CRA.1465.17
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1465 OF 2017
1. Chayabai w/o. Sahebrao Hiwale,
Age : 60 years, Occu. Household.
2. Amol S/o. Sahebrao Hiwale,
Age : 30 years, Occu. Service,
Both Applicants No.1 2 are
R/o. Nandapur, Tq. Dist. Jalna.
3. Manoj S/o. Sahebrao Hiwale,
Age : 34 years, Occu. Service,
R/o. Prayagnagar, Ghati Road, Jalna.
4. Vinod S/o. Sahebrao Hiwale,
Age : 38 years, Occu. Service,
R/o. G-606, Sallana Society,
Thergaon, Santosh Mangal Karyalaya,
Survey 14/14, Thergaon, Pune,
At present residing at Germany.
…APPLICANTS
VERSUS
1. The State of Maharashtra
(Through Police Inspector,
Ghansavangi Police Station,
Tq. Ghansavangi, Dist. Jalna)
2. Aarchanabai W/o Sanjog Hiwale,
Age : 28 years, Occu. Household,
R/o. Nutan Vasahat, Behind Visava School,
Old Jalna, Dist. Jalna.
(At present C/o. Sheshrao Rangnath Kole,
R/o. Mashegaon, Tq. Chansavangi,
Dist. Jalna)
…RESPONDENTS
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…
Mr. Deepak K. Rajput, Advocate for Applicants.
Mr. D.R. Kale,.AP.P. for Respondent No.1-State.
Mr. R.M. Deshmukh, Advocate for Respondent No.2.
…
CORAM: S.S. SHINDE AND
K.K. SONAWANE, JJ.
RESERVED ON : 3RD MAY, 2017
PRONOUNCED ON : 5TH MAY, 2017
JUDGMENT (PER S.S.SHINDE,J):
This application is filed with the
following prayer :-
“B) The first information report
No. 0005/2017 dated 17.01.2017 registered
with Ghansavangi Police Station,
Ghansavangi, Dist. Jalna for the offence
punishable U/S. 498-A, 323, 504 r/w 34 of
the Indian Penal Code and Section 3 and 4
of Dowry Prohibition Act may please be
quashed and set aside in the interest of
justice and to prevent abuse of process of
law.”
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2. The brief facts leading to file the
present application are as under :-
Applicant no.1 is the mother of Sanjog
Hiwale i.e. the husband of respondent no.2.
Applicant Nos. 2 to 4 are the bothers of husband
of respondent no.2. The marriage of Sanjog and
Aarchanabai has taken place on 25th November, 2007.
They are having a son namely ‘Shourya’ from their
wedlock. The husband of respondent no.2 doing
business and also running Internet Cafe in Nutan
Vasahat, Jalna and residing near to the business
place since 2013. Since their marriage respondent
no.2 and her husband are residing separately and
the applicants used to meet them very
occasionally.
3. The complainant/respondent No.2 lodged
first information report No. 0005/2017 with
Ghansavangi Police Station, Ghansavangi, Dist.
Jalna for the offence punishable U/S. 498-A, 323,
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504 r/w 34 of the Indian Penal Code and Section 3
and 4 of Dowry Prohibition Act on 17th January,
2017 against the present applicants alleging that,
she married to Sanjog on 25 th January, 2007. After
marriage she came to Jalna for cohabitation with
her husband and her in-laws treated her well for
three months and thereafter they started
suspecting her character and used to beat and
tease her. They were asking to bring Rs.2 lacs
from her parents and the said fact was informed to
her father. He came to the house of the applicants
at Jalna and requested them not to harass his
daughter. Thereafter, she resided with them for
seven years. During her wedlock, she gave birth
to a child namely ‘Shourya’. The applicants
driven her out of the house as their demand of
Rs.2 Lacs was not fulfilled by her parents.
Thereafter, she went with her father at Masegaon
and is residing at her father’s home. Respondent
no.2 also made complaint with the Women’s
Protection Cell, where her husband came alone and
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therefore the settlement could not take place.
Thereafter she got letter from Women’s Protection
Cell and lodged this Complaint. Hence this
application.
4. Learned counsel appearing for the
applicants submits that, the allegations in the
first information report are taken at its face
value and read in its entirety, the ingredients of
the alleged offences have not been disclosed
against the present applicants. Learned counsel
appearing for the applicants submits that, when
respondent no.2 made complaint to the Women’s
Protection Cell, she made different allegations in
said complaint, than made in the first information
report. Learned counsel appearing for the
applicants submits that, applicant nos. 2 and 3
are in Government service and applicant no.4 is in
service of private undertaking and now he is in
Germany for work in Multinational Company. He
submits that, she lodged the first information
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report against all the accused/applicants only
with an intention to harass them. He submits
that, all the applicants are residing separately
since the marriage of respondent no.2. Respondent
No.2 and her husband – Sanjog are residing at
Nutan Colony, Behind Visava School, Old Jalna and
there were clashes in between them on trifle
matters. Therefore, respondent no.2 had earlier
lodged complaint against her husband with the
Kadim Police Station, Jalna on 1st June, 2016 for
the offence punishable under sections 323, 504 and
506 of the Indian Penal Code.
5. Learned counsel appearing for the
applicants submits that, applicant No. 1 is an old
aged lady and she is residing at village Nandapur,
Tq. and Dist. Jalna for doing the agricultural
operations and she is suffering from various
ailments due to old age. He submits that,
applicant no.2 also used to reside at Nandapur
along with his mother i.e. applicant No.1. Now he
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is posted in Police Department at Jalna. Learned
counsel submits that, so far as the role of
applicant No.3 – Manoj is concerned, the
allegations made in first information report are
totally false and incorrect. He did inter-caste
marriage on 11th November, 2005, and the said
couple is residing in a Government Quarter since
the year 2006 to 2012. He submits that, present
applicant no.4 is working with private company
since last so many years at Pune and at other
places since the year 2006. Learned counsel
appearing for the applicants submits that, there
were quarrels between herself and her husband –
Sanjog on a trifle matter. She left house of her
husband, and thereafter the husband filed Marriage
Application No.139 of 2016 (Sanjog V/s Sau.
Archana) for restitution of conjugal rights under
Section 9 of Hindu Marriage Act, 1956. Learned
counsel appearing for the applicants further
submits that, an allegations made in the complaint
are not true and correct, and the said allegations
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have been made by her as per advise given by her
parents due to personal grudge and with the
intention to harass accused. On the face of record
such allegations made in the complaint is false
and incorrect. Learned counsel appearing for
applicants in support of his contentions that,
when there are omnibus and general allegations
without mentioning specific incident or date of
incident, in that case, the first information
report deserves to be quashed, placed reliance on
the exposition of law by the Apex Court in the
cases of Geeta Mehrotra and another Vs. State of
Uttar Pradesh and another1, Binod Kumar and others
V/s State of Bihar and another2 and the unreported
judgment of this Court in the case of Radhakishan
S/o Shahaji Pote and others V/s The State of
Maharashtra and another in Criminal Application
no.4999 of 2016 dated 23rd February, 2017.
Therefore, learned counsel appearing for the
applicants submits that, the application deserves
1 (2012) 10 SCC 741
2 (2014) 10 SCC 663
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to be allowed.
6. Learned A.P.P. appearing for the
respondent/State submits that, upon careful
reading of an allegations in the first information
report, an alleged offences have been disclosed
and those need further investigation. It is
submitted that, the statement of the parents of
the informant are recorded. A statement of one
Shri Suresh Punjaram Ratnaparkhi is also recorded,
who stated that, the accused persons came to the
house of parents of respondent no.2 at Masegaon
and harassed and illtreated her and even assaulted
the father of respondent no.2. Therefore, he
submits that, the application may be rejected.
7. Learned counsel appearing for respondent
no.2, relying upon the affidavit in reply, submits
that, all the accused are jointly residing with
Ramnagar Police Colony, Jalna. He submits that,
the allegations in the first information report
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will have to be read as it is. He submits that, an
alleged offences have been clearly disclosed. Due
to illtreatment and harassment by the applicants,
respondent no.2 was forced and compelled to leave
the matrimonial home. Still she is residing with
her parents. Even the applicants went to the place
of parents of respondent no.2 and harassed her and
even assaulted the father of respondent no.2. He
submits that, at the relevant time, when
respondent no.2 was residing in the matrimonial
home, all the accused persons were residing with
the matrimonial home and used to illtreat and
harass respondent no.2. Therefore, an ingredients
of Section 498-A of the Indian Penal Code are
clearly attracted. He submits that, the Hon’ble
Supreme Court in the case of Taramani Parakh V/s
State of Madhya Pradesh and others3 has taken a
view that, the question whether the appellants
have infact harassed and treated with cruelty is a
matter of trial, but at the stage of
3 (2015) 11 SCC 260
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investigation, it cannot be said that, no case is
made out. Quashing of proceedings before the trial
is not permissible. Therefore, he submits that,
the application may be rejected.
8. We have given anxious consideration to
the submissions of learned counsel appearing for
the parties. With their able assistance, we have
carefully perused the grounds taken in the
application, annexures thereto, reply filed by
respondent no.2 and also the original record made
available for perusal. Upon careful perusal of the
allegations in the first information report, there
are allegations against all the applicants that,
they used to ask respondent no.2 to bring Rs. 2
Lacs from her parents and used to illtreat and
harass her. It is also stated that, they used to
abuse and beat her. She used to tell about the
said illtreatment and harassment to her father.
Father of respondent no.2 on couple of occasions
visited the matrimonial home and tried to convince
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accused not to give illtreatment and harassment to
her daughter, however, the said harassment and
illtreatment was continued by the accused. It
would be apt to reproduce hereinbelow the relevant
portion of the first information report, which
would disclose an ingredients of section 498-A of
the Indian Penal Code.
“uarj eyk eks lkljdMhy yksd ?kj ?ks.;klkBh ;k
dkj.kko:u nksu yk[k :i;s ekxqu eyk eksoj la’k; ?ksoqu
ekjgku d:u f’kohxkG d:u ykFkkcqD;kus ekjgku d:u
eyk mik’kh iksVh Bsoqu kl nsoqu ekk NG d:u eyk lkr
o”kkZ uarj ?kjkckgsj gkdywu fnys vkgs o eks eqykyk eks
lkscr fnys ukgh uarj eh eks oMhykl Qksuoj lkaxqu
cksykoqu ?ksrys o OkMhy tkyuk ;sFks ;sowu eyk ekgsjh
eklsxko ;sFks vkys vkgs- eh eks oMhyk toG jkgr vls-
rsOgk eks lkljdMhy yksd eks ekgsjh eklsxko ;sFks ;soqu
vkeph rMtksM djr vlrk eyk o eks ofMykl f’kohxkG
d:u pkiVkcqD;kus ekjgku dsyh o fu?kwu xsys ekÖ;k
ftohrkl /kksdk vlY;kus eh tkyuk ;sFks tkoq ‘kdr ukgh-”
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9. We have carefully perused the statements
of the witnesses recorded during the course of
investigation. There is statement of one
independent witness namely Suresh Punjaram
Ratnaparkhi. In his statement he stated that, all
the accused persons came to the house of the
parents of respondent no.2 at Masegaon and asked
her that, she should bring Rs. 2 Lacs from her
parents otherwise they will not allow her to stay
in the matrimonial home. The contention of learned
counsel appearing for the applicants that, the
applicants are residing separately is a matter for
investigation and would lead to adjudication of
the disputed questions of facts, in as much as,
respondent no.2 in her affidavit in reply has
specifically stated that, all the applicants
are/were residing at the relevant time in the
matrimonial home. The Supreme Court in the case of
Taramani Parakh (supra) held that, the question
whether the appellants have infact harassed and
treated with cruelty is a matter of trial, but at
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that, no case is made out. Quashing of proceedings
before the trial is not permissible. Yet in
another case, the Supreme Court in the case of
Bhaskar Lal Sharma and another vs. Monica and
others4, in Para 11 and 12 held that:
“11. The facts, as alleged, therefore will have
to be proved which can only be done in the
course of a regular trial. It is wholly
unnecessary for us to embark upon a discourse as
regards the scope and ambit of the Court’s power
to quash a criminal proceeding. The
appreciation, even in a summary manner, of the
averments made in a complaint petition or FIR
would not be permissible at the stage of
quashing and the facts stated will have to be
accepted as they appear on the very face of it.
This is the core test that has to be applied
before summoning the accused. Once the aforesaid
stage is overcome, the facts alleged have to be
proved by the complainant/prosecution on the
basis of legal evidence in order to establish
the penal liability of the person charged with
the offence.
4(2014) 3 S.C.C. 383
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12. Insofar as the offence under Section 406 of
the Penal Code is concerned, it is clear from
the averments made in Paras 16, 18, 24 and 29 of
the complaint petition that it has been alleged
that the appellants were entrusted or had
exercised dominion over the property belonging
to the respondent and further that the
appellants had unlawfully retained the same. The
statements made in Para 6 of the complaint also
alleges retention of cash and other gifts
received by the respondent complainant at the
time of her marriage to the Appellant 2 –
accused. In the face of the said averments made
in the complaint petition, it cannot be said
that the complaint filed by the respondent is
shorn of the necessary allegations to prima
facie sustain the case of commission of the
offence under Section 406 by the appellants.”
10. In the light of discussion in forgoing
paragraphs, the prayer of the applicants for
quashing first information report cannot be
entertained. Hence the application for quashing
first information report stands rejected. An
observations made hereinabove are prima facie in
nature and confined to the adjudication of the
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present application only. This order will not
preclude the applicants from availing of an
appropriate remedy in the event of filing charge-
sheet by the Investigating Officer.
[K.K. SONAWANE, J.] [S.S. SHINDE, J.]
SGA
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