CR.MA/357/2006 1/15 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 1. This application was heard for admission as well as on the CR.MA/357/2006 2/15 JUDGMENT 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. 2. 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. 3. 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. 4. 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). CR.MA/357/2006 3/15 JUDGMENT 5. 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 CR.MA/357/2006 4/15 JUDGMENT 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. 6. 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 CR.MA/357/2006 5/15 JUDGMENT 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. 7. 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, CR.MA/357/2006 6/15 JUDGMENT 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. 8. 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. 9. This Court has considered the submissions advanced by the learned advocates for the parties and has perused the record of the case. 10.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, CR.MA/357/2006 7/15 JUDGMENT 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 CR.MA/357/2006 8/15 JUDGMENT 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. 11.The contents of the compromise deed dated 21st May, 2004 have already been reproduced hereinabove. 12.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. 13.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 CR.MA/357/2006 9/15 JUDGMENT 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. 14.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: “498A. 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, “cruelty” means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to CR.MA/357/2006 10/15 JUDGMENT 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.]” 15.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 “cruelty” 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 CR.MA/357/2006 11/15 JUDGMENT 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. 16.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 CR.MA/357/2006 12/15 JUDGMENT 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. 17.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. 18.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 CR.MA/357/2006 13/15 JUDGMENT present case, which are as under : “[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.“ 19.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 CR.MA/357/2006 14/15 JUDGMENT allegations are general and vague in nature and prima facie, do not disclose the ingredients of the said offences. 20.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). 21.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. 22.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 CR.MA/357/2006 15/15 JUDGMENT 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. 23.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*