Allowed

Kantilal S/O. Zamu Gaikwad and Others v. the State of Maharashtra and Anr.

Bombay HC23 Apr 2018WP/1223/2017

Case brief

AI extract

What is this about?

This High Court quashed a first information report and charge-sheet alleging offences under Sections 498-A and 323 of the IPC. The court held that the allegations were unsubstantiated, the relationship was cordial per an independent witness, and proceeding to trial would amount to an abuse of the process of law.

What did the court decide?

First information report No. 50/2017 and proceedings in R.C.C. No. 323/2017 were quashed and set aside.

Kantilal S/O. Zamu Gaikwad and Others Vs the State of… — Matrimonial and Divorce | Bombay HC (2018)

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1 Cri WP 1223 of 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 1223 OF 2017

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1] Kantilal S/o Zamu Gaikwad,
 Age : 57 years, Occu. : Service,
 R/o 5/2 Bhushan Colony,
 Jalgaon, Dist. Jalgaon.
2] Sau. Sunita Kantilal Gaikwad,
 Age : 47 years, Occu. :
 Household,
 R/o As above.
3] Niraj S/o Kantilal Gaikwad,
 Age : 25 years, Occu. : Student,
 R/o As above.
 Now at Present Pune.
4] Jagdish S/o Zamu Gaikwad,
 Age : 39 years, Occu. : Service,
 R/o Anand Nagar, Bodhwad,
 Tq. & District Jalgaon.
5] Anil S/o Narayan Ingale,
 Age : 43 years, Occu. : Service,
 R/o Samata Nagar, Jalgaon,
 District Jalgaon.
6] Manoj S/o Kantilal Gaikwad,
 Age : 30 years, Occu. : Service,
 R/o Vasant Nagar, Sangli,
 District Sangli....Petitioners.
 Versus

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2 Cri WP 1223 of 2017

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1] The State of Maharashtra,
 Through Police Station,
 Ramanand Nagar, Jalgaon.
2] Sau. Madhuri w/o Manoj Gaikwad,
 Age : 33 years, Occu. Household,
 R/o C/o Pandit Tulshiram Tayde,
 R/o N Ramarao Society,
 Bazar Road,
 12-A, Pimprala, Tq. & Dist.
...Respondents.
 Jalgaon.

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Mr. Sant Kishor C., Advocate for Petitioners.
Mr. S. B. Pulkundwar, Addl. Public Prosecutor, for
Respondent No. 1 / State.
Mr. M. K. Deshpande, Advocate for Respondent No. 2.

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CORAM : PRASANNA B. VARALE &
SMT.VIBHA KANKANWADI. JJ.
DATE : 23-04-2018.

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JUDGMENT : [Per Smt. Vibha Kankanwadi, J]

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Present writ petition has been filed

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invoking the powers of Court under Article 226 and
227 of the Constitution of India and Section 482 of
Code of Criminal Procedure for quashment of the first
information report lodged at the instance of
respondent No. 2.

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3 Cri WP 1223 of 2017

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02.Rule. With consent of the parties, matter

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is taken for final hearing at the admission stage.

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03. Respondent No. 2 is the wife of petitioner

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No. 6. They got married on 19.2.2015 at Alandi,
District Pune as per Hindu rites and customs.
Petitioner No. 1 and 2 are the parents of the
petitioner No. 6. Petitioner No. 3 is the real

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brother of petitioner No. 6. Petitioner No. 4 is the
uncle of petitioner No. 6 and petitioner No. 5 is
distant relative.

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04.Petitioners have contended that at the time

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of marriage, the respondent No. 2 had represented
before the petitioner No. 6 that her earlier marriage

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with one Pravin Sapkale is dissolved. Believing her
representation, the petitioner N. 6 had performed the
marriage. However, later on it was revealed to him
that the earlier marriage of respondent No. 2 was
still subsisting. He got married to respondent No.

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2. Therefore, petitioner No. 6 has filed H. M. P.
No. 601/2016 before the Civil Judge, Senior Divison,
Jalgaon for divorce. The respondent No. 2 has

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4 Cri WP 1223 of 2017

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appeared in the proceeding and has raised preliminary
issue regarding maintainability of the petition. An

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order has been passed on that application on
14.2.2017. The said order is under challenge before

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this Court in Writ Petition No. 3334/2017. It has
been further submitted that the respondent No. 2 is
daughter of maternal uncle of petitioner No. 6.
Therefore, they were knowing each other. Petitioner
No. 1 and 2 reside at Akola. Petitioner No. 3 is
residing at Pune since 2014. Petitioner No. 4
resides at Muktainagar as he is serving in M. S. R.
D. C. After marriage petitioner No. 6 and respondent

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No. 2 were residing at Sangli. It has been further
stated that respondent No. 2 got decree for divorce
from her earlier husband under Special Marriages Act
on 5.3.2015. She had not disclosed to the petitioner
No. 6 that she has daughter from her husband and in

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fact in the said petition, it is stated that the
custody of her daughter would be with earlier husband

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of the respondent No. 2. The respondent No. 2 has

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been given right to visit her daughter. Therefore,
petitioners say that as marriage of respondent No. 2
is based on mis-representation by respondent No. 2

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5 Cri WP 1223 of 2017

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and therefore, null and void. The respondent No. 2
has lodged a false information report stating that
she has been ill-treated by the petitioners. The
petitioners have submitted that even going through
contents of first information report, it would reveal
that no offence has been made out against them.
Respondent No. 2 has leveled allegations of demand of

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dowry and stated that behind her back, the
petitioners had asked amount of Rs. 1,50,000/- from

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her brother. So also petitioners have taken Rs.
15,000/- from her for purchase of a new Refrigerator.

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On the contrary, the petitioner No. 6 was regularly
transferring amounts in the account of respondent No.

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2. Petitioner No. 6 is serving with Bank of
Maharashtra at Sangli. In all, he has transferred
amount of Rs. 1,50,000/- in the account of respondent
No. 2. He has given said account of transfer of
amounts in the petition. On earlier two occasions,
the respondent No. 2 had filed complaint with Women

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Grievances Redressal Cell in the office of
Superintendent of Police, Jalgaon. But, she had not
leveled any allegation about demand of money from her
brother when the petitioner No. 6 and respondent No.

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6 Cri WP 1223 of 2017

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2 were separately residing at Sangli. Allegations
against the petitioner Nos. 1 to 5 are concocted and
totally un-believable.

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05.During the pendency of the present petition,
it appears that the charge-sheet has been filed and
by way of amendment petitioners have challenged the

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proceedings and prayed for quashment of the
proceedings on the ground that the evidence that has
been collected by the Investigating Officer is not
making out any offence as alleged in the charge-
sheet.

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06.Respondent No. 2 has filed affidavit-in-

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reply, which is nothing but reproduction of her first
information report. She has tried to make out that
earlier, immediately after the marriage when she had
tried to meet her husband i.e. Petitioner No. 6, she

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was prevented by the petitioner No. 1 to 3. In fact,
at that time petitioner No. 6 was hospitalized as
petitioner No. 1 and 2 had objected to the marriage
that was performed by petitioner No. 6 and respondent
No. 2 behind their back and petitioner No. 6 had

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7 Cri WP 1223 of 2017

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tried to commit suicide by consuming poisonous
substance. The petitioners have threatened her at
that time. It is stated that the petitioner No. 6
has all of sudden filed petition for divorce.
Petitioner No. 1 to 3 were not happy with their
marriage and for that purpose it appears that the
step has been taken by petitioner No. 6 to file the
divorce petition. She has been harassed and ill-
treated by the petitioners and, therefore, she has
lodged the first information report. In her
affidavit-in-reply, at the end, she has stated that
all the petitioners in general and petitioner No. 1
to 3 and 6 in particular have committed the offence
punishable under Sections 498A as well as 323, 504
read with 34 of Indian Penal Code and, therefore, she
has prayed for rejection of the petition.

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07.Heard learned Advocate K. C. Sant for

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petitioner, learned Addl. Public Prosecutor Mr. S. B.
Pulkundwar and learned Advocate Mr. M. K. Deshpande
for respondent No. 2. It has been submitted on
behalf of the petitioners that respondent No. 1 to 5
were residing at a different place. Only the

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8 Cri WP 1223 of 2017

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petitioner No. 6 and respondent No. 2 used to reside
at Sangli. If we peruse the contents of the FIR,
there is, in fact, absolutely nothing against the
petitioner No. 6 whatever acts in respect of
petitioner No. 1 to 3 have been stated are immediate
to the alleged marriage which was in fact not made
aware to them. When petitioner No. 6 was

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hospitalized, respondent No. 2 says that she was
restrained by petitioner No. 1 to 5 from meeting

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husband and in fact she says that she had lodged a
report about the same with Ramanand Nagar Police

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Station. However, it is to be noted that the report
itself shows that after the health of the petitioner
No. 6 was improved, they had performed marriage again
and went to stay at Sangli. It is her say that when

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she was at Sangli, petitioner No. 1 to 3 used to
visit frequently, were instigating petitioner No. 6
that to perform second marriage and she was harassed

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on the ground of demand of four wheeler. The
allegations are very vague. The evidence that has
been collected is nothing but only the statements of
her parents, sister and brother. On the contrary,
the statement of the landlady at Sangli shows that

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9 Cri WP 1223 of 2017

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the relation between petitioner No. 6 and respondent
No. 2 were very much co-ordial and she can be said to
be an independent witness. Therefore, under such
circumstance, if the petitioners are required to face
the trial, then it would be abuse of process of law.
He relied on the decision in Shakson Belthissor V/s
State of Kerala and Anr., AIR 2010 SC (Supp) 864. In
this case it has been held that :

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“The scope and power of quashing of first
information report and the charge-sheet
under Section 482 of Code of Criminal
Procedure is well settled. The said power
is exercised by the Court to prevent abuse
of the process of law and Court. But such
power could be exercised only when the
complaint filed by the complainant or a
charge-sheet filed by the police did not
disclose any offence or when the said
complaint is found to be frivolous,
vexatious or oppressive.”

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Similar view is taken inSanapareddy

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08.

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10 Cri WP 1223 of 2017

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Maheedhar Seshagiri and Anr. V/s State of A. P. and
Anr., 2008 AIR SCW 11. Further, reliance has been
placed on the decision in Somnath s/o Ashok Darekar
V/s State of Maharashtra and Anr., 2017 (4) Mh. L. J.

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(Cri.) 164 decided by the Division Bench of this
Court. Here, in this case also, taking into
consideration the allegations in the first
information report, the first information report for
the offence under Sections 306, 498-A, read with 34
of Indian Penal Code was quashed and set aside.

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09. It has been submitted on behalf of the

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respondents that a specific allegation has been made
that the respondent No. 2 was subjected to cruelty on
the ground that she should bring amount for
purchasing four wheeler. However, an amount of Rs.
1,50,000/- was demanded from the brother of the

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respondent No. 2. The amount of Rs. 17,800/- was
given by the mother of respondent No. 2 for
purchasing fridge on demand.

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10.The contents of the first information report
have been stated in the earlier paragraphs and

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11 Cri WP 1223 of 2017

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therefore, we do not like to reproduce the same.

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However, the facts are required to be assessed from a

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different angle. Petitioners have come with a
specific case that respondent NO. 2 had made a

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representation to the petitioner No. 6 that she has
taken divorce from her earlier husband. In fact,
respondent No. 2 is the daughter of brother of
petitioner No. 2. Therefore, what is normally

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expected is that the family should know what is going
on with the relatives. But still it appears that no
such disclosure was made by the respondent No. 2 to
the petitioner No. 6 regarding her divorce. It is to

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be noted that the petition which was filed by
respondent No. 2 and her ex-husband for dissolution
of marriage by mutual consent came to be allowed on

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5.3.2015. Copy of that order has been placed on
record. As per petitioners’ contention petitioner
No. 6 got married to respondent No. 2 on 19.2.2015 at
Alandi and this fact was not disclosed to petitioner

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No. 1 to 5. In the first information report it is
stated that the registered marriage was performed

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between them on 23.4.2015 and then she says that this
fact was also not disclosed to the parents and

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12 Cri WP 1223 of 2017

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therefore, husband told that she should reside with
her parents. Therefore, it is in fact a

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questionrable point as to why they were required to
perform marriage twice. No doubt, she has not denied
in her affidavit-in-chief a statement made by
petitioner No. 6 that they had married on 19.2.2015
at Alandi. As regards the incident of attempt to
commit suicide by petitioner No. 6 is concerned,
alongwith her affidavit respondent No. 2 has filed on
record a complaint filed by her on 27.4.2015 which
was against petitioner No. 1 to 3. However, it is to
be noted that in the enquiry of that complaint, it
appears that the statements of petitioner No. 6 and
respondent No. 2 were recorded wherein she has
specifically stated that she was allowed to meet her
husband on 27.4.2015 and yet she says that she should
not be harassed and she should be allowed to co-habit
with her husband. That means whatever dispute had
arose between respondent No. 2 and petitioner No. 1
to 3 is concerned, had ended there. By any stretch
of imagination even if we take the facts as it is,
that she was not allowed to meet her husband will not
amount to cruelty as contemplated under Section 498A

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13 Cri WP 1223 of 2017

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of Indian Penal Code as against petitioner No. 1 to 3
is concerned.

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11. After petitioner No. 6 recovered, he started
co-habiting with respondent No. 2 at Sangli and
admittedly petitioner No. 1 to 5 were residing at the
respective places far away from Sangli. In the first
information report it is then sated that petitioner
No. 1 to 6 used to visit the house of petitioner No.
6 at Sangli and were instigating petitioner No. 6
that he should perform second marriage by divorcing
the respondent No. 2. Because of the instigation
petitioner No. 6 used to assault her and demanded
amount for purchasing four wheeler. Her complaint is
very much silent as to how and when amount was
demanded for purchase of four wheeler. She further
says that petitioner No. 6 has taken amount of Rs.
1,50,000/- from her brother behind her back and a new
refrigerator worth Rs. 15,000/- from her mother.
Even if we accept the aforesaid material, as per her
own story, it was behind her back. Therefore, it can

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not be stated that because she was not fulfilling the
alleged demand she was harassed by any of the

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14 Cri WP 1223 of 2017

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petitioners. If we peruse the statements of mother,
father and sister of respondent No. 2, they say that
brother of respondent No. 2 Prakash Tayde had given

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them information that petitioner No. 6 has taken

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amount of Rs. 1,50,000/- from him. If we see
statement of Prakash Tayde, he has stated that
petitioner No. 6 has not taken Rs. 1,50,000/- from
Prakash Tayde and he has given amount of Rs. 36,000/-

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from Bank of Maharashtra, Jalgaon Branch on

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17.2.2016. He has not stated when he has given
amount of Rs. 1,50,000/- and why he had not informed
it to his sister. Mother of respondent No. 2 says

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that she has given refrigerator worth Rs. 17,800/- to
petitioner No. 6 on the say of petitioner No. 1 to 3.
But, she does not say that from where the fridge was
purchased, when and where she had met petitioner No.
1 to 3. The statements of mother, father, sister and
brother of respondent No. 2 are stereo type, rather
copy paste. Interestingly, the statement of landlady
of petitioner No. 6 at Sangli says that since about a
year she had given her two rooms to petitioner No. 6
wherein petitioner No. 6 and respondent No. 2 were
residing, there they used to go to watch movies and

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15 Cri WP 1223 of 2017

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hoteling. She has not seen any quarrel between the
couple. Thus, it is to be noted that the independent
witness has stated that the relation between the
petitioner No. 6 and respondent No. 2 were co-ordial.

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Some amenable statements have been made in the first
information report in order to prove the case under
Section 498A and other Sections under Indian Penal

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Code. It can be seen that lodging of the first
information report is outcome of notice for divorce
given by petitioner No. 6. That means the report was
lodged by respondent No. 2 out of some vengeance and
none of the offences as stated in first information
report as well as in the charge-sheet are transpired.
If we continue and ask the petitioners to face the
trial, it would be an abuse of process of law. The
ratio laid down in above said authorities is
applicable here. When ingredients of offence

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punishable under Section 498-A, 323, 504 read with 34
of Indian Penal Code are not at all attracted, this
is a fit case where not only first information
report, but the entire charge-sheet itself deserves
to be quashed and set aside.

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16 Cri WP 1223 of 2017

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Hence, following Order;

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ORDER

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(i) Writ Petition is allowed.
(ii)The first information report
bearing crime No. 50/2017
dated 20.4.2017 registered
with Ramanand Police

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Station, Jalgaon for the
offences under Sections

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498-A, 323, 504 read with
34 of Indian Penal Code
that the proceedings in

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R. C. C. No. 323/2017

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pending before 5th CJJD and
JMFC are hereby quashed
and set aside.

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(iii) Rule made absolute in above
terms.

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 (SMT. VIBHA KANKANWADI) (PRASANNA B. VARALE)
 JUDGE JUDGE

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ggd/-.

Kantilal S/O. Zamu Gaikwad and Others v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Kantilal S/O. Zamu Gaikwad and Others v. the State of Maharashtra and Anr.

Case brief

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What did the court decide?

What the court decided

A compact analysis

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