Urmila Prakash Bhatia vs State Of Maharashtra

CNR No : HCBM010124422023

SAGAR MAGAR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 427 OF 2023
‘Y’ ] …. Applicant

VERSUS
1. State Of Maharashtra ]
2. XXXX ]
Through Samata Nagar Police Station, ]
Kandivali (East), Mumbai. ] .. .. Respondent
----------------------------
‘Y’, Applicant in-person.
Mr. Yogesh Nakhwa, APP, for the Respondent-State.
Mr. Sujit Sahoo a/w Ms. Reeta Sharma for the Respondent No.2
Ms. Shilpa Duthade, API, Samata Nagar Police Station, present.
--------------------------
WITH
WRIT PETITION NO. 2768 OF 2021
Prakash Hotchand Bhatia ]
Age: 49 years, Occu: Business, ]
Rat. 1801, Tower No.2, ]
R/at. 1801, Tower No.2, ]
Challenger CHS., Thakur Village, ]
Kandivali – (E), Mumbai – 400101. ] ….Petitioner
Versus
1. The State of Maharashtra ]
(Through Samta Nagar Police Station) ]
2. ‘Y’ ] ….Respondents
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Mr. Niranjan Mundargi a/w Ms. Keral Mehta a/w Adv. Kajal i/b Mr.
Himanshu Nagarkar, for Petitioner.
Mr. Yogesh Nakhwa, APP, for Respondent No.1 – State.
‘Y’ Respondent No. 2 appeared in person.
Ms. Shilpa Duthade, API, Samata Nagar Police Station, present.
-----
WITH
WRIT PETITION NO. 3779 OF 2022
Prakash Hotchand Bhatia ]
Age: 49 years, Occu: Business, ]
Rat. 1801, Tower No.2, ]
Challenger CHS., Thakur Village, ]
Kandivali – (E), Mumbai – 400101. ] ….Petitioner
Versus
1. The State of Maharashtra ]
(At the instance of Samta Nagar ]
Police Station) ]
2. ‘Y’ ] .. .. Respondents
-----
Mr. Niranjan Mundargi a/w Ms. Keral Mehta a/w Adv. Kajal i/b Mr.
Himanshu Nagarkar, for Petitioner.
Mr. Yogesh Nakhwa, APP, for Respondent No.1 – State.
‘Y’ Respondent No. 2 appeared in person.
-----
CORAM : RANJITSINHA RAJA BHONSALE, J.
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RESERVED ON : 27 FEBRUARY 2026.
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PRONOUNCED ON : 3 JULY 2026.
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JUDGMENT :-
1) In the recent past, one notices a phenomenal increase in
various kinds of proceedings which are incidental offshoots and/or
originating from matrimonial proceedings. This trend is extremely
disturbing. Parties, may be due to adversity faced, financial or otherwise or
the unwelcome, undesired situations and circumstances in which they find
themselves in, file and initiate proceedings under all available laws and
before various forums, against each other and against their relatives,
instead of filing a petition for divorce by mutual consent and amicably
parting ways with dignity and mutual respect towards each other. In many
such litigations, the latest visible addition to the so called armor of the
parties, are children, who are used as a protective shield in a defense
mechanism or at times as an unfortunate strategy for attack or to counter
balance what they perceive as equity. When one considers these
proceedings, and more particularly the allegations made therein, one is
awakened to the sad reality that, the ancient and sacred institution of
marriage, has weakened, deteriorated and degenerated over a period of
time, due to a variety of reasons ranging from career prospects and
advancements therein, financial aspects or aspirations or insecurities
and/or other personal reasons. Many a times, the issue is of just simple
incompatibility which aspect is either not acceptable as a reason due to
societal reactions or in some cases genuinely not realized. Unrelated,
inconsequential and trivial issues take center stage, overshadow family
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needs and priorities and with passage of time and subsequent events
snowball into humongous problems and issues which are not desired,
contemplated or even anticipated and more importantly, on most of the
occasions, self created. Once this situation is reached, the actions get
exaggerated and reactions aggravated, often assuming serious proportions
resulting in filing complaints comprising of serious charges, which on many
a occasions are known to the parties to be false and/or exaggerated.
Frivolous and vexatious cases are filed against the spouse and to further
harass and pressurize the spouse immediate, near and dear ones and
relatives are also roped in. Allegations fly thick and fast, and most of the
times imaginary, false, unsupported and uncorroborated. At the end of the
day, in most matrimonial and related/connected litigations, there is a
collateral damage in the form of loss of health, peace, happiness and
irreversibly damaged relations with near and dear ones. The most
productive years of ones life are lost and adverse financial effects add to
the misery and well being of the family as a whole, which by that time has
disintegrated and degenerated. At the end, the only loser is the institution
of marriage, family values, bonds and ultimately the social fabric of the
society. The brunt of the long lasting adverse impact is borne and felt by
the next generation. This is, unfortunately the scenario in matrimonial and
related disputes. The parties get so involved and consumed by the litigation
that, they loose sight of the fact that there is so much to smile and be
happy about in a beautiful life which does not last forever.
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2) By this Judgment, I propose to dispose three proceedings i.e.
Criminal Application No. 427 of 2023, Criminal Writ Petition No. 2768 of
2021 and Criminal Writ Petition No. 3779 of 2022 as the said proceedings
are filed by and are between the same parties who happen to be husband,
wife and daughter/step daughter.
2.1) The Applicant in Criminal Application No. 427 of 2023 and
Respondent No. 2 in Writ Petition No. 2768 of 2021 and Writ Petition No.
3779 of 2022 is one and the same person (name masked and hereinafter
referred to as “Y”).
2.2) In Criminal Application No. 427 of 2023, the First Information
Report (FIR) has been lodged by Respondent No. 2 (name masked and
hereinafter referred to as “X”). “X” is the step-daughter of ‘Y’.
3) ‘Y’ in Criminal Application No. 427 of 2023 seeks quashing of
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FIR No.767 of 2021 registered on 11 November 2021 with the Samata
Nagar Police Station, Kandivali, for the offences punishable under Section
354, 323, 504 and 506 of the Indian Penal Code (for short IPC), Sections 8
and 12 of the Protection of Children from Sexual Offences Act (for short
POCSO Act) and Section 75 of the Juvenile Justice Act and also the charge-
sheet filed therein bearing Special Case No.347 of 2020. The FIR is filed by
Respondent No. 2 /‘X’.
4) The Petitioner in Writ Petition No. 2768 of 2021 filed under
Articles 226 and 227 of the Constitution of India and Section 482 of the
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Code of Criminal Procedure, 1973 (now 528 of BNSS) seeks quashing of
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FIR bearing No.434 of 2021 dated 24 May 2021 registered with Samata
Nagar Police Station, Mumbai, for the offences punishable under Sections
270, 323 and 504 of the IPC. The Petitioner namely Mr. Prakash Bhatia is
the husband of ‘Y’ and the biological father of ‘X’. The said FIR has been
filed by ‘Y’.
5) The Petitioner, in Writ Petition No. 3779 of 2022 filed under
Article 226 and 227 of the Constitution of India and Section 482 of the
Code of Criminal Procedure, 1973 (for short CrPC) seeks to quash C.R.
No.1149 of 2022 registered with Samata Nagar Police Station for the
offences punishable under Sections 377, 376(2)(n), 328, 324, 506 and 504
of the IPC, 1860. The Petition is also filed by Mr. Prakash Bhatia. The said
FIR is filed by ‘Y’.
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6) This Court by an Order dated 4 March 2024, was pleased to
admit, Criminal Application No.427 of 2023, issue Rule and the
proceedings were stayed till the final disposal. The hearing of the
Application was expedited.
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7) By separate Orders both dated 4 March 2024, Rule was
granted in Criminal Writ Petition No. 2768 of 2021 and Writ Petition No.
3779 of 2022. The rule notice, being issued, is served upon ‘Y’.
8) Heard ‘Y’ Applicant in person, Mr. Yogesh Nakhwa, learned
APP for the Respondent-State, Mr. Sujit Sahoo, learned Advocate appearing
for ‘X’ in Criminal Application No. 427 of 2023. Heard, Mr. Niranjan
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Mundargi for the Petitioner, Mr. Yogesh Nakhwa, learned APP for the
Respondent-State and ‘Y’ in person in Criminal Writ Petition No. 2768 of
2021 and Criminal Writ Petition No. 3779 of 2022. Perused the entire
records.
Factual matrix in Criminal Application No. 427 of 2023
9) In Criminal Application No. 427 of 2023, ‘Y’ seeks quashing of
FIR No. 767 of 2021 filed with the Samata Nagar Police Station under
Sections 354, 323, 504 and 506 of the IPC, Sections 8 and 12 of the
POCSO Act and Section 75 of the Juvenile Justice Act and also of the
chargesheet. Briefly stated, the allegations levelled by ‘X’ in FIR No. 767of
2021 and the resultant chargesheet against ‘Y’ are as under:-
9.1) That, since the year 2017, ‘Y’ abused, mentally harassed and
treated ‘X’ in a bad manner. That, ‘Y’ made ‘X’ do all the household work
in exclusion of her own daughters.
9.2) That, in June 2018, Mr Prakash Bhatia/father of ‘X’ went on a
business tour to China for a period of 15 days. That, during the said period,
‘Y’ called ‘X’ in her bedroom on three or four occasions and hugged her.
That, while hugging her, ‘Y’ inappropriately touched ‘X’. That, due to the
said acts, ‘X’ was embarrassed, but did not complain.
9.3) That, ‘X’ at all times considered, ‘Y’ as her mother, but ‘Y’
never reciprocated. That, ‘X’ used to be ill-fed. That, the house maids
stopped cooking food for ‘X’ and her father, therefore, the father of ‘X’ used
to prepare the food. That, ‘Y’ used to throw away food made by the father
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of ‘X’. That, in the year 2019 when Savitridevi the step grandmother of ‘X’
and mother of ‘Y’ came to reside with the family for a period of six months,
she troubled and harassed ‘X’.
9.4) That, on one occasion, ‘X’ was locked up in a room and was
not permitted to contact her father Mr. Prakash Bhatia. That, on the said
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day i.e. 22 November 2019 her father was forced to execute a gift deed in
favour of ‘Y’.
9.5) That, in July, 2020, ‘Y’ forcefully evicted ‘X’ from her own
room, removed all her cloths and articles from the room and kept them in
the hall. That, in November, 2020, ‘X’ and her father were not permitted to
enter the house and were kept out. That, they had to eventually take
assistance of Police and fire brigade services to enable them to enter the
house.
9.6) That, in April 2021, Mr. Prakash Bhatia and ‘X’ both tested
COVID positive. ‘Y’ did not take care of ‘X’ and went to her mother’s house.
Mr. Prakash Bhatia took care of ‘X’. That, ‘Y’ directed the househelp not to
do any of the work pertaining to ‘X’. That, ‘X’ had to do her own work,
wash utensils, wash her cloths and clean her room. That, ‘Y’ used to read
the Whatsapp messages of ‘X’ and used to threaten her that, she would
spoil her name in her friend circle and not allow her to study any further.
9.7) That, if ‘X’ did not do the household work, ‘Y’ used to threaten
to kill her father and sister. That, ‘Y’ had hidden all the documents of ‘X’
i.e. Aadhar Card, Passport, medical documents and birth certificate etc.
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That, jewellery made for ‘X’ by her father was with the ‘Y’. That, ‘X’ used to
get scared of staying alone in the house without her father and therefore
used to lock herself in the room. That, ‘Y’ also verbally abused the elder
sister of ‘X’.
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9.8) That, on 13 August 2021, ‘Y’ verbally abused ‘X’, at which
time the father of ‘X’ called the child helpline and made a complaint.
Pursuant to the complaint, one Ms. Lalita Verma visited the residence for
conducting an enquiry. At that time, ‘X’ allegedly informed her that, ‘Y’ had
verbally and sexually abused her. At that time, Mr. Prakash Bhatia/father of
‘X’ for the first time became aware of the alleged sexual harassment
committed by ‘Y’. That, ‘Y’ assaulted ‘X’ and sprayed pepper spray on her
face.
9.9) That, from the year 2017 till the date of filing the F.I.R, the ‘Y’
harassed and abused ‘X’, directed her to do the household work, refused to
give her sufficient food. That, ‘X’ was not allowed to touch household
articles/appliances of daily use such as the fridge, mixer, juicer etc. On the
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basis of these allegations FIR No. 767 of 2021 has been registered on 11
November 2021 in respect of an incident of June 2018.
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9.10) Nearly after a month i.e on 10 December 2021, a
supplementary statement was recorded, wherein ‘X’ made further
allegations against ‘Y’. That, in December 2018, when her father was on a
business trip to China, ‘Y’ called ‘X’ in her room and pushed her on the bed.
That, under the pretext of doing some examination, ‘Y’ removed her
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clothes, kissed her and touched her inappropriately. That, ‘X’ was again
sexually abused in April, 2019 and in the first week of December, 2019.
That, she was threatened that, if she informed of the said acts to anybody
else, ‘Y’ would defame ‘X’ in her friend circle. That, again in November and
December 2020, ‘Y’ physically misbehaved with ‘X’ and threatened her that,
she has already filed a case against her father, the grandfather and sister
and if she told anybody about the alleged incident, a false rape case would
be filed.
9.11) In the supplementary statement ‘X’ has stated that, her school
timing were from 9:00 a.m. to 3:00 p.m. That, she used the school bus to
go to school and left the house at about 8:15 a.m. and returned at 3:30
pm. That, three times a week, between 6:00 p.m. to 9:00 p.m. she used to
have classes for the subject of Science, Mathematics and French. That, in
the year 2018 and 2019 there were three to four house maids and that,
some of the maids were full time maids staying at home. That, other maids
used to come on part time basis. That, in the year 2020 house maid by the
name of Sangeeta Sorenge was working on full time basis and used to
reside at the residence.
9.12) On being inquired by the police, ‘X’ has specifically stated
that, from the year 2018 and July 2019 both her step sisters were also
staying in the house. That, there used to be quarrels between them. That,
during the incident of December 2019, mother of ‘Y’ Smt. Savitridevi was
residing with them. That, in respect of the other incident when nobody was
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at home, ‘Y’ took advantage of the said fact and the alleged acts of sexual
abuse were committed.
Submissions in Criminal Application No. 427 of 2023
10) ‘Y’ appearing party in person in Criminal Application No. 427
of 2023 submitted that:-
10.1) The FIR, as filed, does not make out any case for the offences
as alleged. The FIR stems out of various criminal proceedings which have
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been filed and is an immediate reaction to the protective order dated 22
October 2021 passed in the D.V. proceedings.
10.2) The statements of the NGO workers and the home visit report
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dated 13 August 2021, clearly indicates that 'X' had not made any
allegations of any misconduct or act amounting to any offence under the
POCSO Act to the NGO worker who had visited the residence after the
complaint made by Mr. Prakash Bhatia.
10.3) The fact that Mr. Prakash Bhatia contends that he got knowledge
of the act of sexual abuse when ‘X’ informed the NGO worker is, therefore,
an afterthought and a completely false story.
10.4) The falsity of the allegations in the FIR is clear and writ large.
It is alleged that ‘Y’ restrained/locked ‘X’ in the room and Mr. Prakash
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Bhatia was forced to execute the Gift Deed on 22 November 2019. That,
the said allegation is expressly false for the simple reason that, the
investigation papers contain a letter received from the school of ‘X’ which
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indicates that on 22 November 2019, ‘X’ was attending school. That the
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malicious and dishonest intention of Mr. Prakash Bhatia in filing the said
false FIR is clearly borne out.
10.5) There is material variance in the statements of ‘X’. The FIR
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dated 11 November 2021, the supplementary statement dated 10
December 2021, and the statement of X’’ under Section 164 of the CrPC
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dated 2 May 2022 are at material variance in respect of the incident of
sexual abuse itself. A clear case of false implication is made out.
10.6) Even if the case of Mr. Prakash Bhatia is accepted that, he got
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knowledge of the alleged act of sexual abuse for the first time on 13
August 2021, the FIR came to be filed only in November 2021. That, the
said delay is not explained. That, the alleged offences have been
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exaggerated and stated in the supplementary statement dated 10
December 2021, only to be omitted in the statement under Section 164 of
CrPC. In the 164 statement, ‘Y’ has made different allegations relating to
jewellery and personal identity documents etc.
10.7) Even the affidavit filed by the I.O. before the Hon'ble Supreme
Court states that, no allegation of sexual abuse was made till November
2021 before any authority. That, the surrounding circumstances and the
documents collected during the investigation prima facie indicate that the
relationship between ‘Y’ and ‘X’ was cordial and, in fact, very good. That,
the NGO workers i.e. independent third parites have not supported the
allegations under the POCSO Act. The act of exagerrating and making
false, baseless allegations is writ large on the face of the record.
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10.8) The FIR has been filed as a counterblast, as Mr. Prakash Bhatia
was unable to repay the amounts which were borrowed from ‘Y’ and
through ‘Y’ from the banks. That, the FIR has been filed with malicious
intent and personal vendetta.
11) Mr. Sujit Sahoo, learned Advocate appearing for the Respondent
No. 2 in Criminal Application No. 427 of 2023 submitted that :-
11.1) Perusal of the FIR clearly makes out a prima facie case against
Y’’. That, the offences as alleged under the POCSO Act are made out. The
required ingredients are present and have been pleaded.
11.2) While exercising powers under Section 482 of the CrPC, this
Court cannot evaluate the evidence or conduct a mini trial. That, in the
supplementary statement and the statement recorded under Section 164 of
the CrPC, ‘X’ has clearly mentioned and stated in detail the alleged acts of
sexual abuse and the acts/conduct which prima facie amount to offences
under the POCSO Act. That, on a reading of the FIR, a prima facie case is
made out.
11.3) Considering the provisions of Sections 29 and 30 of the
POCSO Act and the presumptions therein, this Court ought not to interfere
with the criminal prosecution under Section 482 of the CrPC.
12) The learned APP in Criminal Application No. 427 of 2023
supported and adopted submissions made on behalf of Respondent No. 2.
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Factual matrix in Writ Petition No. 2768 of 2021
13) In Writ Petition No. 2768 of 2021, Mr. Prakash Bhatia i.e. the
Petitioner has sought quashing of FIR No. 434 of 2021 registered with the
Samata Nagar Police Station under Sections 270, 323 and 504 of the IPC.
The said FIR is filed by ‘Y’ against Mr. Prakash Bhatia. Briefly stated the
allegations in the FIR are as under:-
13.1) That, from March 2021, corona virus had already spread in the
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Country. That, on 6 April 2021, ‘Y’ had taken vaccine Covishield and
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therefore, was suffering from slight fever. That, on 8 April 2021, at about
22:30 while ‘Y’ was resting in her room, the Petitioner sent their maid
named Sangeeta and called for ‘Y’. When ‘Y’, came out of the room, the
Petitioner pushed ‘Y’, abused and assaulted her with fist and kick blows.
Due to the said assault, ‘Y’ received injuries on her head, waist, hands and
legs. That, the Petitioner and his elder daughter informed that they had
tested COVID positive. That, the Petitioner forcefully caught hold of ‘Y’,
pulled her near, removed his mask and exhaled on the face of ‘Y’. That,
while doing so, he said that, he was trying to spread the corona virus and
make ‘Y’ COVID positive.
13.2) After the said incident, ‘Y’ called the Women Helpline asking
for help. ‘Y’ then visited Samata Nagar Police Station, Mumbai and lodged
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a NC complaint dated 9 April 2021 for the offences punishable under
Sections 323, 504 and 506 of the IPC. After filing the complaint, ‘Y’
returned home, packed her bags and along with her maid went to stay at
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her mother’s residence at Sector No.2, Charkop, Kandiwali (W). On 10
April 2021 ‘Y’ sent an email to the Police Authorities complaining of the
said incident and also of the fact that she was scared as there were
valuable articles and jewellery in her room.
13.3) After going to her mother’s place, ‘Y’ became symptomatic of
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corona virus on 15 April 2021 and on testing, was declared COVID
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positive on 17 April 2021. That, her mother, brother, brother’s wife,
nephew and her maid were all infected with the corona virus. In these
background facts, ‘Y’ filed the present FIR alleging that, the Petitioner
assaulted her, abused her and intentionally spread the Corona virus.
Submissions in Writ Petition No. 2768 of 2021
14) Mr. Niranjan Mundargi, learned Advocate appearing for the
Petitioner in Criminal Writ Petition No. 2768 of 2021 submitted that :-
14.1) The present complaint is a false concoction and arises in the
background of various criminal proceedings filed by ‘Y’. That, the Petitioner
has made a online complaint, wherein he has specifically stated that, ‘Y’
was trying to falsely implicate him.
14.2) The FIR is filed at a belated stage, is at a variance and does
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not corroborate with the N.C which is filed on 9 April 2021, which is first
in point of time. That, the Petitioner was in fact wearing a mask and had
taken all the possible precautions.
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14.3) ‘Y’ being aware of the fact that the Petitioner and his daughter
were COVID positive, ventured out of the room without wearing a mask.
That, her only intention was to create some issue or dispute.
14.4) ‘Y’ did not take precautionary measures nor follow the
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mandatory quarantine rules. That, ‘Y’ did not test herself till 16 April
2021 and kept visiting various places in spite of the corporation informing
her.
14.5) That, the present complaint has been filed to put up a defence
and escape the process of law. That, the facts, alleged prima facie fail to
constitute the necessary ingredients of any offence for which the FIR dated
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24 May 2021 is registered.
15) Respondent No. 2/‘Y’ appearing in person in Criminal Writ
Petition No. 2768 of 2021 submits that:-
15.1) The perusal of the FIR would indicate that the offence as
contended in the FIR is made out. That, the Petitioner was granted
anticipatory bail in Anticipatory Bail Application No.1106 of 2020, in spite
of offences 498A, 323, 504 read with 34 of the IPC and on several
conditions imposed therein including that, the Petitioner shall not tamper
with the prosecution witnesses including the informant in any way. That,
the acts of the Petitioner are in direct conflict with the conditions of the
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order dated 7 December 2020.
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15.2) That, spreading of contagious and dangerous decease cannot
be termed as an offence which is private in nature. That, the same have a
serious adverse impact on the society at large.
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15.3) On 8 April 2021, ‘Y’ asked for the test reports and requested the
Petitioner and the daughter to be quarantined. That, the Petitioner refused
to give the test report and in fact forcefully came into the room where ‘Y’
was present and started beating and pushing her. That, the Petitioner being
aware that, he was Covid positive, has committed an offence under
Sections 270 of the IPC by forcefully, coming in close contact with ‘Y’ and
removing his mask and blowing air from his mouth on the face of ‘Y’ and
assaulting and touching her inappropriately. That, while doing the said act,
the Petitioner specifically stated that “Even you should get the virus”. This
demonstrates the mala fide intentions of the Petitioner.
15.4) The learned APP in Criminal Writ Petition No. 2768 of 2021
supported and adopted the argument of ‘Y’.
Factual matrix in Writ Petition No. 3779 of 2022
16) In Writ Petition No. 3779 of 2022, Mr. Prakash Bhatia i.e. the
Petitioner has sought quashing of FIR No. 1149 of 2022 registered with the
Samata Nagar Police Station under Section 377, 376(2)(n), 328, 324, 506
and 504 of the IPC. The said FIR is filed by ‘Y’ against Mr. Prakash Bhatia.
Briefly stated the allegations in the FIR are as under :
16.1) ‘Y’ contends that, her daughter Shefali who was studying in
Ryan International School at Kandivali was friendly with one Krittika
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Bhatia. That, in the year 2012, ‘Y’ attended a parent teacher meeting at the
school when she was introduced to the Petitioner i.e. Prakash Bhatia father
of the Krittika Bhatia. That, friendly relations developed between ‘Y’ and
the Petitioner.
16.2) That, in or around May 2012, the Petitioner requested ‘Y’ to
accompany him for a drive, which after some reluctance ‘Y’ agreed. That,
‘Y’ and Petitioner went for a drive and visited the Golden Valley resort,
Thane. That, they sat near the swimming pool for refreshments.
16.3) That, Petitioner allegedly spiked the coffee. That, after
consuming the coffee, ‘Y’ felt giddy and did not remember what happened
thereafter. After sometime, she woke up in the room of the resort and did
not have her clothes on herself. On making inquires, the Petitioner
informed ‘Y’, that as she felt giddy, the Petitioner brought her to the room.
That, on making inquiries as to why she did not have her clothes, Petitioner
after allegedly giving a subtle smile showed her on his mobile a video of
the Petitioner and ‘Y’ involved in a physical act. That, on seeing the video,
‘Y’ was scared.
16.4) The Petitioner refused to delete the video. That, ‘Y’ did not file a
police complaint as the Petitioner threatened to upload the video on a porn
site and to show the same to the daughter and relatives of ‘Y’. That, the
Petitioner based on the said video blackmailed ‘Y’ and took her, to various
resorts and committed acts of sexual intercourse with her against her will.
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16.5) In the year 2014, the Petitioner proposed marriage to ‘Y’. That,
when ‘Y’ refused, the Petitioner threatened her that he would upload the
video on porn site and show it to her relatives. That, he would kill the
daughters of ‘Y’.
16.6) ‘Y’ allegedly being scared by the threats agreed to marry the
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Petitioner. On 28 November 2014, ‘Y’ and Petitioner got married. That,
even after the marriage, the Petitioner treated ‘Y’ in an inhuman manner.
That, the Petitioner maintained physical relations with ‘Y’ against her
wishes. That, the Petitioner used to watch various videos on the porn sites
and used to insist that ‘Y’ perform the said acts. Upon refusal, the Petitioner
used to force ‘Y’ to have alcohol and would assault her. The Petitioner used
to forcefully have unnatural and natural sex/physical relations with ‘Y’
against her wish and without her consent.
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16.7) That, on 13 November 2021, ‘Y’ left the matrimonial home
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and went to her mother’s house to stay at Charkop. That, from 2012 to 13
November 2021, the Petitioner maintained physical relations with ‘Y’
against her will and without her consent at the Golden Valley Resort at
Thane, other resorts and also at the Petitioner’s residence. On the aforesaid
allegations, the present FIR has been filed.
Submissions in Writ Petition No. 3779 of 2022
17) Mr. Niranjan Mundargi, learned Advocate for the Petitioner in
Criminal Writ Petition No. 3779 of 2022 submitted that :-
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17.1) The FIR if read in its entirety and accepted as a whole, does
not disclose any offence against the Petitioner. On reading the FIR along
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with the FIR No. 1201 of 2020 dated 4 October 2020, filed by ‘Y’ under
Section 498A, 323, 504 read with 34 of IPC the mala fide and dishonest
intentions of ‘Y’ are in fact clearly made out.
17.2) The FIR fails to prima facie demonstrate that, the required and
essential ingredients to make out the offences as alleged are not present in
the said FIR That, the allegations are made without any basis or
foundation, and made in order to falsely implicate the Petitioner with
oblique motive and an intention to bring disrepute to the Petitioner and a
lucrative settlement.
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17.3) The parties were referred to mediation vide order dated 27
July 2022 and the present FIR i.e. 1149 of 2022 is filed immediately on
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30 July 2022. The mala fide intentions are writ large and clearly made
out.
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17.4) ‘Y’ on 4 October, 2020 filed a complaint under Section 498A,
323, 504 and 34 of the IPC. That, in the said FIR there is no reference to
the allegations made in the present FIR That, the statement of the facts and
th
allegations made in the FIR dated 4 October 2020 and the present FIR
th
dated 30 July 2022 are at a material variance and infact contrary. That, in
the earlier criminal prosecutions, ‘Y’ has made none of the allegations
th
which are sought to be belatedly made in the FIR dated 30 July 2022.
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th
17.5) In the FIR dated 4 October 2020 filed under Section 498A,
323, 504 read with section 34 of the IPC, ‘Y’ has made a completely
contrary claim. That, in the said FIR, ‘Y’ has contended that in August,
2012 , the Petitioner had in fact proposed marriage to her and that during
the said period, they were very good friends. ‘Y’ had specifically stated that,
the Petitioner did not force ‘Y’ to marry him. That, ‘Y’ used to have
conversation with the Petitioner on Whatsapp and other messenger
services. That, she has made a categorical statement that, after a few days,
the friendship between ‘Y’ and the Petitioner developed into love and
therefore, ‘Y’ to agreed to marry with the Petitioner.
17.6) There is no explanation for the delay of 10 years in the said
FIR. According to ‘Y’, the alleged incident is of the year May, 2012 and the
FIR has been lodged in July 2022 i.e. after a period of more than ten years.
There is no explanation provided by ‘Y’ in the FIR statement of the said
delay. The delay is unexplained.
17.7) Even in FIR No.1201 of 2020 there is no reference to the acts
as alleged in the present FIR.
17.8) ‘Y’ has filed a Domestic Violence Application bearing a case
No.259/DV/2020 against the Petitioner, his father and his elder daughter.
th
‘Y’ has filed FIR bearing No.434 of 2021 dated 24 May 2021 registered
with Samata Nagar Police Station under section 270, 323 and 504 of the
IPC. That, in none of these FIR has ‘Y’ at any point made allegations
against the Petitioner for offences as alleged in the present FIR.
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17.9) Considering the number of FIR filed and registered at the
instance of ‘Y’ it is extremely difficult to believe that the ‘Y’ was not able to
register the FIR of the offences as alleged for a period of 10 years.
17.10) ‘X’ daughter of the Petitioner, has filed FIR bearing No.767 of
2021 registered with Samata Nagar Police Station under Section 8 and 12
of the POCSO Act, 2012 read with Sections 34, 323, 354, 504 and 506 of
the IPC along with Section 75 of the Juvenile Justice Act, 2015. That, the
present FIR is a counter blast to FIR No. 767 of 2021.
th th
17.11) The Petitioner had on 10 July 2020 and 11 July 2020 made
online complaint against ‘Y’, when she was threatening to involve the
Petitioner in false domestic violence, attempt to rape case, forgery and
other criminal matters if the Petitioner did not give an amount of
Rs.15,00,000/-.
17.12) In the FIR filed interalia under Section 498A of the IPC, ‘Y’ has
referred to various other unfounded allegations in respect of inheritance of
property and other act of alleged cruelty, but there is no reference to the
act as alleged in the present FIR. That, the entire prosecution is malicious
and filed with ulterior motive and mala fide.
18) Respondent No. 2/‘Y’ appearing in person in Criminal Writ
Petition No. 3779 of 2022 submits that :-
18.1) ‘Y’ was forced and coerced into the second marriage. During
subsistence of marriage, Petitioner committed a series of fraudulent
dealings, acts of domestic violence, criminal breach of trust and
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misappropriation of monies.
18.2) In May 2012, the Petitioner took ‘Y’ to Golden Valley Resort
and Petitioner surreptitiously spiked her coffee and committed the act of
rape. That, the Petitioner recorded the said incident on his mobile phone
and thereafter repeatedly used the recording to blackmail and threaten her.
By threatening to upload the said video and tarnish her reputation, the
Petitioner coerced ‘Y’ into marrying him under fear and duress.
18.3) The Petitioner subjected her to brutal sexual assault and
physical violence. That, the Petitioner forcibly compelled her to engage in
sexual relations against her will even when she was unwell and recovering
from illness.
18.4) Petititoner repeatedly forced her to part with money for his
personal expenses. In particular, in or about the year 2013, the Petitioner
compelled ‘Y’ to purchase a mobile phone and a laptop for himself and his
daughters and further coerced her into paying the education fees of his
daughters.
18.5) The Petitioner has exhibited a consistent pattern of financial
default and non-compliance. Various records, including income-tax
assessment communications, notices regarding unpaid VAT/Sales Tax, and
multiple demand letters for outstanding income-tax liabilities, reflect that
the Petitioner failed to file statutory returns for the period from 2008 to
2016 and has been in arrears of government dues. That Petitioner has also
received payment demands from several suppliers to whom he owes
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outstanding amount.
18.6) The Petitioner, by using the aforesaid video as a tool of
blackmail, coerced and compelled ‘Y’ to purchase a Toyota Etios car in or
about the year 2012. That, the payment for the said vehicle was made by
‘Y’ from her Savings Account No. 03571140022875 maintained with HDFC
Bank to the Petitioner's Account No. 123601502007 maintained with ICICI
Bank.
18.7) ‘Y’ has spend an amount of approximately 80,00,000/-
(Rupees Eighty Lakhs only) from her income and savings towards the
aforesaid household and family expenses.
th
18.8) ‘Y’ on 10 January 2024, registered C.R. No. 0019 of 2024
with the Samta Nagar Police Station against Petitioner and other 6 accused
persons for offences punishable under Sections 406, 420, 465, 467, 468,
th
471 read with Section 34 of the Indian Penal Code, 1860. That, on 7 July
th
2023, the bank furnished to ‘Y’ a copy of a mandate dated 24 April 2019,
purportedly bearing her signature, authorising the Petitioner, to operate
Loan Account No. 089765110000295. That, as per the Handwriting
th
Forensic Report dated 17 July 2023, her signature on the said mandate
has been opined to be forged.
th
18.9) On 4 April 2024, opinion of the Forensic Document Examiner,
is that Accused No. 5, daughter of the Petitioner, forged the signature of ‘Y’
th
on the mandate dated 24 April 2019. That, the Petitioner has wrongfully
taken approximately 2,00,00,000/- (Rupees Two Crore only) from her and
24

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has further misused approximately 4,50,00,000/- (Rupees Four Crore Fifty
Lakhs only) from her proprietorship concern Shilpi Art, while having sole
and exclusive access to the Current Account and Loan Account of the said
concern.
18.10) The Petitioner also filed a false case under the POCSO Act
using his minor daughter and forcibly removed her from her own house in
which she holds a 50% share. That, ‘X’ filed the said false POCSO case to
coerce her into giving an apology letter by threatening to make her videos
and photographs public.
18.11) The contents of the FIR, read as a whole, clearly disclose the
commission of cognizable offences punishable under Sections 376(2)(n),
377, 328, 324, 504 and 506 of the Indian Penal Code. The allegations are
specific, detailed and supported by material collected during investigation.
Therefore, a strong prima facie case exists warranting a full-fledged trial.
18.12) It is well settled that, quashing of FIR in serious sexual
offences, particularly those involving repeated rape, unnatural offences,
administration of intoxicants and criminal intimidation is an exception and
not the rule. That, unless the FIR on the face of it is inherently absurd,
patently improbable or legally untenable, the criminal proceedings ought
not to be stifled at the threshold. In the present matter, none of these
conditions are satisfied.
19) The learned APP for the Respondent-State in Criminal Writ Petition
No. 3779 of 2022 supported and adopted the submission made by ‘Y’.
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20) Before, I proceed to consider the case on merits and to ascertain
whether the application/petitions make out a case for exercising the
powers and the jurisdiction vested in this Court under section 482 of the
CrPC (now 528 of BNSS), it will be useful to refer to some of the
pronouncements of the Hon”ble Supreme Court and other/this court
enumerating the limits ambit and scope of the powers of this Court under
section 482 of the CrPC and also under Sections 29 and 30 of the POCSO
Act.
20.1) The Hon’ble Supreme Court in the case of R.P. Kapur v. State of
Punjab, reported in 1960 SCC OnLine SC 21 has observed that :-
“6. ……. It is well-established that the inherent jurisdiction of the
High Court can be exercised to quash proceedings in a proper case
either to prevent the abuse of the process of any court or
otherwise to secure the ends of justice. Ordinarily criminal
proceedings instituted against an accused person must be tried
under the provisions of the Code, and the High Court would be
reluctant to interfere with the said proceedings at an interlocutory
stage. It is not possible, desirable or expedient to lay down any
inflexible rule which would govern the exercise of this inherent
jurisdiction. However, we may indicate some categories of cases
where the inherent jurisdiction can and should be exercised for
quashing the proceedings. There may be cases where it may be
possible for the High Court to take the view that the institution or
continuance of criminal proceedings against an accused person
may amount to the abuse of the process of the Court or that the
quashing of the impugned proceedings would secure the ends of
justice. If the criminal proceeding in question is in respect of an
offence alleged to have been committed by an accused person and
it manifestly appears that there is a legal bar against the institution
or continuance of the said proceeding the High Court would be
justified in quashing the proceeding on that ground. Absence of
the requisite sanction may, for instance, furnish cases under this
category. Cases may also arise where the allegations in the first
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information report or the complaint, even if they are taken at their
face value and accepted in their entirety, do not constitute the
offence alleged; in such cases no question of appreciating evidence
arises; it is a matter merely of looking at the complaint or the first
information report to decide whether the offence alleged is
disclosed or not. In such cases it would be legitimate for the High
Court to hold that it would be manifestly unjust to allow the
process of the criminal court to be issued against the accused
person. A third category of cases in which the inherent jurisdiction
of the High Court can be successfully invoked may also arise. In
cases falling under this category the allegations made against the
accused person do constitute offence alleged but there is either no
legal evidence adduced in support of the case or evidence adduced
clearly or manifestly fails to prove the charge. In dealing with this
class of cases it is important to bear in mind the distinction
between a case where there is no legal evidence or where there is
evidence which is manifestly and clearly inconsistent with the
accusation made and cases where there is legal evidence which on
its appreciation may or may not support the accusation in
question. In exercising its jurisdiction under Section 561-A the
High Court would not embark upon an enquiry as to whether the
evidence in question is reliable or not. That is the function of the
trial Magistrate, and ordinarily it would not be open to any party
to invoke the High Court's inherent jurisdiction and contend that
on a reasonable appreciation of the evidence the accusation made
against the accused would not be sustained. ……..”
20.2) The Hon’ble Supreme Court in the case of State of Karnataka v.
L. Muniswamy reported in (1977) 2 SCC 699 has observed that:-
“7. ……….. In the exercise of this wholesome power, the High
Court is entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue would be
an abuse of the process of the Court or that the ends of justice
require that the proceeding ought to be quashed. The saving
of the High Court's inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public purpose
which is that a court proceeding ought not to be permitted to
degenerate into a weapon of harassment or persecution. In a
criminal case, the veiled object behind a lame prosecution,
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the very nature of the material on which the structure of the
prosecution rests and the like would justify the High Court in
quashing the proceeding in the interest of justice. The ends of
justice are higher than the ends of mere law though justice
has got to be administered according to laws made by the
legislature. The compelling necessity for making these
observations is that without a proper realisation of the object
and purpose of the provision which seeks to save the inherent
powers of the High Court to do justice, between the State and
its subjects, it would be impossible to appreciate the width
and contours of that salient jurisdiction.”
20.3) The Hon’ble Supreme Court in the case of State of Haryana
and Ors. Vs. Bhajan Lal and Ors. reported in 1992 Supp (1) SCC 335, has
observed that :-
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly defined and
sufficiently channelized and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code
except under an order of a Magistrate within the purview
of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
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FIR or complaint and the evidence collected in support of
the same do not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.."
20.4) The Hon’ble Supreme Court in the case of Shaileshbhai
Ranchhodbhai Patel Vs. State o Gujarat reported in 2024 SCC OnLine SC
5569 has observed that :-
“7. The question of law involved in these two appeals as to
whether quashing of the FIR should have been refused for no
other reason than that the investigating officer has filed the
charge-sheet is no longer res integra. Decisions of this Court to
such effect are legion. We may profitably refer to the decisions of
3
this Court in Ruchi Majoo v. Sanjeev Majoo , Anand Kumar
4
Mohatta v. State (Govt. of NCT of Delhi) Home Department and
5
Abhishek v. State of Madhya Pradesh .
8. On the authority of the aforesaid decisions, law seems to be
well-settled that the High Court under Section 482, Cr. P.C.
retains the power to quash an FIR, even after charge-sheet under
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Section 173(2) thereof is filed, provided a satisfaction is reached,
inter alia, that either the FIR and the charge-sheet read together,
even accepted as true and correct without rebuttal, does not
disclose commission of any offence or that continuation of
proceedings arising out of such an FIR would in fact be an abuse
of the process of law as well as of the Court given the peculiar
circumstances of each particular case.”
20.5) The Hon’ble Supreme Court in the case of Mamta Shailesh
Chandra Vs. State of Uttarakhand And Ors. reported in (2024) 19 SCC 568
has observed that :-
“2. ……..if the charge-sheet had been filed, the court could still
examine if offences alleged to have been committed were prima
facie made out or not on the basis of the FIR, charge-sheet and
other documents.”
20.6) The Hon’ble Supreme Court in the case of Mahmood Ali Vs.
State of U.P. reported in (2023) 15 SCC 488 after reiterating the
parameters as laid down in the case of State of Haryana Vs. Bhajan Lal
(supra), in paragraph 11 has observed that:-
“11. At this stage, we would like to observe something important.
Whenever an accused comes before the Court invoking either the
inherent powers under Section 482 of the Code of Criminal
Procedure (CrPC) or extraordinary jurisdiction under Article 226
of the Constitution to get the FIR or the criminal proceedings
quashed essentially on the ground that such proceedings are
manifestly frivolous or vexatious or instituted with the ulterior
motive for wreaking vengeance, then in such circumstances the
court owes a duty to look into the FIR with care and a little more
closely.
12. We say so because once the complainant decides to proceed
against the accused with an ulterior motive for wreaking personal
vengeance etc. then he would ensure that the FIR/complaint is
very well drafted with all the necessary pleadings. The
complainant would ensure that the averments made in the
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FIR/complaint are such that they disclose the necessary
ingredients to constitute the alleged offence. Therefore, it will not
be just enough for the Court to look into the averments made in
the FIR/complaint alone for the purpose of ascertaining whether
the necessary ingredients to constitute the alleged offence are
disclosed or not.
13. In frivolous or vexatious proceedings, the Court owes a duty
to look into many other attending circumstances emerging from
the record of the case over and above the averments and, if need
be, with due care and circumspection try to read in between the
lines. The Court while exercising its jurisdiction under Section
482CrPC or Article 226 of the Constitution need not restrict itself
only to the stage of a case but is empowered to take into account
the overall circumstances leading to the initiation/registration of
the case as well as the materials collected in the course of
investigation. Take for instance the case on hand. Multiple FIRs
have been registered over a period of time. It is in the background
of such circumstances the registration of multiple FIRs assumes
importance, thereby attracting the issue of wreaking vengeance
out of private or personal grudge as alleged.”
20.7) The Hon’ble Supreme Court, after once again referring to and
throwing the parameters laid down in the case of Bhajan Lal (supra), and
while specifically dealing with the issue of malicious and vexatious
proceedings/prosecution in the case of Mohammad Wajid and Anr. Vs.
State of Uttar Pradesh and Ors. in Criminal Appeal No. 2340 of 2023, has
observed as follows:-
“30. At this stage, we would like to observe something
important. Whenever an accused comes before the Court
invoking either the inherent powers under Section 482 of
the Code of Criminal Procedure (Cr.P.C.) or extraordinary
jurisdiction under Article 226 of the Constitution to get the
FIR or the criminal proceedings quashed essentially on the
ground that such proceedings are manifestly frivolous or
vexatious or instituted with the ulterior motive for
wreaking vengeance, then in such circumstances the Court
owes a duty to look into the FIR with care and a little more
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closely. We say so because once the complainant decides to
proceed against the accused with an ulterior motive for
wreaking personal vengeance, etc., then he would ensure
that the FIR/complaint is very well drafted with all the
necessary pleadings. The complainant would ensure that
the averments made in the FIR/complaint are such that
they disclose the necessary ingredients to constitute the
alleged offence. Therefore, it will not be just enough for the
Court to look into the averments made in the
FIR/complaint alone for the purpose of ascertaining
whether the necessary ingredients to constitute the alleged
offence are disclosed or not. In frivolous or vexatious
proceedings, the Court owes a duty to look into many other
attending circumstances emerging from the record of the
case over and above the averments and, if need be, with
due care and circumspection try to read in between the
lines. The Court while exercising its jurisdiction under
Section 482 of the CrPC or Article 226 of the Constitution
need not restrict itself only to the stage of a case but is
empowered to take into account the overall circumstances
leading to the initiation/registration of the case as well as
the materials collected in the course of investigation. Take
for instance the case on hand. Multiple FIRs have been
registered over a period of time. It is in the background of
such circumstances the registration of multiple FIRs
assumes importance, thereby attracting the issue of
wreaking vengeance out of private or personal grudge as
alleged.”
20.8) On whether the material relied upon by the accused should be
considered when deciding an application seeking quashing, the Hon’ble
Supreme Court has observed, in the case of Pradeep Kumar Kesarwani v.
State of U.P., reported in 2025 SCC OnLine SC 1947 , in Paragraph No. 20,
as under :-
“20. The following steps should ordinarily determine
the veracity of a prayer for quashing, raised by an
accused by invoking the power vested in the High Court
under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by
the accused is sound, reasonable, and indubitable, i.e.,
the materials is of sterling and impeccable quality?
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(ii) Step two, whether the material relied upon by the
accused, would rule out the assertions contained in the
charges levelled against the accused, i.e., the material is
sufficient to reject and overrule the factual assertions
contained in the complaint, i.e., the material is such, as
would persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the
accused, has not been refuted by the
prosecution/complainant; and/or the material is such,
that it cannot be justifiably refuted by the
prosecution/complainant?
(iv) Step four, whether proceeding with the trial would
result in an abuse of process of the court, and would
not serve the ends of justice? If the answer to all the
steps is in the affirmative, judicial conscience of the
High Court should persuade it to quash such criminal –
proceedings, in exercise of power vested in it under
Section 482 of the Cr.P.C. Such exercise of power,
besides doing justice to the accused, would save
precious court time, which would otherwise be wasted
in holding such a trial (as well as, proceedings arising
therefrom) specially when, it is clear that the same
would not conclude in the conviction of the accused.”
20.9) In the following Judgment, the Hon’ble Supreme Court has
observed that, while exercising jurisdiction under Section 482 of the CrPC,
it is not permissible to conduct a mini trial or examine whether a statement
of a witness is trustworthy or not. The trustworthiness of a witness can be
examined only at trial. The stage of quashing under Section 482 of the
CrPC is not the stage where the prosecution/investigating agency is called
upon or required to prove the charges. What is required to be considered is
whether a prima facie case is made out and whether the material collected
during the investigation warrants that the accused be tried. The power
under Section 482 is to be exercised only when the Court finds that, taking
the case at its face value, no case is at all made out. The Court ought not to
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go into the correctness or otherwise of the material placed by the
prosecution. The Hon’ble Supreme Court, in the case of Manik B v.
Kadapala Sreyes Reddy, reported in 2023 SCC OnLine SC 2540 , has
observed as follows:-
“4. The least we can say is that the High Court in the
impugned order, while exercising jurisdiction under
Section 482 Cr. P.C., has almost conducted a mini trial
and quashed the proceedings.
6. Whether the testimony of the witnesses is trustworthy
or not has to be found out from the examination-in-chief
and the cross-examination of the witnesses when they
stand in the box at the stage of such trial.
7. Such an exercise, in our considered view, is not
permissible while exercising the jurisdiction under Section
482 Cr. P.C.
8. The scope of interference, while quashing the
proceedings under Section 482 Cr. P.C. and that too for a
serious offence like Section 302 of Penal Code, 1860 is
very limited. The Court would exercise its power to quash
the proceedings only if it finds that taking the case at its
face value, no case is made out at all.
9. At the stage of deciding an application under Section
482 Cr. P.C., it is not permissible for the High Court to go
into the correctness or otherwise of the material placed by
the prosecution in the chargesheet. The High Court by the
impugned order has done exactly the same.”
20.10) The Hon’ble Supreme Court in the case of Central
Bureau of Investigation Vs. Aryan Singh and Ors. reported in (2023) 18
SCC 399 has observed that :-
“6. From the impugned common judgment and order [Aryan Singh
v. CBI, 2022 SCC OnLine P&H 4158] passed by the High
Court, it appears that the High Court has dealt with the
proceedings before it, as if, the High Court was conducting a
mini trial and/or the High Court was considering the
applications against the judgment and order passed by the
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learned trial court on conclusion of trial. As per the cardinal
principle of law, at the stage of discharge and/or quashing of
the criminal proceedings, while exercising the powers under
Section 482CrPC, the Court is not required to conduct the mini
trial. The High Court in the common impugned judgment and
order has observed that the charges against the accused are
not proved. This is not the stage where the
prosecution/investigating agency is/are required to prove the
charges. The charges are required to be proved during the trial
on the basis of the evidence led by the
prosecution/investigating agency.
20.11) The Hon’ble Supreme Court in the case of Kailash Chandra
Agarwal vs. State of U.P. reported in (2014) 16 SCC 551 has observed
that:-
“9. The parameters for quashing proceedings in a criminal
complaint are well known. If there are triable issues, the Court is
not expected to go into the veracity of the rival versions but where
on the face of it, the criminal proceedings are abuse of the court's
process, quashing jurisdiction can be exercised. ...”
20.12) This Court in the case of Amol Bhagwan Nehul Vs. The State
of Maharashtra and Anr. in Criminal Writ Petition No.3181 of 2023 has
observed that:-
“8. The facts in the present case are quite distinct from the position
of law as Mr. Suryavanshi has tried to depict. The Complainant
alleges specific instances where the Petitioner has forcibly and
without her consent established sexual relationship with her. She
contends specific instances of her rejection of advances by the
Petitioner. We are of the view that, the allegations in the F.I.R.
prima-facie constitute the commission of the alleged offense. The
defense of the Petitioner cannot be tested at this stage.
9. In a series of precedents of the Apex Court, it has been clearly
held that the High Court cannot hold a mini-trial in its extra-
ordinary writ jurisdiction. The Hon’ble Supreme Court in the case
of Priyanka Jaiswal vs. The State of Jharkhand and Others in
Criminal Appeal No. 2344 of 2024 dated 30th April 2024 (neutral
citation 2024 INSC 357), while dealing with the similar issue, has
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also held as follows :
“13. …...This Court in catena of judgments has consistently
held that at the time of examining the prayer for
quashing of the criminal proceedings, the Court
exercising extra-ordinary jurisdiction can neither
undertake to conduct a mini trial, nor enter into
appreciation of evidence of a particular case. The
correctness or otherwise of the allegations made in the
complaint cannot be examined on the touchstone of
probable defence that the accused may raise to stave
off the prosecution and any such misadventure by the
Courts resulting in proceedings being quashed would
be set aside.….””
20.13) The Hon’ble Supreme Court in the case of Thulia Kali
Vs. The State of Tamil Nadu reported in (1972) 3 SCC 393 has observed
that :-
“12 …………….First information report in a criminal case is
an extremely vital and valuable piece of evidence for the
purpose of corroborating the oral evidence adduced at the
trial. The importance of the above report can hardly be
overestimated from the standpoint of the accused. The object
of insisting upon prompt lodging of the report to the police
in respect of commission of an offence is to obtain early
information regarding the circumstances in which the crime
was committed, the names of the actual culprits and the part
played by them as well as the names of eye-witnesses present
at the scene of occurrence. Delay in lodging the first
information report quite often results in embellishment
which is a creature of afterthought. On account of delay, the
report not only gets bereft of the advantage of spontaneity,
danger creeps in of the introduction of coloured version,
exaggerated account or concocted story as a result of
deliberation and consultation. It is, therefore, essential that
the delay in the lodging of the first information report should
be satisfactorily explained.”
20.14) In the case of ‘X’ Vs. State NCT of Delhi & ‘Y’
(CRL.M.C.3124/2022 & CRL.M.A. 13185/2022 has observed that:-
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“17. A perusal of the same reveals that the victim has
narrated specific incidents of sexual abuse, the manner in
which it was committed and the places, time and dates of such
abuses. The same are not being reproduced in this order
considering the sensitive contents of same. Keeping in mind
the above and the observation of the child counsellor and the
conclusion of the investigation culminating into filing of the
chargesheet, this Court is not persuaded to reach a conclusion
that the allegations leveled are absurd, highly improbable that
such incident could not have happened so as to direct
quashing of the FIR. While dealing with such a case, the Court
remains conscious of the fact that child in this case is a minor
who has given statement under Section 164 CrPC before the
Magistrate. A statement under Section 164 CrPC is recorded
by the concerned Magistrate after satisfying himself that the
victim child is capable of giving statement and understanding
the statement he is making before the Magistrate. This Court
while exercising its extra ordinary powers under Section 482
CrPC cannot hold a trial, appreciate evidence or decide that
the statements given by the child to the police, to the
Magistrate, and to the counselor, he was taken to, were
tutored, false or motivated. This Court remains conscious of
the fact that such cases cannot be treated as cases of
matrimonial discord but note that the child who is victim in
this case has his own individual constitutional right to get
justice in case he has been sexually abused. To deny the child
victim the right to get such justice only because one of the
parties involved happens to be his real father and his father
and mother have matrimonial discord will be highly unfair.
18. The truthfulness of the statement of the victim will become
clear only during the trial of the case after the testimonies of
the child and other witnesses are recorded and appreciated on
the touchstone of cross-examination. Holding otherwise will
amount to throttling the judicial proceedings and denying
opportunity to get justice to the victim child.
19. Needless to say, the applicant/accused will have
opportunity to cross-examine the witnesses including the
victim, lead his own evidence and advance arguments before
concerned Court. This Court, therefore, is of the opinion that
the present case is not covered by the cases relied upon. The
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judgment of Bhajan Lal (Supra) is to be applied in the rarest of
rare case, which cannot be said about the present case. As
regards the reliance being placed upon judgment of N.
Chandramohan (supra), the victim herself in the said case had
completely and categorically denied all the allegations against
her father, which is not there in the present case. As for the
other judgments placed on record, this Court is of the opinion
that the case at hand is not covered by those judgments as this
Court is not satisfied that the allegations in the FIR at this
stage can be held to be false or vindictive.”
20.15) The Hon’ble Supreme Court in the case of Just Rights for
Children Alliance v. S. Harish, reported in 2024 SCC OnLine SC 2611 has
observed that:-
“c. Whether the Presumption under Section 30 of the POCSO
can be resorted to in a Quashing Proceeding?
180. The last aspect which remains to be examined is whether
the said statutory presumption of culpable mental state provided
in Section 30 of the POCSO can be resorted to in a quashing
proceeding by the High Courts in exercise of their inherent
powers under Section 482 of the Cr. P.C. (corresponding Section
530 of the Bhartiya Nagrik Suraksha Sanhita, 2023, for short,
the “BNSS”). In other words, at what stage can the aforesaid
said statutory presumption be invoked at. Before proceeding
with the analysis of the said aspect, it would be appropriate to
refer to a few decisions of this Court on this issue.
181. In State of M.P. v. Harsh Gupta, (1998) 8 SCC 630, this
Court held that the statutory presumption contained in Section
69 of the Indian Forest Act, 1927 could not have been ignored
by the High Court in deciding the quashing petition under
Section 482 of the Cr. P.C. The relevant observations read as
under:—
“3. It is rather surprising that at a stage when the only
question to be considered was whether the complaint and its
accompaniments disclosed any or all of the offences alleged
against the respondent, the learned Judge not only went into
a detailed discussion about his defence but recorded a
conclusive finding that he was not guilty of the offences
alleged against him. More surprising is that the learned Judge
ignored the provisions of Section 69 of the Act which
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expressly raises a statutory presumption against a person
arraigned that the forest produce recovered from him was a
property of the Government, until the contrary is proved; and
needless to say, the question of proof of the contrary can be
answered after evidence is led.
4. For the foregoing discussion, we allow this appeal, set aside
the impugned judgment and direct the Magistrate to proceed
with the case in accordance with law, without in any way
being influenced by any of the observations made by the High
Court in the impugned order.”
(Emphasis supplied)
182. This Court in Prakash Nath Khanna v. CIT, (2004) 9 SCC
686 examined the scope of Section 278E of the Act, 1961. It held
that where there is a statutory presumption as regards the
existence of a culpable mental state on the part of the accused in
respect of any offence alleged, any defence in respect of the
absence of such mental state can only be pleaded in the trial. It
further held that in such scenario, it will not be open for the
High Court to delve into the aspect of the absence of such
mental state in a quashing proceeding. The relevant observations
read as under:—
“23. There is a statutory presumption prescribed in Section
278-E. The court has to presume the existence of culpable
mental state, and absence of such mental state can be
pleaded by an accused as a defence in respect to the act
charged as an offence in the prosecution. Therefore, the
factual aspects highlighted by the appellants were rightly not
dealt with by the High Court. This is a matter for trial. It is
certainly open to the appellants to plead absence of culpable
mental state when the matter is taken up for trial.”
(Emphasis supplied)
183. In another decision of this Court in R. Kalyani v. Janak C.
Mehta, (2009) 1 SCC 516 although the issue therein did not
pertain to the applicability of any statutory presumption, yet the
observations made therein are significant. This Court held that
the High Court in a quashing petition in exercise of its inherent
jurisdiction cannot go into the aspect of either the existence or
absence of any mens rea or actus reus for a particular offence to
pass an order in favour of the accused. The relevant observations
read as under:—
“15. Propositions of law which emerge from the said
decisions are:
(1) The High Court ordinarily would not exercise its inherent
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jurisdiction to quash a criminal proceeding and, in particular,
a first information report unless the allegations contained
therein, even if given face value and taken to be correct in
their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very
exceptional circumstances, would not look to any document
relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the
allegations made in the FIR disclose commission of an
offence, the Court shall not go beyond the same and pass an
order in favour of the accused to hold absence of any mens
rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by
itself may not be a ground to hold that the criminal
proceedings should not be allowed to continue.”
(Emphasis supplied)
184. In a recent decision of this Court in Rathis Babu
Unnikrishnan v. The State (Govt. of NCT of Delhi), 2022 INSC
480 it was held that when there is a statutory presumption, it
would not be judicious of the quashing court to carry out a
detailed enquiry on the facts alleged before first permitting the
trial court to evaluate the evidence. It further observed that
where a accused moves the court for quashing even before the
commencement of trial, the High Courts in such cases should be
slow and circumspect in prematurely extinguishing by discarding
the legal presumption all together. The relevant observation
reads as under:—
“11. The legal presumption of the cheque having been issued
in the discharge of liability must also receive due weightage.
In a situation where the accused moves Court for quashing
even before trial has commenced, the Court's approach
should be careful enough to not to prematurely extinguish
the case by disregarding the legal presumption which
supports the complaint.
xxxxxxxxx
13. Bearing in mind the principles for exercise of jurisdiction
in a proceeding for quashing, let us now turn to the materials
in this case. On careful reading of the complaint and the order
passed by the Magistrate, what is discernible is that a possible
view is taken that the cheques drawn were, in discharge of a
debt for purchase of shares. In any case, when there is legal
presumption, it would not be judicious for the quashing Court
to carry out a detailed enquiry on the facts alleged, without
40

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first permitting the trial Court to evaluate the evidence of the
parties. The quashing Court should not take upon itself, the
burden of separating the wheat from the chaff where facts are
contested. To say it differently, the quashing proceedings must
not become an expedition into the merits of factual dispute,
so as to conclusively vindicate either the complainant or the
defence.
xxxxxxxxx
16. The proposition of law as set out above makes it
abundantly clear that the Court should be slow to grant the
relief of quashing a complaint at a pre-trial stage, when the
factual controversy is in the realm of possibility particularly
because of the legal presumption, as in this matter. What is
also of note is that the factual defence without having to
adduce any evidence need to be of an unimpeachable quality,
so as to altogether disprove the allegations made in the
complaint.
17. The consequences of scuttling the criminal process at a
pre-trial stage can be grave and irreparable. Quashing
proceedings at preliminary stages will result in finality
without the parties having had an opportunity to adduce
evidence and the consequence then is that the proper forum
i.e., the trial Court is ousted from weighing the material
evidence. If this is allowed, the accused may be given an un-
merited advantage in the criminal process. Also because of the
legal presumption, when the cheque and the signature are not
disputed by the appellant, the balance of convenience at this
stage is in favour of the complainant/prosecution, as the
accused will have due opportunity to adduce defence evidence
during the trial, to rebut the presumption.”
(Emphasis supplied)
185. From the above exposition of law, it is clear that there is no
bar for the High Court to invoke the statutory presumption at
the stage of deciding the quashing petition in respect to any
offence to which such a presumption is applicable. Rather, any
failure to give due weightage to the same, may result in dire
consequences such as premature quashing of the criminal
proceeding or allowing the accused to completely bypass the
statutory presumption which otherwise would have been
applicable in the trial. In light of our earlier discussion and
without again referring to a plethora of decisions in this regard,
it is clear how the statutory presumption plays a vital role when
it comes to offences such as those under the POCSO.
186. This Court in Attorney General (supra) specifically held
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that considering the objects of POCSO, its provisions, more
particularly, pertaining to sexual assault etc should be construed
viz-a-viz the other provisions of the Act more meaningful and
effective. Any selective reference to a particular provision in
complete ignorance of the other provision would result in a
mutilation of the entire scheme and purport of the legislation
and thereby defeat the purpose with which it was enacted. The
High Courts as a matter of choice should not shy away from
referring to the statutory presumption that has been
incorporated in the Act, whilst deciding a quashing petition. The
High Courts must not deal with a particular offence under any
enactment devoid or in disregard of the rest of the statutory
framework, it must recognize and refer to the legislation in toto.
187. Otherwise, it would give an undue advantage to an
accused by allowing him to mischievously prefer a quashing
petition before the trial commences and completely bypass the
statutory presumption provided by the legislature and walk
right away from the criminal proceedings, thereby setting the
entire legislation at naught. It is imperative for the courts to
discourage any such attempts on part of the accused to short
circuit the statutory provisions and procedure laid in a
particular Act and evade trial entirely. In such situations, the
statutory presumption becomes all the more important to
effectively ensure that criminal process is not manipulated by
any devious accused.
188. As has been held in Prakash Nath Khanna (supra) and
Rathis Babu Unnikrishnan (supra), any defence of the accused
for the purpose of rebutting the said statutory presumption
should ordinarily be left to the trial court to be looked into at-
least when it comes to quashing petitions. Though, in certain
exceptional circumstances, the High Court may entertain such
defence to quash the criminal proceedings where it appears
from the facts itself that the allegations themselves are
completely false and bogus and by no stretch of imagination
said to be established. But in doing so, the High Court must be
slow and circumspect & must exercise some restraint. The
statutory presumption may be ignored only where no
foundational facts have been established from the material on
record.
189. Once the foundational facts are prima facie established
from the materials on record, it would be improper for the High
Court in a quashing petition to conduct an intricate evidentiary
inquiry into the facts and ascertain whether the requisite mental
elements are present or not. All these aspects should be left to
be decided by the trial court which is the appropriate forum for
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the evaluation of the same, especially where the statutory
presumption has been attracted prima facie from the material
on record.
190. When the High Court quashes any criminal proceedings
without considering the legal effect of the statutory
presumption, it effectively scuttles the process of trial and
thereby denies the parties the opportunity to adduce
appropriate evidence and the right to a fair trial. This would not
only defeat the very case of the prosecution but would also
thwart the very object of a particular legislation and thereby
undermine the public confidence in the criminal justice system.”
20.16) The Hon’ble Supreme Court in the case of Surendra Khawse
Vs. State of Madhya Pradesh reported in AIR 2025 SC (Criminal) 1362 has
observed that :-
“13. As apparent from the record, the Appellant-accused and
the complainant had been colleagues for the past 5 years
and it is somewhere during this time that their
relationship progressed. We notice once against that the
Appellant-accused had initiated legal
process/administrative processes against the complainant
much prior to the subject F.I.R. being lodged. These
included a show-cause notice issued by the employer
regarding her continued acrimonious behaviour against
the Appellant-accuse, with the ultimatum that should she
not respond to the notice with the requisite clarification,
she would be relieved of her employment. It is only
thereafter that the subject FIR was lodged. Further, the
same was lodged four months after the alleged incident of
forced sexual intercourse with the complainant. If the
discription of the offence is taken at face value, right at
the first instance, the complainant was not willing and
was persuaded to engage in relation on the assurance of
eventual marriage between the parties. When she
enquired as to when the same would take place, a few
days later, allegedly the Appellant-accused refused and
asked her to marry someone else. That would be the first
occasion when, having realized that she had been taken
advantage of the complainant should have taken the
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requisite action. Even if that was not done so, the fact that
the subject FIR was only lodged after the issuance of
show-cause notice, which obviously has large real-world
implications insofar as the complainant is concerned,
leaves open a gaping possibility that the same was lodged
as an afterthought and was a vehicle for vengeance for the
impending consequences described above.”
20.17) The Hon’ble Supreme Court in the case of Sau. Kamal Shivaji
Pokarnekar Vs. The State of Maharashtra and Ors. in Criminal Appeal
No.255 of 2019 has observed that :-
“5. Quashing the criminal proceedings is called for only in a
case where the complaint does not disclose any offence, or is
frivolous, vexatious, or oppressive. If the allegations set out
in the complaint do not constitute the offence of which
cognizance has been taken by the Magistrate, it is open to
the High Court to quash the same. It is not necessary that a
meticulous analysis of the case should be done before the
Trial to find out whether the case would end in conviction or
acquittal. If it appears on a reading of the complaint and
consideration of the allegations therein, in the light of the
statement made on oath that the ingredients of the offence
are Sonu Gupta v. Deepak Gupta and Ors. 2015 (3) SCC 424.
disclosed, there would be no justification for the High Court
to interfere.
6. Defences that may be available, or facts/aspects which
when established during the trial, may lead to acquittal, are
not grounds for quashing the complaint at the threshold. At
that stage, the only question relevant is whether the
averments in the complaint spell out the ingredients of a
criminal offence or not. ”
20.18) The Hon’ble Supreme Court in the case Abhishek Singh v. Ajay
Kumar, reported in 2025 SCC OnLine SC 1313 has observed that :-
“9. The scope of the Court's power to quash and set aside
proceedings is well-settled to warrant any restatement. While the
arguments advanced have the potential to raise many issues for
consideration, we must first satisfy ourselves as to the propriety of
the exercise of such power by the High Court. The task of the High
44

SAGAR MAGAR
Court, when called upon to adjudicate an application seeking to
quash the proceedings, is to see whether, prima facie, an offence is
made out or not. It is not to examine whether the charges may hold
up in the Court. In doing so, the area of action is circumscribed. In
Rajeev Kourav v. Baisahab4, it was held:
“8. It is no more res integra that exercise of power under Section
482 CrPC to quash a criminal proceeding is only when an
allegation made in the FIR or the charge-sheet constitutes the
ingredients of the offence/offences alleged. Interference by the
High Court under Section 482 CrPC is to prevent the abuse of
process of any court or otherwise to secure the ends of justice. It
is settled law that the evidence produced by the accused in his
defence cannot be looked into by the court, except in very
exceptional circumstances, at the initial stage of the criminal
proceedings. It is trite law that the High Court cannot embark
upon the appreciation of evidence while considering the petition
filed under Section 482 CrPC for quashing criminal proceedings.
It is clear from the law laid down by this Court that if a prima
facie case is made out disclosing the ingredients of the offence
alleged against the accused, the Court cannot quash a criminal
proceeding.””
21) The main thrust of the arguments advanced on behalf of both
‘Y’ and Mr. Prakash Bhatia in their respective application and petitions is
that, the criminal prosecutions under challenge are malicious, manifestly
attended with malafides, instituted with dishonest intentions and ulterior
motives for wreaking vengeance and with a view to spite the other spouse
due to the personal grudge. It is the contention of both ‘Y’ and Mr. Prakash
Bhatia that, the criminal prosecutions under challenge are off shoots of the
matrimonial proceedings and financial issues which exists between ‘Y’ and
the Petitioner. It is also contended by both the parties and again as per
their convenience, that this Court while exercising the power under Section
482 of CrPC (now 528 of BNSS) shall not evaluate the evidence nor can it
conduct a mini trial. The law is well settled that a “mini trial” ought not to
45

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be conducted. This Court is well aware and conscious of the said limits and
restraints while exercising powers under Section 482 of CrPC. It is also
settled law that, the inherent powers under Section 482 of CrPC are vast
and ought to be exercised only when the twin conditions stated in Section
482 are satisfied i.e. to prevent the abuse of the process of any Court or
otherwise to secure the ends of justice. It also settled law that, when the
contention is raised or an argument advanced that, proceedings are
frivolous, vexatious, or manifestly instituted with ulterior motives for
taking revenge or with vengeance, then in such circumstances, the Court
owes a duty to look into the FIR, allegations and attending circumstances
with due care and caution while considering an application for quashing.
In frivolous and vexatious proceedings, the Court has a duty to look into
other attending circumstances emerging from the record of the case over
and above the averments and, if need be, with due care and
circumspection try to read between the lines. The Court is empowered to
take into account the overall circumstances leading to the initiation and
registration of the criminal prosecution as well as the material collected
during the course of investigation.
22) The parties to the present proceedings have a long and
chequered history of litigation and disputes. Considering the arguments
advanced, it is necessary to consider and appreciate the entire factual
background of the matter. It is therefore necessary to consider alongwith
the aforesaid FIR’s certain other attending circumstances, events and
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complaints filed by the parties which are relevant to and will be of
assistance to this Court in deciding whether a case has been made out by
the Applicant/Petitioner to exercise in their favour the inherent powers of
this Court under section 482 of the CrPC. The overall background of the
litigation and disputes is as under:-
th
22.1) On 28 November 2014, ‘Y’ and Mr Prakash Bhatia i.e father
of ‘X’ got married. It was the second marriage for both ‘Y’ and Mr Prakash
Bhatia. From the first marriage, each of them have two daughters.
nd
22.2) On 22 November 2019, Mr Prakash Bhatia executed a
registered gift deed, thereby transferring a 50% share i.e his right, title,
and interest in respect of Flat No. 1801, Tower No.2, Challengers CHSL,
Thakur Village, Behind Thakur Cinema, Kandivali (East) in favour of ‘Y’. It
is the contention of Mr. Prakash Bhatia that, this was allegedly got done by
locking ‘X’ i.e. his daughter in a room and forcing him to execute the
registered gift deed in favour of ‘Y’.
22.3) After May 2020, matrimonial disputes arose between ‘Y’ and
Mr Prakash Bhatia. In or around August 2020, Mr Prakash Bhatia filed
Marriage Petition No. 875 of 2020 seeking divorce from ‘Y’.
th
22.4) On 5 September 2020, ‘Y’ filed a complaint with the Samta
Nagar Police Station, Kandivali (E) complaining of physical, mental,
th
financial and emotional abuse. On 4 October 2020, ‘Y’ registered a FIR
No. 1201 of 2020 with the Samta Nagar Police Station under sections 498
A, 323, 504 and 34 of the IPC against Mr Prakash Bhatia, his father and his
47

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elder daughter.
th
22.5) On 16 December 2020, ‘Y’ preferred a Domestic Violence
Application before the learned JMFC Court at Borivali bearing Case No.
259/DV/2020 against Mr Prakash Bhatia, his father and his elder daughter.
th
22.6) On 7 January 2021, a Criminal Writ Petition No. 909 of 2021,
was filed under section 482 of the CrPC, seeking quashing of FIR No. 1201
of 2020 registered under sections 498 A, 323, 504 and 34 of the IPC.
th
22.7) On 12 January 2021, Mr Prakash Bhatia filed a Civil Suit
being Suit No (L) 973 of 2021 before this Court seeking to challenge the
nd th
execution of the registered gift deed dated 22 November 2019. On 18
January 2021, by way of an Interim Order, this Court granting status quo
on the suit property. The said suit is pending before this Court.
th
22.8) On 5 May 2021, Mr Prakash Bhatia filed an Application
bearing No. 147 of 2021,before this Court seeking transfer of the
proceedings filed by ‘Y’ under DV Act being CC No. 259/DV/2020 and to
club the same with the Divorce Petition filed before the Family Court, at
Bandra, Mumbai.
th
22.9) On 24 May 2021, ‘Y’ registered a FIR bearing No 434 of 2021
(first FIR of which quashing is sought) with the Samata Police Station,
under sections section 270, 323 and 504 of the IPC against ‘X’ and Mr
th
Prakash Bhatia. This pertains to an incident of 8 April 2021.
th
22.10) On 9 July 2021, Mr Prakash Bhatia filed Criminal Writ
Petition bearing No. 2768 of 2021 for quashing of FIR No. 434 of 2021.
48

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The same is being decided by this Judgment and Order.
th th
22.11) On 12 /13 August 2021, ‘Y’ and Mr Prakash Bhatia allegedly
got into an altercation, when ‘Y’ is alleged to have verbally abused ‘X’. Mr
Prakash Bhatia, therefore called the Childline Helpline.
th
22.12) On 13 August 2021 members from Childline Helpline visit
the residence of ‘X’ and conducted an inquiry regarding the incident. It is
the case of Mr Prakash Bhatia that, it was during this inquiry that, ‘X’ for
the first time disclosed the incident of sexual abuse suffered by her at the
th
hands of ‘Y’. Surprisingly, the home visit report dated 13 August 2021
does not make any reference to any act of the alleged sexual abuse.
th
22.13) On 14 August 2021, ‘X’ filed an online complaint to
Respondent No. 1 alleging sexual, mental, emotional and physical abuse by
‘Y’. That, ‘Y’ physically tortured and hit ‘X’ with an hammer.
th st
22.14) In the complaint dated 20 August 2021, and 21 August 2021
filed by ‘X’ there is no mention or reference to any act of sexual abuse.
There are general complaints pertaining to alleged acts of not giving foods,
throwing away food made for ‘X’ etc.
th
22.15) On 30 August 2021, ‘X’ filed an application under section 18
of the DV Act. In the application ‘X’ has allged that since the first day of the
marriage ‘Y’ has touched her inappropriately under the pretext of some
examination.
nd
22.16) On 22 October 2021, in CC 259/DV/2020 protective order
was granted in favour of ‘Y’. whereby Mr. Prakash Bhatia was interalia
49

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directed to stay away from ‘Y’ and her two daughters and her relatives and
also directed not to harass or pass any remarks on ‘Y’ and her daughters.
st
22.17) On 31 October 2021, a FIR No. 746 of 2021, was registered
at the behest of ‘Y’ under section 354D, 509 of the IPC and section 67 of
the IT Act. As the name of Mr Prakash Bhatia was not included, based on a
th
application made by ‘Y’, learned Magistrate 17 Borivali Court,by an Order
th
dated 26 June 2025, ordered further investigation under section 173(8)
of the CrPC.
th
22.18) On 11 November 2021, at the instance of ‘X’ FIR bearing No.
767/2021 (Second FIR of which quashing is sought) was registered by the
Samta Nagar Police Station under sections 8 & 12 of the POCSO Act and
sections 354, 323, 504 & 506 of the IPC along with section 75 of the
Juvenile Justice Act, 2015, against ‘Y’.
nd
22.19) On 22 November 2021, Mr. Prakash Bhatia, in reply to notice
th
dated 20 November 2021 issued by the Investigating Officer submitted
the test result/report of Covid, copies of his travel tickets to China
pertaining to travel in the month June 2018, December 2018, April 2019,
November-December 2019.
th
22.20) On 25 November 2021, ‘X’ submitted a letter seeking proper
recording of her statement, as according to her the FIR did not record all
the relevant facts which were reported by her.
th
22.21) On 9 December 2021, Mr Prakash Bhatia filed an Application
in the ongoing Divorce Proceedings in learned Family Court, Bandra
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seeking prayers restraining access of ‘Y’ to the matrimonial household.
th
22.22) On 10 December 2021, a supplementary statement of ‘X’ was
recorded, wherein ‘X’ made further allegations in respect of the acts of
sexual abuse. In addition to the June 2018 incident mentioned in the said
FIR, ‘X’ alleged that, ‘Y’ committed acts of sexual abuse in December 2018,
April 2019, December 2019 and November/December 2020.
th
22.23) On 17 December 2021, this Court considering the ongoing
matrimonial disputes, granted protection to ‘Y’ from arrest in ABA No.
th
2879 of 2021 and referred the matter to mediation. On 4 January 2022
Mediator addressed a letter to this Court expressing inability to complete
mediation.
th
22.24) This Court by Order dated 7 January 2022 rejected ABA No.
2879 of 2021. ‘Y’ being aggrieved by the rejection of the Anticipatory Bail
Application, preferred a Special Leave Petition bearing No. 363/2022
before the Hon’ble Supreme Court.
th
22.25) On 15 January 2022, Mr Prakash Bhatia filed a Criminal
Appeal bearing No. 16 of 2022 before the learned Sessions Court, Dindoshi
nd
challenging the protective Order dated 22 October 2021 passed in CC
259/DV/2020. The said Appeal, is stated to be pending.
th
22.26) On 19 March 2022, Mr Prakash Bhatia filed Criminal Writ
Petition bearing No. 1037 of 2022 seeking transfer of investigation in the
present matter to a Competent Authority/Agency.
nd
22.27) After more than 5 months, on 2 May 2022, the statement of
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‘X’ came to be recorded under section 164 of the Code of Criminal
Procedure. Surprisingly in the said statement, ‘X’ only refers to the alleged
incident of June 2018, but in an exaggerated manner. There is no reference
th
to the other incidents as alleged in her supplementary statement dated 10
December 2021, which were recorded pursuant to the request of ‘X’ made
th
by her letter dated 25 November 2021. In the statement of ‘X’ recorded
under Section 164 of the CrPC, the other allegations are in respect of the
execution of the gift deed, threats of assault by a hammer, spraying pepper
spray on ‘X’, not allowing the father of ‘X’ to enter the house, a reference is
made to the call to the Child Helpline. A new allegation is made that, ‘Y’
had taken jewellery and personal documents of ‘X’.
th
22.28) On 30 July 2022, ‘Y’ registered a FIR No. 1149 of 2022
(Third FIR of which quashing is sought) with the Samata Nagar Police
Station against Mr Prakash Bhatia under section 376(2) n, 377, 328, 324,
504 and 506 of the IPC. The allegations pertains to the year 2012.
th
22.29) On 24 August 2022, at the instance of ‘Y’ FIR bearing No.
1202 of 2022 was registered with the Samata Nagar Police Station under
section 380 of the IPC. It is the allegation of ‘Y’ that, when ‘Y’ under and
th
pursuant to the Order dated 17 May 2022 passed by the Hon’ble Supreme
th
Court visited her matrimonial home on 30 May 2022, for collecting her
belongings, she noticed that, her room was already opened and her
belongings worth Rs 8.5 lakhs were missing.
nd
22.30) On 2 December 2022, a defamation case was filed by ‘Y’.
52

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th
22.31) On 5 January 2023, Criminal WP No. 1037 of 2022 seeking
transfer of investigation was withdrawn by Mr Prakash Bhatia.
th
22.32) On 10 January 2024, ‘Y’ registered a FIR No. 19 of 2024 with
the Samata Nagar Police Station under sections 420, 406, 465, 467, 468,
471 read with 34 of the IPC against the Petitioner, his elder daughter and
other accused.
th
22.33) On 4 March 2024, Criminal Writ Petition No. 909 of 2021
filed seeking quashing of FIR No. 1201 of 2020, was partly allowed. The
prayer for quashing of FIR against Mr Prakash Bhatia was rejected. The
Investigating agency was at liberty to file chargesheet after completing
investigations. This was in respect of the criminal prosecution filed under
section 498A, 323, 504, read with Section 34 of the IPC.
23) Apart from the aforestated proceedings, ‘Y’ has filed various NC
Complaints against Mr Prakash Bhatia i.e (i) NC complaint for removal of
belongings of her daughter. (ii) NC complaint for not paying the maids
salary. (iii) NC complaint for changing the lock of the room occupied by the
daughter of ‘Y’ (iv) NC complaint for forcefully spreading Covid, (v) NC
complaint for changing internet password, (vi) NC complaint for removal
of car sticker (vii) NC complaint for removing gas burner (viii) NC
complaint for slapping ‘Y’. (ix) NC complaint for not allowing ‘Y’ to collect
her belongings. (x) NC complaint for trying to hit ‘Y’ with his car.
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Analysis
24) The aforesaid detailed chronology has been listed herein only to
get an overview of the various proceedings which have been initiated by
the parties against each other in the past. The one thing which clearly
emerges and without any doubt is that, the parties are involved in various
proceedings and bitter disputes which originate and arise from
matrimonial disputes and financial issues between ‘Y’ and Mr. Prakash
Bhatia. The parties are at complete loggerheads from the year 2020 and
have filed complaints/proceedings against each other pertaining to
matrimonial issues, multiple financial transactions, property issues, trivial
issues, complaints under the Domestic Violence Act and also for serious
and grave offences making allegations inter alia under Sections 270, 323,
354, 376(2)(n), 377, 380, 406, 420, 445, 467, 468, 471, 498A, 504 read
with 34 of the IPC, under Sections 8 and 12 of the POCSO Act and Section
75 of the Juvenile Justice Act, 2015.
25) Perusal of the record in Criminal Application No. 427 of 2023
would indicate that, according to ‘X’ and Mr. Prakash Bhatia the facts
pertaining to the alleged offences under the POCSO Act, came to light and
also to the knowledge of Mr. Prakash Bhatia when ‘X’ had an interaction
with the NGO worker, pursuant to the call made by Mr. Prakash Bhatia to
the Childline Helpline. This interaction was in the presence of Mr. Prakash
Bhatia. It would be necessary and important to therefore consider the
information given by ‘X’ to the NGO worker, the resultant Home Visit
54

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th
Report dated 13 August 2021 and also the statements of the NGO workers
to the Investigating Authorities. I find it important to note here that, the
said statements assume importance as they are made to independent third
parties and are first in point of time.
th
26) I find on record a Home visit report dated 13 August 2021,
prepared and submitted by the NGO workers, who in response to the call
made by Mr. Prakash Bhatia to the Childline Helpline visited house of ‘X’.
The information was given by ‘X’ to the NGO worker. This is the first
statement/interaction in which, according to Mr. Prakash Bhatia, ‘X’
disclosed of the alleged sexual abuse. The said report, after recording the
background of the family and other details, contains the following
observations made by the NGO worker Ms. Lalita Verma, which reads as
under :-
cPph ds ?kj esa fd;k- ?kj esa cPph ds ikik vkSj lkFk esa
“ visit step mother
jgrh gS- cPph dh eEeh&ikik dk fMokslZ gksus okyk gS- cPph ds ikik
step
mother dks ekjrs gS vkSj muds f[kykQ iksfyl Lvs’ku esa FIR/NC Hkh fd;k
gS step mother us- cPph ds ikik us step mother ds uke ls 2&3 djksM
dk Bank Loan fy;k gS- vkSj oks Loan Hkj ugha ik jgs gS rks fMoksZl ekax jgs
gS- Child Line Team dks cPph us crk;k fd step mother [kkuk ugha
nsrh- cPph ls Child Line Team us iqNk blls igys Hkh mUgksus oSlk fd;k gS
D;k ij cPph dgk fd ,slk dHkh ugha fd;k- dHkh ekjk Hkh ugh gS- ij xqLlk
djrh Fkh- Child Line Team vkus ls ,d fnu igys eEeh ikik dk >xMk
gqvk Fkk- rc cPph dks fpYyk;k Fkk- vkSj abusing words cksyh Fkh- vkSj
cPph dh ekWa us mlds safety ds fy, pepper spray j[kk gS- D;ksafd mudk
vkSj husband dk >xMk gksrk gS- vkSj oks ekjrs gS- Child Line Team dk
observation ls ,slk yxk fd eEeh ikik ds >xMs ds otg ls cPph ds [kkus
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dk vkSj i<kbZ dk problem gksrk gS- Visit djus ds ckn ,slk yxk ugha dh
cPph dh cPph dks ekjrh gS-
step mother ”
27) The observations of the NGO worker, an independent third
party would indicate that, there was a divorce/matrimonial proceeding
pending and that there was a loan which was taken and due to the non-
payment of which, there were matrimonial disputes and other financial
issues. This in my opinion appears to be the crux and genesis of the entire
dispute and also the reason for the multiple complaints being filed by the
parties over a period of time against each other. From the contents of the
report, it prima facie appears that, all issues, differences and matrimonial
dispute arise out of certain financial matters between ‘Y’ and Mr. Prakash
Bhatia. These are facts recorded by an independent third party NGO
worker, in the course of and as a part of her duty. In the report, I find that,
there is no reference to any objectional act or conduct which can be found
to be objectionable under the POCSO Act. The reference is only to abuses
hurled when, there is a quarrel between ‘Y’ and Mr. Prakash Bhatia. The
abuses appear to be incident specific and a reaction to and at the time of
the quarrel. There is no sexual act or abuse or intent attributed to ‘Y’ in the
th
report dated 13 August 2021. Further as per the say of the Investigating
Officer Mr. Ganesh Pawar, as stated in his affidavit filed before the Hon’ble
th th
Supreme Court even as late as 7 November 2021 and 9 November 2021
Mr. Prakash Bhati and ‘X’ in their respective statements given to the
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enquiry officer did not make any allegations in respect of an
act/misconduct under the POCSO Act.
th
28) It is only on 11 November 2021, in the FIR , that ‘X’ refers to
th
certain alleged act of sexual misconduct. ‘X’ in her complaint dated 11
November 2021 has stated as under :
“ fnukad 13@08@2021 jksth ek÷;k lko= vkbZus ekÖ;k
vkRelUekukyk Bsl ykxsy v’kk izdkjps ßjkaMÞ] ßukfxuÞ] ßdqfr;kÞ o
ßfNukyÞ lkj[;k fuanuh; ‘kCnkapk iz;ksx dsyk- R;kckcr ek÷;k
oMhykauh Child Helpline ;sFks laidZ d#u rdzkj dsyh vlrk
fnukad 13@08@2021 jksth cky dY;k.k lferh ;kaP;kdMqu ,d
efgyk ukes Jherh yyhrk vkyh gksrh- R;kauh ek÷;kdMs pkSd’kh dsyh
vlrk ek÷;k lko= vkbZus eyk vf’yy ‘kCnkapk iz;ksx d#u ySafxd
NGo.kqd dsY;kps eh lkafxrys- rsOgk ek÷;k lko= vkbZus ek>h ySafxd
Nyo.kqd dsY;kps ekÖ;k oMhykauk izFkep ekfgrh >kys- R;kpizdkjs
ekÖ;k csM#e e/;s ;smu eyk frus ekjgk.k ns[khy dsysyh vkgs- rlsp
frus ek÷;k psg&;koj fejiqM Lizs (pepper spray) ,d rs nksu
osGsl ekjysyk vkgs- rlsp eyk ?kjkrhy okWf’kax ef’ku] feDlj]
ek;dzksoksou] Air Fryer oki# nsr ukgh- rlsp eyk ek÷;k lko=
vkbZus >kMqus o gkrksM;kus ekjgk.k dsysyh vkgs- ek>h lko= vkbZ gh
usgeh gkrksMk ?ksmu ?kjkr fQjr vlrs- ”
th
29) Even in the statement dated 11 November 2021, ‘X’ has
referred to an alleged act of June 2018. All other allegations made in the
FIR, are in respect of other acts of verbal abuse, alleged assault and ill-
treatment. Most pertinent to note here that, the facts as alleged by ‘X’ in
the FIR have not been mentioned to the NGO workers nor are the same
th
reflected in the Home Visit Report dated 13 August 2021. In case the said
facts were informed or stated before the independent NGO workers during
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the home visit, the said facts would have been reflected in the home visit
report and the NGO workers would have also informed the police
authorities as is required under the Act. The said allegation do not find
place in the report or any of the statements. The allegations prima facie
appear to be doubtful.
30) I lay much importance on the the statements of witness/maids
and more particularly the NGO workers and their report as Mr. Prakash
th
Bhatia in his letter dated 25 August 2021 addressed Senior Inspector,
Samata Nagar Police Station, Kandivali while complaining against ‘Y’ has
th
categorically and specifically stated that, it was on 13 August 2021 when
the NGO worker visited the house he got knowledge that, ‘Y’ had allegedly
sexually harassed ‘X’. I find that, this information as contained in the said
written communication is in fact directly contradicted by the Home Visit
th th
Report dated 13 August 2021 of the NGO. In the report dated 13 August
2021, there is no reference to any sexual harassment.
th
31) A useful reference can be made to the statement dated 30
November 2021 of the NGO worker Ms. Varsha Vitthal Pawar who visited
th
the residence of ‘X’ on 13 August 2021. The statement is recorded by the
Investigating Officer and forms part of the chargesheet. Perusal of the
statement indicates that, Ms. Varsha Vitthal Pawar, visited the residential
th th
house of ‘X’ on 13 August 2021 pursuant to the call made on 12 August
2021, and had an interaction with ‘X’ and Mr. Prakash Bhatia. The purpose
of her visit was also informed to ‘X’. It would of some importance to
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mention here that, in reply to the specific query of the Investigating Officer
in respect of the allegations made in the FIR and the inquiry as to whether
she was aware of or had knowledge of or was informed of the same during
th
her personal visit on 13 August 2021, the said NGO worker in her
th
statement dated 30 November 2021 has categorically stated that:-
“ ;kosGh iksyhlkauh vkEgkl iqUgk ,dnk nk[ky xqUg;kP;k gdhdrh
vuq”kaxkus vki.kkl ekgs tqu 2018 e/;s dq- ------- + ghp oMhy
izdk’k HkkVh;k gs 15 fnolkalkBh pk;.kk ;sFks dkeklkBh xsys gksrs- R;k
dkGkr R;kaP;k lko¥ vkbZ mfeZyk HkkVh;k ghus frP;k csM:e e/;s ----
fru&pkj osGsl cksykoqu fQ;kZnhl dqf’kr ?ksrys gksrs- frus fQ;kZnhl
dq’khr ?ksrY;kuarj izR;sd osGsl frus fQ;kZnhP;k Nkrhoj gkr fQjoqu
o ;ksuh o#u cksVs fQjfoyh gksrh- ;keqGs dq- --------- eukr yTtk mRiUu
>kyh gksrh ;k fo”k;h dq- --------- fdaok rhP;korhus Jh izdk’k
HkkVh;k ;kauh mijksDr fnukad 13@08@2021 P;k HksVh njE;ku dkgh
lkaxhrys gksrs dk ;kph fopkj.k dsyh- R;kosGh vls laosnuf’ky
vkjksi ,sdw.k vkEgh vk’p;Z pdhr >kyks dkj.k vls dks.krsgh vkjksi
dq- ---------- ghus rlsp rhps oMhy izdk’k HkkVh;k ;kauh vkEgk le{k
dsys uOgrs- vkEgk nks?khau’kh dq- -------- toGikl 40 rs 50 feuhVs
oS;Drhd Lora=jhR;k laokn lk/kqu rhl ekufld vk/kkj nsoqu frP;kdMs
fo’oklkus fopkjiql dsyh gksrh- ijarq v’kkkizdkjs frps’kh ?kMysY;k
ySafxd vR;kpkjkfo”k;h dq- --------- fgus dkgh lkafxrys uOgrs- vkeP;k
laLFksP;k fu;ekuqlkj iksDlks vWDV [kkyh dks.krhgh laosnuf’ky ckc
vkEgkl letrkp vkEgh rkRdkG vkeP;k laLFsl rlsp cky dY;k.k
foHkkxkl ekfgrh nsowu LFkkfud iksyhl Bk.;kl izR;{k HksV nsowu jhrlj
dk;nsf’kj izdzh;k lq# gks.ksdkeh iz;Ruf’ky vlrks- R;keqGs v’kh ckc
Li”V >kyh vlrh rj vkEgh uDdhp ;ksX; ikmys mpyyh vlrh-
ojhy izek.ks HkkVh;k dqVqach;kaP;k OghthVosGh vkEgkl v’kh dks.krhgh
ckc dq- ----------- rlsp rhps oMhy izdk’k HkkVh;k ;kaldMwu ekfgrh
>kyh uOgrh- lnj izdj.kh vkEgh cky dY;k.k lferh cksjhoyh foHkkx
eqacbZ ;kaldMs gkse OghthV vgoky lknj dsyk vkgs- ”
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th
32) I have also noted a similar statement dated 30 November
2021 of Ms. Lalita R. Verma also an NGO worker who had visited the
th
residential premises of ‘X’ on 13 August 2021 is also recorded.
33) The aforenoted statements are of independent third parties,
working with a third party NGO and called at the instance of ‘X’ and Mr.
Prakash Bhatia. The said NGO workers being independent third parties
have no reason to give an incorrect or an exaggerated or false statement
and/or information. It is pertinent that, these persons were the first point
of contact and independent third party. The contents of the said
statements, in my opinion on a prima facie basis completely demolish the
case of an offence under the POCSO Act and in fact negate/neutralize the
allegations made in the FIR.
34) The record also indicates that, around the same period of time
i.e. August 2021 there are multiple complaints filed by ‘X’ and Mr. Prakash
th th
Bhatia. The said complaints are filed between to 12 August 2021 and 20
August 2021 wherein allegations are raised in respect of an alleged attack
by ‘Y’ on Mr. Prakash Bhatia and ‘X’ with an hammer and iron rod. The
other allegations in the said complaints pertain to throwing out the food
kept in the fridge, removing their cloths from washing machine, not
allowing Mr. Prakash Bhatia to use the fridge/freezer, washing machine,
other home appliances, using filthy abusive language against ‘X’, not
letting them eat food, harassing ‘X’ and not letting her use the fridge. There
th
is one online complaint dated 14 August 2021, alleging sexual
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SAGAR MAGAR
harassment, without stating any details of time, day, date, etc. I find that,
no immediate FIR is filed against ‘Y’ for the alleged act of sexual abuse.
There is no serious grievance made in that regard. I find, complaints are
made only in respect of trivial issues.
35) In contrast to these complaints and allegations, serious and
grave allegations under the POCSO Act are made against ‘Y’ in FIR No. 767
of 2021 only in November 2021, and then additional allegations are made
th
on 10 December 2021 in the supplementary statement knowledge of
th
which was acquired by Mr. Prakash Bhatia from ‘X’ as early as 13 August
2021 when the NGO workers visited the residence. It is extremely
surprising that, in the midst of such grave and serious allegations entailing
serious consequences on ‘Y’ and the family as a whole, ‘X’ and Mr. Prakash
Bhatia were engaged in filing online complaints in respect of alleged acts
as noted above. When the said complaint is read along and considered
with the other statements of ‘X’ and Mr. Prakash Bhatia, the Home Visit
th
Report dated 13 August 2021 and the specific stand of Mr. Prakash Bhatia
that, the alleged acts of sexual abuse came to light when the NGO workers
visited the house, I find that, the online complaint becomes doubtful. More
pertinent, there is no immediate FIR in that regard. In my considered view,
the improbable allegations, the malafide intentions and object are clearly
made out by the conduct of the parties themselves. In this background, the
th
complaint dated 14 August 2021, does not inspire confidence and prima
facie appears to be doubtful.
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36) Perusal of the statements of the NGO workers who are third
parties, unconnected to the inter se disputes are considered, it prima facie
appears that, there were no allegations made by ‘X’, in respect of any
sexual abuse or of any act which would be termed as objectionable or an
offense under the POCSO Act. The said NGO workers/witness have
categorically and in clear terms, denied of having any discussion or even
any reference to allegations of sexual abuse as contemplated under the
POCSO Act. Further, if the statements of the maids are considered, the
scenario which would emerge is that, the relations between ‘Y’ and ‘X’,
were cordial to say the least and that, ‘Y’ would scold ‘X’ only on issues of
cleanliness etc. as any mother under normal circumstances would do.
Further, the other aspect which would emerge from the said statements, is
that, the relations between ‘Y’ and Mr. Prakash Bhatia were strained since
May 2020. I have also noted that, the matrimonial issues and differences
having commenced by then, the divorce proceedings (Divorce Petition No.
875 of 2020) were filed by Mr. Prakash Bhatia in August 2020 which
proceeding was the first adversarial proceeding initiated between the
parties.
37) Amongst other allegations, an allegation which finds some
prominence in the FIR is that, Mr. Prakash Bhatia was forced, compelled
and coerced to execute a registered Gift deed, whereby he gifted his 50%
share of his right, title and interest in the residential flat to ‘Y’. The
allegation is that, as ‘X’ was locked up in a room by ‘Y’ and due to the said
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situation Mr. Prakash Bhatia was forced to execute a registered gift deed.
th
The allegation finds place in the FIR dated 11 November 2022 and also
the 164 statement of ‘X’. It is specific case and allegation of ‘X’ in the FIR
that, she was locked in the room till her father went to register a gift deed.
nd
The said Gift Deed is dated 22 November 2019 and is now sought to be
challenged by Mr. Bhatia by filing a Civil Suit (L) No. 973 of 2021. The
allegation in respect of the gift deed in the FIR appears to be improbable
and doubtful, for the reason of over implication. I say this for a very
specific reason, which is deciphered from the record which forms a part of
the chargesheet and is produced by a third party. A useful reference can be
made to the school attendance record of ‘X’ which has been forwarded by
th
the concerned School vide letter dated 13 January 2022 to Mr. Ganesh
Pawar, the Investigating Officer. Perusal of the attendance record would
nd
prima facie indicate that, ‘X’ on the date of registration of Gift deed i.e. 22
November 2019, was infact attending school and present in school. The
alleged story that, ‘X’ was locked up in the room and her father was forced
nd
and coerced to execute the registered gift deed on 22 November 2019
appears to be doubtful. If the contemporaneous record issued by the school
an independent authority is considered then at least prima facie it is
evident that, the allegation that, ‘X’ was locked in the room and the gift
deed was forcefully executed is incorrect and completely improbable. In
these circumstances, a case of over implication appears to be prima facie
made out. The question which then arises and comes to ones
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mind is why is a false and untenable allegation made. Why is there over
implication and false accusation. Such unanswered questions and
circumstances also call for and warrant a careful examination of the case
and the attending circumstances.
38) The allegations regarding an offence under the POCSO Act are
serious allegations and have far-reaching consequences on the person
accused, as also the victim and the victim's family. In the present case, 'X'
and her father, Mr. Prakash Bhatia, though aware, have not made or
registered a complaint/FIR till November 2021. The statement of 'X'
th
recorded by the Enquiry Officer on 9 November 2021, so also the
th
statement of Mr. Prakash Bhatia recorded on 7 November 2021 by the
Enquiry Officer, make no allegations regarding the POCSO Act. It is only
th
when the FIR was lodged on 11 November 2021 that 'X' made an
allegation of an offence under the POCSO Act in respect of an incident of
th
June 2018 only. In her supplementary statement dated 10 December
2021, 'X' has given instances of alleged incidents which, according to her,
took place in June 2018, December 2018, April 2019, December 2019, and
November-December 2020. The statement under Section 164 of the CrPC
nd
of 'X' was recorded on 2 May 2022, wherein, surprisingly, 'X' has only
referred to the incident of June 2018. In the D.V. proceedings, 'X' has
alleged that, since day one after the marriage of 'Y', she was touched
inappropriately. As regards the allegations of general harassment and ill-
treatment meted out by 'Y', 'X' has given different dates and periods of
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harassment, inasmuch as, in the FIR, it is alleged that the harassment
started in the year 2017; in the statement recorded under Section 164 of
the CrPC, it is alleged that the harassment started six months after the date
of marriage in the year 2014 and in the D.V. proceedings, it is stated that
the general harassment started in the year 2014. Further, it is pertinent to
note that, in the statement under Section 164, while 'X' did not refer to the
alleged four instances of sexual abuse (as referred in the supplementary
th
statement dated 10 December 2021) but has referred to and made new
allegations in respect of some of her jewellery and personal documents,
i.e., Aadhaar Card, passport, and birth certificate being in the custody of
'Y'. Such conduct of ‘X’ makes the entire prosecution doubtful and more so
in the background of the various complaints filed by the parties against
each other. When the aforesaid statements of 'X' are considered together, in
my opinion, a clear case of exaggeration and malicious prosecution is
prima facie made out.
39) Perusal of the FIR would indicate that, the allegations have
been made after a period of about 3 ½ years from the alleged incident.
The allegations prima facie appear to be improbable as the record
including the statements of ‘X’ indicates that, during the said period of
time, admittedly there were relatives and house help at the residence. The
said facts are even accepted by ‘X’.
40) Apart from the fact that the FIR is filed after a period of 3
months from the date of knowledge, I also again find that, a
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th
supplementary statement of ‘X’ is recorded on 10 December 2021,
wherein certain additions and improvements are made. Since August 2021
till November 2021 there is no complaint/FIR made in respect of the said
alleged acts of sexual misconduct. Various other trivial complaints are filed
by both ‘X’ and Mr. Prakash Bhatia. The allegations of sexual abuse for the
th
first time surface in the FIR and supplementary statement dated 10
December 2021. Most importantly the allegations of December 2018, April
2019, December 2019 and November-December 2020 do not find place in
the statement recorded under Section 164 of CrPC. The peculiar
circumstances and the manner in which the details surface, coupled with
the unexplained delay and keeping in mind the acrimonious relations
between the parties, the allegations prima facie appear to have made at the
behest of Mr. Prakash Bhatia for self serving purposes. The unfortunate
child and a beneficial social welfare legislation to my mind is misused as a
weapon in the fight between the parents i.e. matrimonial disputes and
financial issues.
41) Considering the overall circumstances and a prima facie
perusal of the record is indicative of the fact that the allegations are
doubtful. I say this for the reason that, the allegations in the FIR or the
statement of the ‘X’ has to be viewed, considered and analysed on a prima
facie basis in the backdrop of the peculiar facts of this case and the
argument of a mala fide and malicious prosecution. In the present case,
there are financial issues between the parties, there is a fiercely fought and
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contested matrimonial proceeding, there are various serious criminal
prosecutions filed by the parties (three of which are being considered
herein). Individually the parties i.e ‘Y’ and Mr. Prakash Bhatia are at
loggerheads. The parties are fiercely contesting and opposing each other in
various litigations. The possibility of a mala fide and malicious
implication, filing frivolous complaints and litigations only with a view to
spite the other, wreck vengeance and negotiate a favorable settlement is
extremely high. The litigation are loaded with malice, malafides, personal
vendetta. At the bottom of all are the matrimonial disputes and financial
issues.
42) The aforestated observations and the context for making the
said observation will become more clear from the next aspect which is to
be discussed. The Investigating Officer Mr. Ganesh B. Pawar has filed an
affidavit before the Hon’ble Supreme Court in Special Leave Petition
(Criminal) No.363 of 2022. In paragraph Nos.5 and 6, of the said affidavit
the Investigating Officer has stated facts which were disclosed during the
investigation which read as under :
“5. I say that the following events prior to registration of the FIR
and investigation which are relevant to the controversy are as
follows:
a. The complainant victim girl's father made a written
compliant on 25/08/2021 alleging commission of offence
of ill-treatment. However, there was no allegation of
offences under section 8 and 12 of the POCSO Act.
b. Prior to this, there were several NCs and online
complaints lodged by the complainant victim girl's father
against the Petitioner and vice versa on account of
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matrimonial disputes.
c. On 11/08/2021, the complainant victim girl's father
made a complaint to the Child Helpline 1098 against the
Petitioner. Pursuant to the complaint, two lady
representatives from the said Helpline visited the house
of the complainant victim girl and made enquiries from
the complainant victim girl, her father and the Petitioner.
After sufficient enquiries, they submitted their Home Visit
Report to Child Welfare Committee (CWC) Maharashtra.
d. In 20/10/2021, the office of the Commissioner of Police,
Mumbai received a copy of the complaint from the
National Commission of Protection of Child Welfare,
which in turn was forwarded to Juvenile Aid Police Unit
(JAPU) of Mumbai Police upon which enquiry officer
received instructions to expedite the inquiry into the
matter.
e. On 07/11/2021, the enquiry officer recorded the
statement of the complainant victim girl's father, wherein
no allegation regarding POCSO Act was disclosed.
f. On 09/11/2021, the enquiry officer recorded the
statement of the complainant victim girl, wherein no
allegation regarding POCSO Act was disclosed.
g. On 10/11/2021, the enquiry officer alongwith the
complainant victim girl and her father attended the office
of Child Welfare Committee, Matunga, when the Child
Welfare Committee directed him to register an FIR under
POCSO Act and other relevant Acts.
h. On 11/11/2021, the complainant victim girl lodged FIR
adding a paragraph under POCSO Act against the
Petitioner.
6. I say that the following facts have been disclosed during the
investigation carried out:
a) The photocopy of age certificate of complainant victim girl has
been received from her father after perusal of which it was
found that date of birth of complainant victim girl is 26/9/2004.
b) For registering the statement of complainant victim girl under
Section 164 of Cr. P.C, a request was made to Metropolitan
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rd
Magistrate, 63 Court, Andheri (East), Mumbai vide Outward
No 8244/2021 dated 12/11/2021 and the Magistrate has given
date of 21/3/2022.
c) The medical examination of complainant victim girl was
commenced on 12/11/2021 at Dr. Babasaheb Ambedkar
Hospital, Kandivli (West), Mumbai and has been completed on
16/11/2021.
d) The papers relating to the offence have been submitted to Child
Welfare Committee, David Sassoon Home, Matunga West,
Mumbai through Lady Police Staff on 17/11/2021.
e) On 19/11/2021, the Investigation Officer visited the place of
residence of the complainant victim girl and under panchanama
procured the memory cards of CCTVs installed there at. He also
seized kitchen utensil Khalbatta (Pounder used to pound grain).
f) In view of the incidents mentioned in the history of complaint, the
entries of non-cognizable offences, entries of station diary
available in record of Samta Nagar Police Station have been
obtained and they have been included in papers of the offence.
g) The Housemaids who were working at the residence of the Victim
girl’s Father’s house during different periods since 2018 to 2021,
were called upon for investigation purpose and statements of
both Housemaids have been recorded. The said statements does
not mention about allegations under the POCSO Act.
h) The statements of two representatives from Child Helpline who
visited the residence of the complainant victim girl on
13/08/2021 pursuant to the complaint dated 11/08/2021 are
also recorded. They have submitted their Home Visit Report to
the Child Welfare Committee, Matunga and they have repeated
the contents of their Home Visit Report but denied that the
complainant victim girl informed them about any sexual
harassment by the Petitioner during the home visit.
i) The statement of the Petitioner is recorded on 09/12/2021 and
19/12/2021, when she has denied the allegations made in the
FIR. She has submitted whatsapp chat messages and various
photographs of the family, showing that she had cordial relations
with the complainant victim girl.
j) On 14/01/2022, the Investigation officer has received a letter
from Mrs. Geeta Saxena (sister of the Petitioner), R/o Faridabad,
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Haryana stating that she alongwith her two small children
visited the Petitioner during 11/06/2018 to 21/06/2018. She
has attached her train travel details of the said period alongwith
whatsapp chat messages and family photographs showing that
she made the trip and that relations were cordial between the
Petitioner and the complainant victim girl at that time.
k) After registration of the FIR, the Petitioner is not staying at the
residence of the complainant victim girl and search was effected
of the Petitioner's bedroom but except certain medical
prescription reports of the complainant victim girl, nothing
relevant has been recovered.
l) Pursuant to the notice u/s.91 CRPC served upon the Victim girl's
Father, he has submitted CCTV Camera clippings and
screenshots, his travel documents when he visited China and
Covid 19 medical reports of the Victim girl and Father during the
relevant period.
m) On 26/11/2021, the complainant victim girl's father submitted
an application about 3 Additional POCSO incidents which took
place during December, 2018, April, 2019 and December, 2019
when the compliant victim girl's father was in China for
professional work. The further statement of the complainant
victim girl's father has been recorded incorporating the fresh
allegations. Also, on 07/12/2021, the complainant victim girl's
further statement incorporating the fresh allegations has been
recorded. Therefore the IO added Section 9 (l) r/w Section 10 of
the POCSO Act in the present FIR.
43) The Affidavit of the Investigating Officer, clearly indicates
that:- (i) before the NGO workers and in the online complaints there was
no reference to the allegations under the POCSO Act; (ii) there was no
th th
allegations relating to POCSO from 12 August 2021 till 11 November
th
2021. Till 11 November 2021, there were various complaints/Nc’s filed
by ‘X’ herself and her father Mr. Prakash Bhatia so also their statements
were recorded. None of the said complaints had allegation of POCSO. (iii)
statements of the independent third parties have been recorded, wherein
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there are no allegations nor even a reference or mention of any sort of
incident or act committed under the POCSO Act. (iv) ‘Y’ has submitted
whatsapp chat messages and various photographs of the family, showing
that she had cordial relations with ‘X’. (v) Mrs. Geeta Saxena, sister of the
th
‘Y’ alongwith her two small children visited the ‘Y’ during 11 June 2018 to
st
21 June 2018. Her train travel details of the said period alongwith
whatsapp chat messages and family photographs showing that she made
the trip and that at the relevant time relations were cordial between ‘Y’ and
‘X’ have been submitted .
44) In my opinion, a perusal of the affidavit of the Investigation
Officer would clearly indicate that, the allegations under the POCSO Act
have been made a belated stage, and are accompanied by an unexplained
delay. The overall conduct of the ‘X’ and Mr. Prakash Bhatia, in not filing
the complaint, filings frivolous complaints on not so important issues,
despite of being aware of the alleged acts does not appear to be that of a
normal and prudent person. Filing the complaint after an unexplained
delay of 3 months makes the complaint doubtful. In the present case
unexplained delay assumes greater significance in view of the peculiar facts
of the present case, the chequered history of litigation, pending criminal
complaints/FIR’s and the unusual conduct of the parties. The possibility of
exaggeration and the danger of introducing a distorted and/or coloured
version, a concocted story as a result of a well thought of and crafted
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strategy/afterthought cannot be ruled out. In fact considering the peculiar
facts of the case, the said possibility is on the higher side.
45) Perusal of the record would also indicate that, the sister of ‘Y’
th
by a letter dated 14 January 2022 addressed to the Senior Inspector,
Samata Nagar Police Station has informed the investigating agency that,
she along with her two children was residing with ‘Y’ and her family at the
th st
residence from 11 June 2018 to 21 June 2018. In the said letter dated
th
14 January 2022, Mrs. Geeta Saxena, has also submitted her train travel
details of the said period along with whatsapp chat messages and family
photographs showing that, she made the trip and that at the relevant time
relations were cordial between ‘Y’ and ‘X’. Pertinent to note that, it is
exactly during this period that, the father of ‘X’ had gone to the China. He
th th
had left India on 12 June 2018 and returned back to India on 20 June
2018. The allegations made, also pertain to the same period. Considering
the factual background of this case, the peculiar facts, it appears doubtful
that, acts as alleged by ‘X’ would have taken place when such a large
number of relatives and third parties are present at the residence. ‘X’ makes
no reference to the aforesaid facts. Such conduct tends to add to the
“doubtfulness” of the allegations and criminal prosecution and to the
concept of “over implication” or “weaponizing” the POCSO Act. It appears
that, the POCSO Act is used as a defense mechanism or is weaponized.
46) The learned Advocate appearing for the Respondent No.2 in
Criminal Application No. 427 of 2023 also contended that Section 29 of the
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POCSO Act raises a presumption in respect of offences under Sections 3, 5,
7 and 9 of the POCSO Act to presume that such person has committed or
abetted or attempted to commit the offence unless the contrary is proved.
He would further refer to Section 30 of the POCSO Act to submit that in a
prosecution for any offence under the POCSO Act which requires a
culpable mental state on the part of the accused, the Special Court shall
presume the existence of such mental state. That, in view of the provisions
of the said sections, this Court ought not to interfere with the criminal
prosecution at this stage.
46.1) Considering the peculiar facts of the present case, there are
serious doubts on the genuineness and veracity of the allegations made in
the case. More particularly, considering the statements of the two NGO
workers, the variance in the statements of ‘X’, the conduct of the parties,
the pending litigation, various criminal complaints and the Affidavit of the
Investigating Officer filed before the Hon’ble Supreme Court, I am of the
considered view that, from the facts itself the allegations themselves
appear to be highly improbable, exaggerated and made with a malicious
intent and mala fide intention to suit ones needs. The foundational and
basic facts itself are doubtful and not established. One must also keep in
mind the cardinal principle of criminal law that, the person is presumed to
be innocent till he is proved guilty. The presumption as envisaged under
Section 29 is rebuttable as is the case with all presumptions. The
presumption under Section 29 cannot be considered to be an absolute
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presumption and would come into operation and play only when the
foundational facts are established to draw the said presumption. The
foundational facts would mean the essential basic facts, based on relevant
and credible material. While exercising the powers under Section 482 of
the Code of Criminal Procedure, the Court has to keep in mind that, the
powers are to be exercised to meet the ends of justice and prevent the
abuse of the process of law. When a case appears to be improbable, filed
with mala fide intentions and to wreak vengeance at such times the Court
under Section 482 of the CrPC can exercise its powers. The Hon’ble
Supreme Court in the case of Just Rights for Children Alliance v. S. Harish,
(Supra) has also observed that:-
“188. As has been held in Prakash Nath Khanna (supra) and
Rathis Babu Unnikrishnan (supra), any defence of the accused
for the purpose of rebutting the said statutory presumption
should ordinarily be left to the trial court to be looked into at-
least when it comes to quashing petitions. Though, in certain
exceptional circumstances, the High Court may entertain such
defence to quash the criminal proceedings where it appears
from the facts itself that the allegations themselves are
completely false and bogus and by no stretch of imagination
said to be established. But in doing so, the High Court must be
slow and circumspect & must exercise some restraint. The
statutory presumption may be ignored only where no
foundational facts have been established from the material on
record.”
46.2) Considering the peculiar facts of the case the nature of the
allegations and the chequered history of matrimonial disputes and financial
issues, further the various criminal proceedings, the exaggerated and
contradictory versions in my considered view this case is an exceptional
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and rare case where the Court ought to exercise the power to entertain the
defenses also look at all the attending circumstances in the case and
litigations between the parties. The present case appears to be improbable
and a case of over-implication filed with mala fide intentions and with
vengeance.
47) Considering the aforesaid peculiar facts of the present case, I
am of the opinion that, the Applicant/’Y’ has made out a case for exercising
jurisdiction under Section 482 of the Code of Criminal Procedure, even
though the provisions of Section 29 and 30 raised a presumption.
48) Perusal of the record in Criminal Writ Petition No. 2768 of 2021
th
would indicate that, the alleged incident took place on 8 April 2021 at
th
around 10.30 p.m. ‘Y’ immediately on 9 April 2021 at about 12.30 am
registered N.C. with the Samata Nagar Police Station under Sections 323,
504 and 506 of the IPC in respect of the alleged incident. The information
provided by ‘Y’ has been recorded in the N.C. in clause No.4, which reads
as under :-
“ 4½rdzkjhph FkksMD;kr ekfgrh %& ;krhy rdzkjnkj o fojks/kd gs
ukR;kus iRuh&irh vlwu oj uewn iR;kojrh ,d= jkgrkr o
R;kaP;ke/;s dkSVqafcd dkj.kko#u okn lq# vlwu rdzkjnkjkph
fojks/kdkojrh dksVkZr dsl lq# vkgs-
rdzkjnkjkph rdzkj v’kh dh ;krhy uewn rkjh[k] osGh o fBdk.kh
fojks/kd gs dksfoM ikWf>fVOg vlY;kps R;kauh rdzkjnkjkauk lkafxrys
vlrk rdzkjnkjkauh R;kauk R;kaP;k #e e/;s vk;lksys’ku gks.;kl
lkafxrys vlrk fojks/kdkus R;kauk /kDdkcqDdh d#u f’kohxkG dsyh
Eg.kwu rdzkj uksan- ”
th
49) It appears on 9 April, 2021, ‘Y’ also addressed a handwritten
th
letter dated 8 April 2021 to the Police Inspector, Samata Nagar Police
75

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th
Station, Mumbai (inwarded to the Police Station on 9 April 2021 at about
1:15 a.m.) wherein she has made allegations that, the Petitioner tried to
spread Covid-19 virus by forcefully holding her close to his mouth and
blowing air on her face. The complaint reads as under:-
“The Police Inspector
Samata Nagar Police Station, Mumbai,
Kandivali East, Mumbai 400101
Subject: My ex-husband hit me and tried to spread
covid by forcefully entering in my room.
th
Around 10:30 p.m. on 8 April, 2021 my ex-husband told my
maid to call me out of the my room. When I came out to ask
him what happened he pushed me in my room. I got hurt on
my head back and on my arms, he said he is covid positive
and his daughter is also covid positive and he removed his
mask grabbed me and entered my room and said he will
spread it to me also around 10:49 p.m. I called 103 number
around 12:00 p.m. constable Suraj Shinde came who was
drunk on duty and told me to come to Samata Nagar Police
Station, Mumbai and lodge complaint against the Prakash
Bhatia. He is still in my room.
Kindly remove him from my room and take him to hospital.”
th
50) Further ‘Y’, by an email dated 10 April 2021, addressed to
Samatanagar Police Station and superior authorities including the Deputy
Commissioner of Police, Zone 12 and the Commissioner of Police, Mumbai
requested that, her said email be treated as an FIR against the Petitioner
for forcefully trying to infect ‘Y’ with COVID-19 virus. The contents of the
said email are reproduced herein
“ Dear Sir,
This is to bring to your notice that my husband Prakash
Bhatia, resident of 1801, Tower-2, Challengers CHS, Thakur Village,
th
Kandivali East, Mumbai-400101 on 8 April 2021 (Thursday) came
home around 10.30 pm and told me that he is corona positive and
showed his lab report which showed that he was positive and that
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SAGAR MAGAR
he wants it to spread it to me, he removed his mask and forcefully
pounced himself on me and starting physically harming me by
twisting my arm and started blowing air from his mouth on my
body saying that he will infect me with Corona. Further, he
forcefully entered my room which had my cash of around 50,000/-
rupees, my jewelleries, expensive perfume, watches, sarees, my
purse, footwear and other valuables. I am extremely scared from his
behaviour and fear for my life. Since he is infected I cannot go back
to my house until the quarantine period and I somehow managed to
escape him and now reside at my Parent's house in Charkop.
Further, In my absence he called a key maker named Shankar
(Mobile no: 9892843554) on 9th April 2021 at around 6.24 pm and
got a duplicate key made of my room. Also, he has disconnected the
CCTV camera installed at the directions of honourable Sessions
Court at Dindoshi.
Since I am unable to report to the Samta Nagar Police Station
due to strict lockdown conditions, I request you to treat this email
as my official complaint and register an FIR against Prakash Bhatia
for forcefully trying to infect me with Covid-19 despite being aware
that he is infected by it and forcefully entering my room and
endangering my life and physically assaulting me.
I request you to take appropriate action against him at the
earliest and save my life from danger.
Thanks & Regards,
‘Y’”
th
51) The FIR has then been lodged on 24 May 2021 wherein the
contention of ‘Y’ in respect of said incident has been recorded and which
reads as under :-
“ ekpZ 2021 iklqu laiq.kZ Hkkjrkr dksjksuk izknqHkkZo iljY;kus fo’ks”kr%
egkjk”V~kr R;kps izek.k vfr’k; ok<ys gksrs- Eg.kqu eh fnukad
06@04@2021 jksth dks&f’kYM gh yl ?ksryh gksrh- R;keqGs eyk FkksMk
rki ;sr gksrk- fnukad 08@04@2021 jksth eh ek÷;k #e e/;s vkjke
djhr vlrkuk jk=kS 22%30 ok P;k njE;ku ek>s irh ;kauh vkeP;kdMs
24 rkiklklkBh dke dj.kkjh eksydjh.k ukes Jherh lafxrk lksjsax fgyk
eyk cksykfo.;kl lkafxrys- Eg.kqu eh ek÷;k #e e/kwu ckgsj vkys vlrk
ek÷;k irhus eyk /kDdk ekjr ek÷;k #e e;s usr vlrkuk eyk gkrkus o
ykFksus ekjgk.k d#u ek÷;k MksD;kyk ek>;k dejsyk o ek÷;k
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gkrk&ik;kyk nq[kkir dsyh- rsOgk ek÷;k irhus eyk f’kohxkG d#u rks o
ek>h lko= eqyxh dq- d`frdk gs nks?ksgh dksjksuk ikWf>fVOg vlY;kps lkaxqu
R;kauk R;kaP;k rksaMkojhy ekLd dk<qu eyk idMqu tcjnLrh toG vks<ys
o ek÷;k rksaMk toG 2 rs 3 osGsl Qwadj ek#u eyk dksjksukpk lalxZ nsr
vkgs vls Eg.kkys- Eg.kqu eh efgyk enr dzekad 103 ;koj laidZ d#u
eh enr ekfxryh vlrk iksyhl vkys- R;kuarj eh lerkuxj iksyhl Bk.ks]
eqacbZ ;sFks tkmu ek>s irh Jh- izdk’k HkkVh;k ;kaP;kfo#/n rdzkj fnyh
vlrk R;kaP;kfo#/n vn[kyik= xq-j-ua- 8131@2021 fnukad
09@04@2021 dye 323] 504] 506 vUo;s vn[kyik= xqUgk nk[ky
dj.;kr vkyk gksrk- ”
52) The record indicates that, the Petitioner and his daughter were
th
reported to be COVID positive on 8 April 2021 whereas, ‘Y’ and her family
th
members were reported to be COVID positive on 17 April 2021 i.e. after a
period of 9 to 10 days.
53) Perusal of the NC Complaint, which was first in point of time
th
filed on 9 April 2021 does not refer to any act or conduct that would call
for invoking the provisions of Section 270 of the IPC. In fact, the N.C. does
not even refer to any act or conduct which would fall under Section 270 of
the IPC. In the N.C. the case of ‘Y’ is that of voluntarily causing hurt under
section 323, intentional insult with the intent of provoking breach of peace,
under section 504 and criminal intimidation under section 506 of the IPC.
th
The N.C. complaint dated 9 April 2021 i.e. the first written complaint only
refers to the fact that, the Petitioner on informing ‘Y’ that he is covid
positive was directed to restrict himself in the room and remain in
isolation. Due to the said directions, the Petitioner abused and assaulted
‘Y’. I have also noted that, the N.C. which is given much prior to the filing
of the FIR does not refer to the allegations of Section 270 of the IPC.
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Abusing and having an altercation and committing an act as is
contemplated under Section 270 of IPC are two very different and distinct
things. A particular intent and malice is required to invoke the provisions
of Section 270 of IPC. The nature of the act and conduct required to invoke
the provisions of Section 270 of the IPC is very different, distinct and
severe. To attract the provisions of Section 270 of the IPC, what is required
is a deliberate intentional action driven by deep malice intent or ill will or
a deeply harmful behavior that is capable of spreading toxicity through the
society or public to cause injury. The NC complaint and the contents
thereof negate the possible invocation of Section 270 of the IPC or the
required intent. The N.C. refers to different offences which are completely
distinct and different in character and the intent required is also
completely different. On the allegations made in the NC (first in point of
time), it is highly improbable to make out the ingredients for the offence
under Section 270 of IPC. More pertinent is the fact that the N.C.
th
complaint filed by ‘Y’ in respect of the incident dated 8 April 2021 neither
refers to the offence under Section 270 of the IPC nor does it pertain to the
said provision, nor is any act or conduct reflected therein which would, at
least prima facie, make out an offence under Section 270 of the IPC. It is
th
only in the subsequent complaint and the FIR, filed on 24 May 2021, i.e.,
after more than 47 days which refers to the allegations pertaining to
Section 270 of the IPC. It is also pertinent to note that, there was no
th
medical record which could be co-related to the incident of 8 April 2021
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in respect of offence under Section 323 of the IPC. The subsequent
complaints, email and FIR therefore clearly appear to be a afterthought.
th
54) A conjoint reading of the N.C. complaint dated 9 April 2021,
th
which is first in point of time, the hand written complaint dated 8 April
th
2021 inwarded thereafter, the email dated 10 April 2024 and the FIR
th
dated 24 May 2021 would indicate that section 270 of the IPC was not
invoked at the very first instance. In my considered opinion, ‘Y’ has tried to
improvise the allegations and makes some additions in an attempt to
invoke different offences. This cannot be permitted.
55) Perusal of the record would indicate that, the FIR and the said
complaint are at significant variance in respect of the manner in which the
alleged offence i.e. the act of spreading Covid was undertaken. In the N.C.
different version appears without any allegations under Section 270 of IPC.
‘Y’ has materially altered, improved and exaggerated her version of the
incident.
56) The record indicates that the parties have filed various legal
proceedings and criminal complaints against each other. The said
adversarial litigation dates back to August 2020. In this background, with
the chequered history of disputes, litigation and pending criminal
prosecutions the possibility of over implication or a malacious afterthought
creeping in cannot be ruled out. The record indicates that, there is a bitter
and acrimonious litigation history between the parties. The main
proceedings between the parties are certain matrimonial disputes, certain
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financial issues and proceedings filed under the criminal law involving
serious offences of IPC and offences under the Protection of Children from
Sexual Offences Act, 2012. I find that, in the present case, at the first
instance no allegation was made in respect of Section 270 of IPC. In the
subsequent complaints there is material variance in the manner in which
the allegations are made and in fact the allegations are to large extent
th
different and distinct. In the email dated 10 April 2021 ‘Y’ has referred to
the fact of an amount of Rs. 50,000/-, jewellery, expensive perfumes,
watches, sarees and footwear being in the room. There is reference to
making duplicate keys. On perusal of the complaints it is clear that the
information in the complaints and the manner in which the alleged
incident took place is at a stark variance and has changed over a period of
time and an entire different and distinct offence i.e. section 270 of IPC is
invoked.
57) Prima facie considering the peculiar facts and circumstances of
this case, it appears that the FIR is a classic case of over implication. If one
takes into consideration, the multiple litigation filed and the allegations
made therein, the possibility of over implication and/or exaggeration
cannot be ruled out. The present criminal prosecution is clearly and
manifestly attended with malafides and instituted maliciously with unfair
motives for wreak vengeance and with the object to spite the other side
due to a personal grudge. In the facts and circumstances of this case, I find
that this is a fit case where the inherent power of this Court under Section
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482 of the CrPC ought to be exercised so as to prevent the abuse of process
of law and to secure the ends of justice.
58) Perusal of the record in Criminal Writ Petition No. 3779 of 2022,
th
would indicate that, the FIR dated 30 July 2022 pertains to the
allegations of May, 2012. The offences are registered under sections 377,
376(2)(n), 323, 324, 504 and 506 of the IPC. There is an inordinate delay
of more than 10 years for which there is no explanation. Though in such
matters delay cannot be the sole ground to interfere in a quashing petition,
but a case of inordinate and unexplained delay stands on a different
footing. An inordinate and unexplained delay in filing the FIR would raise
doubts as to the genuineness and correctness of the allegations. In such
cases of inordinate and unexplained delay the possibility of a colored and
exaggerated version creeping in cannot be ruled out.
59) As per the allegations in the FIR,the Petitioner took ‘Y’ for a drive
and to a resort at Thane. That, after spiking her drink, committed the
offence of rape, filmed the act and blackmailed and forced ‘Y’ to get
th
married to him. According to ‘Y’ the forceful marriage took place on 28
November 2014. When these allegations are juxtaposed with the
th
allegations in FIR No.1201 of 2020 dated 4 October 2020 also filed by ‘Y’
under Section 498A, 323, and 504 read with Section 34 of the IPC, a
different story emerges. In FIR No. 1201 of 2020, ‘Y’ has given a
completely different version and in fact a contradictory story. In the said
FIR No. 1201 of 2020 there is no reference to any forceful marriage. In FIR
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No. 1201 of 2020, ‘Y’ has specifically stated that, the Petitioner proposed
marriage to her in August, 2012, when at the first instance, she had
refused the proposal. I have also noted the statement of ‘Y’ in FIR No. 1201
of 2020 where she has specifically stated that, when she refused the said
marriage proposal, the Petitioner did not force her into marriage as they
had a good friendly relation. This statement is totally contrary to the
th
statement made by ‘Y’ in FIR No.1149 of 2022 dated 30 July 2022,
wherein ‘Y’ had stated that the Petitioner asked her for marriage in 2014
and when she refused the marriage proposal, the Petitioner threatened her
that he would circulate the video on porn site and to her relatives and
would kill ‘Y’s daughters.
60) Prima facie, the said allegations are completely contrary to FIR
No. 1201 of 2020 which relates the events up to the marriage and put up a
different case. The very foundation of the allegation and the alleged reason
for the threat and duress is negated when one reads, both the FIR’s filed by
‘Y’, together.
th
61) ‘Y’ in FIR No. 1201 of 2020, dated 4 October 2020 has
specifically stated that, she had a good friendly relation with the Petitioner
and used to communicate with him on Whatsapp and chat with him
through the messenger. ‘Y’ specifically admits in FIR No. 1201 of 2020, that
after a few days the said friendly relations converted and developed into
love and therefore, she agreed for marriage with the Petitioner. This
statement is also contrary to the allegation in the FIR in the present case.
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‘Y’ has raised different allegations in respect of a particular event i.e.
marriage and proceeded to prosecute the Petitioner under two different
offences. The issue is not of different and distinct offences, but is of making
contrary allegations which imply that at least one of the allegation is false
th
to the knowledge of ‘Y’. If the contents of FIR No. 1201 of 2020, dated 4
October 2020 are read along with the present FIR No. 1149 of 2022, dated
th
30 July 2022, it prima facie appears that, the allegations are exaggerated
and filed with mala fide intention and some oblique motives. It appears
that the said allegations are made to wreak personal vengeance/vendetta.
62) As regards the allegations under Section 377 in the complaint
th
dated 30 July 2022, ‘Y’ has alleged that the Petitioner after their marriage
would visit different pornographic sites and insist that ‘Y’ acts accordingly,
that if she refused the Petitioner would forcefully make her drink alcohol
and then assault/bite her and forcefully perform unnatural and natural
th
physical intercourse against her consent. In the complaint dated 4
October 2020, filed by ‘Y’ has only made a passing reference to obscene
videos. As stated above, she has specifically stated in FIR No. 1201 of 2020,
that she fall in love with the Petitioner. A further reference for the fight /
quarrel is that the Petitioner wanted a male child. It is further stated that,
as ‘Y’ would refuse to undergo the pregnancy considering her age, the
Petitioner would assault her. The other allegations in the Section 498A
complaint are in respect of financial transactions. I find that, the
allegations made by ‘Y’ in both the FIR’s are distinctly and clearly contrary
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to one and other. Further, the record indicates that the parties have
ongoing litigations, primarily emerging from matrimonial disputes and
financial issues. In this background the possibility of making exaggerated
claims and filing criminal prosecutions with mala fide intentions and
motives cannot be ruled out.
63) Having regard to the peculiar facts and circumstances of the
present case, this Court is prima facie satisfied that the impugned FIR No.
1149 of 2022 appears to be tainted by mala fides and founded on incorrect
and contrary allegations. A consideration of the multiple litigations
between the parties, read in conjunction with the allegations contained in
FIR No. 1201 of 2020, gives rise to a reasonable apprehension that the
allegations in the present FIR No. 1149 of 2022 are either improbable,
incorrect or materially exaggerated.
64) The present criminal prosecution is clearly and manifestly
attended with malafides and instituted maliciously with unfair motives for
wreak vengeance and with the object to spite the other side due to a
personal grudge. Criminal proceedings and prosecutions cannot be
permitted to be continued on exaggerated versions and/or prima facie
improbable and malafide allegations. It cannot be that, the same facts are
twisted, statements blatantly contradicted only to initiate and make out a
case in different criminal prosecutions.
65) Considering the aforesaid facts, attending circumstances and
material on record by way of the FIR and the chargesheet, I am of the firm
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view that, this Court cannot allow the misuse of the criminal law system
and the criminal laws in matrimonial disputes, family disputes and
financial issues/disputes to seek vengeance or to be used as an arm-
twisting tactic or a defence mechanism. In the present case, where one
considers the background facts and litigations and the facts of the present 3
cases and the conduct of the parties, the same are prima facie indicative of
the fact that, apart from the facts put forth, there is much more than what
meets the eye. The parties herein are involved in fiercely contested and
fought-out matrimonial disputes, family and financial issues. In such a
scenario none of the parties, and in no circumstances, can be allowed to
misuse the law. The rule of law and the overall interest and administration
of justice are to be placed above all inter-se private issues and interests.
Considering the long list of pending criminal prosecutions and the pending
matrimonial disputes, it appears that cleverly worded and drafted
complaints, and well-crafted and designed strategies are being used by the
parties as a defence mechanism or as a counter-attack. There is a blatant
abuse and misuse of the criminal law system to meet the underlying
ultimate object of a favourable settlement. The system is misused as an
arm-twisting tactic, which should not be allowed or permitted to continue
under any circumstances.
66) In the present criminal proceedings, after considering the
entire material on record, it prima facie appears that, the criminal
proceedings are manifestly attended with mala fide and maliciously
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instituted with an ulterior motive for taking vengeance, with a view to
spite the other side due to private and personal grudge.
67) Considering the entire allegations, facts, circumstances and the
perusal of the chargesheet would indicate that the present three FIR’s are
off shoots of the various matrimonial disputes and financial issues and
litigations, both civil and criminal, which have been filed by ‘Y’ and Mr.
Prakash Bhatia against each other. The disputes appear to have started
with the filing of the matrimonial proceedings in August 2020.
68) In Criminal Application No. 427 of 2023, the independent
third party, i.e., the NGO workers, have categorically stated that 'X' did not
complain or inform them of any act or conduct of 'Y' which would be or
amount to an offence under the POCSO Act. The Home Visit Report dated
th
13 August 2021 does not refer to any allegation of sexual abuse. On the
th
contrary, the contents of the Home Visit Report dated 13 August 2021, in
the clause "Observations", in fact give out the real reason for the dispute
and acrimony between 'Y' and the Petitioner, which is stated to be a
matrimonial dispute and certain financial transaction issues. This,
according to me, is the real reason for the entire fight and the present
criminal prosecutions. Further, the falsity of the allegations of the
nd
Petitioner regarding being forced to execute the gift deed on 22
November 2019 is evident from the letter of the concerned school, which
would prima facie indicate that 'X' was, in fact, attending the school on the
said date. The same on a prima facie basis makes extremely
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doubtful about the allegations in respect of the forced execution of the gift
deed. Further, despite having knowledge since August 2021, the Petitioner
'X' chose not to file the complaint under the POCSO Act till November
2021, which speaks volumes of the intent of the parties. There is material
variance in the FIR, supplementary statement, statement under Section
164, and the D.V. proceedings in respect of the acts of sexual harassment.
Further the chequered litigation background also makes the FIR doubtful.
69) Considering the statement of the independent witnesses, the
Report of the NGO, the Affidavit of the Investigating Officer, the other
attending facts and circumstances, including the inconsistency in the FIR
and the 164 Statement the allegations made in the FIR appear to be
doubtful. In my considered view, the possibility of making incorrect,
unfounded and exaggerated allegations cannot be ruled out. Considering
the various litigations and proceedings filed by the parties, it appears that
the parties have filed and initiated malicious and mala fide proceedings
against each other for personal vendetta.
70) Considering the entire facts and circumstances and the
documents available in the charge-sheet, I am of the prima facie opinion
that, none of the offences as alleged in the FIR have been made out much
less any offence under the POCSO Act. The investigation and the
chargesheet would reveal that, none of the independent third party
witnesses have stated or even vaguely referred to any allegation relating to
the POCSO Act. The independent NGO workers, through whom Mr.
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Prakash Bhatia claims to have learned of the acts, have not referred to or
stated of any allegations of POCSO hae been informed to them or neither
the home visit report nor to the Investigating Officer during the
inquiry/investigation. The parties, allegedly being aware of the serious
allegations continued to file the most trivial of the complaints/NC. Except
the belated attempt made by Mr. Prakash Bhatia and at his instance by ‘X’,
there is no allegation in respect of POCSO. The Investigating Officer, on
oath in an affidavit filed before the Hon’ble Supreme Court has specifically
stated that, there was no allegation of POCSO made till filing of the
th
complaint on 11 November 2021. Considering these facts, in my opinion
even the foundational facts as required are not made out.
71) In Writ Petition No. 2768 of 2021, the allegations appear to be
doubtful, as at the first instance, when the NC complaint is filed, there is
no reference at all to the allegations in respect of Section 270 of the IPC.
Further, in the subsequent complaints, when the allegations under Section
270 have been added, I find that the complaints are at material variance
and have been improvised to a large extent in an attempt to make out
other offences.
72) In Writ Petition No. 3779 of 2022, I find that there is no
explanation for the inordinate delay of 10 years in filing the FIR.
Furthermore, and more importantly, the allegations in the said FIR No.
1149 of 2022, when juxtaposed and compared with the allegations in FIR
No. 1201 of 2020 made by 'Y', are completely contrary to each other
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and would, in fact, negate and neutralize the allegations in FIR No. 1149
of 2022. In addition to the same, considering the chequered history of
litigation between the parties, the possibility of a mala fide and malicious
implication cannot be ruled out. As stated earlier, ‘Y’ and the Petitioners
have both based their case on the fact that the FIRs are lodged with a
malicious and dishonest intention and that the prosecutions are thoroughly
malicious.
73) I find that, between ‘Y’ and her husband Mr. Prakash Bhatia
there are serious matrimonial disputes, disputes pertaining to and
allegations of serious financial irregularities/misuse and property disputes.
The matrimonial dispute is pending since the year 2020 and is the first in
point of time. The other disputes regarding property etc. are pending since
2021. The criminal prosecutions filed by the parties against each other are
for serious and grave offences. In my opinion, and on a broader canvas, if
one were to juxtapose the timing of filing of the proceedings or consider
the manner and pattern in which these disputes and criminal prosecutions
have come into existence and then relate it to the passing of any order or
happening of a particular event, there appears to be pattern i.e a
proceeding is initiated or activated by a party when the other party gets a
clear upper hand and/or an advantage against the other either by getting a
favorable ruling or benefit from the ruling or some other event. As noted
earlier, the parties have filed complaints for the most petty issue which in
the normal tempo of life and course of things would not have been done.
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The disputes and criminal prosecutions seem to be counter blast or counter
criminal prosecutions, filed to counter balance the scales in respect of
prosecutions filed against each other.
Conclusion
74) This Court is mindful of the fact that, the inherent power
under Section 482 of the CrPC cannot be used for a detailed appreciation
of evidence. This Court, while exercising power under Section 482 CrPC,
would not be justified in entering into the arena of an enquiry to find out
as to whether the evidence in question is reliable or not. But at the same
time, if one keeps in mind the fine distinction between a case where there
is no legal evidence at all or where the evidence is prima facie inconsistent
with the malicious and mala fide accusation made and a case where there
is legal evidence which may or may not support the case of the prosecution
at the time of trial.
75) It is settled principle of law that while exercising jurisdiction of
Section 482 of the CrPC the Court is not expected to evaluate the evidence
or conduct a mini trial as is enunciated by the Hon’ble Supreme Court in
the case of Manik B. V/s. Kadapala Sreyes Reddy & Anr., reported in 2023
SCC OnLine SC 2540 , and Central Bureau of Investigation V/s. Aryan
Singh, reported in (2023) 18 SCC 399 and State Vs. M. Maridoss and Anr
(2023) 4 SCC 338. At the same time, the observations of the Hon’ble
Supreme Court in paragraph 30 in case of Mohammad Wajid and Anr. Vs.
State of Uttar Pradesh and Ors. in Criminal Appeal No.2340 of 2023 also
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are extremely important and it is necessary that the same be considered in
cases where the contention of malafides and vexatious litigation has been
raised and argued.
76) While exercising the powers under Section 482 of CrPC, the
Court is duty-bound to ensure that the criminal courts or the criminal law
system of a country should not be used as a weapon of harassment or an
arm-twisting tactic. The underlying object, the surrounding/attending
circumstances are more so required to and ought to be considered and
taken into account when a case of malicious or vexatious prosecution or
vendetta litigation is alleged and when is borne out by the facts of the case.
While exercising the powers under Section 482 of the CrPC, one must keep
in mind the purport and the contours of the power available under the
section whose ultimate object is to prevent the abuse of process of law and
ensure that the ends of justice are met. It is well settled that, the concept of
securing ends of justice or preventing the abuse of process of law is at all
times larger and includes within it the ends of mere law through which
justice is administered. When proceedings are manifestly attended with
mala fide or maliciously instituted with ulterior motives for wreaking
vengeance, the exercise of power under Section 482 of CrPC should be
immediate and the same should be exercised after considering the entire
factual background and the attending circumstances. Such cases and
circumstances are an exception to the rule that limits the power to be
exercised under Section 482 of the CrPC. In such peculiar circumstances, it
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is the duty of the Court to visit each circumstance with extra care, caution
and a balanced judicial approach is required.
77) While exercising the powers under Section 482 of the Code of
Criminal Procedure, this Court now also requires to be mindful of the
recent worrying tendency of the parties to multiply cases, which are used
as a bargaining tool to bring about a favourable and lucrative settlement.
In the recent times, the strategy of arm twisting by instituting multiple
cases, exagerrated criminal complaints for seeking a global settlement or
getting lucrative settlements has increased manyfold. The courts exercising
the jurisdiction under Section 482 of the CrPC are flooded with such cases
which encroach into the time that would have been available for genuine
cases. The courts, therefore, have to be extremely careful in cases related
to matrimonial disputes, financial disputes interlinked with matrimonial
disputes, case of sexual offences against women like assault, rape,
outraging the modesty of women, POCSO cases, etc. which are also linked
with matrimonial disputes. The criminal law system is heavily misused by
parties at their own convenience and used as a defense mechanism or for
mounting a dishonest attack. When the criminal laws and criminal justice
system is misused it involves serious consequences. The consequences have
a far reaching impact on the individual, his social standing and well being.
To live with a stigma and burden of a criminal prosecution is extremely
difficult, and to live with a vexatious and malicious criminal prosecution
would be disastrous. Such prosecutions are required to be obliterated at
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the inception once a case of malicious prosecution and malafide is prima
facie made out. In such cases the prosecution cannot be allowed to
continued.
78) On the basis of such unrelated and exaggerated versions and
evidence to allow this kind of serious and grave criminal prosecutions to be
filed and/or continued, which essentially arise out of matrimonial disputes
and financial issues ought not to be permitted. Allowing such criminal
prosecutions to continue after such material is available on record would
clear amount to a gross abuse of the process of law and harassment to the
individual which is metted out due to personal vendetta and grudges and
only with an object to spite the individual and wreck vengeance. In my
considered view it would be nothing less than pure injustice and a sheer
abuse of process of law and the legal system to permit this kind of
prosecution to proceed any further.
79) In the present cases, it prima facie appears that the allegations
are made only to wreak vengeance and spite the individual. The conduct of
the parties and their actions have shocked and shook the conscience of this
Court. The parties have initiated or encouraged the worst kind of
prosecution against each other. A child is also not spared. A child who gives
birth to a mother has been set up to give the mother a slow and gradual
death in the eyes of the society at large. A wife has set out on a path of
evident malice and misrepresentation by filing criminal prosecutions
against the husband and the family on the basis of allegations which are
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contrary to each other and self destructive. All of this at the cost of the
present and future generations and for certain personal issues which are
perhaps given more than required importance and priority. The parties, in
the zest and over zealousness to implicate each other have lost sight of the
realities of life.
80) In my opinion, continuation of the present criminal
proceedings would lead to manifest injustice and would amount to a clear
abuse of the process of law and misuse thereof. The facts of the present
cases as narrated hereinabove, warrant that the inherent powers of this
Court under Section 482 of CrPC be exercised to prevent the abuse of
process of law and to secure the ends of justice.
81) Considering the aforenoted facts, submissions and the law as
laid down by the Hon’ble Supreme court, I am inclined to quash the
present proceedings. This would be a fit case to invoke the inherent powers
of this Court under the provisions of Section 482 of the Code of Criminal
Procedure to quash and set aside the criminal proceedings in the interest of
justice and to prevent the abuse of the process of law. Considering the
entirety of the facts, in my opinion, ‘X’ and Petitioner have clearly made out
a case under category 5 and 7 of the categories mentioned by the Hon’ble
Apex Court in the case of State of Haryana and Ors. Vs. CH. Bhajan Lal and
Ors. ( Supra) .
82) In view of the aforesaid facts and circumstances, the following
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Order is passed:-
i) Criminal Application No. 427 of 2023 is allowed in terms
of prayer clause (a).
ii) Criminal Writ Petition No. 2768 of 2021 is allowed in terms
of prayer clause (a).
iii) Criminal Writ Petition No. 3379 of 2022 is allowed in terms
of prayer clause (a).
iv) Rule is made absolute accordingly in the aforesaid
Application and Petitions.
83) It is clarified that, observation made herein pertain to the
three criminal prosecutions which have been considered and dealt with by
this Judgment and are only restricted for the purpose of deciding the
present Application and Petitions. The observation herein should not be
considered or construed to constitute any observation on the merits of any
connected or related matter. The concerned authorities/trial Courts shall
proceed with the connected proceedings in accordance with law,
uninfluenced by any observation made in this Judgment.
83) Traditionally, this Court has at all times suggested and tried to
ensure and endeavor that family ties and peace are restored, or at least
ensure that inter se family disputes and issues are amicably resolved. In the
present case also, suggestions were made to the parties to amicably resolve
the issues. The mediation process, though initiated, has failed. The
suggestions of settling and resolving all the issues, though discussed, did
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not yield any positive result. Going forward, it is in the best interest of the
parties and the daughters, and for their future life and endeavors, that the
parties amicably resolve all matrimonial disputes and financial issues.
(RANJITSINHA RAJA BHONSALE, J.)
Digitally
signed by
SAGAR
SANTOSH
MAGAR
Date:
2026.07.18
15:37:42
+0530
SAGAR
SANTOSH
MAGAR
97
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