Chayabai Wd/O. Sahebrao Hiwale … vs The State Of Maharashtra And Anr on 5 May, 2017

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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the stage of investigation, it cannot be said

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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