1 Cri Appln 3053 of 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3053 OF 2017
Shri Babasaheb Yadavrao Gaikwad,
Age : 62 Years; Occu : Retired Police
Patil,
R/o Yesgaon, Taluka : Kopargaon,
Dist. Ahmednagar. …Applicant.
Versus
1] State of Maharashtra
Through Kopargaon Taluka Police
Station,
Taluka : Kopargaon, Dist.
Ahmednagar.
2] Sachin Bhausaheb Dange,
Age : 22 Years; Occu :
Agriculture;
R/o Dahegaon-Korhale;
Taluka : Rahata;
District : Ahmednagar. …Respondents.
—-
Ms. Rashmi S. Kulkarni, Advocate for applicant.
Mr. S. B. Pulkundwar, Addl. Public Prosecutor, for
Respondent No. 1 / State.
Mr. K. B. Jadhav H/F Mr. A. D. Shinde, Advocate for
Respondent No. 2.
—-
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2 Cri Appln 3053 of 2017
CORAM : PRASANNA B. VARALE
SMT.VIBHA KANKANWADI. JJ.
DATE : 20-04-2018.
JUDGMENT : [Per Smt. Vibha Kankanwadi, J]
The applicant who is original accused No. 3
has prayed for quashing of first information report
bearing C. R. No. I-58 of 2017, registered with
Kopargaon Taluka Police Station, Kopargaon, Dist.
Ahmednagar at the instance of respondent No. 2, by
invoking powers of this Court under Section 482 of
Code of Criminal Procedure.
02. Rule. With consent of the parties, matter
is taken up for final hearing at the admission stage.
03. Respondent No. 2 has lodged the said report
against the present applicant and others contending
that an offence punishable under Sections 498A, 306,
323, 504, 506 and 304B read with Section 34 of Indian
Penal Code has been committed by the accused persons.
Respondent No. 2 is the brother of deceased Kalpana
Vasant Kalaskar. Marriage between Kalpana and Vasant
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3 Cri Appln 3053 of 2017
was performed on 5.2.2012. Accused No. 2 is stated
to be a step sister of Vasant. Kalpana was treated
properly by her husband and in-laws for about 5 to 6
months after marriage. Thereafter, the accused
persons started harassing her on the ground that
dowry has not been given. Husband and step sister
used to demand amount on some or the other pretext to
Kalpana to be brought by her from her parents. It is
alleged that since Kalpana came to know that there
are illicit relations between step sister of her
husband and present applicant, said step sister
started harassing Kalpana more. The fact was
periodically informed to the informant by Kalpana.
After about a year Kalpana gave birth to a girl who
was named as Vishwanjali. On that count also the
step sister in law started harassing Kalpana.
Thereafter, husband and his step sister started
demanding amount of Rs. 2,00,000/- for buying
tractor. Harassment got intensified when she did not
fulfill the illegal demand. It is alleged that
present applicant used to visit the house of Kalpana
along with her step sister in law and used to demand
money. All the efforts of persuation were in vain.
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4 Cri Appln 3053 of 2017
Step mother in law of deceased Kalpana expired on
7.5.2017. Even for last rites amount to the tune of
Rs. 30,000/- was demanded by Kalpana’s husband and
step sister in law. Informant had promised to give
that amount, but, could not make arrangement for the
same. On 18.5.2017 Kalpana was beaten and was asked
to bring amount and was driven out of the house, so
that she should bring that amount. On the earlier
day, therefore, Kalpana gave phone call to her mother
and told that she is unable to sustain ill-treatment
now and she would commit some untoward incident.
Thereafter, at about 9.30 PM, informant received
phone call stating that Kalpana has hanged herself.
Thereafter, on 20.5.2017 respondent No. 2 lodged
report with police.
04. Heard learned Advocate Ms. Kulkarni for the
applicant, learned Addl. Public Prosecutor Mr.
Pulkundwar for respondent No. 1 / State and learned
Advocate Mr. Jadhav, holding for Mr. Shinde for
respondent No. 2.
05. It has been submitted on behalf of the
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5 Cri Appln 3053 of 2017
applicant that the applicant was not at all related
to the husband of the deceased and therefore, Section
498A of Indian Penal Code can not be invoked against
him. So also he had not at all instigated or caused
abetment of suicide of the deceased. Therefore, none
of the ingredients of the offence have been made out
against the applicant.
06. Application has been objected by the
respondents on the ground that the present applicant
had harassed deceased by demanding the amount and
therefore, offence has been made out against him
also.
07. It is to be noted from the contents of the
first information report that the applicant is stated
to be the paramour of step sister in law of the
deceased. Therefore, he can not be said to be
“relative of husband”. In order to attract
ingredients of Section 498A of Indian Penal Code, the
accused must be husband or his relative. Another
fact to be noted is that only an omnibus statement
has been made against the present applicant saying
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6 Cri Appln 3053 of 2017
that he also used to go to the house of deceased and
as per the say of the sister in law he used to demand
money. It is not alleged that said demand was
followed by any act of ill-treatment by the present
applicant. Neither Section 306 nor 304B of Indian
Penal Code can be attracted against the applicant /
accused. There is no averment in the report
regarding abetment or causing any such act which had
caused un-natural death of deceased Kalpana. Further
even Sections 323, 504 and 506 of Indian Penal Code
can not be attracted because no other act covered
under these Sections is alleged against present
applicant. There can not be a common intention of
the applicant with the other accused persons because
he was not at all related to the husband of the
deceased. Under such circumstance, we find much
substance in the arguments advanced on behalf of the
applicant. This is a fit case where we should
exercise our powers under Section 482 of Code of
Criminal Procedure. The fact is also befitted in the
ratio laid down in State of Haryana and Ors. V/s
Bhajanlal and Ors., 1992 Supplement -1 Supreme Court
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7 Cri Appln 3053 of 2017
Cases, 335, wherein it is held that :
“The following categories of cases can
be stated by way of illustration wherein
the extraordinary power under Article
226 or the inherent powers under Section
482 CrPC can be exercised by the High
Court either to prevent abuse of the
process of any Court or otherwise to
secure the ends of justice, though it
may not be possible to lay down any
precise, clearly defined and
sufficiently channelized and inflexible
guidelines or rigid formulate and to
give an exhaustive list of myriad kinds
of cases wherein such power should be
exercised :
(1) Where the allegations made in the
first information report or the
complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute
any offence or make out a case against
the accused.
(2) Where the allegations in the first
information report and other materials,
if any, accompanying the FIR do not
disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the
Code except under an order of a::: Uploaded on – 04/05/2018 05/05/2018 23:06:08 :::
8 Cri Appln 3053 of 2017Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against
the accused.
(4) Where, the allegations in the FIR do
not constitute a cognizable offence but
constitute only a non-cognizable
offence, no investigation is permitted
by a police officer without an order of
a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can even reach a
just conclusion that there is sufficient
ground for proceeding against the
accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is
instituted) to the institution and
continuance of the proceedings and / or
where there is a specific provision in
the Code or the concerned Act, providing::: Uploaded on – 04/05/2018 05/05/2018 23:06:08 :::
9 Cri Appln 3053 of 2017efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and /
or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private
and personal grudge.”
08. Hence, we proceed to pass following order;
ORDER
(i) Application is hereby allowed.
(ii) The first information report
bearing C. R. No. I-58 of 2017
dated 20.5.2017, registered with
Kopargaon Taluka Police Station,
Kopargaon, Dist. Ahmednagar at the
instance of present respondent No.
2 for the offences punishable
under Sections 498A, 306, 323,
504, 506 and 304B read with
Section 34 of Indian Penal Code,
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10 Cri Appln 3053 of 2017is hereby quashed and set aside as
against the present applicant.
(iii) Rule is made absolute in above
terms.
(SMT. VIBHA KANKANWADI) (PRASANNA B. VARALE)
JUDGE JUDGE
ggd/-.
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