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 Arjun 1 10-WP-4883-2024.doc 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. Arjun 2 10-WP-4883-2024.doc 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 Arjun 3 10-WP-4883-2024.doc 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 Arjun 4 10-WP-4883-2024.doc 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 Arjun 5 10-WP-4883-2024.doc 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 Arjun 6 10-WP-4883-2024.doc 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, 24th 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.] Arjun 7