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2019 DIGILAW 1807 (BOM)

Diwakar v. State of Maharashtra

2019-07-31

R.B.DEO

body2019
JUDGMENT : R.B. Deo, J. 1. The petitioner preferred complaint under Section 190 of the Criminal Procedure Code, 1973, (for short 'Code') against the respondent Nos. 2 to 4 alleging the commission of offence punishable under Section 312, 313, 506, 420 and 211 of the Indian Penal Code (for short 'IPC'). 2. The backdrop of this complaint is that the petitioner was prosecuted for offences punishable under Section 498(A), 304(B) and 302 read with Section 34 of the IPC for causing death of his wife. 3. Respondents 2 and 3 are the in-laws of the petitioner and respondent 4 is his brother-in-law. 4. The learned Magistrate directed investigation under Section 156 of the Code during the course of which the statements of witnesses were recorded and documentary material collected. The Investigation Officer filed 'C Summary in the crime, since he was satisfied that no cognizable offence is made out against the accused. 5. The 'C summary was accepted by the learned Magistrate vide order dated 03.03.2017. The petitioner challenged the said order unsuccessfully in Criminal Revision No. 221/2017. 6. I have heard Ms. Sonali Gadhawe the learned counsel for the petitioner and learned Additional Public Prosecutor Shri Amit Chutake for respondent No. 1/State. I am satisfied, that the only intent of the petitioner is to wreck vengeance and the complaint, the revision and this petition is as gross an abuse of process of law as one could come across. 7. The perusal of the complaint would reveal, that vague, unintelligible and incoherent allegations are made. Illustratively, while the petitioner is seeking cognizance of offence punishable under Section 312 and 313 of the IPC, the only sentence in the complaint is that "the abortion of my child was done by my father-in-law at the hospital of Dr. Mangala Ketkar". The statement of Dr. Mangala Ketkar, who is one of the Senior Gynecologists of the city is recorded. It has come on record that in the sonography report it was noticed that there were no heartbeat in the child in the womb and therefore, the surgical intervention was done on medical advice, with the consent of the petitioner's wife and her relatives who were present. The medical intervention was done in the year 2009 and the complaint is preferred in December 2015, which is eloquent. 8. The medical intervention was done in the year 2009 and the complaint is preferred in December 2015, which is eloquent. 8. The next averment in the complaint is that the wife of the petitioner was "Mad" and her family members cheated the petitioner by suppressing the mental ailment of the petitioner's wife. This allegation is found to be absolutely substance-less in the investigation. Again, while the marriage was solemnized in the year 2008 and the petitioner's wife unfortunately died in 2010, such insensitive, irresponsible and bordering on the perverse allegations are levelled in the year 2015. 9. The petitioner then seeks cognizance of offence punishable under Section 506 of the IPC. However, there is not even a whisper in the entire complaint which would make out a case under Section 506 of the IPC. 10. The complaint then alleges that proposed accused committed offence punishable under Section 211 of the IPC, which provision reads thus:- "211. False charge of offence made with intent to injure - Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and if such criminal proceeding be instituted on a false charge of an offence punishable with death, [imprisonment for life], or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 11. The mandate of Section 195 to the Code, is that no Court shall take cognizance of any offence punishable under Section 211 of the IPC except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in this behalf, or some other Court to which that Court is subordinate. 12. In the light of the statutory scheme, the learned Magistrate could not have even otherwise taken cognizance of offence punishable under Section 211 of the IPC. This is apart from the fact that, mere acquittal leads to no inference that there was no case for persecuting the petitioner. 13. 12. In the light of the statutory scheme, the learned Magistrate could not have even otherwise taken cognizance of offence punishable under Section 211 of the IPC. This is apart from the fact that, mere acquittal leads to no inference that there was no case for persecuting the petitioner. 13. The petition is absolutely frivolous and is dismissed.