1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3745 OF 2010 Ritesh Ratilal Jain Age : 40 years, Occ : Service, R/o Sarita Complex, Plot No.8/9, Flat No.402, Snehsagar Society, Opp. Green Park, Surat (Gujrat). ..APPLICANT -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mr. U.S. Malte, advocate for applicant. Mr. N.H. Borade, A.P.P. for respondent. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 18 th November, 2010. PER COURT : 1. By this application, the applicant seeks directions under Section 438 of the Criminal Procedure Code. 2. The applicant is husband of informant Smt. Sandhya. 3. Having heard the learned Advocate for the applicant and the learned A.P.P. and on perusal of the investigation papers, it emerges that informant Smt. Sandhya was residing separately with her parents at Bhusawal. The applicant was residing at Surat when the spouces parted company of each other. The statement of Smt. Sandhya was recorded on 12th April, 2010 by the police in the 2 context of his application. She narrated during her police statement that they were residing together since about 10 years of the marriage but could not get any child and thereafter since four years prior she returned to house of her parents. She categorically stated that she wanted to go to house of the applicant for cohabitation but he was not ready to take her back to his house. She narrated before the police that she will approach the Court for the purpose of restitution of conjugal rights. In the teeth of such police statement, subsequent F.I.R. lodged by her on 29th June, 2010 is required to be examined. It appears that considering the previous police statement and separation of spouces since about four years before the filing of the F.I.R., it was alleged that on 13th June, 2010, the applicant and his relatives etc all together visited the house of her parents, abused and assaulted her after making demand of Rs. 2 Lacs. The subsequent story appears to have been added with a view to some how bring the offence within socket of Section 498A of the Indian Penal Code to over come the difficulty of delay caused in lodging of the F.I.R. What appears from the record is that there was no allegations of matrimonial cruelty during the period of about 10 years of the joint residence of spouces. It does not appears that all of sudden, the applicant subjected her to matrimonial cruelty on the given date. Under these circumstances, there is prima facie reason to infer that the 3 F.I.R. is lodged with some oblique intention to harass the applicant. 4. In the result, the application is allowed. The applicant is directed to be released on bail in the event of his arrest, on the terms as stated in the order dated 4th October, 2010 and on further condition that he shall attend the concerned police station when required by the Police Officer to participate in the active investigation. (V.R.KINGAONKAR) JUDGE gas/cri3745.10