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Kantilal S/O. Zamu Gaikwad And … vs The State Of Maharashtra And Anr on 23 April, 2018

1 Cri WP 1223 of 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 1223 OF 2017

1] Kantilal S/o Zamu Gaikwad,
Age : 57 years, Occu. : Service,
R/o 5/2 Bhushan Colony,
Jalgaon, Dist. Jalgaon.
2] Sau. Sunita Kantilal Gaikwad,
Age : 47 years, Occu. :
Household,
R/o As above.
3] Niraj S/o Kantilal Gaikwad,
Age : 25 years, Occu. : Student,
R/o As above.
Now at Present Pune.
4] Jagdish S/o Zamu Gaikwad,
Age : 39 years, Occu. : Service,
R/o Anand Nagar, Bodhwad,
Tq. District Jalgaon.
5] Anil S/o Narayan Ingale,
Age : 43 years, Occu. : Service,
R/o Samata Nagar, Jalgaon,
District Jalgaon.
6] Manoj S/o Kantilal Gaikwad,
Age : 30 years, Occu. : Service,
R/o Vasant Nagar, Sangli,
District Sangli. …Petitioners.

Versus

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2 Cri WP 1223 of 2017

1] The State of Maharashtra,
Through Police Station,
Ramanand Nagar, Jalgaon.
2] Sau. Madhuri w/o Manoj Gaikwad,
Age : 33 years, Occu. Household,
R/o C/o Pandit Tulshiram Tayde,
R/o N Ramarao Society,
Bazar Road,
12-A, Pimprala, Tq. Dist.
…Respondents.
Jalgaon.
—-

Mr. Sant Kishor C., Advocate for Petitioners.
Mr. S. B. Pulkundwar, Addl. Public Prosecutor, for
Respondent No. 1 / State.

Mr. M. K. Deshpande, Advocate for Respondent No. 2.

—-

CORAM : PRASANNA B. VARALE
SMT.VIBHA KANKANWADI. JJ.
DATE : 23-04-2018.

JUDGMENT : [Per Smt. Vibha Kankanwadi, J]

Present writ petition has been filed

invoking the powers of Court under Article 226 and

227 of the Constitution of India and Section 482 of

Code of Criminal Procedure for quashment of the first

information report lodged at the instance of

respondent No. 2.

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3 Cri WP 1223 of 2017

02. Rule. With consent of the parties, matter

is taken for final hearing at the admission stage.

03. Respondent No. 2 is the wife of petitioner

No. 6. They got married on 19.2.2015 at Alandi,

District Pune as per Hindu rites and customs.

Petitioner No. 1 and 2 are the parents of the

petitioner No. 6. Petitioner No. 3 is the real

brother of petitioner No. 6. Petitioner No. 4 is the

uncle of petitioner No. 6 and petitioner No. 5 is

distant relative.

04. Petitioners have contended that at the time

of marriage, the respondent No. 2 had represented

before the petitioner No. 6 that her earlier marriage

with one Pravin Sapkale is dissolved. Believing her

representation, the petitioner N. 6 had performed the

marriage. However, later on it was revealed to him

that the earlier marriage of respondent No. 2 was

still subsisting. He got married to respondent No.

2. Therefore, petitioner No. 6 has filed H. M. P.

No. 601/2016 before the Civil Judge, Senior Divison,

Jalgaon for divorce. The respondent No. 2 has

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4 Cri WP 1223 of 2017

appeared in the proceeding and has raised preliminary

issue regarding maintainability of the petition. An

order has been passed on that application on

14.2.2017. The said order is under challenge before

this Court in Writ Petition No. 3334/2017. It has

been further submitted that the respondent No. 2 is

daughter of maternal uncle of petitioner No. 6.

Therefore, they were knowing each other. Petitioner

No. 1 and 2 reside at Akola. Petitioner No. 3 is

residing at Pune since 2014. Petitioner No. 4

resides at Muktainagar as he is serving in M. S. R.

D. C. After marriage petitioner No. 6 and respondent

No. 2 were residing at Sangli. It has been further

stated that respondent No. 2 got decree for divorce

from her earlier husband under Special Marriages Act

on 5.3.2015. She had not disclosed to the petitioner

No. 6 that she has daughter from her husband and in

fact in the said petition, it is stated that the

custody of her daughter would be with earlier husband

of the respondent No. 2. The respondent No. 2 has

been given right to visit her daughter. Therefore,

petitioners say that as marriage of respondent No. 2

is based on mis-representation by respondent No. 2

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5 Cri WP 1223 of 2017

and therefore, null and void. The respondent No. 2

has lodged a false information report stating that

she has been ill-treated by the petitioners. The

petitioners have submitted that even going through

contents of first information report, it would reveal

that no offence has been made out against them.

Respondent No. 2 has leveled allegations of demand of

dowry and stated that behind her back, the

petitioners had asked amount of Rs. 1,50,000/- from

her brother. So also petitioners have taken Rs.

15,000/- from her for purchase of a new Refrigerator.

On the contrary, the petitioner No. 6 was regularly

transferring amounts in the account of respondent No.

2. Petitioner No. 6 is serving with Bank of

Maharashtra at Sangli. In all, he has transferred

amount of Rs. 1,50,000/- in the account of respondent

No. 2. He has given said account of transfer of

amounts in the petition. On earlier two occasions,

the respondent No. 2 had filed complaint with Women

Grievances Redressal Cell in the office of

Superintendent of Police, Jalgaon. But, she had not

leveled any allegation about demand of money from her

brother when the petitioner No. 6 and respondent No.

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6 Cri WP 1223 of 2017

2 were separately residing at Sangli. Allegations

against the petitioner Nos. 1 to 5 are concocted and

totally un-believable.

05. During the pendency of the present petition,

it appears that the charge-sheet has been filed and

by way of amendment petitioners have challenged the

proceedings and prayed for quashment of the

proceedings on the ground that the evidence that has

been collected by the Investigating Officer is not

making out any offence as alleged in the charge-

sheet.

06. Respondent No. 2 has filed affidavit-in-

reply, which is nothing but reproduction of her first

information report. She has tried to make out that

earlier, immediately after the marriage when she had

tried to meet her husband i.e. Petitioner No. 6, she

was prevented by the petitioner No. 1 to 3. In fact,

at that time petitioner No. 6 was hospitalized as

petitioner No. 1 and 2 had objected to the marriage

that was performed by petitioner No. 6 and respondent

No. 2 behind their back and petitioner No. 6 had

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tried to commit suicide by consuming poisonous

substance. The petitioners have threatened her at

that time. It is stated that the petitioner No. 6

has all of sudden filed petition for divorce.

Petitioner No. 1 to 3 were not happy with their

marriage and for that purpose it appears that the

step has been taken by petitioner No. 6 to file the

divorce petition. She has been harassed and ill-

treated by the petitioners and, therefore, she has

lodged the first information report. In her

affidavit-in-reply, at the end, she has stated that

all the petitioners in general and petitioner No. 1

to 3 and 6 in particular have committed the offence

punishable under Sections 498A as well as 323, 504

read with 34 of Indian Penal Code and, therefore, she

has prayed for rejection of the petition.

07. Heard learned Advocate K. C. Sant for

petitioner, learned Addl. Public Prosecutor Mr. S. B.

Pulkundwar and learned Advocate Mr. M. K. Deshpande

for respondent No. 2. It has been submitted on

behalf of the petitioners that respondent No. 1 to 5

were residing at a different place. Only the

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petitioner No. 6 and respondent No. 2 used to reside

at Sangli. If we peruse the contents of the FIR,

there is, in fact, absolutely nothing against the

petitioner No. 6 whatever acts in respect of

petitioner No. 1 to 3 have been stated are immediate

to the alleged marriage which was in fact not made

aware to them. When petitioner No. 6 was

hospitalized, respondent No. 2 says that she was

restrained by petitioner No. 1 to 5 from meeting

husband and in fact she says that she had lodged a

report about the same with Ramanand Nagar Police

Station. However, it is to be noted that the report

itself shows that after the health of the petitioner

No. 6 was improved, they had performed marriage again

and went to stay at Sangli. It is her say that when

she was at Sangli, petitioner No. 1 to 3 used to

visit frequently, were instigating petitioner No. 6

that to perform second marriage and she was harassed

on the ground of demand of four wheeler. The

allegations are very vague. The evidence that has

been collected is nothing but only the statements of

her parents, sister and brother. On the contrary,

the statement of the landlady at Sangli shows that

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9 Cri WP 1223 of 2017

the relation between petitioner No. 6 and respondent

No. 2 were very much co-ordial and she can be said to

be an independent witness. Therefore, under such

circumstance, if the petitioners are required to face

the trial, then it would be abuse of process of law.

He relied on the decision in Shakson Belthissor V/s

State of Kerala and Anr., AIR 2010 SC (Supp) 864. In

this case it has been held that :

“The scope and power of quashing of first

information report and the charge-sheet

under Section 482 of Code of Criminal

Procedure is well settled. The said power

is exercised by the Court to prevent abuse

of the process of law and Court. But such

power could be exercised only when the

complaint filed by the complainant or a

charge-sheet filed by the police did not

disclose any offence or when the said

complaint is found to be frivolous,

vexatious or oppressive.”

08. Similar view is taken in Sanapareddy

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10 Cri WP 1223 of 2017

Maheedhar Seshagiri and Anr. V/s State of A. P. and

Anr., 2008 AIR SCW 11. Further, reliance has been

placed on the decision in Somnath s/o Ashok Darekar

V/s State of Maharashtra and Anr., 2017 (4) Mh. L. J.

(Cri.) 164 decided by the Division Bench of this

Court. Here, in this case also, taking into

consideration the allegations in the first

information report, the first information report for

the offence under Sections 306, 498-A, read with 34

of Indian Penal Code was quashed and set aside.

09. It has been submitted on behalf of the

respondents that a specific allegation has been made

that the respondent No. 2 was subjected to cruelty on

the ground that she should bring amount for

purchasing four wheeler. However, an amount of Rs.

1,50,000/- was demanded from the brother of the

respondent No. 2. The amount of Rs. 17,800/- was

given by the mother of respondent No. 2 for

purchasing fridge on demand.

10. The contents of the first information report

have been stated in the earlier paragraphs and

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11 Cri WP 1223 of 2017

therefore, we do not like to reproduce the same.

However, the facts are required to be assessed from a

different angle. Petitioners have come with a

specific case that respondent NO. 2 had made a

representation to the petitioner No. 6 that she has

taken divorce from her earlier husband. In fact,

respondent No. 2 is the daughter of brother of

petitioner No. 2. Therefore, what is normally

expected is that the family should know what is going

on with the relatives. But still it appears that no

such disclosure was made by the respondent No. 2 to

the petitioner No. 6 regarding her divorce. It is to

be noted that the petition which was filed by

respondent No. 2 and her ex-husband for dissolution

of marriage by mutual consent came to be allowed on

5.3.2015. Copy of that order has been placed on

record. As per petitioners’ contention petitioner

No. 6 got married to respondent No. 2 on 19.2.2015 at

Alandi and this fact was not disclosed to petitioner

No. 1 to 5. In the first information report it is

stated that the registered marriage was performed

between them on 23.4.2015 and then she says that this

fact was also not disclosed to the parents and

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12 Cri WP 1223 of 2017

therefore, husband told that she should reside with

her parents. Therefore, it is in fact a

questionrable point as to why they were required to

perform marriage twice. No doubt, she has not denied

in her affidavit-in-chief a statement made by

petitioner No. 6 that they had married on 19.2.2015

at Alandi. As regards the incident of attempt to

commit suicide by petitioner No. 6 is concerned,

alongwith her affidavit respondent No. 2 has filed on

record a complaint filed by her on 27.4.2015 which

was against petitioner No. 1 to 3. However, it is to

be noted that in the enquiry of that complaint, it

appears that the statements of petitioner No. 6 and

respondent No. 2 were recorded wherein she has

specifically stated that she was allowed to meet her

husband on 27.4.2015 and yet she says that she should

not be harassed and she should be allowed to co-habit

with her husband. That means whatever dispute had

arose between respondent No. 2 and petitioner No. 1

to 3 is concerned, had ended there. By any stretch

of imagination even if we take the facts as it is,

that she was not allowed to meet her husband will not

amount to cruelty as contemplated under Section 498A

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13 Cri WP 1223 of 2017

of Indian Penal Code as against petitioner No. 1 to 3

is concerned.

11. After petitioner No. 6 recovered, he started

co-habiting with respondent No. 2 at Sangli and

admittedly petitioner No. 1 to 5 were residing at the

respective places far away from Sangli. In the first

information report it is then sated that petitioner

No. 1 to 6 used to visit the house of petitioner No.

6 at Sangli and were instigating petitioner No. 6

that he should perform second marriage by divorcing

the respondent No. 2. Because of the instigation

petitioner No. 6 used to assault her and demanded

amount for purchasing four wheeler. Her complaint is

very much silent as to how and when amount was

demanded for purchase of four wheeler. She further

says that petitioner No. 6 has taken amount of Rs.

1,50,000/- from her brother behind her back and a new

refrigerator worth Rs. 15,000/- from her mother.

Even if we accept the aforesaid material, as per her

own story, it was behind her back. Therefore, it can

not be stated that because she was not fulfilling the

alleged demand she was harassed by any of the

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14 Cri WP 1223 of 2017

petitioners. If we peruse the statements of mother,

father and sister of respondent No. 2, they say that

brother of respondent No. 2 Prakash Tayde had given

them information that petitioner No. 6 has taken

amount of Rs. 1,50,000/- from him. If we see

statement of Prakash Tayde, he has stated that

petitioner No. 6 has not taken Rs. 1,50,000/- from

Prakash Tayde and he has given amount of Rs. 36,000/-

from Bank of Maharashtra, Jalgaon Branch on

17.2.2016. He has not stated when he has given

amount of Rs. 1,50,000/- and why he had not informed

it to his sister. Mother of respondent No. 2 says

that she has given refrigerator worth Rs. 17,800/- to

petitioner No. 6 on the say of petitioner No. 1 to 3.

But, she does not say that from where the fridge was

purchased, when and where she had met petitioner No.

1 to 3. The statements of mother, father, sister and

brother of respondent No. 2 are stereo type, rather

copy paste. Interestingly, the statement of landlady

of petitioner No. 6 at Sangli says that since about a

year she had given her two rooms to petitioner No. 6

wherein petitioner No. 6 and respondent No. 2 were

residing, there they used to go to watch movies and

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hoteling. She has not seen any quarrel between the

couple. Thus, it is to be noted that the independent

witness has stated that the relation between the

petitioner No. 6 and respondent No. 2 were co-ordial.

Some amenable statements have been made in the first

information report in order to prove the case under

Section 498A and other Sections under Indian Penal

Code. It can be seen that lodging of the first

information report is outcome of notice for divorce

given by petitioner No. 6. That means the report was

lodged by respondent No. 2 out of some vengeance and

none of the offences as stated in first information

report as well as in the charge-sheet are transpired.

If we continue and ask the petitioners to face the

trial, it would be an abuse of process of law. The

ratio laid down in above said authorities is

applicable here. When ingredients of offence

punishable under Section 498-A, 323, 504 read with 34

of Indian Penal Code are not at all attracted, this

is a fit case where not only first information

report, but the entire charge-sheet itself deserves

to be quashed and set aside.

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16 Cri WP 1223 of 2017

Hence, following Order;

ORDER

(i) Writ Petition is allowed.

(ii) The first information report

bearing crime No. 50/2017

dated 20.4.2017 registered

with Ramanand Police

Station, Jalgaon for the

offences under Sections

498-A, 323, 504 read with

34 of Indian Penal Code

that the proceedings in

R. C. C. No. 323/2017

pending before 5th CJJD and

JMFC are hereby quashed

and set aside.

(iii) Rule made absolute in above

terms.

(SMT. VIBHA KANKANWADI) (PRASANNA B. VARALE)
JUDGE JUDGE

ggd/-.

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