HEMAL BIPIN PATELversusTHE STATE OF MAHARASHTRA AND ANR

                                                           10-WP-4883-2024.doc


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                    WRIT PETITION NO.4883 OF 2024

Sudhaben Bipin Patel & Ors.                               ...Petitioners
        Versus
The State of Maharashtra & Anr.                           ...Respondents

                                 WITH
                     WRIT PETITION NO.349 OF 2025

Hemal Bipin Patel                                         ...Petitioner
        Versus
The State of Maharashtra & Anr.                           ...Respondents


                                 ——————
Mr. C. M. Kothari, for the Petitioners in both WPs.
Ms. S. M. Yadav, APP, for the Respondent-State.
Ms. Manisha Devkar a/w Shankar Katkar (Appointed through Legal Aid),
for Respondent No.2.
P.S.I. R. G. Gujar, Malad Police Station, present.
                                ——————
                                          Coram: Madhav J. Jamdar, J.
                                          Date: June 22, 2026
P.C.:

1.      Heard Mr. Kothari, learned Counsel appearing for the Petitioners

and Ms. Devkar, learned Counsel along with Mr. Katkar, learned Counsel,

appointed to represent the interest of Respondent No.2.

2.      By the present Writ Petitions filed under Article 227 of the

Constitution of India, the Petitioners are challenging the legality and



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validity of the Order dated 15th February 2024 passed by the learned

Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai,

below Exhibits 4 and 5 in CC No.1283/PW/2020. The said applications at

Exhibits 4 and 5 were filed by the Accused seeking discharge. By the

impugned Orders, the said applications have been rejected.

3.       Accused No.1-Hemal Bipin Patel (Petitioner in Writ Petition

No.349 of 2025), is the husband of Respondent No.2-Rekha Hamir

Solanki. Accused No.2-Bipin Rambhai Patel and Accused No.3-Sudhaben

Bipin Patel, are the in-laws of Respondent No.2. Accused No.4-Ashok

Rambhai Patel, is the brother of Accused No.3-Sudhaben Bipin Patel.

Accused Nos.2, 3 and 4 are the Petitioners in Writ Petition No.4883 of

2024.

4.       The FIR, insofar as in-laws i.e. Accused Nos.2 and 3 and Accused

No.4-Ashok Rambhai Patel, states as under:

        ß14@01@2020 jksth eyk ek>h lkljs fcihu iVsy] lklw o ek>s irhps ekek
        v’kksd iVsy ;kauh eyk Qksu d:u eyk ek>s irh gsey iVsy ;kauk lksMwu
        ns.;kl lkafxrys- rlsp eh gsey iVsy ;kal vkti;Zar [kqi ywVys vkti;Zar
        R;kpsdMwu T;k oLrw o iSls ?ksrys vkgsr R;kph loZ jks[k jDdesr ijr
        dj.;kl lkafxrys- rlsp fr?kkauh vkRrkP;k vkrk eyk ek>s irh gsey
        iVsy ;kl ?kVLQksV ns.;kl lkaxqu u fnY;kl ikgqu ?ks.;kph /kedh nsoqu
        f’kohxkG dsyh-Þ

Thus, the only allegation against Accused Nos.2, 3 and 4 is that they

have called the Respondent No.2 and told her to take divorce. Except

the above allegation, there is no other allegation.




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5.       Although the Charge-sheet has been filed under Sections 498A,

406, 509, 323, 504, 506 and 34 of the Indian Penal Code, 1860, a perusal

of the FIR shows that, except the above allegations, there are no

allegations against Accused Nos.2, 3 and 4.

6.       In these Writ Petitions, despite service of notice, none has

appeared for Respondent No.2. Therefore, this Court directed the

Legal-Aid Committee to appoint a Counsel to represent the interest of

Respondent No.2 and, accordingly, Ms. Devkar, learned Counsel along

with Mr. Katkar, learned Counsel, have appeared in the matter.

7.       A perusal of the entire FIR shows that although various

allegations have been made against Accused No.1 i.e. the husband of

Respondent No.2, there are no allegations against Accused Nos.2, 3 and

4 except the above allegations.

8.       Thus, the present case is covered by the decision of the Supreme

Court in State of Haryana v. Bhajan Lal 1. In the said decision, in

Paragraph No.102, the Supreme Court laid down the guidelines for the

exercise of powers under Article 226 or the inherent powers under

Section 482 of the Code of Criminal Procedure, 1973, 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

1    1992 Supp (1) SCC 335


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        the Code which we have extracted and reproduced above,
        we have given 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
        channelised 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
                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


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                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.”
                                                 (Emphasis added)

Thus, the present case is covered by Guideline Nos.1, 2 and 7 as

contained in Paragraph No.102 of the decision in Bhajan Lal (supra).

9.      As none was appearing for Respondent No.2, the learned Counsel

of the Petitioners had a WhatsApp chat with Respondent No.2. On 20th

April 2026, she informed the learned Counsel for the Petitioners, to

close the case as early as possible and that she is ready to sign the

necessary documents.

10.     Today, in the morning session, when the matter was taken up, the

learned Counsel of the Petitioners shared the mobile number of

Respondent No.2 with Ms. Devkar, learned Counsel and Mr. Katkar,

learned Counsel, and after having conversation in connection with Writ

Petition No.4883 of 2024, Ms. Divekar, learned Counsel stated that

Respondent No.2 has no objection for discharging the Petitioners in

Writ Petition No.4883 of 2024 i.e. Accused Nos.2, 3 and 4.

11.     As regards Writ Petition No.349 of 2025, filed by Accused No.1 i.e.

the husband, Ms. Divekar, learned Counsel submitted that since she has



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been appointed only in Criminal Writ Petition No.4883 of 2024, she

cannot make any statement. However, Mr. Kothari, learned Counsel for

the Petitioners, points out WhatsApp chat between himself and

Respondent No.2, which clearly records that Respondent No.2 had

communicated to him to close the case which has been filed against Mr.

Hemal Bipin Patel i.e. Accused No.1.

12.     It is the contention of Mr. Kothari, learned Counsel, that although,

as per FIR, the marriage of Respondent No.2 with Accused No.1-Hemal

Bipin Patel was the second marriage, in fact it was her third marriage, as

one marriage has not been disclosed. To substantiate the said

contention, he points out the statement of Mr. Hemal Bipin Patel at

Page No.53, which shows that Respondent No.2 had been married

earlier.

13.     A perusal of the FIR shows that Respondent No.2 is a divorcee and

that Accused No.1-Hemal Bipin Patel, had initially refused to marry her.

The record further shows that Respondent No.2 thereafter remarried

another person. Even if the statements made in the FIR are taken into

consideration, then also it is clear that Accused No.1-Hemal Bipin Patel

was alcoholic and that as Respondent No.2 had insisted that he should

discontinue the said habit, on that count, Accused No.1 had initially

refused to marry Respondent No.2 and thereafter the Respondent No.2

married some other person. It appears that Accused No.1 was working


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in the USA and had undergone treatment to overcome alcoholism.

14.     The Respondent No.2, despite service, has not appeared in the

matter, and has communicated to learned Counsel appearing for the

Petitioners that she has no objection for closure of case. Thus,

considering the facts and circumstances, the case is made out even in

Criminal Writ Petition No.349 of 2025 filed by the Petitioner-Hemal

Bipin Patel (Accused No.1), for allowing his discharge application.

15.     Thus, in the facts and circumstances, both these Writ Petitions are

disposed of by setting aside the Order dated 15th February 2024 passed

by the learned Additional Chief Metropolitan Magistrate, 24 th Court,

Borivali, Mumbai, below Exhibits 4 and 5 filed seeking discharge in CC

No.1283/PW/2020, and both the applications bearing Exhibits 4 and 5

are allowed.

16.     The Writ Petitions are disposed of in above terms.



                                                 [Madhav J. Jamdar, J.]




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