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Babasaheb Yadavrao Gaikwad vs The State Of Maharashtra And Anr on 20 April, 2018

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

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8 Cri Appln 3053 of 2017

Magistrate 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

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9 Cri Appln 3053 of 2017

efficacious 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 2017

is 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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