30 cr appln 3390-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3390 OF 2010 Smita Kuldiprai Kapil .. Applicant Vs The State of Maharashtra & Anr. .. Respondents Mr. Shekhar A. Ingawale for the Applicant Ms. A.A. Mane, APP for the State Ms. Rita Aditya Kapil, Respondent No. 2 present CORAM : SMT. V.K. TAHILRAMANI, J DATE : 20th OCTOBER, 2010. P.C.: 1. Heard learned advocate for the applicant-original accused, Respondent No. 2-original complainant and learned APP for the State. 2. The applicant is seeking discharge in C.R. No. I-78/2007 registered with Town Police Station, Thane. The said case is under Sections 498A, 406, 323, 504 read with 34 of IPC. 3. The prosecution case is that respondent no. 2 was married to the brother of the applicant. As far as applicant 1 30 cr appln 3390-10.doc is concerned, it is alleged that after the marriage, she used to make false complaints to her brother i.e husband of the complainant due to which husband of the complainant used to abuse her. The complainant has specifically stated that she used to be insulted and beaten by the applicant. In the FIR, it is further stated that her husband made a demand for Rs. Five Lakhs and he told the complainant that if she did not bring the money from her parents, she should go back to the house of her parents. As the said demand was not met, her husband and her sister-in-law (Applicant) increased ill- treatment and cruelty to her. The complainant has specifically stated that she was mentally and physically ill- treated by her husband and the applicant. She has also stated in the FIR that she was beaten by them. Thus, the averments in the FIR clearly show that on account of demand of Rs. Five Lakhs not being met, the Applicant along with her brother used to treat the complainant with cruelty. The FIR also states about abuses, insulting treatment and beating given to her by the applicant. In such case, Sections 323, 504 and 498A are made out against the applicant. 4. Learned advocate for the applicant submitted that the applicant was not residing with the complainant and her husband and she was residing separately. It is stated that since the year 2005, the applicant has been residing 2 30 cr appln 3390-10.doc separately from the complainant and her husband. As far as this aspect is concerned, in the FIR, it is stated that after the marriage took place in 2003, all the accused persons were residing together since 2005. Even assuming that the applicant is residing separately, even according to the applicant, she was residing in the same housing complex as the complainant, and in such case, it is possible for her to frequently visit the house of her brother and the complainant and do the acts complained of by respondent no. 2. 5. Learned advocate for the applicant placed reliance on a decision in the case of Ramesh and Ors Vs State of Tamil Nadu reported in AIR 2005 SC 1989. He submitted that therein the FIR against the sister-in-law came to be quashed as she was residing in Delhi whereas the complainant was residing in Mumbai. Such are not the facts in the present case. In the present case, even assuming that the applicant is residing separately, she was residing in the same housing complex. Thus, it was very easy for the applicant to come to the house of the complainant even everyday and take part in the acts as stated in the FIR. 6. Mr. Ingawale, learned counsel for the applicant submitted that in Ramesh (Supra), the FIR also came to be quashed on merits on the ground that there were only general 3 30 cr appln 3390-10.doc allegations against the sister-in-law and no specific allegations had been made in relation to harassment. He has placed reliance on the following observations in the said decision: "What was said against her in the FIR is that on some occasions, she directed the complainant to wash W.C and she used to abuse her and used to pass remarks such as 'even if you have got much jewellery, you are our slave'. It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of her husband's relations as possible. Neither the FIR nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offencs alleged against the appellant-Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant-Gowri Ramaswamy are hereby quashed and her appeal stands allowed." (Emphasis supplied) I have carefully perused the said decision and the 4 30 cr appln 3390-10.doc above observations. It is noticed that the Supreme Court stated that even acts of abetment for property/dowry are not alleged against her, at the most, the allegations reveal that her sister-in-law was insulting and making derogatory remarks and was behaving rudely. It was in the light of these facts that the case came to be quashed whereas the FIR in the present case clearly makes out offences under Sections 323, 498A and 504 of IPC against the applicant. 7. As far as offence under Section 406 of IPC is concerned, the only allegation in the FIR appears to be in relation to the mother-in-law. The complainant has clearly stated in the FIR that after the marriage, 80% of her jewellery was kept by her mother-in-law and till date, the said jewellery is with her mother-in-law and she is not willing to give the jewellery back to the complainant. As far as offence under Section 406 is concerned, there is no averment in the FIR in relation to the present applicant. Thus, as far as, Section 406 is concerned, there is no sufficient material to proceed against the applicant, however, there is sufficient material to proceed against the applicant under Sections 323, 498A, and 504 of IPC. 8. In the result, the prayer for discharge is rejected as far as Sections 323, 498A and 504 is concerned, however, the 5 30 cr appln 3390-10.doc prayer of the present applicant for discharge under Section 406 is allowed. Thus, the applicant-original accused no. 2 is discharged under Section 406 of IPC. 9. The application is disposed of in above terms. [SMT. V.K. TAHILRAMANI, J.] 6