498A Quashing Judgment!! – Manoj Bhimrao Wankhede

 

Manoj Bhimrao Wankhede vs Unknown on 24 November, 2009

                               1

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR

             Criminal Application No. 3833/2007

1. Manoj Bhimrao Wankhede,

        aged 42 years, Occ. Service,

        r/o Near Door Darshan Kendra,

        Morshi, Tq. Morshi, Dist. Amrvati.

2. Sau. Veena w/o Sunil Naik,

        aged 37 years, Occ.service,

        r/o Anand Nagar, Shegaon Road,

        Tq. Dist. Amravati.

3. Sau. Ramabai wd/o Bhimrao Wankhede, aged 58 years, r/o Khorej Colony,

        Shegaon Raod, Tq. Dist. Amravati.

                                          .. APPLICANTS

                  .. Versus ..

1. State of Maharashtra,

        thr. PSO Gadge Nagar, Amravati,

        Tq. Dist. Amravati.

2. Sau. Sandhya Manoj Wankhede,

        aged about 34 years, r/o Khorej

        Colony, Shegaon Road, Near

        Gadge Baba Library, Amravati,

        Tq. Dist. Amravati .. NON APPLICANTS  ———————————-
———————————————– Mr. J. Y Ghurde, Advocate for
applicant. .

Mr. V. A. Thakare, A.P.P. for non applicant no.1 Mr. S. R. Deshpande, Advocate
for non applicant no.2. ——————————————————–
————————-  CORAM:- S. S. SHINDE, J.

Date of Reserving the Judgment:- 24.11.2009 Date of Pronouncing the Judgment:-
01.12.2009 2

JUDGMENT

1. This application is filed with prayer to quash  and set aside Criminal
Proceeding initiated by non  applicant no.1 against the applicant for the
offence  punishable under Section 498-A read with Section 34 of  the Indian
Penal Code vide Charge Sheet No. 186/2007  dated 10.09.2007 registered as
Criminal Case No.  892/2007 on the file of Judicial Magistrate First Class
Court No.1, Amravati. The facts of the case as disclosed  in the application are
as under.

2. Applicant nos. 1 and 2 are brother and sister  and applicant no. 3 is their
mother. Marriage of applicant  no.1 and non applicant no.2 was registered on
20.01.2005  at the office of Sub Registrar, District Amravati.  Thereafter, both
cohabited at Yavatmal where applicant  no.1 was serving in Agriculture
Department as Supervisor  till he joined at Taluka Morshi, Dist. Amravati as an
Agriculture Officer. It is the case of the applicant that non  applicant no.2
soon after her marriage used to rudely 3

behave with her in-laws as and when they used to visit  the applicant’s house.

3. Applicant no.1 on 14.05.2007 received a  notice dated 09.05.2007 addressed to
him and sent by  Advocate Pravin Deshmukh on behalf of one Uday  Wankhede. On
reading the said notice, it reveals that non  applicant no.2 is already married
to one Uday Wankhede  and documents annexed thereto demonstrate that the  first
marriage of non applicant no. 2 is still subsisting.

4. It is the case of the applicant that non  applicant no.2, on enquiry by
applicant no.1 about earlier  marriage, she instead of discussing with him,
abused him  in filthy language and left the matrimonial house taking  with her
all valuables including those gifted by applicant  no.1. Thereafter, non
applicant no. 2 started residing at  her mother’s house. Applicant no.1 tried to
contact her  but there was no response from non applicant no.2,  therefore,
applicant no.1 was constrained to issue a legal  notice to non applicant no. 2
through is counsel Mr. Rajesh 4

Tayade. Applicant no.1 filed complaint on 22.06.2007  under Section 494, 420
read with Section 34 of the Indian  Penal Code against non applicant no.1 and
her relatives  vide Criminal Complaint No. 520/2007.

5. It is the case of the applicants that on  10.06.2007, at about 10 p.m. non
applicant no.2  accompanied with her mother and relatives forcibly  entered into
his house at Amravati and started abusing  him in filthy language and they
themselves sent  telephonic message to non applicant no.1. Applicant no.1  along
with non applicant no. 2 and her relatives was taken  to Police Station where
non applicant no.2 lodged a false  and concocted report against applicant no.1.
Thereafter,  non applicant no.1 issued a notice under Section 149 of  the Code
of Criminal Procedure to the applicant, which  reveals that on the basis of
report lodged by non  applicant no.1,case was registered as NC 63/2007.

6. On 13.06.2007, when applicant no.1 was  present at the Women’s Cell at Police
Commissionarate, 5

Amravati as he was directed in lieu of the report lodged  on 10.06.2007 he came
to know that on the basis of  another report lodged on 11.06.2007, by non
applicant  no.2 offence punishable under Section 498-A r/w 34 of the  Indian
Penal Code is registered against applicant no.1 as  also applicant nos. 2 and 3.
It is the case of applicants  that in the second report dated 11.06.2007,
applicant  no.2 is implicated for the first time. It is the case of  applicant
that on 11.06.2007, applicant nos. 2 and 3 were  not present and had already
left for Pune on 08.06.2007.  Applicant nos.1 and 2 preferred pre-arrest bail
application  before the Sessions Court, Amravati. The anticipatory bail  came to
be granted to them. Applicant no.2 also applied  for pre-arrest bail and the
same was granted even to  applicant no.2.

7. Non applicant no.1 herein filed charge-sheet  on 10.09.2007 in the Court of
Judicial Magistrate First  Class Court No. 1, Amravati. It is the case of
applicants  that perusal of the charge-sheet reveals that no offence  muchless
any offence under Section 498-A is committed 6

by the applicants. Hence, this application under Section  482 of the Code of
Criminal Procedure is filed.

8. Learned counsel appearing for the applicants  submitted that the first
marriage of non applicant no.2  with one Uday Wankhede being subsisting the
marriage of  non applicant no.2 with applicant no.1 is void ab initio  and in
view of this, provision of Section 498-A of the  Indian Penal Code is not at all
attracted. Therefore, the  proceedings against applicants are liable to be
quashed  and set aside as continuation of the same would amount  to abuse of
process of law. Learned counsel further  submitted that the criminal proceeding
initiated against  applicants at the behest of non applicant no.2 is tainted
with the malice and vengeance inasmuch as the same  were initiated solely
because the fraud committed by non  applicant no. 2 came to light and applicant
no.1 had  issued legal notice in respect of the same to non applicant  no.2. It
is further submitted that since non applicant no.2  is only interested in the
property of applicant no.1  inasmuch as she has forcibly occupied a part of the
7

residential house of the applicants at Amravati and is  continuing to harass the
applicants by filing litigations  under the provisions of Protection of Women
From  Domestic Violence Act, 2005. It is further submitted that  provision of
Section 498-A of the Indian Penal Code which  clearly envisages and presupposes
existence of valid  marriage and if not accused cannot be prosecuted for the
same. It is further submitted that applicant no.2 sister  and applicant no.3
mother of applicant no.1 have been  unnecessary roped. They have no concern with
the  dispute between applicant no.1 and non applicant no.2.  They are residing
separately and have been roped in  merely because they happen to be related to
applicant  no.1. It is further submitted that though allegations of  demands are
there in the complaint, no specific incident  is mentioned and only vague and
general allegations are  made. It is further submitted that non applicant no.2
has  no regard for truth. On the one hand, she says that there  is customary
divorce in between Uday Wankhede and  herself and on the other hand in her
written statement in  Special Marriage Petition No. 8/2007 filed by applicant 8

no.1 she claims that she was residing along with said  Uday Wankhede as his
wife, though no legal marriage was  ever solemnized. Thus, she is blowing hot
and cold at the  same time and adopted convenient stance just to harass  the
applicants. Therefore, the applicants would submit  that the proceeding
initiated against the applicants  deserves to be quashed and set aside. Learned
counsel,  in support of his contention, placed reliance in the case of  Smt.
Yamunabai Anantrao Adhav ..vs.. Anantrao  Shivram Adhav and another; AIR 1988
Supreme  Court 644 and invited my attention to para 8 of the said  judgment and
submitted that marriage of a man in  accordance with Hindu rites with a woman
having living  spouse is complete nullity in the eye of law and the wife is  not
entitled to benefits of Section 125 of the Code of  Criminal Procedure. Learned
counsel further invited my  attention to the reported judgment of the Madhya
Pradesh High Court in Ramnarayan & Ors. ..vs.. State  of M.P.; 1998 (3) Crimes
147; and more particularly  para 5 and 8 of the said judgment. Learned counsel
further placed reliance in the case of Raghothaman and 9

ors ..vs.. State of Karnataka and anr.; 2004 CRI.L.J.  1974 and submitted that
cruelty and dowry demand and  offence, presuppose existence of valid marriage.
If wife is  married to some other person at the time of her marriage  with
accused husband, her marriage with accused  husband is void ab initio and
proceedings against accused  are liable to be declared null and void and liable
to be  quashed. Learned counsel further invited my attention to  para 11 and 12
of the said judgment. Therefore, learned  counsel submitted that any further
continuation of  proceedings against applicants would be abuse of process  of
law and abuse of process of Court, therefore, the same  deserves to be quashed.

9. On the other hand, learned counsel for the  non applicant no.2 invited my
attention to the contents of  complaint and also reply filed on behalf of non
applicant  no.2. It is further submitted that the fact whether the  earlier
marriage is subsisting or not is disputed question  of fact and the same cannot
be gone into in a criminal  case under Section 482 of the Code of Criminal
Procedure. 10

Learned counsel further submitted that the mother of non  applicant no.2 was
examined on 04.09.2001 and she has  specifically stated that there was customary
divorce  between Uday Wankhede and Sandhya. Learned counsel,  placing reliance
on the evidence of mother of non  applicant no.2 submitted that if the
applicants dispute  about customary divorce, then it becomes disputed  question
of fact. It cannot be entertained in a proceeding  under Section 482 of the Code
of Criminal Procedure.  Learned counsel submitted that there was abetment by
applicant nos. 2 to 3 for the activities for applicant no.1.  Applicant no.1 has
given cruel treatment to non applicant  no.2-wife and applicant nos. 2 and 3
instigated applicant  no.1. It is further submitted that all the three
applicants  have criminal conspiracy against the complainant. It is  further
submitted that documents brought on record and  contents of complaint are yet to
be proved by oral  evidence. Learned counsel invited my attention to the
deposition of witnesses, which are placed on record.  Learned counsel invited my
attention to the affidavit-in-  reply filed on behalf of non applicant no.2
which is at 11

page no. 69 to 77 of the compilation. It is submitted that  the applicants have
admitted the factum of marriage with  non applicant no.2 and thus offence under
Section 498 -A  read with Section 34 of the Indian Penal Code is being
committed when the marriage still is in subsistence.  Hence, the act of
applicants come under the ambit of  Section 498-A of the Indian Penal Code. It
is further  submitted that applicant no.1 was already knowing the  previous
relations of non applicant no.2 and Uday  Wankhede of Nagpur and also aware of
the fact that said  Uday Wankhede has got job at Dubai and he had left  Nagpur
forever.

10. Learned counsel invited my attention to para 4  of the affidavit-in-reply
and submitted that the applicants  concocted and created story by sending false
notice to  applicant no.1. Learned counsel further submitted that  under the
interim protection order passed by Judicial  Magistrate First Class, Court No.
1, Amravati in Misc.  Criminal Application No. 203/2007, the applicants are
directed not to evict non applicant no.2 from matrimonial 12

house. Learned counsel further invited my attention to  the remaining paragraphs
of the affidavit-in-reply in  support of his contention. Learned counsel invited
my  attention to the copy of the oral report of the complainant  and submitted
that the applicant no.1 used to beat her  and was forcing the complainant to
agree for divorce.  Applicant no.1 used to assault and use filthy language to
the complainant. Applicant no.1 used to demand money  and used to torture the
complainant by asking her to  bring money from her mother else agree for
divorce. It is  further submitted that applicant nos.2 and 3 also used to
instigate applicant no.1 and also abuse non applicant no.2  by using filthy
language. Learned counsel further invited  my attention to further submission of
the complainant  dated 12.06.2007 at page no. 58 of the compilation and
submitted that applicant no.2 sister-in-law on every  Sunday used to invite her
husband and mother-in-law.  However, she used to be excluded by the present
applicants. Applicant no.1 used to come at late in the  night on Sunday and upon
query by the complainant  about late coming in the night, the husband used to 13

assault and further abuse the complaint. It is further  submitted that applicant
nos. 2 and 3 also use to trouble  and complainant by quarreling with her.
Learned counsel,  on the basis of contents of the complaint and other  material
placed on record and also on the basis of  affidavit-in-reply would submit that
even applicant nos. 2  and 3 cannot go free without trial. It is further
submitted  that the mother used to instigate all the applicants to  hatch
conspiracy and thus applicant nos. 2 and 3 abated  the crime in question.
Therefore, the application deserves  to be rejected. Learned counsel further
submitted that  allowing the application filed by the applicants means  there is
no opportunity to the complainant or the  prosecution to even lead the evidence
and prove that  case. It is further submitted that the point, which is  raised
by applicants that there was no customary, divorce  between previous husband of
complainant, becomes  disputed question of fact and the same may not be
adjudicated in the instant case. Learned counsel further  invited my attention
to the maintenance proceedings  between the parties and submitted that applicant
no.1 is 14

directed to pay maintenance to the complainant. The  same can substantiate all
the arguments of learned  counsel for the complainant is that this applciation
under  Section 482 of the Code of Criminal Procedure may be  rejected.

11. Heard learned counsel for the applicants and  complainant as well as A.P.P.
for the State. On careful  perusal for the complaint and entire material placed
on  record, I find substance in the arguments advanced by  learned counsel for
the complainant so far applicant no. 1  is concerned. However, on careful
perusal of the contents  of the complaint and also other documents place on
record it appears to me that applicant nos.2 and 3 are  unnecessarily roped in
the case. In fact, applicant no.2,  who is sister of applicant no.1 is residing
separately and,  therefore, even if the allegations are taken as it is from  the
First Information Report, no offence can be attributed  against applicant no.2.
It is further admitted position that  applicant no.1 and complaint were staying
at Yavatmal  and they have shifted to Amravati. Where applicant no.1 15

and complainant are residing is the house of the mother.  Therefore, nobody
prevented the couple i.e. applicant  no.1 and complainant to have their separate
residence.  In fact, the mother, who is old aged person is staying in  her house
and on reading allegations in the First  Information Report or complaint, I do
not find any case is  made out against even the applicant no. 3-mother.

12. Learned counsel appearing for the applicants  has placed reliance on various
judgments cited supra, in  support of his contention that subsisting earlier
marriage,  the subsequent marriage between applicant no.1 and  complainant is
void ab initio and, therefore, no further  proceeding under Section 498-A and
other Sections of the  Indian Penal Code can be continued and on this ground
alone, the proceedings are required to be rejected in view  of the pronouncement
of Hon’ble Supreme Court in the  case of Reema Aggarawal ..vs.. Anupan and
others;  AIR 2004 Supreme Court 1418. The Hon’ble Apex  Court, in para 18 held
as under:-

      “It would be appropriate to construe the expression “husband” to cover a
person who 16

     enters into marital relationship and under the colour of such proclaimed or
feigned status of husband subjects the woman concerned to cruelty or coerce her
in any manner or for any of the purposes enumerated in the relevant
provisionsSections 304-B/498-A, whatever be the legitimacy of the marriage
itself for the limited purpose of Sections 498-A and 304-B, IPC. Such an
interpretation, known and recognized as purposive construction has to come into
play in a case of this nature. The absence of a definition of “husband” to
specifically include such persons who contract marriages ostensibly and
cohabitate with such woman, in the purported exercise of his role and status as
“husband” is no ground to exclude them from the purview of S. 304-B or 498-A,
IPC viewed in the context of the very object and aim of legislations introducing
those provisions.”

  On reading above paragraphs from the said  judgment and also other part of the
said judgment, the  submissions of learned counsel for the applicants is not
unsustainable.

                            17

13. Apart from above, there are specific  allegations against the husband-
applicant no.1 in the  complaint about cruel treatment of the complainant and
also about demands and also beating and torturing.  There are also specific
allegations about forcing the  complainant to agree for the divorce. There is
enough  material to proceed against applicant no.1. The point,  which is raised
by applicant no.1 that there is no divorce  between the earlier husband of
complainant and herself,  becomes disputed question of fact and it cannot be
adjudicated upon in an application, which is filed under  Section 482 of the
Code of Criminal Procedure.

14. On careful scrutiny of contents of application,  annexures thereto and other
material, I am of the  considered view that so far as the case of applicant no.1
is concerned the same is required to be rejected. Hence,  so far as applicant
no. 1 is concerned, the application  stand rejected. It means criminal
proceedings would  proceed further so far as applicant no. 1 is concerned. 18

15. So far as applicant nos.2 and 3 are concerned,  as stated hereinabove,
applicant no.2 who is sister of  applicant no.1 and she is staying separately
and also a  married woman, therefore, on careful scrutiny of the  allegations
levelled against her, I do not find any  substance in the said allegation and it
appears to be  concocted. Hence, any continuation of further proceeding  or
investigation against applicant no.2 would be futile  exercise and would be
resulting in wastage of time and  abuse of process of law and courts. Therefore,
so far as  case of applicant no.2 is concerned, the same deserves to  be
allowed.

              So far as applicant no.3 is concerned, she is an  old aged person.
She is mother of the applicant no.1  staying in her own house and applicant no.1
and  complainant on transfer they came from Yavatmal and  staying in the house
of applicant no.3, who is mother of  applicant no.1. On careful perusal of the
entire material  placed on record, I do not find, by any stretch of
imagination, that further proceedings can be continued  against applicant no.3.
Hence, any further investigation or 19

proceeding would be the futile exercise and wastage of  time and would be abuse
of the process of law and Court.  Therefore, even in respect of applicant no.3,
further  proceedings and investigation needs to be quashed and  set aside.

16. In the result, the application is partly allowed.  The Criminal Application
is rejected insofar as  applicant no.1 is concerned and allowed in respect of
applicant nos. 2 and 3.

             Criminal proceeding initiated by non applicant  no. 1 against
applicant nos. 2 and 3 for the offence  punishable under Sections 498-A read
with Section 34,  being charge-sheet no. 186/2007 dated 10.09.2007  registered
as Criminal Case No. 892/2007 on the file of  Judicial Magistrate First Class,
Court No.1, Amravati is  quashed and set aside. The concerned Court can proceed
against applicant no.1-Manoj.

             Rule made absolute in the above terms.

  JUDGE

kahale

Link Here :

http://www.indiankanoon.org/doc/801831/

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2 Responses to “498A Quashing Judgment!! – Manoj Bhimrao Wankhede”

  1. usharani123 Says:

    It feels so good to see that fir gets quashed and the innocent victims are saved from the bitches trying to harass in laws.. hope ours also gets quashed soon. May judge be the god when he is hearing our case….

    Like

    • want2change Says:

      Indeed .

      Like


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