VERDICTUM.

IN
2023:BHC-AS:34459-DB

4_wp_137_2021 .doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.137 OF 2021

Ramesh Sitaldas Dalal & Anr. ...Petitioners

Versus
The State of Maharashtra and Ors.
...Respondents
….
Ms Shubhada Khot i/b. Mr. Danish Patel for the Petitioner.
Ms Gayatri Gokhale i/b. Mr. Faisal Shaikh for Respondent No.2.
Ms M.M. Deshmukh, APP for Respondent No.1-State.
Ms Rohini Dhere, API, Malabar Hill Police Station, present.

CORAM: ANUJA PRABHUDESSAI &

N.R. BORKAR, JJ.
JUDGMENT RESERVED ON : 29th SEPTEMBER, 2023.
JUDGMENT PRONOUNCED ON: 9th NOVEMBER, 2023.

JUDGMENT: (Per Smt. Anuja Prabhudessai, J.):-

1. With consent, heard finally at the stage of admission.

2. The petitioners aged 80 and 75 years respectively, who are

the parents-in-law of respondent No.2 have filed this petition under

Article 226 of the Constitution of India to quash the First Information

Report No.152 of 2020 registered with Malabar Hill Police Station, for

offences under Sections 498-A, 420, 406, 323, 506(ii) r/w 34 of the

Indian Penal Code.

Megha/P.H. Jayani/Salgaonkar 1/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

3. The brief facts necessary to decide this petition are as

under:-

The respondent No.2 and Deepak, the adopted son of the

petitioners were school friends and they continued their friendship

beyond schooling days. Deepak pursued his career in Hotel Management

and is employed in Dubai, whereas respondent No.2 is a professional

dancer. Their friendship eventually turned into love and they decided to

enter into matrimonial ties. The father of the respondent no.2 did not

approve of the relationship initially but later relented as his wife

supported the decision of their daughter. The respondent No.2 has stated

that Deepak had told her before the marriage that he was the adopted son

of the petitioners. Her parents came to know that the lady working for

the petitioners was the biological mother of Deepak, however, it was too

late to cancel the wedding since the invitation cards were already

distributed and other arrangements were already made.

4. The engagement ceremony of respondent No.2 and the son

of the petitioner was held on 17/05/2018. The respondent No.2 claims

that petitioner No.2 had gifted to her gold necklace, earrings and

bracelets, whereas her father gifted Deepak a gold chain of 100 gms, a

family heirloom and cash of Rs.1,00,000/-. The respondent No.2 has

alleged that the petitioner No.2 took back the gold ornaments given to her

and did not return the same.

Megha/P.H. Jayani/Salgaonkar 2/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

5. The marriage of respondent No.2 and Deepak was

solemnized on 28/05/2018. Respondent No.2 claims that her father gave

her diamond jewelry worth Rs.65,00,000/-. A day after the wedding

respondent No.2 and Deepak went to Bali, Indonesia and returned to

Mumbai after 10 days. Respondent No.2 stayed in her matrimonial home

for about a month. The respondent no.2 resided with her parents after

her husband went to Dubai. She later joined him at Dubai and whenever

she returned to Mumbai, she stayed at her parental home.

6. Respondent No.2 claims that during her stay in the

matrimonial home, the petitioner No.2 would taunt and harass her over

trivial issues. She did not allow her to touch the refrigerator and gave her

leftover food. She has also alleged that petitioner no.1 would look at her

with a smirk on his face. He would comment that her father had not

given her enough and that he should bear all her expenses.

7. Respondent No.2 leveled several allegations against her

husband and alleged that he would constantly quarrel with her and

subject her to physical and mental cruelty during her stay in Dubai. He

sent her to Mumbai on 07/05/2019 and later persuaded her not to come to

Dubai on the pretext that he had lost his job and his residence visa had

expired. Respondent No.2 claimed that she was informed by her friend

Megha/P.H. Jayani/Salgaonkar 3/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

that her husband was living with a Russian lady.

8. In November 2019, respondent No.2 and her father went to

Dubai and with the assistance of a Court Official collected some of her

belongings. She has alleged that her husband did not return her jewelry

and other valuable articles. She alleged that her father had given her

diamond jewelry worth Rs.1,10,00,000/- and the petitioners had given

her jewelry worth Rs.1,32,00,000/-. She claims that her husband -

Deepak Dalal and the petitioners have retained the said jewelry. Hence

on 26/09/2020, she lodged the FIR against her husband and the

petitioners, pursuant to which the aforesaid crime came to be registered.

9. The petitioners filed this petition to quash the FIR on the

ground that the allegations in the FIR do not disclose any offence against

them. It is contended that the respondent No.2 never resided with them

since June-2018 and that she has falsely implicated them with malicious

intent, with the sole purpose of harassing them. The petitioners further

claim that in course of the investigation, the Investigating Officer

resorted to seal their lockers and freeze all their bank accounts/FDs. It is

stated that the petitioner No.1 is a heart patient and has pressure problem.

Petitioner No.2 had a fall and had fractured her spine. She was infected

with Covid-19 virus and was hospitalized. The petitioners raised a

grievance that they have been prevented from having access to their

Megha/P.H. Jayani/Salgaonkar 4/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

money to meet their basic daily expenditure as well as medical expenses.

The petitioners sought to quash the FIR and to de-seal and defreeze the

lockers and bank accounts contending that the FIR does not disclose any

cognizable offence and that they have been implicated in a false

fabricated and malicious proceedings.

10. The petitioner No.2 died during the pendency of the petition.

We have perused the records and considered the submissions advanced

by the respective learned counsel for the petitioner No.1 and respondent

No.2 and learned APP for the State.

11. The petition under Article 226 is to quash the FIR No.152 of

2020 registered at Malabar Hill Police Station. The parameters for

exercise of inherent powers under Section 482 of the Cr.P.C. or the

extraordinary writ jurisdiction under Article 226 of the Constitution of

India in the matter of quashing the FIR are well settled by catena of

decisions of the Apex Court. In Abhishek v/s. State of Madhya Pradesh

2023 Live Law (SC) 731, a Three Judge Bench of the Hon’ble Supreme

Court after referring to various precedents has observed thus :-

“12. The contours of the power to quash criminal proceedings

under Section 482 Cr.P.C. are well defined. In V. Ravi Kumar vs.

State represented by Inspector of Police, District Crime Branch,

Megha/P.H. Jayani/Salgaonkar 5/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

Salem, Tamil Nadu and others [(2019) 14 SCC 568], this Court

affirmed that where an accused seeks quashing of the FIR,

invoking the inherent jurisdiction of the High Court, it is wholly

impermissible for the High Court to enter into the factual arena

to adjudge the correctness of the allegations in the complaint. In

M/s. Neeharika Infrastructure (P). Ltd. vs. State of Maharashtra

and others [Criminal Appeal No.330 of 2021, decided on

13.04.2021], a 3-Judge Bench of this Court elaborately

considered the scope and extent of the power under Section 482

Cr.P.C. It was observed that the power of quashing should be

exercised sparingly, with circumspection and in the rarest of

rare cases, such standard not being confused with the norm

formulated in the context of the death penalty. It was further

observed that while examining the FIR/complaint, quashing of

which is sought, the Court cannot embark upon an enquiry as to

the reliability or genuineness or otherwise of the allegations

made therein, but if the Court thinks fit, regard being had to the

parameters of quashing and the self-restraint imposed by law,

and more particularly, the parameters laid down by this Court

in R.P. Kapur vs. State of Punjab (AIR 1960 SC 866) and State

of Haryana and others vs. Bhajan Lal and others [(1992) Supp

(1) SCC 335], the Court would have jurisdiction to quash the

Megha/P.H. Jayani/Salgaonkar 6/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

FIR/complaint.

13. Instances of a husband’s family members filing a petition

to quash criminal proceedings launched against them by his

wife in the midst of matrimonial disputes are neither a rarity

nor of recent origin. Precedents aplenty abound on this score.

We may now take note of some decisions of particular

relevance. Recently, in Kahkashan Kausar alias Sonam and

others vs. State of Bihar and others[(2022) 6 SCC 599], this

Court had occasion to deal with a similar situation where the

High Court had refused to quash a FIR registered for various

offences, including Section 498A IPC. Noting that the foremost

issue that required determination was whether allegations made

against the in-laws were general omnibus allegations which

would be liable to be quashed, this Court referred to earlier

decisions wherein concern was expressed over the misuse of

Section 498A IPC and the increased tendency to implicate

relatives of the husband in matrimonial disputes. This Court

observed that false implications by way of general omnibus

allegations made in the course of matrimonial disputes, if left

unchecked, would result in misuse of the process of law. On the

facts of that case, it was found that no specific allegations were

Megha/P.H. Jayani/Salgaonkar 7/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

made against the in-laws by the wife and it was held that

allowing their prosecution in the absence of clear allegations

against the in-laws would result in an abuse of the process of

law. It was also noted that a criminal trial, leading to an

eventual acquittal, would inflict severe scars upon the accused

and such an exercise ought to be discouraged.

14. In Preeti Gupta and another vs. State of Jharkhand and

another [(2010) 7 SCC 667], this Court noted that the tendency

to implicate the husband and all his immediate relations is also

not uncommon in complaints filed under Section 498A IPC. It

was observed that the Courts have to be extremely careful and

cautious in dealing with these complaints and must take

pragmatic realities into consideration while dealing with

matrimonial cases, as allegations of harassment by husband’s

close relations, who were living in different cities and never

visited or rarely visited the place where the complainant

resided, would add an entirely different complexion and such

allegations would have to be scrutinised with great care and

circumspection.

15. Earlier, in Neelu Chopra and another vs. Bharti [(2009)

Megha/P.H. Jayani/Salgaonkar 8/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

10 SCC 184], this Court observed that the mere mention of

statutory provisions and the language thereof, for lodging a

complaint, is not the ‘be all and end all’ of the matter, as what is

required to be brought to the notice of the Court is the

particulars of the offence committed by each and every accused

and the role played by each and every accused in the

commission of that offence. These observations were made in

the context of a matrimonial dispute involving Section IPC.

16. Of more recent origin is the decision of this Court in

Mahmood Ali and others vs. State of U.P. and others(Criminal

Appeal No. 2341 of 2023, decided on 08.08.2023) on the legal

principles applicable apropos Section 482 Cr.P.C. Therein, it

was observed that when an accused comes before the High

Court, invoking either the inherent power under Section 482

Cr.P.C. or the 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 of wreaking vengeance, then in such circumstances, the

High Court owes a duty to look into the FIR with care and a

little more closely. It was further observed that it will not be

Megha/P.H. Jayani/Salgaonkar 9/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

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 as, 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, to try and read between the lines.

17. In Bhajan Lal (supra), this Court had set out, by way of

illustration, the broad categories of cases in which the inherent

power under Section 482 Cr.P.C. could be exercised. Para 102

of the decision reads as follows:

‘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.

Megha/P.H. Jayani/Salgaonkar 10/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

(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 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 Act
concerned (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 Act concerned,
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

Megha/P.H. Jayani/Salgaonkar 11/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

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.’

12. In the instant case, the FIR reveals that the respondent No.2

and her husband-Deepak, who were childhood friends had willingly

entered into matrimonial ties on 28/05/2018. Respondent No.2 and her

husband went to Bali for 10 days and on their return she stayed in her

matrimonial home for a brief period of one month. The harassment

allegedly meted out to respondent No.2 by the petitioners is during her

brief stay in the matrimonial home in June-2018. The nature of ill-

treatment and harassment as spelt out in the FIR is that the deceased-

petitioner No.2 did not allow her to touch the refrigerator and gave her

leftover food. It is also stated that the petitioner No.2 would constantly

fight with her and taunt her over trivial issues. The allegations against

the petitioner No.1 are that he looked at respondent No.2 with a smirk on

his face, he would make nasty comments and taunt her that her parents

had not given her enough and that they should bear her expenses. A

sweeping statement has also been made that the petitioner No.2 had taken

back the jewelry given by her to respondent No.2 at the time of the

engagement ceremony and further that the petitioners and Deepak have

retained the jewelry, gold watch and other valuable items worth

Rs.1,10,00,000/- given to respondent No.2 by her father as well as

Megha/P.H. Jayani/Salgaonkar 12/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

jewelry worth Rs.1,32,00,000/- given to her by the petitioners at the time

of her engagement and marriage.

13. The term ‘cruelty’ for the purpose of Section 498-A of the

IPC has been specifically defined. In order to constitute an offence under

Section 498-A there must be prima facie material to prove (a)willful

conduct of such a nature as is likely to drive the woman to commit

suicide or to cause grave injury or danger to life, limb or health of the

woman; (b) that they had harassed her with a view to coerce her to satisfy

unlawful demand of dowry. It is well settled that to prove offence under

Section 498-A, it has to be established that the woman has been subjected

to cruelty continuously or persistently or at least in close proximity of

time of lodging the complaint. Petty quarrels do not amount to cruelty.

Reliance is placed on the decision of the Apex Court in Manju Ram

Kalita vs. State of Asam (2009) 13 SCC 330.

14. In the instant case, the FIR was filed on 26/09/2020 for the

alleged harassment by the petitioners during the one month stay of

respondent No.2 in the matrimonial home in the month of June-2018.

The narratives in the FIR of Deepak being adopted son, the inter-se

relationship between the petitioners or their relationship with the

biological mother of Deepak and further the fact that the petitioner no.2

was a divorcee, and her marriage with the petitioner no.1 was the second

Megha/P.H. Jayani/Salgaonkar 13/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

marriage, are totally irrelevant to decide the question of cruelty and

proceedings under Section 498A of Cr.P.C. The other allegations against

the petitioners viz. that they taunted the respondent no.2, looked at her

with a smirk on his face, that they did not allow her to touch the

refrigerator etc. even if accepted in their entirety do not constitute

‘cruelty’ within the meaning of Section 498-A of IPC.

15. The FIR does not prima facie disclose an element of

deception or dishonest inducement to make out a case of cheating. Apart

from the omnibus allegation that the petitioners and their son have not

returned the gold ornaments, the FIR as well as the other material on

record does not prima facie reveal that the said ornaments were entrusted

to the petitioners and that they had refused to return the same or had

dishonestly mis-appropriated the same or converted the same to their own

use. On the contrary, the allegations in the FIR are that on 13/11/2019

the respondent No.2 and her father had gone to Dubai to collect her

belongings. Respondent No.2 has stated that her husband gave some of

the belongings but did not return gold and diamond jewelry and other

valuable items. In such circumstances, the FIR and the other material on

record also do not disclose offence under Section 420 and 406 of the IPC.

16. It is also relevant to note that the petitioners have specifically

Megha/P.H. Jayani/Salgaonkar 14/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

averred that respondent No.2 had returned to Mumbai in the month of

May -2019 to attend to her mother, who had undergone hip surgery. She

refused to return to Dubai and that their son Deepak had told them that

respondent No.2 had threatened to make his life miserable. During the

same time the father of respondent No.2 started sending abusive

messages to them. In view of constant threats and allegations they

decided to distance themselves from their son to give him time and space

to resolve his matrimonial dispute.

17. The petitioners, in their own wisdom issued a public notice

dated 23/08/2019 that they had decided to disown their son and they had

nothing to do with his marital life. They also addressed a letter dated

23/08/2019 to the Senior Police Inspector, Malabar Hill Police Station

with a copy to the Commissioner of Police, apprising them of the marital

dispute between their son and respondent No.2 and the apprehension of

threat and harm from the parents of respondent No.2. By the said letter

the petitioners requested the police to attend to their phone call and to

protect them.

18. The petitioners were indeed dragged into the matrimonial

dispute, indicating that their apprehension were not unfounded. Their

predicament continued with the Investigating Officer treating them as

Megha/P.H. Jayani/Salgaonkar 15/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

hardened criminals and sealing their lockers and freezing all their bank

accounts / FDs, leaving them without any financial resources to meet

their day to day expenditure including medical expenses. In such

circumstances, the petitioners were compelled to approach this Court to

de-freeze the bank accounts.

19. The petitioner No.1 had filed his affidavit stating that in

view of freezing of all financial assets, they had no access to any money.

He had also stated that the petitioner No.2 – Malvika Dalal, was

hospitalized for Covid-19 virus and pneumonia. He lamented that they

had no money to meet their regular household expenses and medical

expenses and they were constrained to borrow money from the friends

and family for their subsistence and survival.

20. The petitioner No.1 had also stated that he has two

unmarried sisters aged 86 and 89 years who were living in the same

building and were financially dependent on him. He had stated that one

of the sisters was suffering from early stage Dementia while the other had

suffered a stroke and was completely bedridden. The petitioner No.1 has

stated that he and his family members were in need of money to meet

their basic living expenses as well as medical expenses.

Megha/P.H. Jayani/Salgaonkar 16/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

21. Order dated 20/04/2022 reveals that the request was

vehemently opposed by the State as well as the respondent No.2.

Dismayed with such approach, the Court observed that the parties may

have some grudge against each other in day to day life but ultimately at

some point of time parties are expected to consider the facts with a

humane approach and show some consideration without stretching the

things too far. Hence, this Court, by way of ad-interim relief, allowed the

petitioners to withdraw an amount of Rs.5,00,000/- from their bank

accounts.

22. Undisputedly, sub-section(1) of Section 102 confers powers

on the Police Officer to seize certain properties. In State of

Maharashtra vs. Tapas D. Neogy 1999 AIR SCW 3389 the Apex Court

has observed that the bank account of the accused or any of his relation is

‘property’ and a police officer in course of investigation can seize or

prohibit the operation of the said account if such assets have direct links

with the commission of the offence.

23. In M.T. Enrica Lexie & Anr. vs. Doramma & Ors. (2012) 6

SCC 760 the Apex Court has reiterated that :

“14. The police officer in course of investigation can seize

any property under Section 102 if such property is alleged to

Megha/P.H. Jayani/Salgaonkar 17/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

be stolen or is suspected to be stolen or is the object of the

crime under investigation or has direct link with the

commission of offence for which the police officer is

investigating into. It is held that a property not suspected of

commission of offence which is being investigated into by the

police officer cannot be seized. Under Section 102 of the

Code the police officer can seize such property which is

covered by Section 102(1) and no other.”

24. In Nevada Properties Pvt. Ltd. vs The State Of

Maharashtra, AIR 2019 SC 4554, a Three Judge Bench of the Hon’ble

Supreme Court while holding that the expression ‘any property’ used in

sub-section (1) of Section 102 of the Cr.P.C. does not include immovable

property and that the police officer cannot seize such property, has

observed that

“ 20. … Equally important, for the purpose of criminal

appeal arising out of interpretation is the scope and object of

Section 102 of the Code, which is to help and assist

investigation and to enable the police officer to collect and

collate evidence to be produced to prove the charge complained

of and set up in the charge sheet. The Section is a part of the

provisions concerning investigation undertaken by the police

Megha/P.H. Jayani/Salgaonkar 18/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

officer. After the charge sheet is filed, the prosecution leads and

produces evidence to secure conviction. Section 102 is not, per

se, an enabling provision by which the police officer acts to

seize the property to do justice and to hand over the property to

a person whom the police officer feels is the rightful and true

owner. This is clear from the objective behind Section 102, use

of the words in the Section and the scope and ambit of the

power conferred on the Criminal Court vide Sections 451 to

459 of the Code. The expression ‘circumstances which create

suspicion of the commission of any offence’ in Section 102 does

not refer to a firm opinion or an adjudication/finding by a

police officer to ascertain whether or not ‘any property’ is

required to be seized. The word ‘suspicion’ is a weaker and a

broader expression than ‘reasonable belief’ or ‘satisfaction’.

The police officer is an investigator and not an adjudicator or a

decision maker. ...”

25. As noted above, the Investigating Officer has sealed two

lockers of the petitioners. It is stated that the two lockers i.e. locker

No.855 in the names of the petitioners and their son Deepak and locker

No.487 in the name of the petitioners were sealed. It is stated that only

one of the lockers was opened in presence of panchas and the parties and

Megha/P.H. Jayani/Salgaonkar 19/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

that the respondent no.2 has identified some of her jewelry in the said

locker, whereas the second locker has been sealed without opening. The

Investigating Officer also addressed letters to the Bank Manager not to

allow the petitioners to operate their accounts or encash their FDs, the

details of which are given at page nos.194 and 195 of the chargesheet.

26. There is absolutely no material on record to indicate that the

bank accounts and FDs of the petitioners had any nexus with commission

of any offence. The Investigating Officer as well as the learned APP has

not been able to give any plausible or valid reason to freeze the bank

accounts/[Link] of the petitioners and further they have not been able to

demonstrate that the seizure was reported to the Magistrate forthwith, as

mandated under sub section (3) of Section 102 Cr.P.C. The action,

which is totally high handed and arbitrary gives an impression of

unfairness and /or ulterior motive.

27. It is also pertinent to note that this Court by order dated

22.01.2021 had directed the Investigating agency not to file the

chargesheet qua the petitioners without leave of the the Court. Despite

the said order, the Investigating Officer filed a chargesheet on 11.11.2022

without there being any material to show their involvement in the said

crime. Suffice to say that the role of the Investigating Officer is not to

favour or disfavour any person, but to unravel the truth in exercise of

Megha/P.H. Jayani/Salgaonkar 20/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

powers and procedure stipulated in Chapter XII of Cr.P.C. No doubt the

Investigating Officer is not required to go into the truthfulness or

genuineness of the allegations in the FIR or the other material collected

in course of the investigation. Yet, the Investigating Officer does not

have unfettered discretion to brand an innocent person as an accused, to

file chargesheet and send him for trial, unless uncontroverted allegations

and material collected in course of the investigation raise a suspicion that

the person is involved in commission of a cognizable offence. In the

absence of such prima facie material, compelling an innocent person to

approach the Court for discharge, quashing or to go through a trial and

thereby subjecting him to mental trauma, humiliation, stigmatization and

loss of reputation would imperil his personal liberty, which is sacred and

sacrosanct . Hence, the investigation which is said to be the backbone of

criminal justice system, should at all time be fair, proper and in

accordance with constitutional guarantees and legal provisions.

28. In Babubhai Vs. State of Gujarat, (2010) 12 SCC 254 the

Apex Court has observed that:

“ 25. The investigation into a criminal offence must be free

from objectionable features or infirmities which may

legitimately lead to a grievance on the part of the accused that

investigation was unfair and carried out with an ulterior

motive. It is also the duty of the Investigating Officer to

Megha/P.H. Jayani/Salgaonkar 21/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

conduct the investigation avoiding any kind of mischief or

harassment to any of the accused. The investigating officer

should be fair and conscious so as to rule out any possibility

of fabrication of evidence and his impartial conduct dispel any

suspicion as to its genuineness. The Investigating Officer is

not merely to bolster up a prosecution case with such evidence

as to enable a court to record a conviction but to bring out

real unvarnish truth. (vide R.P. Kapur v. State of Punjab, AIR

1960 SC 866, Jamuna Chaudhary v. State of Bihar, (1974) 3

SCC 774 and Mahmood vs. State of UP (1976) 1 SCC 542)

xxx

...Not only the fair trial but fair investigation is also part of

constitutional rights guaranteed under Article 20 and 21 of the

Constitution of India. Therefore, investigation must be fair,

transparent and judicious as it is the minimum requirement of

rule of law. Investigating Agency cannot be permitted to

conduct an investigation in tainted and biased manner. Where

non-interference of the Court would ultimately result in failure

of justice, the Court must interfere. ”

29. The Apex Court has time and again emphasized that right to

a fair investigation is a facet of a fair trial guaranteed to every accused

under Article 21 of the Constitution. In the instant case, despite there

Megha/P.H. Jayani/Salgaonkar 22/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

being no prima facie material to show the involvement of the petitioners

in commission of any cognizable offence, they have been dragged in a

matrimonial dispute, justifying their grievance that their implication was

for ulterior motive. Furthermore, freezing of the bank accounts was

manifestly arbitrary and against the mandate of law. By such drastic and

high handed action, the Investigating Officer compelled the petitioner to

beg and borrow money from their relatives for their survival and

sustenance, striking at the very right to live with human dignity.

30. The conduct of the Investigating Officer in filing the

chargesheet in breach of order dated 22/01/2021 also gives rise to a

suspicion that the investigation is tainted and far from being fair and

impartial. The Investigating Officer Rohini Jaykar Dhere, Assistant

Police Inspector, attached to Malabar Hill Police Station, Mumbai has

stated in her affidavit that the chargesheet was filed due to over sight and

inadvertence. The explanation appears to be far from the truth. The

arbitrary manner in which the investigating agency has investigated this

case indicates that the action of the Investigating Officer was to

overreach the order of the Court which cannot be countenanced and in

fact needs to be deprecated.

31. The aforesaid facts and circumstances clearly indicate that

the investigation qua the petitioners is biased, malafide and is gross abuse

Megha/P.H. Jayani/Salgaonkar 23/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

of process of law. In our considered view, the case falls squarely in

categories (1) and (5) set out in Bhajanlal (supra). Under the

circumstances, and in view of reasons, supra this is a fit case to quash the

proceedings qua the petitioner. We have rendered findings relating to

false and malafide implication of both the petitioners, despite being

aware that the petitioner no.2 is deceased. We are of the considered view

that this is necessary to clear the name, image and reputation of petitioner

no.2, albeit her having passed away.

31. Hence the petition is allowed. The First Information Report

No.152 of 2020 registered with Malabar Hill Police Station, and the

consequent charge-sheet CC/502/PW/2022, pending before the Addl.

Chief Metropolitan Magistrate, 40th Court, Girgaum, Mumbai, are

quashed qua the petitioners. The bank accounts/ Fixed Deposits in the

names of the petitioners are ordered to be de-freezed. The parties are at

liberty to apply before the trial court for release of the jewelry and other

items lying in the lockers. In the event such application is filed by either

of the parties, the learned Magistrate shall decide the same in accordance

with law.

. Copy of this order be forwarded to the Commissioner of

Police, Mumbai to make necessary entry in the service record of the

Investigating Officer Rohini Jayker Dhere, for filing the chargesheet

Megha/P.H. Jayani/Salgaonkar 24/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::

 [Link]

4_wp_137_2021 .doc

despite the order of the Court.

(N.R. BORKAR, J.) (ANUJA PRABHUDESSAI, J.)

Megha/P.H. Jayani/Salgaonkar 25/25

::: Uploaded on - 09/11/2023 ::: Downloaded on - 11/11/2023 [Link] :::