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2013 DIGILAW 781 (BOM)

Vikas s/o. Uttam Shinde v. State of Maharashtra

2013-04-04

K.U.CHANDIWAL

body2013
JUDGMENT Heard. 2. Rule. Rule made returnable and heard forthwith. 3. The applicant Vikas questions process issued, dated 21.1.2011 under Section 497 of IPC by learned Judicial Magistrate, First Class, Shegaon. Respondent Suresh alleged of illicit sexual relations between his wife Sangita and the petitioner. However, reading the complaint petition as a whole, it is explicit, he had not ventured to see such' events, in the compromising position. He has canvassed, having learnt it from the villagers and his mother; which may be correct but, before the learned Judicial Magistrate, First Class, at the time of recording verification, mother or independent witness is not put in. 4. The prosecution, indeed, has a prelude as the petitioner has, way back in the year 2010, initiated proceedings for offense under Sections 379, 323, 504, 506 read with Section 34 of IPC against respondent Suresh by Criminal complaint No.18/2010 wherein report under Section 156(3) Cr. P.C. was called. The acrimonious relations between petitioner and Suresh were even revealed and published in a public notice dated 20.9.2010 by respondent, making identical allegations and also intention of Smt. Sangita to dispose of certain immoveable properties. Feeling estranged and annoyed by such public notice, Advocate's notice dated 27.9.2010 was served by petitioner upon Suresh intimating his intention to prosecute for offense of defamation. Even Smt. Sangita, by Criminal Case No.225/2010, owing to the said publication of notice dated 20th Sept. 2010, has prosecuted Suresh for offense under Sections 499, 500 read with Section 34 of IPC. 5. An FIR for offense under Sections 307, 341 of IPC vide Crime No. I-143/2010 was registered by Suresh against the petitioner. Consequently, he was taken in custody. By directions of this Court petitioner was released on bail. No sooner he was released on bail on 30th Dec., 2010, he faced brunt of criminal prosecution referred above. 6. It is informed and not now in dispute that Smt. Sangita has patched up her controversies with Suresh as the couple has severed the matrimonial relations. Sangita has accepted one time maintenance allowance and custody of two children. 7. Overall survey of above facts and reading the complaint petition as a whole, it more leans as a lever to several proceedings between the parties and to teach a lesson to the petitioner he has been prosecuted for offense under Section 497 of IPC. Sangita has accepted one time maintenance allowance and custody of two children. 7. Overall survey of above facts and reading the complaint petition as a whole, it more leans as a lever to several proceedings between the parties and to teach a lesson to the petitioner he has been prosecuted for offense under Section 497 of IPC. The learned Judge prior to issuance of process should have ensured about the witness and recording statement for verification. No such exercise is carried. The prosecution indeed, is a persecution of the petitioner activated with falsehood and as a revenge to earlier proceedings, calls for interference, and it is quashed and set aside. Criminal Application (No.4090/2011) allowed. Rule made absolute. Application allowed.