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Pallavi Rajendra Dhadge vs Rajendra Keshav Dhadge And Ors on 1 February, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD

CRIMINAL WRIT PETITION NO. 579 OF 2017

Pallavi w/o Rajendra Dhadge,
age 22 years, occ. Household,
R/o Sushant Nagar, Behind
Joshi Hospital, Khedgaon,
Ahmednagar,
Dist. Ahmednagar … Petitioner

VERSUS

1] Rajendra s/o Keshav Dhadge,
age 31 years, occ. Service,

2] Sangita Subhash Dhadge,
age 42 years, occ. Household,

Both R/o Plot No. 38,
Vignaharta Bungalow,
Pawan Nagar,
Bhistbaughnath Nagar Road,
Pipeline Road, Ahmednagar,

3] The State of Maharashtra,
through Police Station Officer,
Tophkhana Police Station,
Ahmednagar … Respondents

…..
Mr. N.V.Gaware, advocate for the petitioner
Mr. M.C.Swami, advocate for Resp.nos. 1 and 2
Mr. B.A.Shinde, A.P.P for respondent no.3
…..

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CORAM : K.L.WADANE, J.

RESERVED ON : 31.01.2018
PRONOUNCED ON : 01.02.2018

J U D G M E N T :

Rule. Rule returnable forthwith. With

the consent of the learned counsel for the

parties, the petition is taken up for final

hearing. Heard learned counsel for the respective

parties.

2. The petitioner has challenged the order,

dated 21.7.2015, passed by the Judicial

Magistrate, First Class, Court No. 11, Ahmednagar,

below Eh.24 in RTC No. 372 of 2014, by which

application filed by respondent nos. 1 and 2 under

the provisions of Section 239 of the Criminal

Procedure Code is partly allowed and they have

been discharged from the offences punishable under

Sections 420 and 497 of the Indian Penal Code, on

the ground that the petitioner had no locus standi

to file the complaint for the offence punishable

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under Section 497 of the Indian Penal Code and

there was no prima facie material to frame the

charge for the offence punishable under Section

420 of the Indian Penal Code.

3. The aforesaid order was assailed by the

petitioner in Criminal Revision Application No.

199 of 2015. The learned Additional Sessions

Judge, Ahmednagar dismissed the Revision by its

order, dated 25.1.2017 and the findings recorded

by the learned Magistrate are confirmed. Hence

this Writ Petition.

4. Brief facts of the case are as follows :

Respondent nos. 1 and 2 herein had been

charged by Ahmednagar police vide Crime No. 536 of

2013. The Crime was registered on the basis of

complaint filed by the petitioner alleging therein

that on 23.5.2003 she married with respondent

no.1. After the marriage, respondent no.1 never

talked with the petitioner. She further alleged

that from the date of marriage, respondent nos. 1

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and 2 started illtreatment and harassment to the

complainant. Respondent no.1 demanded amount of

Rs. Ten Lakh for purchase of new flat. On the

basis of the complaint lodged by the petitioner,

initially offences punishable under Sections 498A,

323, 504 of the Indian Penal Code came to be

registered.

5. The investigating officer recorded the

supplementary statement of the petitioner, in

which she made certain allegations of illicit

relations between respondent nos. 1 and 2 with

further allegation that respondent no.1 deceived

the complainant by certain facts. Therefore,

offence punishable under Sections 420, 497, 504 of

the Indian Penal Code came to be added.

6. Respondent nos. 1 and 2 have submitted

application under the provisions of Section 239 of

the Criminal Procedure Code for discharge. After

hearing both the sides, the accused persons have

been discharged from the offences punishable under

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Section 420 and 497 of the Indian Penal Code.

7. Mr. Gaware, learned counsel appearing for

the petitioner submits that from the supplementary

statement of the complainant, it is crystal clear

that her husband respondent no.1 had illicit

relations with respondent no.2 who is cousin

mother-in-law of the informant. Therefore, from

the supplementary statement of the complainant, it

is crystal clear that offence punishable under

Section 497 of the Indian Penal Code prima facie

is established.

8. Mr. Gaware, learned counsel, at the

beginning of his arguments has conceded that there

is no case for the offence punishable under

Section 420 of the Indian Penal Code. During the

course of arguments, Mr. Gaware, learned counsel,

by referring to the provisions of Section 198 (2)

proviso has submitted that in absence of the

husband of respondent no.2, the complainant being

care taker of respondent no.2 is authorized to

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file complaint for the offence punishable under

Section 497 of the Indian Penal Code.

9. Learned counsel appearing for respondent

nos. 1 and 2 has submitted that the petitioner has

no locus standi to file complaint for the offence

of punishable under Section 494 of the Indian

Penal Code. Therefore, the learned Magistrate is

barred from taking cognizance of alleged offence.

Looking to the rival submissions of both the

sides, a very short question is involved in the

present matter i.e. whether the complainant can

file complaint in view of the provisions of

Section 198 (2) proviso of the Criminal Procedure

Code. Section 198 of the Criminal Procedure Code

reads as follows : –

” 198. Prosecution for offences against marriage–(1) No
Court shall take cognizance of an offence punishable
under Chapter XX of the Indian Penal Code (45 of 1860)
except upon a complaint made by some person aggrieved
by the offence:

Provided that–

(a) where such person is under the age of eighteen
years, or is an idiot or a lunatic, or is from sickness
or infirmity unable to make a complaint, or is a woman
who, according to the local customs and manners, ought
not to be compelled to appear in public, some other
person may, with the leave of the Court, make a

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complaint on his or her behalf;

(b) where such person is the husband and he is serving
in any of the Armed Forces of the Union under
conditions which are certified by his Commanding
Officer as precluding him from obtaining leave of
absence to enable him to make a complaint in person,
some other person authorised by the husband in
accordance with the provisions of sub-section (4) may
make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable
under [56][Section 494 or Section 495] of the Indian
Penal Code (45 of 1860) is the wife, complaint may be
made on her behalf by her father, mother, brother,
sister, son or daughter or by her father’s or mother’s
brother or sister [57][or, with the leave of the Court,
by any other person related to her by blood, marriage
or adoption].

(2) For the purposes or sub-section (1) no person other
than the husband of the woman shall be deemed to be
aggrieved by any offence punishable under Section 497
or Section 498 of the said Code;

Provided that in the absence of the husband, some
person who had care of the woman on his behalf at the
time when such offence was committed may, with the
leave of the Court, make a complaint on his behalf.

…………. …………… ”

10. Mr. Gaware, learned counsel submitted that

in absence of husband of respondent no. 2, the

complainant being member of the family, can file

the complaint as the wording employed in proviso

to Section 198 (2) of the Criminal Procedure Code

is “some person”.

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11. Normally, complaint has to be filed by the

aggrieved person. In absence of such, the

Criminal Court cannot take cognizance. It is

impossible to lay down any flexible rule for

determining in every case whether the complainant

is a person aggrieved by the offence alleged, it

must be determined in each case according to its

own circumstances whether the complainant can be

said to be in a legal sense a person aggrieved.

12. On bare perusal of Section 198 (2) proviso

of the Criminal Procedure Code, in absence of

husband, some person, who had care of the woman on

his behalf at the time when such offence was

committed may, with the leave of the Court, make

complaint on his behalf. So, first requirement is

that the complainant has to establish prima facie

that she is caretaker of the woman i.e. respondent

no.2 on her husband’s behalf at the time when the

alleged offence was committed and secondly such

complaint was to be filed with the leave of the

Court.

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13, In the present case, by no stretch of

imagination, the complainant can be said to be a

person who is caretaker of respondent no.2 on

behalf of her husband at the time of commission of

alleged offence, nor the complainant had taken

prior permission of the Court to file such

complaint.

14. In such circumstances, I do not think that

the complainant is authorized in law to lodge

complaint on behalf of the husband of respondent

no.2 or by herself in the capacity of care taker

of respondent no.2.

15. I have gone through the reasons recorded

by the learned trial Court as well as the learned

Additional Sessions Judge, Ahmednagar and I do not

find any illegality with the orders passed by the

learned Magistrate, which is confirmed by the

learned Additional Sessions Judge, Ahmednagar.

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16. Consequently, there is no substance in the

present Writ Petition. Criminal Writ Petition is

liable to be dismissed and it is dismissed

accordingly. No costs.

(K.L.WADANE, J.)

dbm

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