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2015 DIGILAW 706 (BOM)

Swati Sunil Nimbolkar v. State of Maharashtra

2015-03-11

A.B.CHAUDHARI, P.N.DESHMUKH

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Judgment :- A.B. Chaudhari, J. 1. Rule. Rule returnable forthwith. Heard finally by consent of the parties. 2. Learned counsel for the applicant submitted that the applicants have been prosecuted at the behest of non applicant no.2 who is husband of applicant no.1. He then submitted that all applicant nos. 1 to 9 are closely related from the side of applicant no.1-Swati, wife of non applicant no.1 and have been arrayed as accused persons at the behest of non applicant no.2. 3. According to the prosecution, the alleged abortion took place on 18.02.2012 while the FIR was lodged by non applicant no.2-husband for the first time on 01.12.2013 and, thereafter initiated proceedings under Section 156 (3) of Cr. P. C. on 09.05.2014. It is not in dispute that applicant no.1 and non applicant no.2 are at daggers drawn. Learned A.P.P. has produced before us statement of Dr. Archana Nitin Agrawal from Akola which clearly shows that applicant no.1 was carrying a dead foetus and, therefore, was advised to remove the same in order to save her life and accordingly abortion was done. 4. Per contra, learned counsel for non applicant no.2-husband, vehemently opposed the application and argued that applicant no.1 is wife and other applicants are in laws of non applicant no.2, who are responsible for miscarriage. He submitted that, therefore, they have clearly committed an offence punishable under Section 315 read with section 34 of the IPC. He further submitted that at any rate the FIR cannot be quashed since the investigation is yet not over. 5. The following facts are tale telling. There is no dispute that applicant no.1 and non applicant no.2, who are wife and husband respectively are not on good terms. The FIR was lodged by non applicant no.1-husband for the first time on 01.12.2013 about the alleged offence of miscarriage and, thereafter, non applicant no.2 went to the Magistrate under Section 156 (3) of the Cr. P. C. obtained order pursuant to which the FIR was registered. The statement of Dr. Archana Nitin Agrawal placed before us clearly shows that the foetus was dead and, therefore, it was most essential to remove the same to save life of applicant no.1. Applicant no.1, therefore, took a decision as per the advise of the Doctor to get rid of the dead foetus and removed the same. 6. The statement of Dr. Archana Nitin Agrawal placed before us clearly shows that the foetus was dead and, therefore, it was most essential to remove the same to save life of applicant no.1. Applicant no.1, therefore, took a decision as per the advise of the Doctor to get rid of the dead foetus and removed the same. 6. It is claimed by non applicant no.2-husband that he came to know about applicant no.1 having conceived on 17.01.2012 and as such brought her to his house but then according to applicant no.1, on 07.02.2012, she was driven out by non applicant no.2 and his family members and had to take shelter with her parents. During her stay with non applicant no.2, Dr. Morey had, on 29.01.2012 with ultra sound, found the foetus was of 10 weeks and 2 days i.e. before she was driven out of the house by non applicant no.2-husband. Thereafter, while she was with her parents, was under treatment of Dr. Agrawal when Dr. Archana Agrawal having decided on 18.02.2012 to make abortion, took consent of applicant no.1 and on the next day on 19.02.2012 at about 6.00 a.m. performed abortion. The foetus aborted was around or slightly more than 12 weeks, if the information given by Dr. Morey that on 29.01.2012 the foetus was of 10 weeks and 2 days is considered to be perfectly alright and not by estimation. Therefore, going by estimation, according to us, it can reasonably be inferred that the foetus was around 12 weeks old and, therefore, legally, abortion could be performed to save the life of applicant no.1 because Dr. Agrawal found that the foetus was dead inside her body and it was required to be removed in order to save her life. This is what is stated by Dr.Agrawal in her statement to the police. The applicant no.1, thus wanted to save her own life in the above fact situation with expert medical advise and accordingly went for abortion. 7. That non applicant no.2, who is at daggers drawn with applicant no.1-wife, lodged report alleging that she had along with her relatives numbering eight in addition performed miscarriage, which is a criminal offence under law, under Section 315 of the Indian Penal Code. Her relatives are from the districts of Akola and Washim and he thus roped in everybody. 7. That non applicant no.2, who is at daggers drawn with applicant no.1-wife, lodged report alleging that she had along with her relatives numbering eight in addition performed miscarriage, which is a criminal offence under law, under Section 315 of the Indian Penal Code. Her relatives are from the districts of Akola and Washim and he thus roped in everybody. It is, therefore, a case where a husband drew his wife out of the house on 07.02.2012 and lodged report against all the relatives of his wife. The police having found no substance in his allegation and further having found that her life was required to be saved, did not take cognizance after holding preliminary enquiry and, therefore, gave non cognizable note. It is important to note that the FIR was lodged by him for the first time on 01.12.2013 which shows how he was concerned with foetus and his wife. When the police did not take action, he filed complaint under Section 156 (3) of the Code of Criminal Procedure as late as on 28.07.2014 adding the Doctor as offender at serial no.10. The Magistrate issued order and the FIR was registered, which has been challenged in this application. 8. Upon conspectus of the above facts and the evidence before us and the enmity of non applicant no.2-husband with his wife applicant no.1 and in the light of the above background, we are sure that non applicant no.2-husband lodged FIR purportedly on 01.12.2013 and thereafter on 06.08.2014 which is out of vengeance and somehow to settle the score and roped in all the relatives of applicant no.1 without there being any specific allegations against any of them. Insofar as applicant no.1-wife is concerned, the case is not the one of miscarriage and the same is of abortion with a view to save her own life. We do not see anything wrong in removing a dead foetus in order to save her life with the help of expert doctor-gynecologist. We clearly see mala fides in role of no applicant no.2-husband, who was hardly bothered about his wife and thus acted bizarre. We cannot allow criminal law to be set up in motion or utilised by non applicant no.2 to take revenge that too at the cost of life of applicant no.1 who could save her life. We clearly see mala fides in role of no applicant no.2-husband, who was hardly bothered about his wife and thus acted bizarre. We cannot allow criminal law to be set up in motion or utilised by non applicant no.2 to take revenge that too at the cost of life of applicant no.1 who could save her life. The conduct of non applicant no.2 in misusing the criminal law justice system, instead of pursuing the matrimonial dispute with his wife is reprehensible and we are convinced that he should be saddled with costs of Rs.10,000/- to be paid to applicant no.1. 9. In view of above, we pass the following order. ORDER (i) Criminal Application (APL) 590/2014 is allowed. (ii) Rule is made absolute in terms of prayer clause (1). (iii) Non applicant no.2 to pay cost of Rs.10,000/- to applicant no.1, within a period of four weeks. Upon failure to deposit the same, it shall be recovered, in accordance with law.