2014 ALL MR (Cri) 4292
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
A.I.S. CHEEMA, J.
Shri Omprakash s/o. Dhondiram Mane Vs. The State of Maharashtra
Criminal Application No.408 of 2014
9th April, 2014
Petitioner Counsel: Shri V.D. SAPKAL
Respondent Counsel: Mrs. S.G. CHINCHOLKAR
Criminal P.C. (1973), S.482 - Penal Code (1860), Ss.498A, 494 - Quashing of prosecution - Complaint as to cruelty and ill treatment - Petition for quashing by brother in law - Allegations against him is extremely general without any specific role attributed - Evidence against him is only hearsay - Applicant not even arrayed as opponent in domestic violence proceeding filed by complainant - He is not residing jointly with husband of complainant - Even the complainant is residing separately from her husband since long - Applicant being a Government servant, effort is made to rope him in offence - His prosecution will be abuse of process of court - Liable to be quashed and set aside. (Paras 12, 13, 14)
2. This application is by the applicant Omprakash Dhondiram Mane, who claims, he was resident of Thakre Nagar, Aurangabad, and was posted at Majalgaon, District Beed, as Police Inspector at the time of filing of petition. Offence under Sections 498-A, 494 read with Section 34 of the Indian Penal Code, 1860 (IPC for short) came to be registered against the applicant and other 13 members of the family on 29.1.2008 vide Crime No.24/2008 at the instance of Maya Ramesh Mane. According to the applicant, Ramesh is brother of the present applicant. Ramesh was married to Maya on 9.7.2012. The applicant has been in service since 1985 and is separate from the family. It is claimed that, all the brothers have been living separately and there is no joint family existing. Still the complainant Maya filed complaint claiming that all 14 accused, on 13.1.2008, had gone to Latur and intimidated her, claiming that if she brings Rs.2 Lakhs she would be taken to the matrimonial home. The F.I.R. was filed claiming that this was illtreatment. The investigation has been conducted and charge sheet was filed in the Court of Judicial Magistrate, First Class, Latur. With the application, copy of charge sheet has been filed.
3. After filing of the complaint under Section 498-A of IPC, the complainant filed yet another Misc. Criminal Application No.548/2010 before 4th Jt. Judicial Magistrate, First Class, Latur under Protection of Women from Domestic Violence Act, 2005 on the same set of facts. In that proceeding, however, it was alleged that, 13 accused came to the house at Latur and illtreated the complainant Maya. In that proceeding under Domestic Violence Act, name of present applicant was not mentioned. In that proceeding under Domestic Violence Act, evidence was led and the 4th Jt. Judicial Magistrate, First Class, Latur rejected that application on 28.3.2011, finding that there was no relation between complainant Maya and the accused persons since 1995 and that they have been residing separate. Copy of the judgment dated 28.3.2011 has been filed.
4. The applicant filed application before Judicial Magistrate, First Class, Latur in R.C.C. No.325/2008 arising out of Crime No.24/2008 for discharge under Section 239 of the Code of Criminal Procedure (Cr.P.C. for short). It is claimed that, Station Diary was produced to show that the applicant at the relevant time was at Police Station, Shivaji Nagar, Beed. However, the application came to be dismissed without considering the facts. Criminal Revision No.66/2013 was filed, but relying on the accusations in the F.I.R., the Sessions Judge rejected the application. Thus, the present application has been filed raising various grounds claiming that the charge sheet as far as regards the applicant deserves to be quashed and set aside.
5. I have heard counsel for the applicant and A.P.P. for the State. It has been argued for the applicant that, if the charge sheet is perused, there are only general allegations made against the applicant. For last more than seven years the complainant Maya was staying at the place of her father and there is no joint family status, but still, in order to harass the applicant, an allegation has been made that on 13.1.2008 the whole family coming from different places, went to Latur just to demand money and to threaten. It has been submitted that, the case under Domestic Violence Act has been filed subsequent to the F.I.R. in the present matter and in the subsequent case, there is no reference to the presence of applicant at the time of alleged incident of 13.1.2008 and there are no allegations against him. There is judgment of competent Court in this regard and the same could not have been ignored. It is argued that, observations and findings in the matter of the proceedings under Domestic Violence Act should be referred in the interest of justice. The argument is that the charge sheet nowhere demonstrates that the applicant and other members of the family had been living jointly with Ramesh, the husband of complainant Maya. In the charge sheet, address of the applicant has not been shown as that of the husband of the complainant Maya. The complainant with her husband had earlier been living separately in two rooms at Latur.
6. Per contra, the learned A.P.P. submitted that the F.I.R. shows cognizable offence. As per the charge sheet, on 13.1.2008, the applicant and others had gone to the place of father of complainant Maya and demanded Rs.2 Lakhs. The learned A.P.P. submitted that even if the applicant was residing separate, the incident of 13.1.2008 will be proved at the time of trial. According to the learned A.P.P., even if in the matter under Domestic Violence Act the applicant was not made party, the present charge sheet refers to his act and the proceedings cannot be quashed against the applicant.
7. Before proceeding to discuss the charge sheet as has been filed against the applicant, it would be appropriate to refer to judgment passed by the Hon'ble Supreme Court in the matter of Chandralekha & ors. Vs. State of Rajasthan & anr., reported in 2013 ALL SCR 667 : [2013 ALL SCR 667]. That was a matter where appellants 1 to 3 before the Hon'ble Supreme Court had prayed for quashing of F.I.R. filed by respondent No.2 against them under Section 498-A and 406 of IPC. The appellants were mother-in-law and sisters-in-law of the respondent No.2. The Supreme Court had dismissed the Special Leave Petition as far as regards the husband, and considered the appeal only as regards the appellants 1 to 3. Hon'ble Supreme Court referred to gist of the facts of that matter, and considering the arguments, observed in para No.8 as under :
"8. . . . . . . . . . . . . after a careful perusal of the F.I.R. and after taking into consideration the attendant circumstances, we are of the opinion that the F.I.R. lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2013 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present F.I.R. is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the F.I.R. raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this F.I.R. is an abuse of process of law. In the interest of justice, therefore, the F.I.R. deserves to be quashed insofar as it relates to appellants 1, 2 and 3."
With such observations, the judgment of Rajasthan High Court was quashed and set aside where it had refused to quash the F.I.R. against the appellants 1 to 3. Hon'ble Supreme Court quashed the F.I.R. with reference to appellants 1 to 3 and directed that the proceedings shall continue as regards the husband Rajiv Bhandari.
8. The matter of Geeta Mehrotra & anr. Vs. State of U.P. & anr., reported in 2012 (10) SCC 741 : [2012 ALL MR (Cri) 4059 (S.C.)] also related to offence under Section 498-A and other offences of IPC as well as Sections 3 and 4 of Dowry Prohibition Act. The Hon'ble Supreme Court, while considering the facts and law on the subject, observed in para 25 as under :
"25. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the F.I.R. in a given case, cognizance would be unjustified but what we wish to emphasise by highlighting is that, if the F.I.R. as it stands does not disclose specific allegation against the accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the F.I.R. to undergo the trial unless of course the F.I.R. discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the F.I.R. did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing especially in cases of matrimonial disputes whether the F.I.R. in fact discloses commission of an offence by the relatives of the principal accused or the F.I.R. prima facie discloses a case of overimplication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding."
9. Keeping in view judgments of the Hon'ble Supreme Court as above, it is clear that, if there are allegations of overt act indicating complicity, the same could be looked into, but if there are no "specific allegations", it would be a factor for consideration. If the allegations are extremely general in nature and no specific role is attributed to the applicant, it would be a matter of consideration. Keeping the law as laid down by Hon'ble Supreme Court in view, now reference needs to be made as to what is the charge sheet brought by the prosecution.
10. The F.I.R. filed on 29.1.2008 by complainant Maya in the second paragraph refers to the fact of her getting married with Ramesh Dhondiram Mane on 9/7/1992 and claims that her parents had given Rs.1,51,000/- as dowry and 5 Tola gold, and the marriage was performed at Latur. It is claimed that the husband and people from matrimonial home treated her well for 2-3 years. Thereafter, people from matrimonial home started giving trouble to her asking her to bring Rs.1 Lakh for purchasing house. She claimed that she suffered the trouble. The F.I.R. mentions that then a daughter namely Snehal was born on 16/7/1993 and then another son Satyaprakash was born on 2/3/1996. F.I.R. claims that, during the time in between, her husband Ramesh (accused No.1) and accused Nos. 2 to 6 (which does not include present applicant who is accused No.9) started giving her trouble while being at Latur by saying that unless she gets Rs.1 Lakh for purchasing house, she would not be maintained properly. F.I.R. claims that the complainant, in view of her children, suffered this till 2000.
The F.I.R. in subsequent paragraph claims that, thereafter till 2007 the relatives of in-laws of matrimonial home, accused 7 to 13 came to Latur to trouble her, asking her to bring Rs.2 Lakhs from the place of her parents. Similarly, her husband Ramesh came to the place of her father and said that if she wants to come and reside in the matrimonial home, she should get Rs.2 Lakhs and they will take care of her. For it, came to Latur on 13.1.2008 and threatened her. The F.I.R. concludes "since 1995 to 2007, all the accused persons gave her physical and mental torture asking for money and illtreated her." Concluding part refers to accused No.14 Chhaya as second wife of Ramesh and that she also gave physical and mental torture.
11. Thus, the F.I.R. itself treats accused Nos.7 to 13 as relatives of the in-laws of matrimonial home and claims that since 2007 such relatives came to Latur to ask for money. Then the incident of husband coming and asking for money is mentioned and alleged threat dated 13.1.2008 is referred to. It is vague and not clear from F.I.R. that the applicant had gone and threatened on 13.1.2008. It is clear from the F.I.R. that the complainant Maya stayed at matrimonial home till 2000 and in the charge sheet there is statement of one Mrs. Anisha Gaikwad mentioning that the complainant Maya has been residing at the place of her father since 2000.
12. There are statements of Bhimrao and his wife Rukhmini, dated 20.1.2008, which, other than the introductory part, are verbatim copy of each other, interalia claiming that on 13.1.2008 applicant Omprakash along with all other 13 accused had come to Latur and asked for Rs.2 Lakhs. Statements claim that all accused said that they do not any more need the complainant Maya as Ramesh has already performed another marriage and so saying, threatened her. Bhimrao, the father of complainant and Rukminibai, as per the statements, are resident of Ramji Subhedar Nagar, Latur. Then there are statements of brother of complainant, namely Hemant and his wife Laxmi, who are residents of Ranjani, Taluka Kallam, District Osmanabad, regarding what complainant informed them or speaking about incident without claiming to have been present. There are statements of one Shantabai Pawar, residing Near Swami Samarth Temple, Near M.I.D.C., Latur, and a kirana shop owner Rajesh Manikrao Mhetre, resident of Narsayanagar, Latur, regarding what they learnt from complainant Maya. Mrs. Anisha Gaikwad claims to be neighbour and her statement is also regarding what Maya informed her. Mrs. Anisha and Rajesh claimed, in statements to police, referring to all accused that they had seen them come 1-2 times and quarrelled for money. Thus, even if all these statements are kept in view, the statements of witnesses are either general or on the basis of hear-say as regards present applicant. There is general allegation that these number of accused came and demanded Rs.2 Lakhs. There is no specific role attributed to the present applicant and there are no particulars in the charge sheet stating what exactly applicant did.
13. Apart from the above, without going into the merits of the findings recorded by the Judicial Magistrate, First Class in the Domestic Violence Act matter, the fact glaringly on record is that although the Domestic Violence Act proceeding was filed on 17.11.2008 and F.I.R. in present matter had been filed earlier on 29.1.2008 for an alleged incident of 13.1.2008, the present applicant was not arrayed as opponent in the Criminal Misc. Application No.548/2010. The judgment shows, the complainant making allegations in that matter that on 13.1.2008 the opponents 1 to 11 (which does not include present applicant), had come to the place of complainant and given illtreatment.
14. I have carefully perused the F.I.R. and the charge sheet as well as the attending circumstances and I find that insofar as matter relates to the present applicant, he deserves to be discharged. The allegations made against the applicant are extremely general in nature and no specific role is attributed to the applicant. It is clear that the applicant was not at all residing jointly with Ramesh, the husband of complainant. In fact the F.I.R. segregates the relatives in two parts. In the first part, are relatives, who were part of the matrimonial home and in second part are the relatives of in-laws of matrimonial home. Even the complainant had been residing separate since 2000 from her husband. In view of such vague and general allegations against the applicant, it will be abuse of process to make the applicant face the prosecution. The applicant is a Government servant and it appears that, on the basis of vague allegations, effort is made to rope him in the offence. In the interest of justice, the charge sheet as regards the applicant deserves to be quashed and set aside.
15. For the above reasons, the Criminal Application is allowed. Orders dated 1.7.2013 passed by Judicial Magistrate, First Class, Third Court, Latur below Exhibit 130, in R.C.C. No.325/2008, rejecting the application, and the orders passed in Criminal Revision No.66/2013, by Sessions Judge, Latur dismissing the revision, are quashed and set aside. Application for discharge filed by applicant Omprakash Dhondiram Mane is allowed. The applicant Omprakash Dhondiram Mane is discharged of offence punishable under Sections 498-A, 494, 34 of the Indian Penal Code for which charge sheet has been filed against him in R.C.C. No.325/2008.
16. The R.C.C. No.325/2008 to proceed regarding other accused without being influenced by anything said by this Court on the merits and in accordance with law. Present Criminal Application stands disposed of accordingly.