, it is held that Court at the place where

complaint resides i.e. her parent’s place has no

jurisdiction to entertain complaint. However, in the

interest of justice, this Court, in the aforesaid

case, has transferred the criminal case from the place

of parents of victim to the place where her in-laws are

residing. In Para 15 of the judgment this Court has

observed as under:

“15. In the present case as already
discussed herein above, there are no
allegations of any ill-treatment at the
place where the parents of the complainant
resided. The entire allegations pertain to
the matrimonial home of the complainant
i.e. Nashik. In that view of the matter, he
proceeding before the Court at JMFC, Shahada
are not tenable. However, I find that

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inspite of quashing the proceedings, it
would be in the interest of justice to
transfer the proceeding from the Court of
JMFC Shahada to the Court of learned Chief
Judicial Magistrate, Nashik. The application
is therefore allowed by directing the
proceeding bearing CR No.126/2006 registered
with Shahada Police Station and Charge-sheet
No.09/2007 filed in RCC No.14/2007 pending
before the learned J.M.F.C. Shahad to be
transferred to the Court of learned Chief
Judicial magistrate, Nashik, who shall allot
the same to the Court of competent
jurisdiction at Nashik. It is needless to
stage that the proceedings shall stand
transferred from the present stage along-
with the evidence, if any, recorded.”

12. Here, in the present case also, as already

discussed herein above, there are no allegations of any

ill-treatment at the place where the parents of the

complainant resided. Entire allegations pertain to

matrimonial home of the complaint i.e. at Latur. In

view of the matter, the proceedings before the

Judicial Magistrate, First Class, Gangakhed Dist.

Parbhani are not tenable. However, I find that instead

of quashing the proceedings, it would be in the

interest of justice to transfer the proceedings from

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the court of the Judicial Magistrate, First Class,

Gangakhed Dist. Parbhani to the Court of Chief Judicial

Magistrate, Latur.

13. Second point of argument of the petitioners is

that there was inordinate delay of 18 months caused in

filing of the FIR. While considering the writ petition,

that aspect cannot be taken into consideration because

the complaint may explain the detail as to why the

first information report/complaint was lodged after

about 18 months. So far as the third point of

arguments on behalf of the petitioners is concerned, it

is seen that earlier complaint lodged by respondent

No.2 with Women’s Grievance Redressal Forum is closed.

I have carefully gone through the proceedings before

the Women’s Grievance Redressal Forum from which, it

appears that the proceeding was closed as parties to

the proceeding were not cooperating and not attending

the proceedings and the complainant/respondent no.2

was intending to file complaint with the police.

Therefore, the delay in filing the first information

report and closing of the earlier complaint cannot the

the ground to quash and set aside the proceedings.

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14. In view of the above, the writ petition is

disposed of with direction, that the proceeding in

Crime/FIR No.291/2014 registered with Gangakhed Police

Police Station and Charge-sheet filed in RCC No.26/2015

pending before the learned J.M.F.C. Gangakhed Dist.

Parbhani is transferred to the Court of learned Chief

Judicial Magistrate, Latur, who shall try himself or

allot the same to the Court of competent jurisdiction

at Latur. It is needless to state that the proceedings

shall stand transferred from its present stage along-

with the evidence, if any, recorded.

15. Rule is accordingly discharged. No costs.

(K. L. WADANE, J.)

JPC

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