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Ashok Valmik Badoge And Others vs The State Of Maharashtra And … on 3 August, 2022

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.2174 OF 2021

1] Ashok s/o. Valmik Badoge
Age 61 years, Occ. Pensionier.

2] Sunanda w/o. Ashok Badoge,
Age 61 years, Occ. Pensioner,

Both R/o. “Ashoka”, Behind Kalantri Bunglow,
Soygaon, Malegaon, Tq. Malegaon,
Dist. Nashik.

3] Swati D/o. Ashok Badoge
@ Swati Umesh Mahale
Age 37 years, Occ. Teacher,
R/o. Chandwad, Tq. Chandwad,
Dist. Nasik.

4] Supriya D/o. Sunil Chandolkar
Age 24 years, Occ. Business,
R/o. B/104, Shree Kalpavruksha Gruh Nirman
Sanstha, New M H B Colony, Opposite Sai Plaza,
Party Hall, Gorai Road, Boriwali West,
Mumbai – 400 092.

…. Applicants
[Ori. Accused]
Versus
…. Respondents

1] The State of Maharashtra,
For Ashti Police Station, Ashti
Tq. Ashti, Dist. Beed.

2] Sunita w/o./ Vijay Palve,
Age 52 years, Occ. Service,
R/o. Murshadpur, Ashti,
Taluka Ashti, Dist. Beed.
[Original respondent No.2 died Hence,

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as per order dt. 28.2.2022 mother of
Respondent No.2 is arrayed as R-2]

Advocate for Applicant : Mr. Amol S. Gandhi
APP for Respondent No. 1 : Mr. A.M. Phule

CORAM : SMT. VIBHA KANKANWADI
RAJESH S. PATIL, JJ.

DATE : 3rd August, 2022.

JUDGMENT [PER : RAJESH S. PATIL, J.] :-

1] By the present application filed under Section 482 of the

Code of Criminal Procedure, the applicant Nos. 1 to 4 are praying for
quashing and setting aside the FIR No. 212 of 2021 and resultant R.C.C.
No. 154 of 2021 registered 498-A, 323, 494, 504, 506 r/w. 34 of
IPC,
which is pending before the learned Judicial Magistrate First Class, Ashti,
Taluka Ashti, District Beed.

FACTS :

2] Before mentioning the disputed facts, which gave rise to
filing the present Criminal Application we are herewith referring to the
undisputed facts :-

3] That the applicant No.1 and 2 are father in law and mother
in law of the original respondent No.2 (informant). The applicant Nos. 1
and 2 are retired as Teacher and are now residing at Malegaon, Dist.
Nasik. The original respondent No.2 and son of the present applicant
Nos. 1 and 2, namely, Sagar Badoge got married as per the Hindu
customs on 8th June, 2013. Out of the said wedlock, they were blessed

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with a son on 9th May, 2016. After marriage, for few months, respondent
No.2 and her husband Sagar lived happily.

4] The applicants have stated in the criminal application that
the applicant Nos. 1, 2 and 3 are the father-in-law, mother-in-law and
sister-in-law of the original respondent No.2, respectively. The applicant
Nos. 1 and 2 have retited as teachers. The applicant No.3, who is a
divorcee, is working as a teacher. The applicant No.4 is not related to
the applicants and she has been dragged in the criminal proceeding by
the original respondent No.2 on the allegations that she is the second
wife of her husband – Sagar Badoge.

5] The applicants have further stated that after marriage of
original respondent No.2 with Sagar Badoge; as Sagar Bodoge was
working in Pune, the couple shifted to Pune and thereafter to Mumbai in
the year 2019. A copy of leave and licence agreement dated 14/2/2020
for the period 1st December, 2019 to 30th November, 2020 is also annexed
to the criminal application. The said leave and licence agreement is for a
flat at Kalyan, Dist. Thane, wherein Sagar Badoge is shown as a Licensee.

6] It is stated in the criminal application that, in the year 2019,
more particularly, on 5th June, 2019, the original respondent No.2 was
unfortunately detected with “Breast Cancer”. The husband of original
respondent No.2 took utmost care and gave her the best possible
treatment at Dhule and Mumbai. All such expenses were borne by the
husband of original respondent No.2 and his parents, i.e. applicants No.
1 and 2.

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7] It is further stated in the criminal application that after some
time, there were quarrels between the respondent No.2 and her husband
Sagar Badoge. It is further stated in the criminal application that the
original respondent No.2 being annoyed, prepared and lodged a false and
concocted story before the Ashti Police Station. Pursuant to which, on
8.7.2021, The Ashti Police station lodged FIR bearing FIR No. 0212/2021
under
Sections 498A, 323, 494, 504, 506 r/w. 34 of IPC against the
husband of original respondent No.2 ( Sagar) and all the 4 applicants.

8] The original respondent No.2 in her complaint stated that
the applicants have ill-treated her. So also, the original respondent No.2
has stated that her husband Sagar Badoge was having illicit relations
with applicant No.4 and he was staying illegally with applicant No.4 at
Mumbai. This behaviour of Sagar Badoge and applicant No.4 has caused
physical and mental pain to her. The applicants being aggrieved by FIR,
filed Criminal Application No. 2174 of 2021. During the pendency of the
present criminal application, the original respondent No.2 died due to
prolonged illness of cancer and her mother was brought on record as per
the order dated 28.2.2022.

9] Subsequently, charge sheet bearing No. 75 of 2021 dated
21.10.2021 was filed before the JMFC, Ashti and the same has further
culminated in RCC No. 154 of 2021.

SUBMISSIONS :-

10] Heard Mr. Amol S. Gandhi for the applicant and Mr. A.M.
Phule, APP for the respondent State.

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11] The learned counsel for the applicants submitted that the
original respondent No.2 and her husband Sagar (original accused No.1)
were staying separately at Pune and thereafter at Mumbai. As the health
of the original respondent No.2 deteriorated due to cancer, all the
requisite care; both physical and financial, was taken by Sagar Bodoge
and by applicant Nos. 1 and 2. However, even then, respondent No.2
lodged an FIR under the various sections against all the applicants and
her husband Sagar Bodoge. On the basis of the allegations made in the
criminal complaint no cognizable offence can be said to be made out.

12] Learned APP, Mr. A.M. Phule, on the other hand, submitted
that specific allegations have been made against all the applicants and
hence, there is no question of quashing the RCC No. 154 of 2021.

13] After hearing the parties for some time and after showing
dis-inclination to entertain the application in respect of applicant Nos. 1
to 3 Mr. Amol Gandhi, Advocate appearing for the applicants sought
leave to withdraw the application as far as applicant Nos. 1 to 3 are
concerned, who are father in law, mother in law and sister in law of
original respondent No.2, respectively. Hence, criminal application, so
far as applicant Nos. 1 to 3 are concerned, stands disposed of as
withdrawn.

ANALYSIS :-

14] The application is considered now only as regards the
Applicant No.4 who is alleged to be the second wife of accused No.1
Sagar Badoge and who is residing at Mumbai.

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15] Mr. Gandhi, learned counsel for the applicant submitted that
applicant No.4 is not related to the applicant Nos. 1 to 3 and she does
not reside in the Taluka and District where the applicant Nos. 1 and 2 or
the original respondent No.2 were residing. It is alleged in the FIR
lodged by the original respondent No.2 that the applicant No.4 is the
second wife of original accused (Sagar). The counsel for applicants
pointed out that perusal of the criminal complaint filed by original
respondent No.2 (wife) which is converted into RCC No. 154 of 2022,
there are no specific allegations against the applicant No.4. The criminal
complaint is lodged only with an intention to pressurize the applicant
Nos. 1 to 3 and original accused No.1. The learned counsel, therefore,
prayed that the application be quashed and set aside against the
applicant No.4.

16] Learned counsel for the applicant submitted that the original
respondent No.2 has alleged that applicant No.4 is the second wife of
Sagar Badole (original accused No.1). In the criminal complaint, the only
allegation against applicant No.4, which is translated, reads thus :-

“My husband is staying with accused No.5 (present applicant
No.4) in Mumbai, due to which I suffer physical and mental
pain. I have doubt that my husband has married for the
second time. When I was in Mumbai, accused No.5 came to
our house and abused and slapped me and also threatened
to kill me.”

17] Admittedly the applicant No.4 stays in a different city than
that of original respondent No.2. At this juncture, it is necessary to
consider the relevant provisions of
Section 498-A of I.P.C., which reads

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thus :-

“[498A. Husband or relative of husband of a woman
subjecting her to cruelty.–Whoever, being the husband or the
relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation.–For the purpose of this section, “cruelty” means–

(a) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of the
woman; or

(b) harassment of the woman where such harassment is with a
view to coercing her or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet such
demand.]
Therefore, the section contemplates that there has to be “cruelty”
committed to a woman by her husband or the relatives of the
husband, only then the offence stands proved.

In the present case, admittedly, the applicant No.4 is
not related to the applicant Nos. 1 to 3. The statements made in the
FIR are general and do not amount to an offence either under
Section 498-A, or under Sections 323, 494, 504 and 506 r/w. 34 of
IPC.

18] The learned counsel for applicant has placed reliance
on 3 judgments. On the powers of this Court to entertain a petition
under
Section 482 of Cr.P.C. , the counsel for applicants relied upon
the judgment of the Apex Court in the matter of State of Haryana
Vs. Bhajanlal 1992 AIR (SC) 604 and Geeta Mehrotra Vs. State of
Uttar Pradesh 2013 AIR (SC) 181. So also, the learned counsel for

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the applicants relied upon two judgments of the Division Bench of
this Court passed in Criminal Application No. 3724 of 2019 and
Criminal Writ Petition No. 479 of 2019. In both these judgments,
which arose from a proceeding under
Section 498-A, this Court was
of the view that criminal proceeding filed against the aged parents
should be quashed and set aside at the initial stage to avoid abuse of
process of law.

19] We have, recently in Criminal Application No. 2230 of
2020 (Narayan S/o. Eknath Devkar and others Vs. State of
Maharashtra and others) decided on 25.7.2022; after considering
the various judgments in para. Nos. 22 to 24, held in para. No. 27 as
under :-

“Thus, we are of the considered view that the
respondent No.2 only with an intention to harass the
applicant No.1, with ulterior motive, has filed the
complaint also against far off relatives i.e. respondent
Nos. 4 to 15. Continuation of prosecution against
Applicant Nos. 4 to 15, who are far off relatives of
husband and who stay separately in their own house, in
our opinion, would amount to abuse of process of law.”

19] Taking into consideration the ratio laid down in the cases of
Gian Singh, Bhajanlal and Geeta Mehrotra( supra), we are of the
considered view that so far as applicant No.4 is concerned, there are no
specific allegations against her and only with a view to harass the
husband; the applicant No.4 (who is not a relative) is arrayed as accused
No.5 in the FIR. Therefore, in our view this is a fit case, wherein, we
should exercise our discretion under
Section 482 of the Code of Criminal
Procedure to quash the criminal proceeding as against applicant No.4.

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ORDER

i. The application in so far as applicants Nos. 1 to 3 are
concerned, stands disposed of as withdrawn.
ii. The application, in so far as applicant No.4 – Supriya
Sunil Chandolkar is concerned, is allowed in terms of prayer clauses
(D).

iii. Criminal Application stands disposed of, accordingly.

[RAJESH S. PATIL] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
grt/-

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