Partly allowed

Mr. Damodar Rambhau Gulhane v. the State of Maharashtra

Bombay HC11 Jan 2017WP/271/2016

Case brief

AI extract

What is this about?

The High Court of Bombay, Aurangabad, quashed an FIR against six family members for domestic discord and cruelty. It held that since a prior complaint did not name them, investigations against them would be an abuse of process. The writ against the remaining four family members was dismissed as an FIR disclosed an offence.

What did the court decide?

FIR quashed to the extent of petitioners 5 to 10; Writ petition to the extent of petitioners 1 to 4 rejected.

Mr. Damodar Rambhau Gulhane Vs the State of Maharashtra — Quashing and FIR | Bombay HC (2017)

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1 Cri.WP-271-16

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 271 OF 2016

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1] Mr. Damodar Rambhau Gulhane Age : 32 years, Occu. Service R/o C/o Gulabrao Ashtankar Plot No. 16, Kailashnagar, Old Subhedar Layout, Nagpur.

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2] Mr. Rambhau Ganpatrao Gulhane Age : years; Occu.:

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3] Mrs. Babybai Rambhau Gulhane Age : years; Occu.: Household

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4] Pankaj Rambhau Gulhane Age : years; Occu.:Engineer; Petitioner No. 2 to 3 are resident of; Near Dagdi Pool, Mahadev Ward Arvi; Arvi; District : Wardha.

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5] Lata Abhijeet Gulhane Age : years; Occu.: R/o Mahalaxmi Niwas, Near Asnare Mangalkaryalaya, Inside Amba Gate; Kumbharwada, Amravati, District : Amravati – 444601

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6] Mrs. Nanda Damodar Banarse Age : years; Occu.:

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7] Mr. Damodar Kisanrao Banarse Age : years; Occu.: Petitioner No. 6 & 7 are resident of; Namak Karkhana, Ganjakhet Chowk, Mahatma Fule Bazaar, Nagpur, District : Nagpur 440018

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8] Mrs. Mona Anuj Shrirao Age : Years, Occu : R/o Santaji Chowk, Gilani Nagar, Smarathwadi ; Yavatmal, District : Yavatmal.

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9] Mr. Dileep Banarse Age : years; Occu.:

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2 Cri.WP-271-16

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10] Mrs. Maya Dileep Banarse Age : years; Occu.: Petitioner No. 9 & 10 are resident of Plot No. 16, Near Rui Karkhana, Ganjakhet, Wedekar Mohalia, Mahatma Phule Bazaar, Nagpur – 440018. ...PETITIONERS versus

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1] The State of Maharashtra Through MIDC Jalgaon Police Station, Taluka & District : Jalgaon.

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2] Mrs. Mayuri Damodar Gulhane Age : 28 years; Occu : Nil; R/o Asole Layout ; Plot No. 19 Arvi Tahsil Arvi, District : Wardha. ...RESPONDENTS

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Mr. Sanket S. Kulkarni , Advocate for petitioners Mr. M. M. Nerlikar, APP for Respondent No. 1 - State Mr. Girish Nagori, Advocate for Respondent No. 2

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CORAM : S.S. SHINDE AND K.K. SONAWANE, JJ. DATED : 11^th JANUARY, 2017.

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JUDGEMENT :- ( Per: S.S. Shinde, J.)

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Rule. Rule made returnable forthwith. Heard finally with consent of the learned counsel for the parties.

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This petition is filed challenging the First Information Report( for short “FIR”) bearing crime No. 343 of 2015 dated 17-12-2015 registered with MIDC Police Station, Jalgaon Taluka and District Jalgaon for the offence punishable under section 498, 417, 406, 323, 514, 516 read with section 34 of the Indian Penal Code.

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3 Cri.WP-271-16

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The learned counsel appearing for the petitioners invites our attention to the allegations made in the criminal complaint No. 3464 of 2015 filed by respondent No. 2 against petitioner No. 3-Babybai, mother in law of respondent No. 2 and petitioner No. 1 - Damodhar husband of respondent No. 2, however, respondent No. 2 did not add other petitioners in said complaint as accused. There are no allegations against other petitioners than petitioner No. 3-Bebitai and petitioner No. 1 - Damodhar. It is submitted that as alleged by respondent No. 2 that she left matrimonial house on 08-02-2015. Thereafter, she had first opportunity to file the complaint on 16-09-2015. In the said complaint, except petitioner No. 3- Babybai and petitioner No. 1 – Damodhar, no other petitioners have been added as accused in the complaint making specific allegations muchless even general allegations against other accused. Therefore, it is submitted that after lapse of more than two months period from filing the said complaint respondent No. 2 again lodged FIR in the MIDC Police Station, Jalgaon, wherein names of other petitioners have been added as accused and general allegations are made against them. It is submitted that since other petitioners than petitioner No. 3 Babybai and petitioner No. 1 - Damodhar were not added as accused in the earlier complaint filed by respondent No. 2, and after thought the FIR is lodged after lapse of two months thereafter, therefore the FIR deserves to be quashed. It is submitted that petitioners No. 2 and 3 are old aged persons and even they are not able to move from one place to another place and allegations in the FIR against them are unsustainable, therefore, on aforesaid grounds also FIR deserves to be quashed and set aside.

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4 Cri.WP-271-16

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It is submitted that even if an allegations in the FIR are taken at its its face value and read in its entirety, no alleged offences are disclosed or ingredients of said offences gets attracted, therefore, the criminal writ petition deserves to be allowed.

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The learned APP appearing for respondent No. 1 - State and learned counsel appearing for respondent No. 2, invites our attention to the allegations against the petitioners in the FIR and also contents of the complainant, which was filed by respondent No. 2 before the court, and submits that an allegations in the FIR and averments in the complaint will have to be read as it is. In the present case, upon reading an allegations in the FIR, alleged offences have been disclosed, therefore, the petition is devoid of merits and same deserves to be dismissed.

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We have heard the learned counsel appearing for the parties. With their able assistance perused the documents placed on record and also the allegations in the complaint and FIR. It is not in dispute that respondent No. 2 filed complaint on 16-09-2015 before the Court of Judicial Magistrate First Class, Jalgaon, wherein present petitioner No. 1 Damodhar and petitioner No. 3 Babybai were added as accused.

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Upon careful perusal of the contents of said complaint, it appears that there are allegations against those two accused i.e. petitioner No. 1 Damodhar and petitioner No. 3 Babybai and there are no specific allegations qua other petitioners.

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5 Cri.WP-271-16

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Be that as it may, upon reading allegations in the FIR, it appears that there are allegations against petitioners No. 1 to 4 attributing an overt act to them. So far as all petitioners are concerned, there are allegations in the FIR, which are under:-

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“ R;kuarj eh ekÖ;k lkljokMhyk fn- 08@02@2015 ikosrks jkgr gksrh njE;kuP;k dkGkr ekÖ;k lkljP;k yksdkauh Eg.kts ek>s irh ukes nkeksnj jkeHkkÅ xqYgk.ks lkljs jkeHkkÅ x.kir xqYgk.ks lklq cschCkkbZ jkeHkkÅ xqYgk.ks fnj iadt jkeHkkÅ xqYgk.ks ekol lkljs nkeksnj cukjls ¼iq.kZ uko ekghr ukgh½ ekol lklq uank nkeksnj cukjls rlsp ekol lklq ek;k cukjls o R;kaps irh uko ekghr ukgh rlsp u.kan yrk vfHkthr xqYgk.ks rlsp ekol u.kan eksuk vuqi Jhjko ;kauh eyk rq÷;k oMhykauh yXukP;k osGh vkepk eku iku dsyk ukgh rlsp vkrk eyk ufou IyWV ?ks.;klkBh rq÷;k ekgs#u 25 yk[k #i;s vk.k ,dkp osGh iq.kZ iSls nsoq 'kd.kkj ulY;kl 5 yk[k #i;s gIR;kus iSls ?ksoqu ;s ;k dkj.kklkBh usgeh ekulhd o 'kkjhfjd =kl nsr gksrs- nksu osGk R;kauh laiq.kZ ?kjkr jkWdsy Vkdqu eyk ftos Bkj ek#u Vkd.;kpk ne fnyk gksrk- “

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In our considered view, when respondent No. 2 had an opportunity to make allegations when complaint was filed, however, there are no allegations made as against petitioners except petitioner No. 1 and 3. There is force in the argument of the learned counsel for the petitioners that petitioners No. 5 to 10 are not residing at Arwi and residing at difference places and they had no role in commission of alleged offences.

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The Supreme Court in the case of " State of Haryana V/s Bhajanlal" {AIR 1992 SC 604} held that, in following categories the Court would be able to quash the F.I.R. :

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6 Cri.WP-271-16

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1 Whether the allegations made in the F.I.R. 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;

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Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code, except under an order of Magistrate within the purview of Section 155(2) of the Code;

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Where the uncontroverted allegations made in the F.I.R. 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 the applicant;

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Where the allegations in the F.I.R. do not constitute a 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;

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Where the allegations made in the F.I.R. 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;

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Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act, (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provisions in the Code of the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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Where a criminal proceeding is manifestly attended with malafide 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.

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Keeping in view the aforementioned category Nos. 1 and 5, laid down in the case of State of Harayana Vs. Bhajanlal (supra) , in our opinion so far as petitioners No. 5 to 10 are concerned, alleged offences are not disclosed and therefore further investigation on the basis of complaint - FIR would be abuse of process of law, hence, FIR to the extent of these petitioners deserves to be quashed.

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7 Cri.WP-271-16

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So far as petitioners No. 1 to 4 are concerned though there are no specific allegations against petitioner No. 2-Rambhau Gulhane and 4- Pankaj Rambhau Gulhane in the complaint nevertheless there are allegations in the FIR against them. It is also relevant to mention that petitioners No. 2, 3 and 4 also resides at Arwi, where the matrimonial house of respondent No. 2 is situated. In that view of the matter, at this stage, no case is made out for quashing first information report in respect of petitioners No. 1 to 4.

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In the light of the discussion herein above, criminal writ petition to the extent of petitioners No. 1 to 4 i.e. (1) Mr. Damodar Rambhau Gulhane, (2) Mr. Rambhau Ganpatrao Gulhane, (3) Mrs. Babybai Rambhau Gulhane and (4) Pankaj Rambhau Gulhane stands rejected. However, rejection of writ petition as against petitioners No. 1 to 4 should not be construed as an impediment to take out appropriate remedy for filing application for discharge in the event of filing chargesheet by the Investigating Officer.

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So far as petitioners No. 5 to 10 i.e. (5) Lata Abhijeet Gulhane, (6) Mrs. Nanda Damodar Banarse (7) Mr. Damodar Kisanrao Banarse, (8) Mrs. Mona Anuj Shirrao, (9) Mr. Dileep Banarse and (10) Mrs. Maya Dileep Banarse are concerned, the FIR stands quashed and set aside.

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Writ petition is partly allowed in above terms. Rule is made absolute accordingly.

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Sd/Sd/-

Mr. Damodar Rambhau Gulhane v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mr. Damodar Rambhau Gulhane v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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