—
Bombay High Court
Nikheelchandra Anil Zode vs State Of Maharashtra And Anr on 9 February, 2024
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2024:BHC-AS:6633-DB
Tauseef 22-WP.2762.2023 WP.2763.2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2762 OF 2023
Nikheelchandra Anil Zode,
Occupation : Service,
Residing at : 2/23, Juhu Neelsagar,
Gulmohar Lane, J.V.P.D. Scheme,
Andheri, Mumbai – 400056. ..Petitioner
Versus
1. State of Maharashtra,
through the Sr. Police Inspector,
Tasgaon Police Station,
C. R. Bearing Crime No.324 of 2023.
2. Dr. Rita Nikheelchandra Zode @
Rita Sheshrao Kulkarni,
Age : 40 years, Occupation : Service,
Residing at 199, Jay Tuljabhavani Nagar,
Tasgaon Punadi road, Tasgaon, Sangli,
Maharashtra – 416312. ..Respondents
WITH
WRIT PETITION NO.2763 OF 2023
1. Sarita Anil Zode,
Age : 64 years, Occupation : Homemaker.
2. Mousami Anil Zode,
Age : 44 years, Occupation : Service.
3. Veenitkumar Anil Zode,
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Age : 42 years, Occupation : Service,
All Petitioners R/at.: 2/23, Juhu Neelsagar,
Gulmohar Road, J. V. P. D. Scheme,
Andheri, Mumbai – 400049. ..Petitioners
Versus
1. State of Maharashtra,
through the Sr. Police Inspector,
Tasgaon Police Station,
C. R. Bearing Crime No.324 of 2023.
2. Dr. Rita Nikheelchandra Zode @
Rita Sheshrao Kulkarni,
Age : 40 years, Occupation : Service,
Residing at 199, Jay Tuljabhavani Nagar,
Tasgaon Punadi road, Tasgaon, Sangli,
Maharashtra – 416312. ..Respondents
_
Mr. S. R. Nargolkar a/w. Mr. Arjun Kadam Ms. Neeta Patil for the
Petitioner.
Mr. Sagar Kasar a/w. Mr. Amol Wagh Ms. Chaitali Bhogle for
Respondent No.2.
Mr. Namdeo Laxman Tarade, PSI, Tasgaon Police Station present.
_
CORAM : A. S. CHANDURKAR
JITENDRA JAIN, JJ.
RESERVED ON : 10th JANUARY 2024.
PRONOUNCED ON : 9th FEBRUARY 2024.
JUDGMENT:
(Per Jitendra Jain, J.)
1. With consent, heard finally at the admission stage. These two
writ petitions are heard together since both are based on same cause of
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action and are therefore disposed of by common order. Writ Petition
No.2762 of 2023 is filed by the Petitioner-Husband seeking quashing of
First Information Report (FIR) dated 9th July 2023 filed against him by
Respondent No.1 on a complaint from Respondent No.2-Wife. Writ
Petition No.2763 of 2023 is filed by the relatives being mother, brother
and sister of the Petitioner in Writ Petition No.2762 of 2023 praying for
quashing of the very same FIR filed against them.
2. Facts relating to Writ Petition No.2762 of 2023 are discussed
for adjudication of the issue raised before the Court.
3. Narrative of relevant events:-
(i) The Petitioner and Respondent No.2 are husband and wife, who are
married since February 2018. They met each other through
“Jeevansathi” matrimonial site. Petitioner is working as Provident
Fund Commissioner at Pune and Respondent No.2 is a judicial
officer presently at Tasgaon Court.
(ii) It is alleged in the FIR by Respondent No.2 that after marriage, the
Petitioner refused to have a conjugal relationship with her. There
were various matrimonial disputes between the Petitioner, his
family and Respondent No.2. The matrimonial dispute seeking
decree of divorce is filed by the Petitioner against Respondent No.2
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The said divorce matter is pending as of today.
(iii) In the FIR dated 9th July 2023, it is recorded that on 7th June 2023
at 10.30 a.m., the Petitioner and his brother entered the Chambers
of Respondent No.2 and threatened her to sign mutual consent
divorce petition. It is also recorded that the Petitioner informed her
that he has sought necessary permission from the Court
adjudicating the divorce matter so as to enable Respondent No.2 to
appear through Video-Conferencing for the purpose of mutual
consent decree for divorce.
(iv) The Respondent No.2 further stated in the FIR that the Petitioner
pulled her and made her to sit on the chair to sign the divorce
papers, despite knowing that Respondent No.2 was getting late to
discharge her official duty. The Respondent No.2 further stated
that since she did not want to convey a wrong message at the place
where she is working, she called her peon and sat on dias for
discharging her duties.
(v) On the same day i.e. on 7th June 2023 in the afternoon at 2.45
p.m., she sat on the dias to discharge her official duties, at which
time, she was informed by her peon that her mother-in-law,
brother-in-law and sister-in-law are sitting in her Chambers. The
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Respondent No.2 immediately rose from Court and proceeded
towards her Chamber. The Respondent No.2 further stated that she
tried to explain her mother-in-law and sister-in-law that the topic of
divorce can be discussed after the Court hours since she was busy
in discharging her official duties in the afternoon. It is stated by
Respondent No.2 that the mother-in-law and sister-in-law directed
Respondent No.2 to sign the papers and till that does not happen,
they will not leave the office of Respondent No.2. However,
Respondent No.2 called the security officer to take her in-laws out
of the chambers.
(vi) The Respondent No.2 further stated in the FIR that this incident
was informed by her to her superior in the evening. This resulted in
Respondent No.2 being frightened and from that day onwards
thoughts of committing suicide started coming in her mind. The
Respondent No.2 further stated that from 2018 till February 2023,
she was in regular touch with Petitioner on WhatsApp, phone, etc.
since both of them were serving at different places. The Respondent
No.2 further stated that she had celebrated valentine’s day in Hotel
Taj, Pune in February 2023 and she also spent time with the
Petitioner and his friends in Lonavala.
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(vii) The Respondent No.2 further stated that it has come to her
knowledge that Petitioner and one Neha Ghorpade are planning to
get married and, therefore, the Petitioner was insisting on getting
divorce from her.
4. Based on the aforesaid incidents and specially events which
occurred on 7th June 2023, the Respondent No.2 on 9 th July 2023
approached the Police Station at Tasgaon, who recorded the statement
and lodged the FIR against the Petitioner. In the said FIR, the provisions
of Section 186, 342, 353, 498A and 506 of the Indian Penal Code, 1860,
are invoked by Respondent No.1 based on the information received from
Respondent No.2. The period of offence stated in the FIR is from 1 st
October 2018 to 7th June 2023. The Petitioner who is presently working
in Pune was called for investigation by Respondent No.1 at Tasgaon.
5. It is on the above backdrop that the present petition is filed
under Article 226 of the Constitution of India read with Section 482 of
the Code of Criminal Procedure, 1973, seeking interalia quashing of FIR
bearing C. R. No.0324 of 2023 registered with Tasgaon Police Station for
offences punishable under Section 498A, 353, 342, 186, 506 read with
34 of the Indian Penal Code, 1860.
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Submissions of the Petitioner:-
6. The Petitioner after taking us through the FIR submitted that
on a bare reading of the FIR, none of the ingredients of Sections 186,
342, 353, 498-A and 506, which are sought to be levied are attracted to
the facts of the present case. The Petitioner submits that Respondent
No.2 being a judicial officer at the place where complaint is lodged by
her is misusing her position to harass the Petitioner. The Petitioner
submits that there is a matrimonial dispute of divorce pending between
the Petitioner and Respondent No.2 and as a counter blast to the same,
Respondent No.2 has lodged the present complaint. The Petitioner
further submits that at the behest of Respondent No.2, Officers of
Respondent No.1 are issuing various letters to the superior of the
Petitioner and to the employer of the relatives, (who have filed the
Second Writ Petition) seeking various information which is in no way
related to the issues between the Petitioner and the Respondent No.2.
The Petitioner also pleaded for quashing of FIR on ground of delay in
registering the FIR. The Petitioner submits that this is a fit case, where
this Court should exercise its jurisdiction under Section 482 of the Code
of Criminal Procedure, 1973 (for short “Cr.P.C.”) read with Article 226 of
the Constitution of India to quash the FIR dated 9 th July 2023. The
Petitioner in support of his contention has relied upon the following
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decisions of this Court and the Supreme Court:-
(i) Lalita Kumari Vs. Government of Uttar Pradesh1.
(ii) Ramesh Sitaldas Dalal Anr. Vs. State of Maharashtra2.
(iii) Smt. Vrushali Jayesh Kore Vs. The State of Maharashtra
Anr.3.
The Petitioner, therefore, prayed for allowing the petition in
terms of prayer clause (b).
Submissions of the Respondents:-
7. Per contra, the Respondent No.2-wife opposed the petition and
submitted that this is not a case where this Court should exercise its
jurisdiction to quash the FIR. The FIR does show a prima-facie case for
offences for which the FIR is lodged and the investigation is in progress.
The Respondent No.2 also submitted that she has explained the delay in
filing the FIR in her statement being the “fear” in lodging the complaint.
Respondent No.1-State supported Respondent No.2 in opposing the
present petition and submitted that investigation is in progress and will
be over in 3 to 4 months. Learned counsel for Respondent No.1 in
alternate submitted that if the Petitioner has any apprehension of bias in
investigation then the same may be directed to be transferred to another
1 (2014) 2 SCC 1.
2 2024 (1) ABR (CRI) 29
3 2023 (1) ABR (CRI) 514
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officer. Both the Respondents prayed for dismissal of the present writ
petition.
Analysis and conclusion:-
8. Section 482 of the Cr.P.C. provides that nothing in the said
Court shall be deemed to limit or effect the inherent powers of the High
Court to make such orders as may be necessary to give effect to any
order under this Court or to prevent abuse of any Court or otherwise to
secure the ends of justice.
9. The issue when the Court should exercise its powers under
Section 482 read with Article 226 of the Constitution of India has been
exhaustively dealt with by the Supreme Court in the case of State of
Haryana Ors. Vs. Bhajan Lal Ors. 4. On a reading of the decision of
the Supreme Court, broad categories of cases in which the inherent
power under Section 482 of the Cr.P.C. could be exercised are as under:-
(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 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 the4 AIR 1992 SC 604
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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
ever 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 Act concerned (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
Act concerned, providing 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.
10. In this connection for the Court to exercise its jurisdiction
under section 482 of the Cr.P.C., it is apt to refer to paragraph 30 of the
judgment of the Supreme Court in the case of Rajiv Thapar Ors. Vs.
Madan Lal Kapoor5, which reads thus:-
“30. ….. the following steps to determine the veracity of a prayer for
quashing raised by an accused by invoking the power vested in the High
Court under Section 482 Cr.P.C.:
30.1. Step one: whether the material relied upon by the accused is
sound, reasonable, and indubitable i.e. the material is of sterling and
impeccable quality?
30.2. Step two: whether the material relied upon by the accused would
rule out the assertions contained in the charges levelled against the
accused i.e. the material is sufficient to reject and overrule the factual
assertions contained in the complaint i.e. the material is such as would
persuade a reasonable person to dismiss and condemn the factual basis
of the accusations as false?
5 (2013) 3 SCC 330
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Tauseef 22-WP.2762.2023 WP.2763.2023.doc30.3. Step three: whether the material relied upon by the accused has
not been refuted by the prosecution/ complainant; and/or the material is
such that it cannot be justifiably refuted by the
prosecution/complainant?30.4. Step four: whether proceeding with the trial would result in an
abuse of process of the court, and would not serve the ends of justice?30.5. If the answer to all the steps is in the affirmative, the judicial
conscience of the High Court should persuade it to quash such criminal
proceedings, in exercise of power vested in it under Section 482 Cr.P.C.Such exercise of power, besides doing justice to the accused, would save
precious court time, which would otherwise be wasted in holding such a
trial (as well as, proceedings arising therefrom) specially when it is clear
that the same would not conclude in the conviction of the accused."11. The above decision has stood the test of the time and is
equally a guiding force even today.
12. In the light of the above decision of the Supreme Court and
the provisions of Section 482 of the Cr.P.C., we now propose to deal with
each of the offences noted in the FIR to ascertain whether the case of
the Petitioner falls under any of the category laid down in the Bhajan
Lal's case (supra). On a reading of the FIR and its application to the
sections of the offences which are invoked by Respondent No.1, if on the
face of it, these sections are not attracted then this Court could exercise
its jurisdiction under Section 482 of the Cr.P.C. to quash the proceedings.
However, if there is a prima-facie case for further investigation, then this
Court would restrain itself from exercising its inherent powers to stall
the investigation. We, therefore, now propose to analysis the sections
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Tauseef 22-WP.2762.2023 WP.2763.2023.docwhich are invoked by Respondent No.1 in the FIR.
13. Section 186 of the IPC reads as under:-
"186. Obstructing public servant in discharge of public functions -
Whoever voluntarily obstructs any public servant in the discharge of his
public functions, shall be punished with imprisonment of either
description for a term which may extend to three months, or with fine
which may extend to five hundred rupees, or with both."14. Section 186 is attracted to a person who voluntarily obstructs
a public servant to discharge its public functions. The incident of 7 th
June 2023 in the morning session as stated and recorded in the FIR
states that the Petitioner along with his brother entered the Chambers of
Respondent No.2 and threatened her to sign the divorce papers with a
request to Respondent No.2 to appear through V.C. before the Civil
Court, where the divorce proceedings are filed. The Respondent No.2
further stated that she informed Petitioner that due to heavy work load,
the issue of divorce can be discussed later on. The Respondent No.2
further stated that since she did not want to send a wrong message she
kept herself cool. She further stated that the petitioner and his brother
left the chamber in the afternoon. In the FIR, it is nowhere stated that
the Petitioner and his brother did not allow the Respondent No.2 to sit
on the dias in the morning session to discharge her duties as a Judge. It
is also not the case of Respondent No.2 as stated in the FIR that she did
not sit in the Court in the morning session on time. In our view, based
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Tauseef 22-WP.2762.2023 WP.2763.2023.docon what is stated and recorded as incident which occurred on 7 th June
2023 in the morning session would not amount to obstructing a public
servant in the discharge of her public functions. We cannot lose sight of
the fact that the verbal discussion which is stated to have taken place in
the morning session on the date of incident revolved around the
matrimonial dispute between the Petitioner and the Respondent No.2
and it is in that context that the issue has to be looked into by this Court.
15. The incident post lunch on 7th June 2023, as stated and
recorded in the FIR again relates to the Petitioner's mother, sister and
brother insisting Respondent No.2 to sign the divorce papers.
Respondent No.2 herself rose from the dias in the afternoon session
when she was informed by her peon that her mother-in-law and sister-
in-law are sitting in the chambers. The mother-in-law and sister-in-law
did not obstruct Respondent No.2, because she was already sitting in the
Court hall and the mother-in-law and sister-in-law did not enter the
Court hall but were sitting in the chambers of Respondent No.2. The
Respondent No.2 in her statement herself as recorded states that she
rose from the dias when informed about her mother-in-law and sister-in-
law's visit. The verbal discussion between the Respondent No.2, the
mother-in-law and sister-in-law again related to matrimonial dispute,
although, as per the statement she called the police to escort the
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Tauseef 22-WP.2762.2023 WP.2763.2023.docmother-in-law and sister-in-law out of the Chambers. In our view,
looking at what is recorded in the FIR and looked in the context of the
matrimonial dispute, one cannot come to a conclusion that any case is
made out for invoking Section 186 of the IPC. There does not appear to
be any obstruction to Respondent No.2 in discharge of her public
function but on the contrary she discharged her official duties on that
day and, therefore, the provisions of Section 186 are not attracted.
16. Section 342 of the IPC which reads as under:-
"342. Punishment for wrongful confinement.- Whoever wrongfully
confines any person shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine which
may extend to one thousand rupees, or with both."17. Section 342 provides that whoever wrongly confines any
person shall be punishable with imprisonment or with fine or with both.
Section 340 of the IPC, defines "wrongful confinement" to mean
wrongly restraining any person in such a manner as to prevent a person
from proceeding beyond certain circumscribing limits. On a reading of
the FIR, the Petitioner and his relatives verbally stated to Respondent
No.2 to sign the matrimonial divorce papers and till then they will see
how she goes to Court. However, the Respondent No.2 did attend the
Court as per her usual time in the morning and afternoon session. The
incident happened in the Chambers of Respondent No.2 and the
Petitioner, his relatives and Respondent No.2 were all in the same room
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Tauseef 22-WP.2762.2023 WP.2763.2023.docas stated in the FIR. There is no material of any confinement of
Respondent No.2. In our view, this would not amount to "confinement"
as defined in section 340 of the IPC and, therefore, the provisions of
section 342 of the IPC also cannot be invoked.
18. Section 353 of the IPC which reads as under:-
"353. Assault or criminal force to deter public servant from discharge of
his duty.- Whoever assaults or uses criminal force to any person being a
public servant in the execution of his duty as such public servant, or with
intent to prevent or deter that person from discharging his duty as such
public servant, or in consequence of anything done or attempted to be
done by such person in the lawful discharge of his duty as such public
servant, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both."Section 351 of the IPC which reads as under:-
"351. Assault- Whoever makes any gesture, or any preparation
intending or knowing it to be likely that such gesture or preparation will
cause any person present to apprehend that he who makes that gesture
or preparation is about to use criminal force to that person, is said to
commit an assault."Explanation. - Mere words do not amount to an assault. But the
words which a person uses may give to his gestures or preparations
such a meaning as may make those gestures or preparations
amount to an assault.Section 350 of the IPC which reads as under:-
"350. Criminal force- Whoever intentionally uses force to any person,
without that person's consent, in order to the committing of any offence,
or intending by the use of such force to cause, or knowing it to be likely
that by the use of such force he will cause injury, fear or annoyance to
the person to whom the force is used, is said to use criminal force to that
other."19. In our view, on a reading of the FIR, there does not appear to
have made any case by the Respondent No.1 to invoke the provisions of
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Tauseef 22-WP.2762.2023 WP.2763.2023.docSection 353 of the IPC. In the FIR, the only thing which is stated to
have occurred on 7th June 2023 is that the Petitioner pulled the
Respondent No.2 and made her sit on the chair to sign the divorce
papers. In the afternoon session, what is recorded in the FIR is only
verbal talk in high volume with respect to the signing of divorce papers.
In our view, the only reference to the force, if any, is the Petitioner's
pulling Respondent No.2 and making her sit on the chair to sign the
divorce papers. This, in our view, would not attract the provisions of
Section 353 of the IPC moreso, the act of pulling Respondent No.2 to
make her sit on the chair would not fall within the meaning of the term
"force", "criminal force" or "assault" as explained in Sections 349, 350
and 351 of the IPC respectively. Furthermore, as observed by us above
and in the context of a dispute between the Petitioner and the
Respondent No.2 with respect to being matrimonial, it cannot be said
that the said act of pulling Respondent No.2 and making her sit on the
chair would prevent Respondent No.2 in carrying out her duty as a
public servant.
20. Section 353 of the IPC would get attracted if the assault or
criminal force is to deter a public servant from discharge of his duty. The
phrase 'deter' has to be read along with the phrase 'discharge of his
duty'. In our view, the force which is sought to be used as per Section
353 should be such which would result into threat or fear from
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Tauseef 22-WP.2762.2023 WP.2763.2023.docdischarging of duty by public servant. There has to be some nexus
between the use of force which would deter a public servant from
discharging his duties. On a perusal of the FIR, we do not find any such
force having being used by the Petitioner, which would deter or create
fear in the mind of Respondent No.2 from discharging her duty as
Judicial Officer. The act by the Petitioner of pulling Respondent No.2
and making her sit on the chair has occurred in the chambers of
Respondent No.2 and not in the Court hall. According to the informant,
she thereafter called her peon and went on to the dias of her court
room. There is thus no statement of the informant that in view of such
act, a fear was sought to be created in her mind or such act was with a
view to deter her from discharging her duty.
21. Even the incident in the afternoon whereby there was
exchange of words between the Respondent No.2 and family members
of the Petitioner were in the chambers of Respondent No.2. On being
informed on the dias at 2.45 p.m. the informant retired to her chamber,
where she was again told to sign the divorce papers. There were verbal
exchanges between the parties after which the informant's relatives
being, brother-in-law and mother-in-law were required to be taken out
of the chamber by informing the police constable on duty. The act of
retiring to the chamber is a voluntary act of the informant on being told
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Tauseef 22-WP.2762.2023 WP.2763.2023.docby her peon. The allegations do not indicate any act of deterrence or
intent to cause fear in the mind of the informant from discharging her
public duties. There is no statement that the informant was in any
manner prevented or deterred from discharging her public duty. In fact,
thereafter the informant proceeded to discharge her duties in Court. In
this backdrop, such a verbal exchange, in our view, did not amount to
deterring the informant in discharge of her duty.
22. The matrimonial dispute between the Petitioner, his family
members and Respondent No.2 appears to be the genesis and it is in this
context that the provision of Section 353 has to be seen. The acts with
respect to the matrimonial dispute certainly would not amount to
Respondent No.2 being prevented or deterred from discharging her duty.
Therefore, in our view, the essential ingredients and connection of
determent with 'discharge of his duty' are absent in the FIR and
therefore said provision is not applicable. It is also important to note
that the reference to Court proceedings in the FIR while narrating the
morning incident of 10:30 am refers to Court proceedings of the
matrimonial dispute between the Petitioner and Respondent No.2 and
not to the Court proceedings where Respondent No.1 is presiding. The
force alleged to be used was with respect to signing of the matrimonial
dispute papers and furthermore the afternoon incident on 7 th June 2023
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Tauseef 22-WP.2762.2023 WP.2763.2023.docas narrated by the Respondent No.2 in the FIR specifically states that in-
laws stated Respondent No.2 that they will take signature by visiting
Respondent No.2's house.
Illustration under section 351 of the IPC also shows that
provisions of section 351 are not attracted in the case before us.
23. Therefore, in our view, reading the FIR as it is, there does not
appear to be any material for invoking the provisions of Section 353 of
the IPC. We do not find on a reading of the FIR that there is any
intention which has been stated by Respondent No.2 in her statement
which would amount to cause, injury, fear or annoyance to the
Respondent No.2. The phrase 'intending/intentionally' used in sections
351 and 350 of the IPC would be a case where the acts which would
cause injury, fear or annoyance are planned. It is not that every word on
the spur of the moment would amount to using force to cause fear,
injury or annoyance, but it is those words which are planned with an
intention to cause injury or annoyance that the ingredients would be
satisfied which is absent on a reading of the FIR.
24. Explanation to Section 351 of the IPC states that mere words
do not amount to an assault. But the words which a person uses may
give to his gestures or preparation such a meaning as may make those
gestures or preparations amount to an assault. The first part of the
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Tauseef 22-WP.2762.2023 WP.2763.2023.docexplanation squarely applies to the facts of the present case, inasmuch
as, the exchange of words between the Petitioner and his family
members of Respondent No.2 would not amount to an assault. In the
FIR, the words reproduced in the statement of Respondent No.2 as what
transpired from what was said by the Petitioner and his relatives does
not refer to any gestures or preparations which would amount to cause
any injury, fear and annoyance to the Respondent No.2 so as to satisfy
the ingredients of assault as defined in Section 351 of IPC read with
Section 350 of IPC.
Therefore, the ingredients of an offence under Section 353 of the
IPC are not made out in the First Information Report.
25. Section 498-A of the IPC reads as under:-
"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 purposes 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."26. Under Section 498A of the Code, if the husband or relatives of
the husband of a woman subjects such woman to cruelty the offence
thereunder is attracted. Under Explanation to Section 498A any wilful
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Tauseef 22-WP.2762.2023 WP.2763.2023.docconduct of such nature that is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health of the
woman or her harassment with a view to coerce her or any person
related to her to meet any unlawful demand for any property or
valuable security or on account of failure by her or any person related to
her to meet such demand amounts to cruelty. Perusal of the First
Information Report indicates that after the Petitioner and the
Respondent No.2 were married on 24/02/2018, the Respondent No.2
states that initially she was transferred to Belapur, Vashi after which she
started residing also with her in-laws at Juhu. It is further stated that the
Petitioner was not in a position to maintain physical relation with her
and she advised her to have some medical advise in that regard. There
is reference to certain differences between the Petitioner and the
Respondent No.2 during this period after which in April, 2023 she
received a legal notice that was issued by the Petitioner seeking divorce.
According to her, this resulted in thought of committing suicide coming
to her mind. Thereafter, reference is made to the incident of
07/06/2023.
On perusal of the entire First Information Report, it is seen
that there is no demand made of any property or valuable security either
from the Respondent No.2 or any of her family members. Insofar as
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Tauseef 22-WP.2762.2023 WP.2763.2023.docExplanation (a) to Section 498A is concerned, we find that in the First
Information Report the Respondent No.2 has referred to her differences
with the Petitioner and statements made by her in-laws for leaving her
job. Receipt of legal notice seeking divorce as issued by the Petitioner
has also been referred to. In our view, on complete reading of the First
Information Report, allegations that satisfy the ingredients of Section
498A of the Code are not found. Differences between the Petitioner and
the Respondent No.2 as well as her in-laws in the form of bickering
would not constitute an offence under Section 498A of the Code. We
therefore find that the said provisions are not attracted in the present
case.
27. Sections 503 and 506 of the IPC reads thus:-
"503. Criminal intimidation.- Whoever threatens another with any
injury to his person, reputation or property, or to the person or
reputation of any one in whom that person is interested, with intent to
cause alarm to that person, or to cause that person to do any act which
he is not legally bound to do, or to omit to do any act which that person
is legally entitled to do, as the means of avoiding the execution of such
threat, commits criminal intimidation.""506. Punishment for criminal intimidation.- Whoever commits the
offence of criminal intimidation shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine,
or with both;If threat be to cause death or grievous hurt, etc. - and if the
threat be to cause death or grievous hurt, or to cause the destruction of
any property be fire, or to cause an offence punishable with death or
[imprisonment for life], or with imprisonment for a term which may
extend to seven years, or to impute, unchastity to a woman, shall be
punished with imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.."22 of 25
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Tauseef 22-WP.2762.2023 WP.2763.2023.doc28. The provisions of Section 506 are attracted, if the acts alleged
fall within the meaning of the term "criminal intimidation" as defined in
Section 503 of the IPC. The threat which is contemplated in Section 503
is a threat with injury to a person, reputation or property with the
intention to cause the other person to do any act which is not legally
bound to do or to omit to do an act which the other person is legally
entitled to do. In the instant case, as recorded and stated in the FIR,
there is no act which would result in injury to the Respondent No.2. The
verbal threat to sign the divorce papers would certainly not be a case
falling under Section 503 of the IPC. Therefore, even on this account,
we fail to understand how Section 506 is sought to be invoked in the
facts of the present case.
29. Additionally, we may also observe that Respondent No.2
herself is a judicial officer. The incident which is referred to and stated
in the FIR is of 7th June 2023, whereas the complaint is made and FIR
lodged on 9th July 2023, which is almost after a period of 1 month. The
incident on 7th June 2023 has been stated by invoking Section 353 of the
IPC. The FIR was lodged on 9th July 2023 which is almost after a month.
It is stated that due to seriousness of the matter and as the incident had
occurred at the workplace, the Respondent No.2 avoided to give the
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Tauseef 22-WP.2762.2023 WP.2763.2023.docreport. This aspect when considered cumulatively with all other aspects
goes to show that the FIR is lodged only as a counter blast to the
matrimonial dispute between the Petitioner and the Respondent No.2. It
is also important to note that Respondent No.2 in her FIR itself has
recorded that in the year 2022-2023, she alongwith Petitioner had spent
time with the friends of the Petitioner and also celebrated the birthday
of the Petitioner as well as her own birthday. They also spent time
together on Valentines day at Taj, Pune. During this period, there were
exchange of WhatsApp, Email, etc. These facts cannot be lost sight of
while exercising the powers conferred under Section 482 of the Cr.P.C.
by this Court.
30. In our view, the analysis made by us above would squarely fall
within the guidelines laid down in the case of Bhajanlal (supra) for this
Court to exercise its jurisdiction under Section 482 of the Cr.P.C.,
especially clauses (1) and (3). There does not appear to be any case for
continuing the investigation pursuant to the FIR under consideration as
the same would amount to an abuse of the process of law.
31. We agree with the decisions relied upon by the Petitioner in
the case of Ramesh Dalal Anr. Vs. State of Maharashtra (supra) and
Vrushali Kore (supra) in support of the Petitioner's case in Writ Petition
No.2763 of 2023, wherein the challenge to the FIR is made by the
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Tauseef 22-WP.2762.2023 WP.2763.2023.docrelatives of the Petitioner in Writ Petition No.2762 of 2023.
32. In our view, this is a prefect case where this Court should
exercise its jurisdiction to prevent the abuse of the process of the Court
so as to secure the ends of justice. In these circumstances, the writ
petitions are allowed in terms of prayer clause (b) in Writ Petition
No.2762 of 2023 and prayer clause (b) in Writ Petition No.2763 of 2023
which reads as under:-
"Writ Petition No.2762 of 2023:-
(b) Issue a Writ of Mandamus or any other writ of such nature and
thereby direct quashment of FIR bearing C.R. No.0324 of 2023
registered with the Tasgaon Police Station for offences punishable
under Sections 498-A, 353, 342, 186, 506 and 34 of the Indian
Penal Code, 1860 (IPC).Writ Petition No.2763 of 2023:-
(b) Issue a Writ of Mandamus or any other writ of such nature and
thereby direct quashment of FIR bearing C.R. No.0324 of 2023
registered with the Tasgaon Police Station for offences punishable
under Sections 498-A, 353, 342, 186, 506 and 34 of the Indian
Penal Code, 1860 (IPC)."(JITENDRA JAIN, J.) (A. S. CHANDURKAR, J.)25 of 25
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