Jignesh Girishbhai Makwana v. State of Maharashtra

1. The State of Maharashtra ] At the instance of Borivali ] Police Station, Mumbai. ]

2. Dr. Chandrakanta Satyaprakash Verma ] Age: 65 Years, Occ. Business, ] R/at: E/401, New Rajesh Nagar, ] Nr. J.B. Khot Complex, Saibaba Nagar, ] Borivali (E), Mumbai. ] … Respondents Mr. Prashant Badole for Applicant. Dr. Dhanalakshmi S. Krishnaiyer, A.P.P. for Respondent No.1-State. CORAM: A. S. GADKARI AND SHYAM C. CHANDAK, JJ. DATE: 19th April 2024.

JUDGMENT ( Per: A. S. Gadkari, J.):- 1) By the present Application under Section 482 of Criminal Procedure Code (for short, “Cr.P.C.”), the Applicant, Accused in C.C. No. 2601509/PS/2013 pending on the final of Metropolitan Magistrate, 26th Court, Borivali, Mumbai, arising out of CR No. 51 of 2013 dated 7th February 2013, under Section 309 of Indian Penal Code (for short, “I.P.C.”) has prayed for quashing of the said case.

1.2) Record indicates that, by an Order dated 27th November 2018, Rule and interim relief by way of stay to the trial in C.C. No. 2601509/PS/2013 was granted by this Court. On 27th November 2018 Advocate Ms. Priyanka V. Pandit had appeared for Respondent No.2. The note put up by the Registry mentions that, the Admit notice issued to Respondent No.2 has been served personally. Despite service, none appears for Respondent No.2.

2) Heard Mr. Badole, learned Advocate for Applicant and Dr. Krishnaiyer, learned A.P.P. for Respondent No.1-State. Perused entire record.

3) The prosecution case in brief is as under:- Respondent No.2 / informant was Member of Mahila Dakshta Samiti attached to Borivali Police Station and was performing her duty as a Counsellor to the aggrieved women. On 7th February 2013 Police Sub Inspector Ms. Targe attached to Borivali Police Station informed the Respondent No.2 on telephone that, in the evening at about 7.30 p.m. the meeting of Mahila Dakshta Samiti was convened and requested her to attend it. Respondent No.2 accordingly attended the said meeting at about 7.30 p.m.. After the said meeting was concluded at about 8.15 p.m., Police Sub Inspector Ms. Targe introduced the Respondent No.2 with Police Sub Inspector Mr. Gangavane. P.S.I. Mr. Gangavane requested Respondent No.2 to do counselling to the Applicant and his wife Mrs. Trupti Makwana, as there was matrimonial discord between them and the Applicant was refusing for cohabitation with Mrs. Trupti Makwana. The Applicant was also refusing to handover custody of his twin children to Mrs. Trupti Makwana. Accordingly the Respondent No.2 went to the chamber of the concerned Officer in the said Police Station. At that time, Mrs. Trupti Makwana, Applicant, P.S.I. Mr. Gangavane, A.P.I. Mr. Sanap and P.S.I. Mr. Salunkhe were present. The mother, father and other well-wishers of Mrs. Trupti Makwana were also present outside the said chamber. The Applicant, his father and his brother were also present. When the Respondent No.2 was counselling the Applicant and his wife Mrs. Trupti Makwana, at about 8.30 p.m. the Applicant went out of the said chamber and came back. At about 8.45 p.m. while the process of counselling was in progress, the Applicant all of a sudden got up and in a fit of rage told the persons present there that he is going to washroom. He went to the washroom attached to the Officers room and while coming out of the said washroom, he took out a small bottle from his pocket, consumed the medicine/ chemical in it, thereafter poured the balance medicine/chemical on the head of the Respondent No.2 and threw the said bottle there itself. The Respondent No.2 saw that on the said bottle ‘Bugnil Extra Power’ was written. The Police Officers present there held the Applicant and took him immediately to Bhagwati Hospital for treatment. In this brief premise, the aforestated offence under Section 309 of I.P.C. is registered against the Applicant. After completion of investigation Police have filed chargesheet in the Court of Metropolitan Magistrate, 26th Court, Borivali, Mumbai.

4) The facts mentioned in para No.(3) above are extracted from the F.I.R. lodged by the Respondent No.2 and the prosecution case as stated in para No. 16 of the chargesheet.

4.1) At the outset, it is to be noted here that, no explanation at all is offered by the prosecution, as to why Trupti Jignesh Makwna i.e. erstwhile wife of Applicant was called at Police Station, late in evening, even for counseling by

5) Perusal of entire chargesheet reveals that, there is no material on record to even remotely indicate that, the chemical allegedly consumed by the Applicant was infact a poisonous substance prompting the Applicant to attempt to commit suicide. There is no Chemical Analyzer’s Report to indicate that, the stomach wash of the Applicant was taken by the concerned Doctors, who treated him at Bhagwati Hospital and in the Chemical Analysis of the same, the traces of the said chemical or any other chemical, which is used for killing the bugs or repelling the bugs was there. The record further indicates that, though the said bottle having a label of ‘Bugnil’ was seized by the Police in the Police Station by effecting a Spot Panchanama dated 7th February 2023, it was not sent to the Chemical Analysis for ascertaining the fact that, whether there was a chemical which was hazardous or injurious to the health of a human being. Perusal of entire evidence on record prima-facie indicates that, the prosecution case is based on ipse dixit talk of the Respondent No.2 and the Investigating Agency.

5.1) There is no material or evidence at all available on record even to remotely infer that the Applicant infact consumed the said chemical in the Police Station and therefore, according to us, the application of Section 309 of I.P.C. to the present crime is misplaced.

6) There is another facet to the present case. By an Order dated 20th July 2015 passed in Criminal Application No. 630 of 2015 the Division Bench of this Court was pleased to quash the CR No. 101 of 2013 registered with Borivali Police Station, Mumbai, at the instance of Mrs. Trupti Jignesh Makwna @ Trupti Dineshbhai Waghela for the offence punishable under Sections 498A & 406 read with 34 of I.P.C. by observing that, the same was also in the interest of Respondent No.2 i.e. Mrs. Trupti Jignesh Makwna.

7) In view of the above, according to us, further proceedings of the said C.C. No. 2601509/PS/2013 pending on the final of Metropolitan Magistrate, 26th Court, Borivali, Mumbai, would amount to sheer abuse of process of law. The case of the Applicant falls within the ambit of the Guidelines enumerated by the Hon’ble Supreme Court in para No.102(5) in the case of State of Haryana and Others v. Bhajan Lal and Others, reported in 1992 SCC (Cri.) 426, and therefore deserves to be quashed.

8) In view thereof, Application is allowed in terms of prayer Clause (b).

9) Rule is accordingly made absolute. ( SHYAM C. CHANDAK, J. ) ( A.S. GADKARI, J. )

SHIVAHAR KUMBHAKARN