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Alok S/O Namdeo Borkar And Others vs State Of Maharashtra, Thr. P.S.O. … on 18 January, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

CRIMINAL APPLICATION (APL) NO.653/2016

APPLICANTS : 1. Shri Alok s/o Namdeo Borkar
Aged about 43 Yrs., Occupation – Service.

2. Smt. Manorama w/o Namdeo Borkar
Aged about 62 Yrs., Occupation – Housewife.

3. Shri Ashish s/o Namdeo Borkar
Aged about 36 Yrs., Occupation – Business.

All 1 to 3 r/o Plot No.123, Laghu Vetan
Colony, Post – Jaripatka, Nagpur – 440 014.

4. Smt. Archana w/o Shailesh Madame
Aged about 45 Yrs., Occu. – Service,
R/o A-8/7, Bramha Harizon,
Lulla Nagar, Kondwda Road, Pune.

5. Smt. Arpana w/o Vijay Singh
Aged about 41 Yrs., Occupation –
Housewife, B-9/1, Kalpataru Estate,
Andheri (East), Mumbai.

6. Shri Shailesh Madame
Aged about 49 Yrs., Occupation –
Business, R/o A-8/7, Bramha Harizon,
Lulla Ngar, Kondwda Road, Pune.

…VERSUS…

NON-APPLICANTS : 1. State of Maharashtra
Through – P.S.O., Jaripatka Police Station,
Nagpur.

2. Mrs. Darshana w/o Alok Borkar,
Aged about 39 Yrs., Occu. – Business, R/o :-

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(1) 18, Mahakali Shivshankar Nagar,
Chawl No.3, New Agripada, Near
Mahakali Temple, Mumbai.

(2) Plot No.25, Laghu Vetan Colony,
Post. Jaripatka, Nagpur – 440014.

————————————————————————————————–
Mrs. Vaishali Khadekar, Counsel for applicants
Shri B.M. Lonare, AGP for respondent no.1
Shri A.N. Ansari, Counsel for respondent no.2
————————————————————————————————–

CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.

DATE : 18/01/2018

ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)

The criminal application is admitted and heard finally at the

stage of admission with the consent of the learned Counsel for the parties.

By this criminal application, the applicants seek for quashing

and setting aside of the First Information Report (F.I.R.) registered

against the applicants under Section 498-A of the Penal Code. The

applicants also seek for the quashing and setting aside of the charge-sheet

bearing No.4123/2016 registered against the applicants for the offence

punishable under Section 498-A read with 34 of the Penal Code.

Few facts giving rise to the criminal application are stated

thus: –

The applicant no.1 is the husband of the non-applicant no.2

and they were married at Nagpur on 26/1/2007 as per Buddhist rites and

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customs. The non-applicant no.2 started residing in her matrimonial

home at Jaripatka. The applicant no.1 and the non-applicant no.2 resided

together for a few months and the non-applicant no.2 started residing at

Mumbai as she was pursuing the training as a pilot. The applicant no.1

filed a petition against the non-applicant no.2 for a decree of divorce on

the ground of cruelty and desertion. During the pendency of the said

proceedings, the non-applicant no.2 filed a complaint against the

applicants in Police Station Jaripatka on 26/7/2016 alleging therein that

she was treated with cruelty by the applicants and that an offence be

registered against them under Section 498-A of the Penal Code. It was

alleged by the non-applicant no.2 in the said complaint that after the

marriage, when she started residing in the matrimonial home, she was

asked by her in-laws to consume liquor and when she refused to do so she

was tortured by the applicant no.1 – husband and the applicant no.3 – her

brother-in-law. It is alleged in the complaint that the applicants used to

threaten the non-applicant no.2 that she should act only as per their wish.

It is alleged that the applicants used to say that if the father of the non-

applicant no.2 did not have the financial capacity, why did he perform the

marriage of the non-applicant no.2 with the applicant no.1. It is alleged

that after she was married, the other applicants used to abuse her and the

applicant no.1 used to beat her. It is alleged that when she had

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complained about the work which she was required to do in the

matrimonial house, the applicants used to torture her. It is alleged that in

2007 after she went to Mumbai for securing the training of a pilot, the

applicant no.1 used to call her and behave well with her for a few days. It

is alleged that she had learnt in the year 2009 that the applicant no.1 had

filed the divorce proceedings against her. It is alleged that when she

approached the lawyer and she was defending the case, she became

aware that the applicant no.1 had married another woman before the

marriage between the applicant no.1 and the non-applicant no.2 was

solemnized and he had children from the said marriage. It is lastly alleged

that since the applicants have ill-treated the non-applicant no.2 physically

and mentally an offence under Section 498-A of the Penal Code should be

registered against them. On the basis of the said complaint, the F.I.R. was

registered against the applicants and after investigating the matter the

charge-sheet is filed.

The learned Counsel for the applicants submitted that the

applicant nos.1 and 2 and the non-applicant no.2 were residing separately

since the year 2007, even according to the report lodged by the

non-applicant no.2. It is submitted that the complaint is mischievously

filed by the non-applicant no.2 nine years later with a view to settle the

score with the applicants as the applicant no.1 had filed the proceedings

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against the non-applicant no.2 for a decree of divorce. It is submitted that

it is apparent on a reading of the F.I.R. and the statements of the relatives

of the non-applicant no.2, as recorded by the Investigating Officer that

the case alleged by the non-applicant no.2 against the applicants is false

and an after thought. It is submitted that the case of the non-applicant

no.2 is not credible, as could be seen from the allegations in the F.I.R. It is

submitted that the applicant no.3 was residing at Mumbai for work and

the other applicants who are the sisters and the husband of the sister of

the applicant no.1 were residing at Pune even before the solemnization of

the marriage between the applicant no.1 and the non-applicant no.2. It is

submitted that each and every member in the family of the applicant no.1

is falsely roped in the complaint filed by the non-applicant no.2 merely

with a vengeance and to teach them a lesson. It is submitted that the

complaint filed by the non-applicant no.2, nine years after her separation

is as vague as could be. It is submitted that only general allegations of

harassment to the non-applicant no.2 are made against the applicant

nos.2 to 6 in the complaint. It is submitted that even if the statements of

the relatives and the friends of the non-applicant no.2 are considered, the

ingredients of the offence under Section 498-A of the Penal Code cannot

be made out. It is stated that the applicants have challenged the filing of

the F.I.R. and the charge-sheet under Section 498-A read with Section 34

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of the Penal Code and they do not press the prayer for quashing of the

F.I.R. and filing of the charge-sheet for the offence punishable under

Section 494 of the Penal Code.

It is submitted by the learned Additional Public Prosecutor

for the non-applicant no.1 that after the marriage, the applicants started

ill-treating the non-applicant no.2 as she had refused to consume alcohol.

It is stated that they had informed her that she should change her

lifestyle, if she wanted to live in the matrimonial home. It is submitted

that after the non-applicant no.2 went to Mumbai for pursuing the

training as a pilot, the applicant no.1 suddenly stopped talking to the non-

applicant no.2 and filed a divorce petition against her in 2009. It is

submitted that the non-applicant no.2 was regularly attending the

proceedings initiated against her by the applicant no.1 in the Family

Court and during the pendency of the said litigation, the non-applicant

no.2 became aware that the applicant no.1 had married Sweety Ambade

and they had two children. It is stated that on learning the aforesaid fact,

the non-applicant no.2 approached the Womens Cell in the police station

but the dispute between the applicant no.1 and the non-applicant no.2

was not resolved. It is stated that the Police Womens Cell referred the

matter to the police station and a report was lodged accordingly. It is

stated that on receiving the report, the investigation was done and on the

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basis of the statements of the relatives and friends of the non-applicant

no.2, the charge-sheet was filed. It is submitted that the applicants should

face the trial in the matter of the alleged commission of the offence under

Section 498 – A of the Penal Code.

Shri Ansari, the learned Counsel for the non-applicant no.2

submitted that since the charge-sheet is filed it would be necessary for the

applicants to file an application for discharge and it would be necessary

for this Court to dismiss the criminal application as the charge-sheet is

filed during the pendency of the criminal application that was filed for

quashing of the F.I.R. It is submitted that marrying another woman

during the subsistence of the first marriage and leaving the first wife

would be an act of cruelty as defined in Section 498-A of the Penal Code.

The learned Counsel relied on the judgment, reported in 2017 ALL MR

(Cri) 2077 in that regard. A reliance is also placed on the judgment,

reported in 2014 (2) Mh.L.J. (Cri.) 442, to canvass that it would not be

permissible for a Court to appreciate in a summary manner, the avements

made in a complaint or F.I.R. at the stage of quashing of the proceedings

and the statements in the F.I.R. have to be accepted at their face value. It

is submitted that the case of the applicants that since the applicant nos.3

to 7 were not residing in the matrimonial home and were residing in Pune

cannot be accepted as the non-applicant no.2 has alleged about the

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ill-treatment meted out to her by all the applicants immediately after the

solemnization of the marriage in the year 2007. The learned Counsel

sought for the dismissal of the criminal application.

On hearing the learned Counsel for the parties and on a

perusal of the charge-sheet, as also the report and the other material

placed by the parties on record that the allegations made by the non-

applicant no.2 in the F.I.R. are inherently improbable, which cannot be

believed by a prudent person for reaching a just conclusion that there is a

sufficient ground for proceeding against the accused for the offence

punishable under Section 498-A of the Penal Code. We find that the

applicant no.1 and the non-applicant no.2 were married on 26/1/2007.

The parties separated in the same year and the non-applicant no.2

admittedly started residing at Mumbai for taking the training as a pilot. It

is alleged by the non-applicant no.2 in the complaint that after she started

residing at Mumbai, her husband – the applicant no.1 used to talk to her

nicely for a certain period and suddenly he stopped calling her and filed

the petition for a decree of divorce in the family Court at Nagpur in the

year 2009. According to the complaint filed by the non-applicant no.2, the

parties were living separately since the year 2007 as the non-applicant

no.2 was required to take the training as a pilot in the same year. The

petition filed by the applicant no.1 was prosecuted before the Family

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Court at Nagpur for more than seven years when it is the case of the non-

applicant no.2 and also the non-applicant no.1 that the non-applicant

no.2 became aware from outsiders that the applicant no.1 had married

another woman and that he had children. The efforts to settle the dispute

between the applicant no.1 and the non-applicant no.2 went for some

time when the matter was before the Womens Cell in the police station.

However, since the efforts failed the non-applicant no.2 lodged a

complaint in the police station and the F.I.R. is registered against the

applicants. Admittedly, the applicant nos.4 and 5 are the married sisters

of the applicant no.1 and they are residing at Pune and Mumbai

respectively. It is the case of the applicants that the applicant nos.4 and 5

were residing at Pune even before the applicant no.1 and the non-

applicant no.2 were married. The applicant no.6 is the husband of the

applicant no.4. We fail to gather as to why the husband of the applicant

no.4 was roped in the complaint filed by the non-applicant no.2 and as to

why the F.I.R. was registered against him when he had absolutely no role

to play even as per the complaint filed by the non-applicant no.2. We find

that regularly complaints are being lodged by married women

indiscriminately against every relative of the husband though those

relatives may or may not residing in the matrimonial home or may or may

not have a role to play in the life of the couple, that is, married. In the

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instant case also though the applicant nos.3 to 6 were residing away from

Nagpur and the applicant no.1 and non-applicant no.2 were also

separated in the year 2007, the F.I.R. is registered against all the

members of the family of the applicant no.1 after the non-applicant no.2

filed the complaint almost nine years after the separation. We find that

the allegations in the complaint are as vague as could be. Though the

non-applicant no.2 has alleged in the complaint that she was asked to

consume liquor after she was married and since she did not consume the

same she was harassed by the applicant no.1 and the applicant no.3, this

statement does not find place in the statement of the non-applicant no.2,

that was recorded during the course of the investigation. We find that no

specific allegations are levelled against the applicant nos.2 to 6. There is

nothing in the F.I.R. or even in the material collected by the Investigating

Officer during the investigation to show what role the mother-in-law,

brother-in-law, sisters-in-law and the husband of the one of the sisters-in-

law had to play in treating the non-applicant no.2 with cruelty. Every act

of cruelty would not be ‘cruelty’ within the meaning of the provisions of

Section 498-A of the Penal Code. Only the acts of cruelty that fall within

the Explanation (a) and (b) to the said provision would tantamount to

cruelty under Section 498-A of the Penal Code. We find that with a view

to settle the score with the applicant no.1, the non-applicant no.2

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indiscriminately lodged the complaint against all the applicants, almost

nine years after the separation from the applicant no.1. The non-applicant

no.2 was defending the petition filed by the applicant no.1 for a decree of

divorce for almost nine years and for the reasons best known to her she

approached the police to lodge a complaint against each member in the

family of the applicant no.1, though four members of the family were not

residing in the matrimonial house in Nagpur and were residing at

Mumbai and Pune. It cannot be gathered from the material that is

produced by the non-applicant no.2 on record as to how the applicant

nos.3 to 6 were in a position to ill-treat the non-applicant no.2 when they

were residing at Mumbai and Pune and they had no role to play in the

matrimony of the applicant no.1 and the non-applicant no.2. It is laid

down by the Hon’ble Supreme Court in the case of State of Haryana and

others…Versus…Ch. Bhajan Lal and others, reported in AIR 1992 SC

604 that where the allegations made in the F.I.R. or the complaint are so

absurd and inherently improbable on the basis of which no prudent

person could ever reach a just conclusion that there is sufficient ground

for proceeding against the accused, the F.I.R. is required to be quashed

and set aside. In the instant case, the non-applicant no.2 has clearly stated

that after she went to Mumbai to pursue the training as a pilot, the

applicant no.1 used to call her often and used to speak well but suddenly

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in the year 2009 he had filed the petition against her for a decree of

divorce on the ground of cruelty and desertion. The allegations in the

F.I.R. itself show that all was well between the applicant no.1 and the

non-applicant no.2 till they separated in the year 2007 and seven years

after the divorce petition was filed by the applicant no.1, the complaint is

lodged by the non-applicant no.2. We find that the allegations made in

the complaint are not only improbable but the criminal proceedings are

also maliciously filed with an ulterior motive to wreak the vengeance on

not only the applicant no.1 but on all the members in the family of the

applicant no.1, though they were residing at a distance of nearly 800

kilometers from the matrimonial home and the parties were separated

within a few months from the marriage as the non-applicant no.2 was

required to take the training as a pilot, at Mumbai. In the circumstances

of the case, the judgment, reported in 2014 (2) Mh.L.J. (Cri.) 442

cannot be made applicable. Also, in the case in the judgment, reported in

2017 ALL MR (Cri) 2077 it was admitted that the husband had married

another woman and had restrained the wife that had filed the complaint

under Section 498-A of the Penal Code to enter into the matrimonial

home. In the said case, the wife had lodged the complaint against her

husband immediately after leaving the matrimonial home. Such is not the

case here. The judgments, reported in 1990 (1) Mh.L.J. 32 and (1993) 3

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SCC 4 are clearly distinguishable on facts and cannot be applied to the

facts of this case. In our considered view, if the F.I.R. and the charge-

sheet are not quashed and set aside, the criminal trial would continue

against the applicants and the continuation of the criminal trial against

them would result in the abuse of the process of Court. Hence, with a

view to secure the ends of justice and with a view to prevent the abuse of

the process of Court, the F.I.R. and the charge-sheet filed against the

applicants for the offence punishable under Section 498-A read with

Section 34 of the Penal Code are liable to be quashed and set aside.

Hence, for the reasons aforesaid, the criminal application is

allowed. The F.I.R. and the charge-sheet filed against the applicants for

the offence punishable under Section 498-A read with 34 of the Penal

Code are hereby quashed and set aside.

Order accordingly.

JUDGE JUDGE

Wadkar

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