Tag Archives: quash of 498a etc against sister in law

498a Dowry case on 11 year old brother Inlaw, married sis Inlaw, 74 year father Inlaw sheer abuse of law. Quashed. P&H HC

Fake case filing wife ropes in 3 in laws without any proper evidence or case against them. The court finds the case a sheer ABUSE of the process of law. Especially the court notes the following ” … Petitioner No.1 is the sister-in-law of the complainant, who got married on 04.02.1989 and has been residing in her matrimonial home since then and therefore, there is not even a remotest possibility that husband of the complainant was used to give beatings to her at the instance of petitioner No.1. Petitioner No.2 was born on 12.07.1979 and was 11 years of age in March, 1990 when the complainant alleged that she was given beatings by her husband at the instance of petitioner No.2. Moreover, he had left for Canada in March, 1996 and is residing there since then. Similarly, petitioner No.3 aged 74 years had left for Canada in 1996 and is residing there since then with petitioner No.2. In such an eventuality, it is hard to believe that petitioners had harassed the complainant as alleged in the complaint.It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades. The case in hand is also of similar nature..”

The sad saga borne out of Honorable COURT’s decree is given below

Punjab and Haryana High Court Dismisses Bail Plea of Man Accused ...

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M No.13517 of 2018

Date of Decision:15.05.2020

Amarjit Kaur and others ….Petitioners

versus

Jaswinder Kaur and another ….Respondents
CORAM:
HON’BLE MR. JUSTICE JAISHREE THAKUR
Present:
Mr. Bhrigu Dutt Sharma, Advocate for the petitioner.
Mr. Ish Puneet Singh, Advocate for respondent No.1.
Mr. Davinder Bir Singh, DAG, Punjab.


JAISHREE THAKUR. J

  1. This is a petition that has been filed under Section 482 Cr.P.C. seeking to quash Criminal Complaint No.31861/13 dated 06.09.2012 and the summoning order dated 06.12.2016 whereby petitioners herein have been summoned to face trial under Sections 498-A, 506, 120-B IPC and order dated 04.08.2017 declaring the petitioners as proclaimed offenders. Petitioners herein are the father-in-law, brother-in-law and sister-in-law of the respondent No.1 Jaswinder Kaur (hereinafter referred to as the complainant).
  2. In brief, the facts are that the abovesaid criminal complaint had been made by the complainant, who got married with Jaswant Singh on 05.08.1989. Jaswant Singh is none other than the real brother of petitioners No.1 and 2 and son of petitioner No.3. In the complaint it was averred that marriage was solemnized lavishly and a sum of `4 lakhs was spent thereon, apart from giving dowry articles, gold ornaments and other luxurious items. The complaint was made against the husband Jaswant Singh, Amarjit Kaur alleged to be second wife of Jaswant Singh, father-in-law Dilbagh Singh, mother-in-law Charan Kaur, brother-in-law Ranjit Singh and the sister-in-law Amarjit Kaur.
  3. It was further alleged that soon after the marriage, the accused persons named in the complaint started harassing the complainant on account of not bringing enough dowry and they raised a demand of Maruti 800 car along with an amount of `50,000/-. Though the complainant persuaded the accused persons with regard to inability of her parents to fulfill their demands, in the month of March, 1990, husband of the complainant at the instance of other accused gave her beatings and stated that she would have no place in the house if the demands are not fulfilled. Accused No.4 in the complaint i.e. mother-in-law of the complainant also raised a demand of gold ornament.
  4. On 24.07.1993, the complainant gave birth to a girl child namely Manjinder Kaur at Nawanshahar and entire expenses of the delivery were borne by parents of the complainant. It was alleged that after the birth of girl child, the mother-in-law raised a demand of `5 lakhs. The husband and petitioners herein along with mother-in-law taunted the complainant for not giving birth to a male child. In the year 2002, the complainant was turned out of the matrimonial home and at that point of time, her mother-in-law took all gold ornaments and other articles belonged to the complainant. It was further alleged that on 24.01.2008, husband of the complainant at the instance of his family members turned her out of matrimonial home and on 23.02.2008 also left the daughter with the complainant at Jalandhar and threatened her of dire consequences if she made a complaint against him. In this regard, the complainant made a complaint to SSP, Nawanshahr on 15.04.2008 but no action had been taken. In the month of September, 2009, severe blows were given in her stomach by accused No.1 i.e. the husband. She came to know that her husband solemnized a second marriage with one Amarjit Kaur (who was made accused No.2 in the complaint) without taking any divorce from her. She filed a petition under Section 125 Cr.P.C. and also an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. A complaint was also made by her to the Commissioner of Police on 5.76.2012 but no action had been taken.
  5. In support of her complaint, complainant stepped into witness box as CW1 and examined one Balkiat Singh as CW-2 and Piar Kaur as CW3, who reiterated the version of the complaint. She placed on record photographs of her husband with second wife as Ex.C3 to C5 and copies of petition filed under Section 9 of the Hindu Marriage Act against her and against his second wife as Ex.C6 and C7 respectively. The Judicial Magistrate 1st Class, Jalandhar on appreciation of material placed before it, vide order dated 25.03.2013 summoned the husband to face trial under Sections 406, 498-A, 506 and 494 IPC and the mother-in-law under Sections 406, 498-A and 506 IPC whereas the other accused persons were discharged including the petitioners herein.
  6. The aforementioned order was challenged by the complainant in revision before the Additional Sessions Judge, Jalandhar who vide order dated 02.02.2015 while noting the fact that there are specific allegations against accused No.3, 5 and 6 i.e. petitioners herein set aside the order passed by the Judicial Magistrate 1st Class, Jalandhar and directed to pass appropriate summoning order after re-considering the evidence placed before him.
  7. Since the revisional court set aside the order passed by the Judicial Magistrate, the complainant filed a petition before this Court to the extent that since the husband and mother-in-law did not challenge their summoning order, the revisional court gravely erred in setting aside the order in toto. This Court vide order dated 21.08.2015 clarified that the summoning order passed by the trial Court against husband Jaswant Singh and mother-in-law Charan Kaur will not be deemed to have been set aside.
  8. The trial Court on reconsideration of the evidence before it passed order dated 06.12.2016 whereby accused Nos.3, 5 and 6 i.e. petitioners herein have also been ordered to be summoned to face trial under Sections 498-A, 506 and 120-B IPC.
  9. Pursuant to the summoning order, notice were issued to the petitioners and since they did not put in appearance despite publication, they were declared as proclaimed offenders vide order dated 04.08.2017.
  10. Mr. Bhrigu Dutt Sharma, learned counsel appearing on behalf of the petitioners would submit that there is no specific allegation levelled against the petitioners in the complaint and therefore, the Judicial Magistrate vide order dated 25.03.2013 after appreciating the material placed before it gave a finding that no offence is made out against the petitioners herein and only summoned the husband and mother-in-law of the complainant to face trial under Sections 406, 498-A, 506 IPC. Even in the revision petition filed by the complainant against the aforementioned order, the revisional court failed to consider the fact that a right had been accrued in favour of the petitioner vide order dated 25.03.2013 passed by the Judicial Magistrate and therefore, an opportunity of hearing ought to have been given to the petitioners before setting aside the said order and gravely erred in remanding the matter back to the trial Court for reconsideration of the evidence. On remand, the trial Court failed to take into consideration that there is no specific allegation levelled against the petitioners in the complaint and in the absence of any specific allegation, a complaint is liable to be dismissed.
  11. He further contended that in pursuance to the summoning order dated 06.12.2016, summons issued to the petitioners were never served as the address of the petitioners given in the complaint by the complainant was incorrect as they were not residing at the said address at the relevant point of time. In support of his contention, he relied upon zimni orders dated 22.12.2016, 03.01.2017, 20.01.2017, 08.02.2017, 28.02.2017, 09.03.2017, 01.04.2017 and 24.04.2017 annexed with the petition as Annexure P-7 (colly). On the application moved by the complainant for effecting service upon the petitioners by way of substituted service, the trial Court vide order dated 24.04.2017 ordered the petitioners to be summoned by way publication. The proclamation published in the newspaper would show that petitioners No.2 and 3 were shown to be residents of Shaheed Bhagat Singh Nagar whereas they were actually residing in Canada since 1996 and the said fact was very well in the knowledge of the complainant. Moreover, petitioner No.1 was residing in her matrimonial home at Roper and therefore, was not aware of the pendency of the proceedings. The proclamation was published on 16.07.2017 and petitioners were required to be appeared before the trial Court on 17.07.2017 i.e. the very next day after the publication made in the newspaper. Even order dated 04.08.2017 declaring the petitioners as proclaimed persons has been passed before the expiry of 30 days of the publication of proclamation on 16.07.2017, which is in violation of the provisions of Section 82 (1) and 82 (4) of the Code of Criminal Procedure and therefore, is not sustainable in the eyes of law.
  12. Per contra, Mr. Ish Puneet Singh, learned counsel appearing on behalf of complainant-respondent No.1 supported the orders under challenge whereby petitioners have been ordered to be summoned to face trial and declared as proclaimed persons, while contending that the same have been passed on appreciation of material placed before the trial Court. The husband and the mother-in-law did not challenge the order whereby the husband had been ordered to face trial under Sections 406, 498-A, 506, 494 IPC and the mother-in-law under Sections 406, 498-A and 506 IPC. There are specific allegations levelled against the petitioners in para Nos.3, 5 and 6 of the complainant and therefore, they have rightly been summoned to face trial on the appreciation of evidence by the trial Court.
  13. I have heard learned counsel for the parties and have perused the paper book.
  14. It is the conceded position on record that in the first round of appreciation of evidence, the trial Court vide order dated 25.03.2013 gave a finding that no offence as levelled in the complaint is made out against the petitioners herein and summoned only husband and the mother-in-law to face trial. The complainant challenged the said order in revision petition and the revisional court remanded the matter to the trial court to pass a fresh order qua petitioners after re-appreciation of evidence. On re-appreciation of evidence, the trial court vide order dated 06.12.2016 summoned the petitioners to face trial under Sections 498-A, 506 and 120-B IPC and in pursuance to summoning order when the petitioners had failed to appear before it, the trial Court vide order dated 04.08.2017 declared them as proclaimed persons.
  15. It would be in the interest of justice to see at the first instance whether any offence is made out against the petitioners as per allegations levelled against them in the complaint or not? Because if the complaint fails, as a necessary corollary, all subsequent proceedings arising therefrom would automatically go. The allegations levelled against the petitioners in paras No.3, 5 and 6 of the complaint are reproduced as under:-
    “3.That on showing the incapability to arrange for Maruti 800 car and more dowry articles, in the month of March 1990, the accused No.1 at the instance of respondents No.3 to 6 started giving merciless beatings to the complainant…….
  16. That it is also not out of place to mention here that the accused No.1, 3 to 6 used to taunt the complainant for not giving birth to a male child……..
  17. That on 24.1.2008 the accused No.1 at the instance of accused No.3 to 6 started beating the complainant and further turned out the complainant from her matrimonial house in bare three clothes………All the dowry articles and shtridhan belonging to the complainant is in custody of accused No.1, 3 to 6 and are using the same for their personal gain since then the complainant is living at the mercy of her brothers and widow mother.”
  18. A perusal of the aforementioned would reveal that there are no direct and specific allegations against the petitioners that they had given beatings to the complainant or demanded any dowry article or misappropriated the shrtidhan. The expression used is ‘at the instance of accused No.1’. The complainant has failed to bring on record any evidence to show that she had been physically abused by the petitioners or entrustment of any dowry article.
  19. Petitioner No.1 is the sister-in-law of the complainant, who got married on 04.02.1989 and has been residing in her matrimonial home since then and therefore, there is not even a remotest possibility that husband of the complainant was used to give beatings to her at the instance of petitioner No.1. Petitioner No.2 was born on 12.07.1979 and was 11 years of age in March, 1990 when the complainant alleged that she was given beatings by her husband at the instance of petitioner No.2. Moreover, he had left for Canada in March, 1996 and is residing there since then. Similarly, petitioner No.3 aged 74 years had left for Canada in 1996 and is residing there since then with petitioner No.2. In such an eventuality, it is hard to believe that petitioners had harassed the complainant as alleged in the complaint.
  20. It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades. The case in hand is also of similar nature. The complainant has failed to make out a prima facie case against the petitioners regarding allegation of inflicting physical and mental torture to the complainant or demanding dowry from her. The complaint does not disclose specific allegation against the petitioners except casual reference of their names that husband of the complainant gave her beatings at the instance of petitioners. The Hon’ble Supreme Court in Geeta Mehrotra Vs. State of U.P. (2012) 10 SCC 741 quashed the FIR registered against the unmarried sister of the husband on the ground that prima facie case was not attracted against her in the absence of specific allegations.
  21. In view of the aforementioned facts and circumstances, this court is of the opinion that the case in hand is a sheer abuse of process of law and therefore, is a fit case to exercise the jurisdiction of this Court under Section 482 Cr.P.C. Consequently, the complaint No.31861/13 dated 06.12.2016 and all subsequent proceedings arising therefrom including the orders dated 06.12.2016 and 04.08.2017 qua petitioners are quashed.
  22. The petition is allowed accordingly.
    (JAISHREE THAKUR)

JUDGE

May 15, 2020

Pankaj*

Whether reasoned/speaking Yes/No
Whether reportable Yes/No

LOVE match 2 court! DV b4 marriage! 498a 307 323 AFTR marriage. Sis in law runs 4 quash !

LOVE match to court! DV even b4 marriage, 498a 307 323 AFTR marriage & Sis in law runs 4 quash. Bombay HC 498A Quashes case on facts

Classic case of a LOVE and INTERCASTE marriage where wife files DV before marriage and the rest 498a etc AFTER marriage. Many in laws including women are roped in.

Do you have an absurd 498a on a sister in law or a mother / father in law who are NOT even present at the place / time of incidents and allegation ? use this classic quash granted by Bombay HC

In this case of an inter-caste marriage the sister in law has NOT even visited the couple after marriage ! Sis in law lives in pune while alleged incidents are supposed to have happened at Aurangabad. Sis in law’s name is NOT in the FIR or in the preliminary evidences but she is roped in as an after thought. The case on the husband itself looks like an after thought !! initially the woman says it was an accident, but later the woman says her first statement was under pressure !! and make a fresh statement and FIR is lodged and case starts !!

Bombay HC appreciates the facts, quotes the classic Chaudhry Bajan Lal’s case and quashes the case against the sister in law

Excerpts :
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Initially at the hospital, the wife / complainant woman says “…..her husband took her along with their children in their own car to Dhoot hospital for treatment. As there was no facility for burnt patients, the complainant was shifted to Bobde Hospital, Beed Bypass road, Aurangabad. The complainant was treated 8 days. …5. It is alleged that during the course of the treatment at Bobde Hospital, police and government officer recorded the statement of the complainant, in which she has stated that the kerosene can was spread over and as there was no electricity in the house, while igniting the candle, suddenly there was a burst. Thus, she sustained burn injuries. She had also stated that, no one tried to burn her and she has no complaint against anyone. …..” … so initially this was JUST an accident

But later on the the wife / complainant woman changes that statement and says the first statement was MADE UNDER fear ! She was worried that husband will beat her!! So she makes a fresh statement to get an FIR lodged against husband and in laws !! “…..It is further alleged that at that time, no close relative of the complainant was there with her and her husband was threatening her to beat her and the children and therefore, the complainant stated the statement under pressure. Thereafter, it is alleged in the FIR that she   was feeling better and taking treatment in Dahiphade hospital, Adalat Road, Aurangabad. Therefore, she has lodged the complaint……..”

The sister in law petitions for a quash on the following grounds “…..6. The learned Counsel for the petitioner submitted that the FIR was registered against the husband by the complainant and there was no mention of petitioner’s name, no allegation was made against her by the complainant. The complaint was lodged belatedly, which is afterthought. He submitted that the petitioner is a married sister-in-law of the complainant. He submitted that the petitioner had performed intercaste marriage and since then, she had not visited house of her parents, the complainant and her husband. The petitioner is permanently residing with her husband at Pune. The complainant even did not make any allegation against the petitioner in her complaint and also in the statement recorded in the hospital by the Magistrate….”

The sister in law also shows that though the incident is supposed to have happened on 22.12.2013, the sister in law’s name is NOT mentioned in the FIR or preliminary statements and her name is roped in by the wife’s father only on 30.01.2014 !

Bombay HC appreciates the facts, quotes the classic Chaudhry Bajan Lal’s case and quashes the case against the sister in law. The honourable HC goes to say “….13. The case in hand is covered under Categories (1) and (5)   of the said categories. The view taken by us also lends support from the view taken by the Supreme Court in cases of (1) Preeti Gupta & Anr., (supra), (2) Shalu @ Siya Lavin Keswani and others (supra), and (3) Sau. Sharda Ravindra Patil and others (supra)…..”

The Bombay HC observes that “….. It appears that there is belated attempt by the mother of the complainant namely, Sangita Suresh   Shirke to attribute role to the petitioner for the incident dated 23.12.2013. In fact, the complainant had lodged FIR and also her statement at the earliest opportunity was recorded, in which name of the petitioner is not mentioned….”

It is important to note that clauses (1) and (5) of Ch. Bajan Lal’s case are as follows :

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;

5. 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

So.. an absurd and inherently improbable case is used to harass half a dozen people AFTER A LOVE MARRIAGE

*****************************disclaimer*******************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Pallavi W/O Sagar Gour vs The State Of Maharashtra & Anr on 31 July, 2015

Bench: S.S. Shinde

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.532 OF 2015.

Pallavi w/o Sagar Gour,
age 27 years Occu. Household,
r/o House No.11, Dhavle Niwas,
Dhawle Vasti, Marwanji Road,
Wakad Chinchwad, Pune.                                   … PETITIONER.

VERSUS

1. The State of Maharashtra.

2. Supriya w/o Vishal Sudke,
age 28 years, occu. Household,
r/o C/o Ssuresh Shirke, Kasba-Bhoom,
Tq. Bhoom, Dist. Osmanabad.                              … RESPONDENTS.

Mr.S.J. Rahate, Advocate for the Petitioner.
Mr.B.L. Dhas, APP for the Respondent – State.
Mr.K.R. Doke, Advocate for Respondent No.2.

CORAM : S.S. SHINDE & A.I.S.CHEEMA, JJ.

Reserved on : 17.07.2015.

Pronounced on : 31.07.2015.

JUDGMENT [Per S.S.Shinde, J.]:

1. The petitioner has filed this petition with the following prayer:

“(B) The chargesheet & proceedings of Sessions Case No.255/2014 pending before the Court of Sessions, Aurangabad offences U/sec.307, 498-A,323, 506 r/w 34 of the Penal Code crime No.I-13/2013 registered with police station MIDC Aurangabad initiated on the basis of the chargesheet filed against the present petitioner be quashed and set aside;”

Rule, returnable forthwith. By consent of the parties, taken up for final hearing.

2. It is the case of the petitioner that, a lady namely Supriya w/o Vishal Sudke r/o Shradha colony (MHADA), HIG-13, Opp. Dhoot Hospital Mukundwadi Aurangabad lodged a complaint with P.S. MIDC CIDCO U/sec. 307, 323, 506 of I.P.Code against her husband alleging inter alia that the marriage between them was solemnized in 2008. the couple has been blessed with two children, one boy namely Harshad 5 years and a girl namely Mitali.

3. It is alleged that the complainant was treated well for few days thereafter, she was ill-treated by her husband.

Under influence of liquor her husband used to beat her and her in-laws never used to interfere. The father-in-law of the complainant expired in July, 2013, since then husband of   complainant started consuming liquor. It is alleged that the husband of complainant used to beat her on petty reasons and she never disclosed about the ill-treatment to her parents as her husband used to threaten her by saying that he will beat her and the children.

4. It is alleged that on 22.12.2013 at 11.30 pm when the complainant, her husband and their children were in the house, the children were asleep, at that time the husband of complainant asked telephone number of her father and the complainant replied that she don’t know the telephone number. On account of this, her husband abused and allegedly drove her out of the house. Thereafter, immediately again he took her inside and locked the door from inside. It is alleged that the husband of complainant then took her to backside of the house and poured kerosene from the plastic can. It is further alleged that the complainant then started running. Her husband then poured kerosene on the person of the complainant from back and threw burning match stick on her sari. She further stated that she herself removed her clothes due to which she sustained burn injuries over her hand, entire front portion, chest, stomach, back, leg. She   further stated that thereafter she jumped in the water tank.

It is alleged that her husband did not try to rescue her. The complainant herself told her husband to shift her to the hospital otherwise she will shout and gather the neighbours, thereafter, her husband took her along with their children in their own car to Dhoot hospital for treatment. As there was no facility for burnt patients, the complainant was shifted to Bobde Hospital, Beed Bypass road, Aurangabad. The complainant was treated 8 days.

5. It is alleged that during the course of the treatment at Bobde Hospital, police and government officer recorded the statement of the complainant, in which she has stated that the kerosene can was spread over and as there was no electricity in the house, while igniting the candle, suddenly there was a burst. Thus, she sustained burn injuries. She had also stated that, no one tried to burn her and she has no complaint against anyone. It is further alleged that at that time, no close relative of the complainant was there with her and her husband was threatening her to beat her and the children and therefore, the complainant stated the statement under pressure.

Thereafter, it is alleged in the FIR that she   was feeling better and taking treatment in Dahiphade hospital, Adalat Road, Aurangabad. Therefore, she has lodged the complaint.

6. The learned Counsel for the petitioner submitted that the FIR was registered against the husband by the complainant and there was no mention of petitioner’s name, no allegation was made against her by the complainant. The complaint was lodged belatedly, which is afterthought. He submitted that the petitioner is a married sister-in-law of the complainant. He submitted that the petitioner had performed intercaste marriage and since then, she had not visited house of her parents, the complainant and her husband. The petitioner is permanently residing with her husband at Pune.

The complainant even did not make any allegation against the petitioner in her complaint and also in the statement recorded in the hospital by the Magistrate.

7. The learned Counsel for the petitioner further submitted that, statements of complainant, her mother and father were recorded on 23.12.2013 and none of them alleged anything against the petitioner. Even in the statement /FIR   dated 21.01.2014, the complainant made allegations against the petitioner. The learned Counsel for the petitioner further submitted that, in the statement recorded on 30.01.2014 Suresh Vishwanath Shirke – father of the complainant made vague, general, omnibus and inconsistent allegations against the petitioner. Mother of the complainant namely, Sangita w/o Suresh Shirke in her statement dated 30.01.2014 made the same allegations against the petitioner. It is submitted that, brother of the complainant namely, Abhilash s/o Suresh Shirke and uncle of complainant namely, Santosh Shamrao Dhanlangde, in their statements dated 30.01.2014 made general, vague and afterthought allegations against the petitioner. <SMALL>http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com</SMALL&gt;

In support of his submissions that, even if the allegations in the FIR are taken at its face value and considered in its entirety, no offence is disclosed against the petitioner, the learned Counsel for the petitioner placed reliance on the authoritative pronouncement of the Apex Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others1, and also the judgment dated 17 th 1 AIR 1992 SC 604; October, 2012 delivered by the Supreme Court in case of Geeta Mehrotra & Anr vs. State of U.P. & Anr. in Criminal Appeal No.1674 of 2012 (arising out of SLP (Cri) No.10547/2010), and the judgment dated 13th August, 2010 of the Supreme Court in case of Preeti Gupta & Anr. Vs. State of Jharkhand & Anr delivered in Criminal Appeal No.1512 of 2010 (arising out of SLP (Cri) No.4684/2009). He also placed reliance on the judgment of this Court dated 29 th January, 2015 in Criminal Application No.5501 of 2014 in case of Shalu @ Siya Lavin Keswani and others vs. The State of Maharashtra and Ors. as also the order dated 2nd July, 2015 in Criminal Application No.6993/2014 in case of Sau. Sharda Ravindra Patil and others vs. The State of Maharashtra and Anr., therefore, submitted that this petition may be allowed.

8. The learned APP appearing for the State and the learned Counsel for the respondent No.2 submitted that the witnesses namely , father, mother, brother and uncle of the complainant have categorically made allegations against the petitioner and   endorsed her role in meeting out ill-treatment, harassment to the complainant and, therefore, the petition may be dismissed.

The learned Counsel for the respondent No.2 submitted that charge-sheet has already been filed and, hence the petitioner is having alternate remedy of filing application for discharge. It is submitted that there is specific accusation against the present petitioner in the statements of the witnesses. They have specifically stated that, the petitioner had subjected complainant to cruelty and instigated to kill her. He submitted that the parents, brother and maternal uncle of the complainant have specifically made allegations against the petitioner. He further submitted that there is series of incidents which clearly reveal that present petitioner also subjected the respondent No.2 to cruelty on various occasion. He submitted that, even if it is assumed that section 307 IPC would not be attracted against the petitioner, but petitioner is liable to be prosecuted u/s 498A of IPC. He submitted that for the purpose of offense u/s 498A of IPC, it is not necessary that accused should be present on the spot, it can be mental state of affairs. The initial statement of the complainant as well as mother and father is totally under the   undue influence and coercion as the little children of the respondent No.2 are in custody of the petitioner’s brother and she was threatened. He submits that if the charge-sheet against the petitioner is quashed and set aside, it will badly affect the trial. Therefore, he submits that the petition may be dismissed.

9. We have heard the learned Counsel for the petitioner, learned APP for the State and the learned Counsel appearing for the respondent No.2 – complainant. We have also carefully perused the statement of the witnesses and other accompaniments of the charge-sheet. It is not in dispute that the petitioner is married sister-in-law of the complainant. Her marriage was performed in the year, 2009. The said marriage was an intercaste marriage. It is case of the petitioner that since she performed intercaste marriage against the wish of parents, she is not on visiting terms to the parents and therefore, there was no question of her presence at Aurangabad as alleged by the prosecution witnesses. It appears that the petitioner shifted to Pune and since her marriage, she is residing at Pune. Petitioner has also placed on record proof of her residence at Pune. Upon careful   perusal of the FIR registered by the complainant n 21 st January, 2014, name of the petitioner in respect of alleged offence taken place on 23.12.2013 is not included. The complainant had also given statement about the said incident at the earliest opportunity on 23.12.2013. In that statement also name of the petitioner is not mentioned. It appears that the prosecution witnesses have implicated the petitioner by making general allegations belatedly. It is true that there are general allegations in the statements of the witnesses.

However, at the earliest opportunity when the statements of the witnesses were recorded on 23.12.2013, name of the petitioner was not mentioned. It appears that the statement of Suresh Vishwanath Shirke was recorded on 30 th January, 2014 wherein general allegation has been made against the petitioner. However, there is no any specific role attributed to her or no any specific date is mentioned on which the petitioner was involved in harassment / ill-treatment of the complainant. Even, the statement of the mother of the complainant also, more or less, makes general allegation against the petitioner along with other members of the family of the complainant. It appears that there is belated attempt by the mother of the complainant namely, Sangita Suresh   Shirke to attribute role to the petitioner for the incident dated 23.12.2013. In fact, the complainant had lodged FIR and also her statement at the earliest opportunity was recorded, in which name of the petitioner is not mentioned.

10. Statement of mother of the complainant was recorded on 30th January, 2014 i.e. belatedly, after 38 days of the alleged incident dated 23.12.2013. Other witness Santosh Dhanlagade – uncle of the complainant has also made general allegations. Upon perusal of the entire material placed on record, there appear to be no any specific allegation attributing specific overt-act to the petitioner. It appears that the petitioner is residing at Pune since the year, 2009, she has having a child of three and half years, studying in English School at Pune, as contended by the petitioner in her rejoinder to affidavit-in-reply. It is also relevant to mention that the proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 has been initiated by the wife in the year, 2005 and neither name of the petitioner is mentioned nor any specific role is attributed to her in the said proceedings. That proceeding was even before the marriage of the   petitioner.

11. In that view of the matter, in our opinion, further proceedings of Sessions Case No.255/2014 pending before the Court of Sessions, Aurangabad for offences punishable under sections 307, 498-A, 323, 506 r/w 34 of the Penal Code arising out of Crime No.I-13/2013 registered with police station MIDC Aurangabad as against the petitioner, will be an exercise in futility and abuse of process of Court. The petitioner has placed on record sufficient material, which clearly indicates that she is residing at Pune from the year, 2009.

12. 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. :

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;

2. 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;

3. 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;

4. 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;

5. 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;

6. 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.

7. 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.

13. The case in hand is covered under Categories (1) and (5)   of the said categories. The view taken by us also lends support from the view taken by the Supreme Court in cases of (1) Preeti Gupta & Anr., (supra), (2) Shalu @ Siya Lavin Keswani and others (supra), and (3) Sau. Sharda Ravindra Patil and others (supra).

14. In the light of the discussion in foregoing paragraphs, the charge-sheet and the proceedings of Sessions Case No.255/2014 pending before the Court of Sessions, Aurangabad for offences punishable under sections 307, 498-A, 323, 506 r/w 34 of the Penal Code arising out of Crime No.I-13/2013 registered with police station MIDC Aurangabad stand quashed and set aside as against the petitioner.

We make it clear that the observations herein above are for the purpose of deciding the present petition and the trial Court shall not get influenced by the said observations while conducting the trial against other co-accused. Rule made absolute in above terms. Petition stands disposed of, accordingly.

[A.I.S.CHEEMA, J.]                 [S.S. SHINDE, J.]

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