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Milind S/O Umaji Dudhmal And Ors vs The State Of Maharashtra & Anr on 23 October, 2018

( Order ) 1 Cri.Apln No.6755-2015

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 6755 OF 2015

1) Milind s/o Umaji Dudhmal,
Age 27 years, Occupation Labour,
R/o Kawalgaon Tq. Purna
Dist. Parbhani.
(Disposed as withdrawn as per order dtd.22-12-15)

2) Umaji s/o Narayan Dudhmal,
Age 65 years, Occupation Labour,
R/o Kawalgaon Tq. Purna
Dist. Parbhani.
(Disposed as withdrawn as per order dtd.22-12-15)

3) Shantabai w/o Umaji Dudhmal,
Age 60 years, Occupation Household,
R/o Kawalgaon Tq. Purna
Dist. Parbhani.
(Disposed as withdrawn as per order dtd.22-12-15)

4) Komal Raju Dudhmal,
Age 26 years, Occupation Household,
R/o Kawalgaon Tq. Purna
Dist. Parbhani.
(Disposed as withdrawn as per order dtd.22-12-15)

5) Raju s/o Umaji Dudhmal,
Age 30 years, Occupation Labour,
R/o Kawalgaon Tq. Purna
Dist. Parbhani.
(Disposed as withdrawn as per order dtd.22-12-15)

6) Pornima Rangnath Kosare,
Age 20 years, Occupation Household,
R/o Pimpalgaon Murud
Tq. Palam Dist. Parbhani.

7) Rangnath Tukaram Kosare,
Age 60 years, Occupation Labour,
R/o Pimpalgaon Murud
Tq. Palam Dist. Parbhani.

8) Bhagwan s/o Rangnath Kosare,
Age 26 years, Occupation Labour,

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( Order ) 2 Cri.Apln No.6755-2015

R/o Pimpalgaon Murud
Tq. Palam Dist. Parbhani.

9) Indubai w/o Rangnath Kosare,
Age 55 years, Occupation Household,
R/o Pimpalgaon Murud
Tq. Palam Dist. Parbhani. …Applicants

Versus

1) The State of Maharashtra
Through Police Station Selu,
Tq. Selu Dist. Parbhani.
Through its Police Inspector.

2) Nisha w/o Milind Dudhmal,
Age 24 years, Occupation Household,
R/o At Present Walur Tq.Selu
Dist. Parbhani. …Respondents
—-

Mr. P. N. Kalani, Advocate for applicants.

Ms. P. V. Diggikar, Addl. Public Prosecutor, for respondent No.1
/ State.

Mr. S. P. Malode, Advocate for respondent No.2.

—-

CORAM : T. V. NALAWADE
SMT.VIBHA KANKANWADI. JJ.

Date of reserving
the order : 10th October, 2018.

Date of pronouncing
the order : 23rd October, 2018.

ORAL ORDER : ( Per SMT. VIBHA KANKANWADI, J. )

1. Present application has been filed by original accused persons

for invoking of inherent powers of this Court under Section 482 of

Code of Criminal Procedure, in order to get the First Information

report bearing Cr. No. 229 of 2015 dt. 13-10-2015 registered with

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( Order ) 3 Cri.Apln No.6755-2015

Selu Police Station, Tal. Selu, Dist. Parbhani for the offences

punishable under Section 498-A, 494, 323, 504 r/w. 34 of Indian

Penal Code.

2. Applicant No. 1 is the husband of respondent No. 2. Applicants

No. 2 and 3 are the parents, applicant No. 4 is nephew and applicant

No. 5 is the sister-in-law (brother’s wife) of applicant No. 1. It will

not be out of place to mention here that the relief in the application

in respect of applicants No. 1 to 5 has been rejected by this Court

vide order dt. 22-12-2015. Hence, the application is considered only

for applicants No. 6 to 9.

3. Applicant No. 6 is alleged to be the second wife of applicant

No. 1. Applicants No. 7 and 9 are the parents of applicant No. 6 and

applicant No. 8 is her brother.

4. Respondent No. 2/ first informant has contended that she was

married to applicant No. 1 on 26-04-2010 at Valur. After marriage,

she started residing with applicant No. 1 to 5. She has son Namesh

aged 4 and daughter aged 1 ½ from the applicant No. 1. Her father

had given utensils and domestic articles at the time of her marriage.

Her husband is labour and nephew is mason. Her gold ornaments

and silver anklet was taken by applicants No. 1 to 5, when she was

pregnant at the time of her daughter. She was asked to bring

amount of Rs.25,000/- from her father and she was driven out of

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( Order ) 4 Cri.Apln No.6755-2015

the house. After she went back to matrimonial house, after delivery,

applicants No. 1 to 5 had assaulted her father, who had come to

leave her. She was persuaded by her father and then she stayed

with applicants No. 1 to 5. Applicants No. 4 and 5 used to instigate

applicant No. 1 by saying bad things about her. Her husband used to

assault her. Applicants No. 1 to 3 used to demand amount of

Rs.25,000/- from her. They used to say that after she brings that

amount, she should reside separately. However, she sustained the

ill-treatment, but she came to her father’s house with daughter

about 3 months prior to the FIR. Applicants No. 1 to 5 did not allow

her to bring son with her. They are insisting that she should come for

cohabitation only after fulfilling the demand. She had given

application for mediation, but it failed. She has further stated that

applicant No. 1 has performed second marriage with applicant No. 6.

Applicants No. 7 to 9 were aware that applicant No. 1 was married to

respondent No. 2, still the said marriage has been performed.

Hence, she has lodged the report.

5. Applicants No. 6 to 9 have contended that allegations against

them are baseless. The contents of the FIR would clearly show that

no offence can be said to be made out against them for the offence

punishable under Section 498-A, 323, 504 r/w. 34 of Indian Penal

Code. They are not ‘relatives of husband’ as contemplated in Section

498A of Indian Penal Code. They are residing at different place from

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( Order ) 5 Cri.Apln No.6755-2015

the residence of applicants No. 1 to 5. They have therefore, prayed

for quashing up of the FIR.

6. Heard learned Advocate Shri. P. N. Kalani for applicants No. 6

to 9, learned A. P. P. Ms. P. V. Diggikar for respondent No. 1 and

learned Advocate Shri. S. P. Malode for respondent No. 2.

7. It has been submitted on behalf of applicants No. 6 to 9 that

respondent No. 2 has made baseless allegations against applicants

No. 6 to 9 alleging that applicant No. 6 has performed marriage with

applicant No. 1 and applicants No. 7 to 9 had the knowledge of

previous marriage of applicant No. 1 still the marriage was allowed

to be performed between applicants No. 1 and 6. Applicants No. 6 to

9 are not ‘relatives of husband by marriage’. When respondent No. 2

says that her marriage with applicant No. 1 is still subsisting then,

applicants No. 6 to 9 can not be prosecuted for allegedly committing

offence punishable under Section 498-A of Indian Penal Code. There

are not allegations against them attracting provisions of Section 323,

504 of Indian Penal Code. At the most, they can be considered

under Section 494 of Indian Penal Code, without admitting the

contents of said allegations. Police can not take cognizance of

complaint for the offence punishable under Section 494 of Indian

Penal Code, in view of specific bar under Section 198 of Code of

Criminal Procedure. Only a private complaint of the aggrieved party

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( Order ) 6 Cri.Apln No.6755-2015

would lie before a competent Court. Learned Advocate for the

applicants No. 6 to 9, therefore, prayed for quashing up of the FIR

against them. To buttress his submissions, he has relied on the

decision in U. Suvetha v/s. State by Inspector of Police and

Anr [2009 AIR SCW 3491].

8. Per contra, the learned A. P. P. Submitted that specific

allegations are made in the FIR that applicant No. 1 has performed

second marriage with applicant No. 6. Performance of second

marriage would also amount to “cruelty” and therefore, second wife

and her relatives also can be prosecuted for the offence punishable

under Section 498-A of Indian Penal Code. Learned A. P. P. Further

submitted that when the FIR is filed for the offence punishable under

Section 498-A of Indian Penal Code and the cognizance of the same

can be taken by Police, then Police is also entitled to investigate

offence punishable under Section 494 of Indian Penal Code. She

relied on the decision in Ushaben v/s. Kishorbhai Chunilal

Talpada and others [2012 (4) Mh. L. J. (Cri) 26 (SC)]; wherein

it has been held that, “if a complaint contains allegations about

commission of offence under Section 498-A of the IPC which is a

cognizable offence, apart from allegations about the commission of

offence under Section 494 of the IPC, the court can take cognizance

thereof even on a police report”. Hence, the FIR can not be quashed

against applicants No. 6 to 9.

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( Order ) 7 Cri.Apln No.6755-2015

9. Thus, it can be seen that the points raised by applicants No. 6

to 9 are two fold. One is that the cognizance of offence under

Section 494 of Indian Penal Code can not be taken by Magistrate

when police report is filed to that effect. Second is that they can not

be arrayed in Section 498-A of Indian Penal Code, as they are not

“the relatives” of husband i.e. Applicant No. 1. As regards the first

point is concerned the legal point has been settled in Ushaben’s

case (supra). It has been observed that, “A conjoint reading of the

above provisions makes it clear that a complaint under Section 494

of the IPC must be made by the aggrieved person. Section 498-A

does not fall in Chapter XX of the Indian Penal Code. It falls in

Chapter XXA. Section 198A which we have quoted hereinabove,

permits a court to take cognizance of offence punishable under

Section 498A upon a police report of facts which constitute offence.

It must be borne in mind that all these provisions relate to

cognizance of the offence by the court”. Further it has been observed

that, “Upshot of the above discussion is that, no fetters can be put

on the police preventing them from investigating the complaint

which alleges offence under Section 498-A of the IPC and also

offence under Section 494 of the IPC”. Therefore, in that the case

the direction to delete Section 494 of the IPC was set aside. Taking

into consideration the said decision it can be said that when the

Police have invoked Section 498-A along with Section 494, they can

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( Order ) 8 Cri.Apln No.6755-2015

investigate the matter and file report under Section 173 of Cr.P.C.

Thereafter, the Magistrate would be well within his jurisdiction to

take cognizance for both the offences. Hence, the FIR for the

offence punishable under Section 494 of Indian Penal Code can not

be quashed on the point that police can not take cognizance and

investigate the said offence in view of bar under Section 198 of Code

of Criminal Procedure.

10. Now, as regards the second point is concerned, the second

wife and her relatives can not be termed as “relatives of husband” as

contemplated in Section 498-A of Indian Penal Code in view of the

decision in U. Suvetha (supra). In that case it has been held that

during the subsistence of first marriage, the second marriage is held

to be null and void and the second wife cannot be conferred with the

status of relative of the husband, that too for the purpose of

attracting the provisions of law under Section 498-A Indian Penal

Code. The Hon’ble Supreme Court was of the view that living with

another woman is an act of cruelty on the part of the husband for

the purpose of judicial separation or dissolution of marriage, but the

same would not attract the wrath of Section 498-A Indian Penal

Code. In order to attract Section 498-A Indian Penal Code, they have

to be either the husband or his relative and any other person

associated with the husband may be held guilty for abetment of

commission of such an offence, but not an offence under Section

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( Order ) 9 Cri.Apln No.6755-2015

498-A Indian Penal Code. Therefore, the second point raised by the

applicants has substance.

11. Learned Advocate for the applicants No. 6 to 9 has also relied

on the decision in Swati Sachin Mahajan (Pagare) v/s. State of

Maharashtra [2007 (5) Mh. L. J. 427]. In this case, a complaint

was filed alleging that offence under Section 494 of Indian Penal

Code has been committed. However, after the presentation of the

complaint, the learned Magistrate had sent it for investigation under

Section 156 (3) of Code of Criminal Procedure. The said order was

set aside on the ground that Section 494 of Indian Penal Code is

non-cognizable and therefore, investigation under Section 156 (3) of

Code of Criminal Procedure can not be directed. It appears that no

other section of Indian Penal Code was invoked in that case. The

facts of the present case are different. Here allegations are made in

respect of other cognizable offence also.

12. Further reliance was also placed on the decision in Sangita

Natthulal Labhane v/s. Yashodhara Krishna Bhitre and Anr

[2008 ALL MR (Cri) 2228]. This decision is prior to the decision in

Ushaben’s decision and therefore, can not be looked into.

13. As aforesaid the FIR can not be quashed at this stage against

applicants No. 6 to 9, since offence under Section 494 of Indian

Penal Code has been invoked for them. Interesting point is that if

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( Order ) 10 Cri.Apln No.6755-2015

there is no relation between applicants No. 1 to 5 with applicants No.

6 to 9, then how a common application is filed by them? There is a

need to have investigation into the allegations against them also,

hence, powers of this Court under Section 482 of Code of Criminal

Procedure can not be applied. The application is therefore, rejected.

(SMT. VIBHA KANKANWADI) (T. V. NALAWADE)
JUDGE JUDGE

vjg/-.

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