1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.2295 OF 2008 Mrs.Urmila W/o. Naval Goenka and Ors. .. Petitioners Vs. The State of Maharashtra and Anr. .. Respondents Mr.A.M.Saraogi for the petitioners Mrs.A.A.Mane, A.P.P. for the State Mr.Anil Agarwal for respondent no.2 CORAM : S.C.DHARMADHIKARI, J. RESERVED ON : SEPTEMBER 9, 2010 PRONOUNCED ON : SEPTEMBER 21, 2010 JUDGMENT : 1. Rule. Respondents waive service. By consent, Rule made returnable forthwith. 2. This writ petition has been assigned to me pursuant to the direction of Hon ble the Chief Justice and since in my earlier assignment I had heard it ’ for some time. 2 3. This writ petition invokes the powers of this court under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure to challenge the order issuing process dated 21.05.2008 which order came to be confirmed by the court of Sessions, Greater Bombay by its order dated 20.09.2008 in Criminal Revision Application No.765 of 2008. 4. The petitioners before me are the original accused nos.2, 5 and 6. 5. The respondent no.2 before me is the original complainant. The respondent no.2 filed criminal case no.34/M/2008 against seven persons alleging offences punishable under sections 323, 341, 342, 385 to 387 and section 506(II) of the Indian Penal Code. 6. The case of the complainant is that he is a Doctor by profession and resides at Flat No.64, Ameeta Building, 13th Floor, General Jagannath Bhosale Marg, Mumbai 400 021 along with his family consisting of his wife and two sons. The wife is also a Doctor. The Complainant is working at Bombay Hospital as Chief Staff Medical Officer for the past more than 15 years. His elder son Deepak Agarwal is a Chartered Accountant by profession, so also, residing with him at this flat till recently when he shifted alongwith his wife (petitioner no.3/original accused no.6) to Navi Mumbai. 7. It is alleged by the complainant that Deepak got married on 5.12.2006 with Meghna who is accused no.6 without the consent of the Complainant. The 3 complainant makes very serious allegations against the family of his daughter in law and, therefore, states that initially he opposed the marriage proposal but later on finding that his son was interested in marrying accused no.6, he finally agreed to the marriage to be performed. Immediately, after two months of marriage, his daughter in law, original accused no.6 started harassing the complainant by demanding huge sums of amount for shopping and other expenses. Initially, the sums were given, but very soon the demands increased and, therefore, they did not thereafter meet them. The original accused no.6 thereafter, started behaving irrationally by leaving the house without any intimation and would return late in the night to which objection was raised but her behaviour did not change and instead it became an embarrassment for complainant and his family. 8. It is thus, alleged that the daughter in law Meghna started harassing the wife of the Complainant who is suffering from cancer and has been operated extensively on her chest and abdomen. She is suffering from 2006 and was hospitalized on several occasions. She is very weak and remains depressed. Inspite of being aware of her condition, accused no.6 instead of sympathizing with her, started assaulting her physically with criminal intention of causing grave harm and harassing not only to her but entire family. 9. It is alleged that because of this physical assault, the wife of the 4 Complainant had to be hospitalized. There was a complaint lodged by the son of the Complainant with Cuffe Parade Police Station on 26.08.2007 against Meghna for criminal threat given by her. As a result of such complaint, accused no.6 became violent and started abusing her in-laws and also assaulted her mother-in-law physically on her abdomen with her elbow, despite being aware that she was operated for breast cancer. After narrating the incident of hospitalization and thereafter, the daughter in law leaving the house despite the serious condition of her mother-in-law, it is then alleged that Meghna and son Deepak started leaving separately at Navi Mumbai. A Civil Suit had to be filed as the daughter in law made attempts to enter the house again and such a suit was filed in the City Civil Court. Thereafter, it is alleged that on 19.11.2007 at about 6.30 p.m. all the accused accompanied by some 40/50 persons gathered around the house of the complainant and one of them rang the door bell. As soon as the complainant opened the door, he saw the accused persons along with the others who were standing outside and therefore, the complainant did not open the safety door. 10. The persons at the door were giving threats and since the door was not opened, the mob broke the outer door and started rioting by calling names including threatening the Complainant and his family with dire consequences of committing murder and to burn the house. The police had to be summoned and it is only when the police came that the mob left after one hour. The complaint was lodged about this incident and 5 statements were recorded. Thereafter on 4.4.08, while the complainant was coming out of Bombay Hospital, all the accused surrounded him and caught hold of him by his collar and took him opposite side of Birla Hall, a part of Bombay Hospital building and abused him in most filthy language and threatened to kill him and his son and demanded Rs.25.0 lacs. Once again because of the commotion created and because the Complainant cried for help that the police intervened and that is how the accused ran away. 11. However, the very next day, when the complainant was about to leave his house for work, the accused persons stopped his car outside the building gate, again caught hold of his collar and threatened him with dire consequences. It is on such allegations including a threat that the accused and his family members would be involved in a false case of dowry demand that the complaint had been filed in the court of Additional Chief Metropolitan Magistrate s, 8 ’ th Court, Esplanade, Mumbai. After the verification statement was recorded, the process came to be issued on 21.05.08 summoning the petitioners and other accused for the offences punishable under sections 323, 506(ii) r/w section 34 of the Indian Penal Code. 12. This order came to be challenged by the petitioners who are original accused no.2, 5 and 6 before the Court of Sessions but the Court of Sessions dismissed their Revision Application. That is how this petition has been filed. 6 13. Mr.Saraogi, learned counsel appearing on behalf of the petitioners submits that the complaint read as a whole does not disclose Commission of any Criminal offence by the petitioners. The entire complaint is based on disputes and differences arising out of the marriage of the complainant s’ son with the petitioner no.3 i.e. original accused no.6 (Meghna). From the complaint itself, it is apparent that the marriage was not approved by the complainant and his wife. These are usual disputes between the newly married daughter in law and her in-laws and the complainant has made capital of the same by alleging serious offences not only against the daughter in law but her entire family. 14. This is nothing but an harassment of the daughter in law and her parents mainly with a view to avoid criminal proceedings. The very reference to the Civil Court matter would show that it is not a case of any offence but a discord between husband and wife and pressure from the in laws. When the original accused no.6 i.e. petitioner no.3 was pregnant she was kicked out of the house and now the story is cooked up of her having threatened and beaten up her mother in law. In fact the version is completely reverse. A careful perusal of the complaint and the supporting material which can be looked into, shows that all complaints made to the Police Station were on account of trivial incidents and merely after some heated exchanges. There is absolutely no case made out of any criminal offence. This court, therefore, must quash the proceedings because that would embarrass the 7 petitioners who are from respected family and two of them being ladies, they will have to face a criminal trial only to prove that there is absolutely no substance in any of the allegations. There is contradiction in the statement recorded of the complainant by the police and the panchnama drawing the incident of November, 2007. What is narrated in the complaint is an improvement of the version before the police. 15. Mr.Saraogi, therefore submits that going by the tests laid down in the decision of the Supreme Court in the case of State of Haryana vs. Bhajan Lal reported in 1992 AIR SC 604, this is a fit case where this court should quash and set aside the impugned orders in exercise of its inherent powers and supervisory jurisdiction. 16. On the other hand, Mr.Agarwal appearing on behalf of the complainant respondent no.2 submits that the complaint read as a whole makes out a case of a criminal offence. The allegations are serious in as much as no amount of matrimonial discord or difference and quarrels justify act of physically assaulting and beating up the mother in law, barging into the house of the petitioner and threatening him not only at his house but at his place of work. 17. If at all there were any issues and problems on account of the marriage, this is no way of sorting them out or settling them. If under threats, pressure or force, people are made to succumb to certain demands, then, the 8 court should not assist those charged with serious offences even though they are ladies. The complaint must be perused as a whole and it therefore discloses commission of offences punishable under section 323 and 506(II) of the Indian Penal Code. 18. The order issuing process does not call for any interference. Even the revisional court has come to an identical conclusion and unless the order is demonstrated to be perverse or suffering from any error of Jurisdiction, this court should not interfere with the same. For these reasons, this writ petition deserves to be dismissed. 19. With the assistance of Mr.Saraogi and Mr.Agarwal, I have perused the complaint and the verification statement, so also the orders impugned in this petition. I have also perused the decision in the case of State of Haryana Vs. Bhajan Lal. Summarizing the legal principles which would warrant interference in such matters and exercising of inherent powers, the Supreme Court has laid down certain broad guidelines. At this stage only prima facie conclusion is relevant and material. Once the complaint has been perused carefully and as a whole together with the verification statement and the Magistrate has chosen not to issue process for all the offences alleged and the order has been upheld by the Revisional Court, then, the court must be slow in interfering with it is the submission of the complainant s counsel. ’ 20. Applying these very tests and perusing the complaint, so also, the 9 verification statement, I am of the view that a case for issuing process has been made out against the petitioner nos.2 and 3. Petitioner no.3 has allegedly physically assaulted her mother in law and as far as the materials at this prima facie stage show that on account of her marriage with the son of the complainant, she had fights and quarrels involving her father in law and mother in law. She believed that they are acting against her. There are specific allegations and even individual acts are attributed to her. 21. As far as accused no.6 is concerned, his involvement prima facie with others has been shown by his presence at the flat of the complainant on the relevant date, so also, at the place of work of the complainant. Against him, there are allegations made of threat and assault. Therefore, the order issuing process can safely be confirmed as against the petitioner nos.2 and 3. I am in agreement with the learned Additional Sessions Judge that the Magistrate committed no error in issuing process as against them. 22. As far as the petitioner no.1 is concerned, she is the mother of the petitioner no.3. She is mother in law of the complainant s son. As far as she is ’ concerned, there are no specific acts attributed. All that has been alleged is that she was present when the incident mentioned in para 11 of the complaint in November 2007, took place. There are no acts of assault or threats attributed to her. 23. Similarly in the complaint and the verification statement, with regard to the 10 incident of 4.4.08 as well, there is nothing which would show the involvement of the petitioner no.1 Apart from the fact that she is a lady and may be agitated because of the treatment meted out to her daughter that her presence at the site is not ruled out. 24. However, in the instances which are narrated wherein the threats were administered and physical assault took place, no role has been attributed to her personally. Some heated exchanges may have taken place and that is possible when there is involvement of parents of the complainant and daughter in law. In other words, parents of both sides naturally got involved in matrimonial disputes but that by itself would not justify the petitioner no.1 answering a charge of commission of offences punishable under section 323 and 506(II) of the Indian Penal Code. 25. The process is issued for the offence punishable under section 323 which prescribes punishment for voluntarily causing hurt. Hurt is defined in “ ” section 319 to mean causing bodily pain, disease or infirmity to any person. No such act is alleged as against petitioner no.1. Further, the offence i.e. dealt with by section 506 is of threat to cause death or grievous hurt or to cause destruction of any property by fire or to cause offences punishable with death or imprisonment for life or with imprisonment for a term which may extend to 7 years and even imputing unchastity to a woman is also punishable. 11 26. The offence is thus of criminal intimidation. The complaint read as a whole does not attribute any act to the petitioner no.1 by which even prima facie it could be said that she is guilty of offences punishable under both section 323 and 506(II) of the Indian Penal Code. 27. To that extent, both the learned Magistrate and the learned Additional Sessions Judge fell in error. They should have seen the complaint as a whole together with the verification statement of the complainant and if there is no criminal act allegedly committed by the petitioner no.1, then there was no occasion to summon her. When no prima facie case is made out against her then, it was the duty of the court below to have quashed the order issuing process as against her at least. That having not been done, it can be concluded that the court below have failed in their duty in law. That would justify limited interference by this court. 28. As a result of the above discussion, Rule is partly made absolute. The orders dated 21st May, 2008 and 20th September, 2008 are quashed and set aside only to the extent of petitioner no.1. Criminal case shall proceed against the other accused in accordance with law. Further, the complainant being a Senior Citizen and even some of the accused being fairly old, the Magistrate to whom the case is assigned shall endeavour to dispose it of finally as expeditiously as possible and within a period of 6 months from the date of receipt of this order. 12 29. Needless to clarify that all observations made in the impugned orders, so also by this court are prima facie and tentative and shall not influence the court while trying the case. ( S.C.Dharmadhikari, J. )