Dismissed

Hiraben Ganesh Choudhari v. the State of Maharashtra and Others

Bombay HC26 Mar 2015WP/420/2014

Case brief

AI extract

What is this about?

This writ petition challenged the order rejecting the State's application to amend the charge to add Section 494 IPC. The Court held the application was maintainable only on private complaint or with leave of court under Section 198-A, not via police report. The High Court dismissed the petition.

What did the court decide?

Rule discharged and the writ petition dismissed as the application to amend the charge was not maintainable.

Hiraben Ganesh Choudhari Vs the State of Maharashtra… — Matrimonial and Divorce | Bombay HC (2015)

¶1

( 1 ) crwp420.14

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

CRIMINAL WRIT PETITION NO. 420 OF 2014

¶4

Hiraben w/o. Ganesh Choudhari..Petitioner
Age. 51 years, Occ. Household,
R/o. Datta Colony, Behind T.V. Center,
Dongargaon Road, Shahada,
Dist. Nandurbar, at present -
R/o. Kalamsar Mohide,
Tq. Talode, Dist. Nandurbar.

¶5

Versus

¶6

1. The State of Maharashtra .. Respondents Through the Investigating Officer, Crime No. 177 of 2007, Police Station Shahada, Dist. Nandurbar.

¶7

2. Ganesh s/o. Bhabuta Chaudhari, Age. 51 years, Occ. Agri., R/o. Waka, Tq. Nizar, Dist. Tapi, State of Gujarat.

¶8

3. Chhababai Bhabuta Chaudhari, Age. 68 years, Occ. Household, R/o. Waka, Tq. Nizar, Dist. Tapi, State of Gujarat.

¶9

4. Anita d/o. Sitaram Patil @ Anita w/o. Ganesh Chaudhari, Age. 42 years, Occ. Household, R/o. Waka, Tq. Nizar, Dist. Tapi, State of Gujarat.

¶10

5. Sitaram Indas Patil,

¶11

( 2 ) crwp420.14

¶12

Age. 77 years, Occ. Agriculture,
R/o. Shrikrishna Colony, Behind
Jail Plaza Hotel, Shahada,
Dist. Nandurbar.

¶13

6. Dattibai Sitaram Patil Age. 73 years, Occ. Household, R/o. Shrikrishna Colony, Behind Jail Plaza Hotel, Shahada, Dist.Nandurbar.[abated vide order dt.9.2.15]

¶14

7. Kalawatibai w/o. Ishwar Patil, Age. 46 years, Occ. Household, R/o. Nalve, Tq. & Dist.Nandurbar.

¶15

8. Mohan Narayan Patil, Age. 53 years, Occ. Agriculture, R/o. Dhulvad, Tq. & Dist.Nandurbar.

¶16

9. Lilawatibai w/o. Mohan Patil, Age. 46 years, Occ. Household, R/o. Dhulvad, Tq. & Dist.Nandurbar.

¶17

10. Ishwar Bula Patil, Age. 53 years, Occ. Agriculture, R/o. Nalve, Tq. & Dist.Nandurbar.

¶18

11. Kashinath Vitthal Patil Age. 56 years, Occ. Agriculture, R/o. Udhana Yard, Libamal, Nilgiri, Ramnagar, Plot No.174, Surat, Dist. Surat, State of Gujarat.

¶19

12. Rajaram Girdhar Patil Age. 71 years, Occ. Agriculture, R/o. Udhana Yard, Libamal, Nilgiri, Ramnagar, Plot No.174, Surat, Dist. Surat, State of Gujarat.

¶20

( 3 ) crwp420.14

¶21

13. Vimalbai Rajaram Patil

¶22

Age. 66 years, Occ. Household, R/o. Udhana Yard, Libamal, Nilgiri, Ramnagar, Plot No.174, Surat, Dist. Surat, State of Gujarat.

¶23

14. Sumanbai Kashinath Patel,

¶24

Age. 51 years, Occ. Household, R/o. Udhana Yard, Libamal, Nilgiri, Ramnagar, Plot No.174, Surat,

¶25

Dist. Surat, State of Gujarat.

¶26

Mr. Milind Patil, Advocate for the petitioner.
Mr. S.G. Nandedkar, APP for the respondent/State.

¶27

Ms. Chinmayee Deshpande h/f. Mr. S.V. Natu, Advocate for
respondent Nos. 2,4,5,7,8,10,11 & 14.

¶28

CORAM : SMT.SADHANA S. JADHAV,J. DATED : 26.03.2015

¶29

ORAL JUDGMENT :-

¶30

1. Heard respective Counsel.

¶31

2.Rule. Rule made returnable forthwith with the
consent of the parties.

¶32

3.The petitioner herein happens to be original
informant in Crime No.196 of 2007 registered at Shahada
Police Station. The complainant had approached Shahada
Police Station on 22.12.2007 and lodged a report at the
police station that she has married to the present

¶33

( 4 ) crwp420.14

¶34

respondent No.2 in the year 1983. The couple is blessed
with two daughters and a son. She was residing with her
husband in the matrimonial home. She was being harassed
and ill-treated by the members of her matrimonial family
on account of not being honoured properly at the time of
marriage. According to her, her husband developed
intimacy with her maternal cousin. They intended to get
married. They were coercing her to give divorce in order
to facilitate the second marriage of her husband with
Anita, who happens to be her maternal cousin. She had
denied to give consent. According to her the parents of
Anita as well as Anita herself were coercing her to give
consent for second marriage and on that count she was
being mentally harassed and physically abused by Anita
and her parents. It is alleged in the First Information
Report that on 25.11.2007 her husband got married to
Anita in Ganpati Mandir at Shahada. She has alleged that
relatives of her husband were present at the time of
marriage. She was driven out of her matrimonial house.

¶35

4.On the basis of her report filed under section
154 of Cr.P.C.,Crime No.196 of 2007 was registered
against the accused. The investigation was completed and
charge-sheet was filed on 08.02.2008. The accused were
charge-sheeted for the offences punishable under sections
498-A, 323, 504, 506 r/w 34 of the Indian Penal Code.

¶36

5.The case was registered as R.C.C. No.18 of 2008.
The learned 2nd J.M.F.C., Shahada framed charge against
the accused for offences with which they were charge-
sheeted. The charge was framed on 05.08.2013. The
Assistant Public Prosecutor conducting the trial in
R.C.C. No.18 of 2008 filed an application before the
learned J.M.F.C., Shahada on 14.03.2014, thereby praying
therein that charge to be amended in accordance with law.
In the said application, the learned APP had submitted as
follows :-

¶37

"At the outset the contents of paragraph No.4 of
the complaint encapsulates all the basic
ingredients of the offence punishable under
section 494 of the Indian Penal Code and
therefore same deserves cognizance and inclusion
in the said charge at Exh.47 in the interest of
justice."

¶38

6.In the prayer clause, there was no specific
prayer for addition of section 494 of Indian Penal Code.
Neither there was prayer that the charge be added. The
learned J.M.F.C. by order dated 19.03.2014 after
assigning sufficient reasons has rejected the said
application filed by the State. Hence, this writ
petition.

¶39

7.At this stage, it is pertinent to note that the
rejection of the said application has not been challenged
by the State, but is being impugned by the original
complainant. At this stage, there is nothing on record
to indicate that the complainant was prosecuting the
Trial under section 301 (2) of Cr.P.C. It is, therefore,
clear that present petitioner is only witness in the said
case and would be examined as a witness to substantiate
the allegations made under section 154 of Cr.P.C.
Learned Counsel for the petitioner has placed reliance
upon the judgment of the Hon'ble Apex Court in the case
ofUshaben Vs. Kishorbhai Chunilal Talpada & Ors., 2012
AIR SCW 2398(1). The Hon'ble Apex Court has held that :-

¶40

“Section 190(1) empowers the Magistrate to take
cognizance of any offence, upon receiving
complaint of facts which constitute such
offence; upon police report of such facts; upon
information received from any person other than
a police officer or upon his knowledge that such
offence has been committed. Section 198 which
relates to prosecution for offences against
marriage brings in the concept of complaint by
an aggrieved person. A conjoint reading of
provision of Ss.190,198, 198A of Criminal
Procedure Code makes it clear that a complaint
under S.494 of the IPC must be made by the
aggrieved person. Section 498A does not fall in
Chapter XX of IPC. It falls in Chapter XXA.
Section 198A permits a Court to take cognizance
of offence punishable under Section 498A upon a

¶41

( 7 ) crwp420.14

¶42

police report of facts which constitute offence.
Explanation to Section 2(d) makes it clear that
a report made by a police officer after
investigation of a non-cognizable offence is to
be treated as a complaint and the officer by
whom such a report is made is to be deemed to be
the complainant. Thus if a complaint contains
allegations about commission of offence under
Section 498A of the IPC which is a cognizable
offence, apart from allegations about the
commission of offence under Section 498A 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. No
fetters can be put on the police preventing them
from investigating the complaint which alleges
offence under Section 48A of the IPC and also
offence under Section 494 of the IPC.”

¶43

8.According to the learned Counsel, in view of
judgment of the Apex Court, there is no impediment for
adding charges under section 494 of IPC.

¶44

9.Section 198 of Cr.P.C. reads thus:-

¶45

“No Court shall take cognizance of an offence
punishable under Chapter XX of the Indian Penal
Code (45 of 1960) except upon the complaint made
by some persons aggrieved by the offence”.

¶46

10.Section 198-C contemplates that where the

¶47

person, aggrieved by offence punishable under Section 494
or 495 of the Indian Penal Code, is wife, complaint may

¶48

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's with the leave of the Court by any
other person related to her by blood, marriage or
adoption.

¶49

11.Needless to say that the foundation for offence
punishable under Section 494 of Indian Penal Code has to
be laid in the form of complaint, which is defined under
Section 2(d) of Criminal Procedure Code which reads thus;

¶50

“Complaint” means any allegations made orally or
in writing to a Magistrate, with a view to his
taking action under this Code, that some person
whether the known or unknown has committed an
offence, but does not include a police report”.

¶51

12.In the present case the report lodged by the
present petitioner is not a complaint as contemplated
under Section 2(d) of the Criminal Procedure Code, but is
report under Section 154 of Criminal Procedure Code,
which only sets law into motion. The investigation is
conducted by the Police Officer and charge-sheet is filed
under Section 498A, 323, 504,506 read with 34 of Indian
Penal Code.

¶52

13.The basic feature which distinguishes present

¶53

case from the case of Ushaben Vs Kishorbhaiis that in
the case of Ushaben, the Hon'ble Apex Court had
considered that the said case was at the stage of
investigation and therefore explanation to section 2(d)
of Cr.P.C. was considered. The Hon'ble Apex Court has
held that a final report/charge-sheet is also deemed to
be a complaint under section 2 (d) of the Cr.P.C. In
para 13 of the judgment it is as held as follows :-

¶54

“13.Above provisions, lead us to conclude
that if a complaint contains allegations about
commission of offence under Section 498A 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.”

¶55

.The Hon'ble Apex Court has concluded that “No
fetters can be put on the police preventing them from
investigating the complaint which alleges offence under
section 498-A of the Indian Penal Code and also offence
under section 494 of the Indian Penal Code. The police
shall investigate the complaint in accordance with law”.

¶56

.The said judgment cited Supra is in the facts of
that case and therefore cannot be considered to be
binding in the present case.

¶57

14.In the present case charge-sheet was not filed
for offence punishable under section 494 of Indian Penal
Code. Charge was framed. There was no application filed
by State under section 173 (8) of Cr.P.C. seeking further
investigation for offence punishable under section 494 of
Indian Penal Code and an omnibus prayer was subsequently
made at a belated stage for framing of charge and
therefore Section 198(A) of Cr.P.C. would come in to
play.

¶58

15.In-fact, application filed by the State for
adding charge under Section 494 of Criminal Procedure
Code was not maintainable as Section 198 of Cr.P.C.
specifically contemplates that the complaint has to be
filed either by the person aggrieved or by the relatives
of the aggrieved person with the leave of the Court. In
the present case the application being filed by the State
was not maintainable and therefore the learned Judicial
Magistrate, First Class has assigned sound and
justifiable reason for rejecting the said application.
Learned counsel for the respondents submits that in the
present case there is no embargo on the Judicial
Magistrate, First Class to frame charge in the course of
recording substantive evidence, if he arrives at a
conclusion that an offence under Section 494 is made out.
Such contention though not acceptable by this Court, can

¶59

be considered by the Judicial Magistrate, First Class as
and when the said issue arises. This Court is of the
opinion that the very application filed by the
prosecution was not maintainable. The order passed by the
learned Judicial Magistrate, First Class, does not
warrant any interference as the learned Judge has
assigned sound and justifiable reasons for rejecting the
said application. Allowing such application would be an
abuse of process of law and hence the writ petition
deserves to be dismissed. Rule is discharged. The writ
petition stands dismissed and disposed of.

¶60

[SMT. SADHANA S. JADHAV,J.]

¶61

snk /2015/MAR15/crwp420.14

Hiraben Ganesh Choudhari v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Hiraben Ganesh Choudhari v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Musa S/O Gaffar Shaikh Vs State of Maharashtra and Ors.

Prakash Vasantrao Davkar Vs the State of Maharashtra and Others

Dr. Shriram S/O Mukundrao Kalyankar Vs the State of Maharashtra and Ors.

Uttam Karbhari Labade Vs Bebitai Uttam Labade

Sk Aki Akbar Mogal and Others Vs Eajaj Khan Shafi Pathan and Anr.

Agasti Sarv Seva Sangh Agasti Nagar-Akole. Vs Zabbu Bhima Pawar