Dismissed

Sharayu Ashok Bansode v. Ashok Narayan Bansode and Anr.

Bombay HC4 Apr 2013WP/337/2013

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the trial Court's rejection of a belated application to add a charge of wrongful confinement. The Court held that the application was delayed, lacked bona fides, and the argument regarding the charge was academic as other charges carried equivalent or higher punishment.

What did the court decide?

The writ petition was dismissed; the impugned order upholding the dismissal of the的申请 for addition of charge was upheld.

Sharayu Ashok Bansode Vs Ashok Narayan Bansode and… — Criminal Trial and Appeal | Bombay HC (2013)

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WP.337/13-APPW.143/13(6)

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mnm

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CRIMINAL JURISDICTION

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WRIT PETITION NO. 337 OF 2013

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Sharayu Ashok Bansode Vs.

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Ashok Narayan Bansode & Anr.

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...Petitioner

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...Respondent

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Mr. Jaising G. Gaikwad for petitioner Ms. A.A. Mane, APP for the State

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CORAM : MRS. ROSHAN DALVI, J. DATED : 4^TH APRIL, 2013

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P.C. :

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This writ petition is filed by the victim wife in respect of addition and re-framing of one of the several charges made against her husband. The petitioner wife has claimed that she was beaten and wrongfully confined in her bedroom on 6^th January 1993 when she had lodged the initial complaint/FIR. She has claimed offences under Sections 323, 342, 498A and 506 of IPC against her husband. It may be mentioned that these offences are punishable with imprisonment extending to 1 year, 1 year, 3 years and 2 years respectively.

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In support of her charge of wrongful confinement, she claims that one Surendran was an eye witness who was passing by her house and had heard her cries on her confinement and had unbolted the door and released her from the confinement and that she would prove such charge upon such evidence by

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WP.337/13-APPW.143/13(6)

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such witness. The evidence of that witness is recorded on 30^th January, 1993.

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The initial charge was framed under Section 498A alone. Her application for addition of further charges made on 16^th November, 2002 came to be granted by the learned Judicial Magistrate first Class, 8^th Court, Pune on 6^th February, 2003.

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The revision application filed by the husband against the framing of the additional charges came to be dismissed on 30^th June, 2994. Consequently, the charge came to be altered on 28^th September, 2004 by the learned Magistrate. However, the altered charge was under Sections 323, 506, 498A and Section 341 instead of Section 342 of the IPC. This charge has been altered and so framed since 28^th September, 2004 by the learned Magistrate. The petitioner allowed her criminal prosecution to proceed upon such charges as initially framed and as added thereto. The trial proceeded. The petitioner failed to examine the said Surendran as her witness. It is understandable that the petitioner could not get a passers-by whose statement was recorded on 30^th January, 1993. However the trial Court must proceed upon the evidence which is recorded.

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After the entire evidence came to be recorded the petitioner made another application as late on 21^st January, 2010 for addition of a separate head of a charge of wrongful confinement under Section 342 of the IPC in place of wrongful restraint under Section 341 of the IPC. This application was

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WP.337/13-APPW.143/13(6)

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made under Section 216 of the Cr.P.C upon the premise that there was a scoring of all the words “confinement” into the word “restraint” and scoring out the figure of Section “342” into Section “341” of the IPC. This belated application has been considered by the learned Magistrate under his order dated 12^th October, 2010 which has been upheld in revision under order of the Revision Court dated 7^th September, 2010 which are impugned in this petition.

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The learned Magistrate has observed that the evidence has been recorded. The application is belated. It is made to bind time and to harass the husband. The evidence does not show the corroborative evidence of the said Surendran. Even if it is unfortunate for the petitioner not to have been able to obtain the corroborative evidence, her case must rest on her evidence alone. The learned Magistrate would consider her evidence for the charges already framed. Of course, if her evidence shows the incident made out by her, the learned Magistrate would surely consider the merits that would tentamount also to causing hurt and cruelty.

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The petitioner has laboured under the contention that the charge of wrongful restraint is erroneous and the evidence would show the charge of wrongful confinement. However true that may be, it is only an academic exercise as charge has been framed for other related offences for which an equivalent or higher punishment is prescribed under the IPC. In any event, that aspect should have been brought to the notice of the Court

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4 WP.337/13-APPW.143/13(6)

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in the application taken out in 2002, which was heard in 2003 and from which the revision was dismissed in 2004 so as to frame the altered charge in 2004. The petitioner has not taken any exception to the act of scoring of the charge under wrongful confinement to make it under wrongful restraint i.e, the charge under section 342 into the charge under Section 341 from 2004 until 2010. Consequently the observation of the learned Magistrate, which has been upheld by the revision Court, that the application is belated and lacking in bonafides cannot be faulted. Consequently upon that academic argument this petition also cannot be allowed.

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This Court trusts that the learned Magistrate shall consider the evidence in its entirety for all the charges framed in accordance with law.

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The writ petition is accordingly dismissed.

Sharayu Ashok Bansode v. Ashok Narayan Bansode and Anr.

Case brief

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Sharayu Ashok Bansode v. Ashok Narayan Bansode and Anr.

Case brief

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