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CR.MA/357/2006 15/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 357 of 2006
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
CHAVDA
PRAHLADSINH @ DILIPSINHRAJUJI & 10 - Applicant(s)
Versus
THE
STATE OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
PR ABICHANDANI for Applicant(s) : 1 - 11.
MR
LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
MR HR
PRAJAPATI for Respondent(s) : 2,
M/S THAKKAR ASSOC. for
Respondent(s) : 2,
==========================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 01/07/2008
ORAL
JUDGMENT
This
application was heard for admission as well as on the question of
interim relief. However, as the matter was argued at length, by the
consent of the learned advocates for the parties, the matter is
taken up for final disposal.
Rule.
Mr.L.B.Dabhi, learned Additional Public Prosecutor waives service
of notice of rule on behalf of respondent No.1 ? State of Gujarat
and Mr.H.R.Prajapati, learned advocate waives service of notice of
rule on behalf of respondent No.2 ? original complainant.
The
facts of the case stated briefly are that the respondent No.2 herein
had lodged a complaint against the petitioners herein for the
offences punishable under Sections 498A, 323, 504, 114 of the Indian
Penal Code (IPC) and Sections 3 and 7 of the Dowry Prohibition Act,
which came to be registered as a First Information Report vide
Bapunagar Police Station I ? C.R. No.8/2006 on 4th
January, 2006.
The
petitioner No.1 is the husband of the respondent No.1 – complainant,
petitioner No.2 is the father in-law of the complainant, petitioner
No.6 is the mother in-law of the complainant, petitioners No.3, 4
and 5 are the brothers of the petitioner No.1, petitioners No.7 and
8 are the sisters of petitioner No.1, petitioners No.9 and 10 are
the brother in-laws of petitioner No.1 and petitioner No.1 is the
sister in-law of petitioner No.1. It is the aforesaid First
Information Report of which quashment is sought for by this
application under Section 482 of the Code of Criminal Procedure,
1973 (the Code).
Mr.P.R.Abichandani,
learned advocate for the petitioners has submitted that the
complaint is filed after a period of six months from the date of the
last incident, whereby it is alleged that the petitioners herein had
demanded Rs.50,000/- to permit the respondent No.2 to reside with
them. It is submitted that most of the allegations in the complaint
pertain to a period prior to seven years from the date of the
complaint. It is, accordingly, submitted that the complaint is bad
on the ground of delay and laches and hence, in view of the bar of
Section 468 of the Code, the complaint itself is not maintainable.
It is further submitted that in view of the disputes between the
petitioner No.1 and the complainant, the parties had entered into a
settlement which was recorded by a compromise deed dated 21st
May, 2004 which was executed in the presence of leaders of the
community, reputed persons and elders of the family and
well-wishers, whereby it was agreed that the petitioners were
required to provide a separate house for the respondent No.2 wherein
the respondent No.2 was to reside. It was also recorded therein
that the possession of the said house is handed over to the
respondent No.2. It is submitted that it was also agreed between
the parties that the petitioner No.1 was required to provide
Rs.700/- per month towards maintenance to the respondent No.2,
without fail. The petitioner No.1 was also required to provide the
respondent No.2 one and half Vighas of agricultural land, of which
she would be an independent owner. It had further been agreed that
the respondent No.2 would be permitted to purchase buffaloes,
towards which the petitioner No.1 would have to pay Rs.5,000/-. It
was also recorded therein that the parties would make efforts to
restore their marital relations and for which purpose, the parents
of the petitioner No.1 and others would ensure that the respondent
No.2 is taken proper care of. That neither of the parties would
consider re-marriage or even make any attempts in respect of the
same. It is submitted that in view of the aforesaid settlement
arrived at between the parties, the respondent No.2 was residing
separately. That as the respondent No.2 had encroached upon half a
Vigha more than the land to which she was entitled, the respondent
No.2 had been requested to remove the encroachment. That as she did
not heed to the said request, the petitioner No.1 stopped making
payment of Rs.700/- per month towards maintenance. It is submitted
that it is only thereafter that the respondent No.2 has filed the
present complaint only with a view to exert pressure upon the
petitioner No.1, and that the rest of the family members and the
relatives, including distant relatives, have also been roped into
the complaint. It is submitted that the allegations made in the
complaint are vague, false and concocted and are made only with the
malafide intention of harassing the petitioners.
It
is urged that the allegations made in the complaint have to be
weighed qua the circumstances in which the same have been made. It
is submitted that when the petitioner No.1 has already given one and
half Vigha of land to the respondent No.2 and has agreed to pay
maintenance under the agreement as well as has given her a house for
residing, it is too far fetched that subsequently he would demand
Rs.50,000/- at a later stage. It is, accordingly, submitted that
the allegations made in the complaint are so absurd and inherently
improbable that no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
petitioners. It is further submitted that, as stated by the
petitioner No.1, he has deposited Rs.3,000/- before this Court
towards arrears of maintenance and has continued to pay the same
regularly. It is, accordingly, submitted that a bare perusal of the
complaint shows that no offence as alleged can be said to have been
made out, hence, the complaint in question is required to be quashed
qua all the petitioners.
On
the other hand, Mr.H.R.Prajapati, learned advocate for the
respondent No.2 has vehemently opposed the application and has
submitted that once the First Information Report discloses
commission of an offence, no case is made out for intervention by
this Court under Section 482 of the Code. It is submitted that a
perusal of the complaint clearly shows that the respondent No.2 ?
complainant has been subjected to cruelty by the petitioners herein,
and that, there has been a demand for dowry amounting to Rs.50,000/-
by all the petitioners herein, hence, no case is made out for
intervention by this Court. Reliance is placed upon a decision of
the Supreme Court in the case of Arun Vyas v. Anita Vyas
AIR 1999 SC 2071, to submit that cruelty is a continuing offence,
and that the new starting point of limitation starts on the last
act of cruelty. It is, accordingly, submitted that the last act of
cruelty was six months prior to the date of the offence, hence, the
same is not barred by limitation under Section 468 of the Code.
Mr.L.B.Dabhi,
learned Additional Public Prosecutor has submitted that, in the
facts of the present case, where the complaint discloses commission
of an offence, the investigation should be permitted to continue and
that, no case is made made out to warrant any intervention by this
Court in exercise of inherent powers under Section 482 of the Code.
This
Court has considered the submissions advanced by the learned
advocates for the parties and has perused the record of the case.
At
this juncture, it would be pertinent to refer to the allegations
made in the complaint. It is alleged in the complaint that the
complainant was residing with the petitioner No.1, his parents and
his brothers and wives, and that, for a period of two years, they
had maintained good relations with her. However, thereafter, when
she gave birth to a daughter, they started harassing her mentally
and physically, however, she has suffered the same silently. That
seven years prior to the lodging of the First Information Report,
she was residing with her in-laws at Ahmedabad when the petitioners
herein told that her parents did not give her anything towards dowry
and that, she had given birth to a daughter and she was, therefore,
unlucky for the house and saying so, had beaten her and thrown her
out of the house. Since then, she was residing at her parental home
and had not returned to her matrimonial home. That, thereafter,
after two years, her younger brother had gone to leave at her
matrimonial house, however, as the petitioners were not ready and
willing to keep her, she had to return with her brother. That, on
21st May, 2004, persons from her parental home as well as
from her matrimonial home got together and as members of her
matrimonial home were not ready and willing to keep her, an
agreement was entered into on a Rs.50/- stamp paper that she would
be provided with a house, one and half Vigha of land as well as
Rs.700/- per month towards maintenance. That in terms of the
agreement, for a period of ten months, maintenance had been
provided, as agreed. However, thereafter, the same was stopped and
hence, they had approached the witnesses to the said agreement who
had told them that it was for her to manage with her in-laws and
that, they were not concerned with the same. It is also alleged
that six months prior to the date of the complaint, her brother
Bharatsinh and her cousin Ghanshyamsinh Babusinh and Bhupatsinh had
gone to leave her at her matrimonial home at Ahmedabad. At that
time, all the petitioners herein were present at her matrimonial
home and they had told her that if she wants to reside in their
house, she would have to bring Rs.50,000/- towards dowry. That she
had asked them that her mother is a widow and her brothers are
young, where would she get so much money from? At that point of
time, the petitioners No.9, 10 and other brother in-laws, sister
in-laws etc. told her that she should get Rs.50,000/- from her
parental home or she should not return back and that they would get
the petitioner No.1 married elsewhere. That administering such
threats, they had thrown her out of the house and she had returned
home. It is further stated that the matrimonial home as well as her
parental home are situated in the same village. It is, accordingly,
alleged that the petitioners herein had, after her marriage,
subjected her to mental and physical harassment on the ground that
she had given birth to a daughter and not a son, and had demanded
Rs.50,000/- towards dowry, hence, she has lodged the present
complaint.
The
contents of the compromise deed dated 21st May, 2004 have
already been reproduced hereinabove.
It
is an admitted position, as is borne out from the complaint itself,
that the parties have executed a compromise deed dated 21st
May, 2004. In the circumstances, the allegations made in the First
Information Report are to be considered in the light of the
settlement arrived at between the parties vide the said compromise
deed.
Looking
to the First Information Report in question, it is apparent that the
allegations of cruelty are in respect of a period of seven years
prior to the date of the lodging of the First Information Report in
question. The allegations are to the effect that the petitioners
have subjected the respondent No.2 to mental and physical harassment
by telling her that her parents have not given her anything towards
dowry, and that, as she has given birth to a daughter, she is
unlucky for them, and have beaten her up and thrown her out of the
house. The next allegation pertains to a period of two years
thereafter, wherein it is stated that she was not permitted to enter
her matrimonial house. The last allegation is in respect of a
period six months prior to the date of the complaint wherein she has
stated that when her brothers came to leave her at her matrimonial
home, the petitioners had demanded Rs.50,000/- to permit her to
reside at her matrimonial home.
Considering
the allegations made in the First Information Report , it is
apparent that the allegations of cruelty pertaining to the period of
seven years prior to the date of the complaint are not with respect
to any demand for dowry or any other property. In this regard, it
would be pertinent to refer to the provisions of Section 498A of the
Indian Penal Code, which reads as under:
?S498A.
Husband or relative of husband of a woman subjecting her to
cruelty. – Whoever, being the
husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation
– For the purpose of this section, ?Scruelty?? means-
(a)
any willful conduct which is 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 (whether mental or physical) of the woman; or
(b)
harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful demand
for any property or valuable security or is on account of failure by
her or any person related to her to meet such demand.]??
Thus,
for the purpose of falling within the purview of the said section,
it is necessary that the woman is subjected to cruelty as defined
under the Explanation. A perusal of the definition of ?Scruelty??
under Clause (a) thereof, shows that the cruelty should be 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 (whether mental or
physical) of the woman. Looking to the allegations made in the
complaint, none of the allegations are of such a nature as would
fall within the definition of cruelty under Clause (a) of the
Explanation. Under Clause (b) of the Explanation, cruelty means
harassment to the woman with a view to coercing her or any person
related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person
related to her to meet such demand. In relation to the period seven
years prior to the filing of the complaint, the allegation is that
the petitioners told her that her parents have not given her
anything towards dowry, however, there is no demand for any property
or valuable security as envisaged under Clause (b) to the
Explanation. Hence, prima facie, the provisions of Section 498A of
the IPC are not attracted as regards the allegations pertaining to
the period seven years prior to the date of the complaint.
Insofar
as the allegations regarding the period of two years after she was
allegedly thrown out of the house are concerned, the same is only to
the effect that when her brother went to drop her at her matrimonial
home, they were not ready to keep her with them. The last
allegation undisputedly pertains to the period six months prior to
the date of the lodging of the First Information Report, whereby it
is alleged that when the brother of the respondent No.2 went to drop
her at her matrimonial home, all the petitioners demanded
Rs.50,000/- from her, failing which she was threatened that she
would not be permitted to reside with them, and that, they would get
the petitioner No.1 re-married. The last allegation undisputedly
pertains to a period after the parties have arrived at a settlement
vide the compromise deed dated 21st May, 2004. It would,
therefore, be pertinent to refer to the contents of the compromise
deed which clearly shows that it was agreed that the petitioner No.1
would provide a separate residence to the respondent No.2, one and
half Vigha of land and monthly maintenance of Rs.700/-, pursuant to
which, respondent No.2 had been provided with the residential
premise, one and half Vigha land and maintenance was also provided
regularly for a period of ten months thereafter, however, it appears
that, on account of some disputes in respect of encroachment of
land, the petitioner No.1 had stopped paying the monthly
maintenance, which subsequent to the filing of the present
application has also been paid to the respondent No.2. Considering
the settlement arrived at between the parties, when the respondent
No.2 complainant had already been provided with a residential home
and it was agreed that she would reside separately there, the
question of the brother of the respondent No.2 coming to drop her at
her matrimonial home six months prior to the date of the complaint
does not arise at all.
Besides,
there is no harassment or cruelty in connection with the demand of
Rs.50,000/- of dowry as alleged. All that is alleged is that she
was told that unless she brings Rs.50,000/- towards dowry, she would
not be permitted to reside with the petitioners. In the
circumstances, the said demand also does not fall within the purview
of Section 498A of the IPC. Furthermore, in view of the settlement
arrived at between the parties, the question of the respondent No.2
going to reside at her matrimonial home did not arise at all.
Hence, the allegations made in the complaint have to be viewed in
the light of the compromise arrived at between the parties.
The
Supreme Court in the case of State of Haryana and others v.
Bhajanlal and others,
1992 Supp (1) SCC 335 has laid down certain categories of cases by
way of illustrations, wherein the inherent powers under Section 482
of the Code can be exercised either to prevent the abuse of the
process of any Court or otherwise to secure the ends of justice.
The illustrations No.1, 5 and 7 would be relevant for the purpose of
present case, which are as under :
?S[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.
[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.
[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.?S
Considering
the allegations made in the First Information Report in question, it
is apparent that even if the allegations made therein are taken at
their face value and accepted in their entirety, the same do not
constitute any offence under Section 498A of the IPC. As regards
the allegations made for the offences punishable under Section 323
and 504 IPC are concerned, the same relate to the incidents alleged
to have taken place seven years prior to the date of the lodging of
the complaint, hence, the same are apparently time barred.
Moreover, the said allegations are general and vague in nature and
prima facie, do not disclose the ingredients of the said offences.
Besides,
considering the allegations made in the complaint in the light of
the settlement arrived at between the parties, the allegations made
in the complaint appear to be inherently improbable and also appear
to be attended with malafide for the purpose of wreaking vengeance
on the accused with a view to spite them due to disputes having
arisen in connection with the implementation of the compromise deed.
In the circumstances, this Court is of the view that the present
case falls within the categories laid down by the Apex Court in the
case of State of Haryana and others v. Bhajanlal and others
(supra).
Another
aspect of the case which is required to be noted is that the
respondent No.2 has tried to rope in as many members of the family
as possible. Even married sister in-laws who are residing
separately and their husbands have not been spared.
From
the aforesaid discussion, it is apparent that the complaint in
question pertains to three periods, firstly, seven years prior to
the date of the lodging of the complaint, secondly, another five
years prior thereto and the thirdly, six months prior thereto. The
allegations pertaining to the period of seven years prior to the
date of the complaint are apparently time barred. Besides, the
allegations do not disclose any offence under Section 498A of the
IPC. As regards the allegations pertaining to the second period,
the same do not disclose any offence whatsoever. As regards the
allegations pertaining to the last period, the same also do not
disclose any offence as alleged in the complaint. In the aforesaid
circumstances, this Court is of the view that this is a fit case for
exercise of powers under Section 482 of the Code to prevent abuse of
the process of Court.
For
the foregoing reasons, the application succeeds and is, accordingly,
allowed. The First Information Report registered vide Bapunagar
Police Station I ? C.R. No.8/2006 is hereby quashed. Rule is made
absolute accordingly.
[HARSHA
DEVANI, J.]
parmar*
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