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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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