CR.MA/4851/2006 1/53 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 4851 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ================================================= 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 ? ================================================= DIPAKBHAI INDRAVADANBHAI PARIKH & ANR Versus THE STATE OF GUJARAT & ANR ================================================= Appearance : MR KB PUJARA for Applicants MS MITA PANCHAL for Respondent No.1 MR TS NANAVATI for Respondent No.2 ================================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA CR.MA/4851/2006 2/53 JUDGMENT Date : 19/07/2006 ORAL JUDGMENT 1.Heard learned advocate Mr.K.B.Pujara for the petitioners, learned APP Ms.Mita Panchal for the respondent No.1 – State of Gujarat and learned advocate Mr.T.S.Nanavati for the respondent No.2. 2.A notice in the matter was issued on 04.05.2006 returnable on 16.06.2006. On service of notice, respondents appeared before the Court and upon request of learned advocates for the parties, the matter was heard finally at this stage. 3.As per the brief facts of the case, the present petitioner No.1 – Dipakbhai Indravadanbhai Parikh is the husband of respondent No.2 – Minalben Dipakkumar Parikh. The marriage between the parties took place on 26.01.1996. Out of this wedlock, on 30.01.1997 a girl child was born. It appears that on account of strain relationship between the parties, in April, 1998, the CR.MA/4851/2006 3/53 JUDGMENT respondent No.2 left matrimonial home and had been staying with her parental home. The petitioner No.2, herein and petitioner No.3, herein are parents of petitioner No.1, petitioner No.4 is the brother and petitioners No.5 and 6 are sisters of petitioner No.1. 4.On 15.01.2003, after respondent No.2 left her matrimonial home, a notice vide registered post through advocate came to be issued to petitioner No.1 – husband stating that during her stay at matrimonial home, cruelty was executed towards the respondent No.2, but befitting to a Hindu wife, the respondent No.2 endured all cruelty executed against her. The allegations against the respondent No.3 were levelled that petitioner No.3 used to scold the respondent No.2 and was inflicting mental cruelty. The respondent No.2 was isolated and was not allowed to go anywhere to the extent that prohibition was placed on conversation by respondent No.2 by phone to her parental home and, therefore, in CR.MA/4851/2006 4/53 JUDGMENT April, 1998, she left her matrimonial home. In notice, it was placed to the notice of the petitioner No.1 that, the question had arisen of maintenance for respondent No.2 as well as the daughter whose name was Purva. It was expressed that respondent No.2 apprehended that petitioner No.1 had left his house and, therefore, the petitioner No.1 was put to the notice that according to law, for maintenance of mother and child as well as for other remedies necessary steps would be taken. It was alleged that ornaments of respondent No.2 and of daughter Purva were also kept by petitioner No.1 and his family members. In response to this notice, the petitioner No.2 herein on 25.01.2003, replied to respondent No.2 that the allegations levelled in the said notice were not true and that petitioner No.1 to the knowledge of respondent No.2 had been residing in USA since December, 1999 and was not residing at the given address in the said notice. However, vide communication dated 19.11.2005 from respondent No.2 through CR.MA/4851/2006 5/53 JUDGMENT advocate addressed to petitioner No.1, it was conveyed that respondent No.2 withdrew earlier notice dated 15.01.2003 issued under the instruction of respondent No.2 by her advocate. It appears from the record that thereafter, respondent No.2 addressed one application on 16.12.2005 to Police Inspector, Satellite Police Station, Ahmedabad City revealing grievance against the present petitioners and to take necessary steps in respect of contents of the said application. It appears from the record that on account of territorial jurisdiction no steps could be taken on said application dated 16.12.2005 and hence, the respondent No.2 filed one FIR being C.R.No.I-647/2005 before the Naranpura Police Station on 18.12.2005 for the events taken place from June, 1996 to 02.11.2005 against the present petitioners for the offences punishable under Sections 498-A, 323, 294(b), 506(1) and 114 of the Indian Penal Code and under Sections 3 and 7 of the Dowry Prohibition Act. CR.MA/4851/2006 6/53 JUDGMENT 5.In the said FIR, it is alleged that after her marriage, respondent No.2 was residing with petitioners and for five months relationship was smooth between the parties. Thereafter, her-in-laws, mother-in-laws and respondents No.5 and 6 started taunting her. With the hope that the time would be a remedy respondent No.2 endured the said mental cruelty and, thereafter, on 31.01.1997 daughter was born and at that time for 7-8 months, respondent No.2 stayed at the house of her parents. It is alleged that during this period, though her-in-laws visited her, but on account of female child was born, they chose to keep improper behaviour with her. Thereafter, according to respondent No.2, she resumed her-in-laws house. During that period her sister-in-law Sohiniben, petitioner No.6 had been to the house of parents i.e the house of in-laws of respondent No.2 and she instigated the petitioner No.1 against the respondent No.2. On account of this instigation, the petitioner No.1 used to beat CR.MA/4851/2006 7/53 JUDGMENT the respondent No.2 with fist and kick and was executing mental cruelty. According to respondent No.2, she was not allowed to see any neighbours or any relatives. It is also alleged that her father-in-law, husband and brother-in-law i.e petitioner No.4 herein were abusing her and driving her out of the house. On account of this, she used to go to her parental home. According to the respondent No.2 in such circumstances, she was used to be pursued by her parents and who were bringing her back to her-in-laws house. Her parents also attempted to pursue her-in- laws. Even though on account of this pursuance for some days, behaviour of her-in- laws remained moderate, but after some days taunting and mental and physical cruelty was being executed. According to the respondent No.2, her-in-laws used to say that her father had given nothing at the time of marriage or even after the birth of a daughter, she was not given anything by her-father and in pursuance of this her-in-laws had driven her CR.MA/4851/2006 8/53 JUDGMENT out of the house along with her daughter Purva only with the cloth which they were wearing and, thereafter, from last month of 1998, she was staying with her father Pravinchandra Shantilal Maniyar at Amrakunj Apartments, Sonal Char Rasta, Gurukul, Memnagar, Ahmedabad. Thereafter, according to the respondent No.2, she used to take her daughter to her-in-laws house and at that time, her mother-in-law and sister-in-law used to abuse her and were saying that she had not brought anything in dowry. According to the respondent No.2, she was told by her- in-laws that if she intended to stay with her husband, she was required to bring money for starting new business of her husband and respondent No.2 was told that she would be allowed in her-in-laws house only when she had brought money as per their demand. According to respondent No.2, she was driven out by pushing and door was being closed to her. It is stated in the FIR by respondent No.2 further that thereafter in 1999, the CR.MA/4851/2006 9/53 JUDGMENT petitioner No.1 her husband without informing her went to America and, therefore, she issued notice dated 15.01.2003 to her-in-laws and through reply to that notice only, she was informed that her husband had established in foreign country. It is further stated by the respondent No.2 that thereafter, she obtained her husband's address of America and contacted him on phone. Her husband told her that unless, she brought money as demanded by her parents, sisters and brother and did not surrender to their wishes, she was not to be accepted by him and used to threaten her. Thereafter, during Diwali her sister-in-law, Sohiniben was also went to America and both of them have returned. According to the respondent No.2, therefore, on 02.11.2005, she tried to meet her husband along with her daughter, but her-in-laws did not allow to see her husband and she was again informed that unless, she accepts the demand made by them, she would not be permitted to see her husband. The respondent No.2 further stated CR.MA/4851/2006 10/53 JUDGMENT that she requested to permit her daughter to see her father and on her this request, she was forced to withdraw the notice which she had issued on 15.01.2003. The respondent No.2 further stated in the FIR that even though, she withdrew the notice issued, she was not allowed to see her husband and, therefore, she was constrained to file the complaint for cruelty executed upon her by her-in-laws i.e father-in-law, mother-in-law, husband, brother-in-law and sisters-in-law. 6.On registering the complaint, investigation was undertaken and ultimately, a charge-sheet came to be filed against the present petitioners in the Court of learned Metropolitan Magistrate, Court No.9, Ahmedabad. The petitioners are on bail in the said criminal case and charge also is framed against them and hence, this petition is preferred by the petitioners to quash and set aside the criminal proceedings against the petitioners vide Criminal Case No.217/2006 pending before Metropolitan Magistrate, CR.MA/4851/2006 11/53 JUDGMENT Ahmedabad arising from C.R.No.I-647/2005 registered on 18.12.2005. 7.Learned advocate Mr.K.B.Pujara for the petitioners contended that chronological events took place are, very material to be noted for considering the conduct of the respondent No.2. It was stressed that it is an admitted fact between the parties that after April, 1998, respondent No.2 never resided with her-in-laws and after five years of period suddenly on 15.01.2003, a notice came to be issued by the respondent No.2 to petitioner No.1 alleging cruelty and against the mother-in-law only and with knowledge that her husband had settled in USA in 1999. During the period of 1998 to 2005, no event takes place. It is contended that purposefully, the notice was addressed to the petitioner No.1 at the address of Ahmedabad. It is further contended that a conduct of the respondent No.2 which is material leading to filing of the FIR has played important role and this conduct is a background for filing CR.MA/4851/2006 12/53 JUDGMENT of false and frivolous complaint. It is contended that after issuing of first notice on 15.01.2003 and receiving reply immediately from petitioner No.2 again, there is complete silent noticed and no event takes place till 19.11.2005, the date on which respondent No.2 chooses to withdraw the notice which she issued on 15.01.2003. For about a period of more than two years, the respondent No.2 does nothing in this regard. Again after withdrawal of notice on 19.11.2005, on 16.12.2005 an application was preferred by the respondent No.2 to the Police Inspector, Satellite Police Station and on 18.12.2005, the present complaint came to be filed. The veracity of the complaint, according to the learned advocate for the petitioners, can be judged from this conduct of the respondent No.2 that for years together after 1998, only event which takes place of issuance of notice which also came to be withdrawn and after 1998, till December, 2005, respondent No.2 observed silence and suddenly on 18.12.2005, CR.MA/4851/2006 13/53 JUDGMENT FIR came to be filed. Learned advocate for the petitioners vehemently urged that whatever cruelty alleged in the FIR will have to be seen within the scope of Section 498-A of the Indian Penal Code and for that very material and admitted fact is, after 1998, the respondent No.2, never resumed for a day at her matrimonial home or stayed with her in-laws. The contention is, cruelty, is not a continuing offence and whatever allegations are made, if at all, in respect of cruelty, it is upto the period of April, 1998. 8.It was contended that within the scope of the proceedings, it is required to be noticed that during the period of 1998 to December, 2005 different allegations at different time against the different petitioners are made by the respondent No.2 amending the allegations. It is contended that very first time, after leaving the house of in-laws, grievance in respect of cruelty was expressed and at that time, the allegations were levelled against the present petitioner No.3 – mother-in-law CR.MA/4851/2006 14/53 JUDGMENT and not against any of rest of the petitioners. It is contended that it is noticed that again on 16.12.2005, when application was preferred by the respondent No.2 before the Police Inspector, Satellite Police Station, in addition to the mother-in- law, some other petitioners came to be involved in allegation of cruelty, after lapse of the period of almost seven years. It is contended that when FIR came to be lodged altogether, new facts which were never revealed by the respondent No.2 vide notice dated 15.01.2003 and application dated 16.12.2005 came to be stated by the respondent No.2 in the said FIR after seven years. It was contended that before FIR, none of the communication of allegations in respect of dowry was levelled, while in FIR, for the first time, those allegations against the petitioners were made by respondent No.2. It was submitted that in FIR, only first time, brother-in-law and sisters-in-law came to be involved by the respondent No.2, after CR.MA/4851/2006 15/53 JUDGMENT 1998. It is, first time, stated by her that after 1998 and after the birth of the daughter, she used to visit in-laws house and she was driven out by her in-laws. Even in the application filed by the respondent No.2 before the Police Inspector, Satellite Police Station, nothing was mentioned about the physical cruelty allegedly executed by the petitioners, while for the first time in the FIR, the fact of physical cruelty was revealed. In the FIR, all the petitioners are attributed role, while petitioner No.6 was not involved in the application filed before the Satellite Police Station, and she was involved in FIR for the first time. To see the conduct of respondent No.2, till filing of the FIR, learned advocate for the petitioners draw the attention of this Court to other documents produced on record of this proceedings. Some Civil proceedings came to be filed before the Family Court in which also, it is stated that Hindu Marriage Petition No.143/2006 was withdrawn on CR.MA/4851/2006 16/53 JUDGMENT 13.04.2006, but on that day, she stated before the Family Court that with a view to file an application for divorce, the said Hindu Marriage Petition No.143/2006 was being withdrawn. Learned advocate for the petitioners submitted that thereafter, no such application for divorce came to be filed by the respondent No.2. Learned advocate for the petitioners draw again the attention to this Court to some bail applications filed by the parties before the trial Court to see the conduct of the respondent No.2. It was submitted that in the said criminal case, the accused were released on bail on 24.05.2005 and respondent No.2 preferred an application on the same day for direction to the petitioner No.1 for surrendering the passport. On 27.12.2005, the same application was repeated by the respondent No.2. Though the trial Court directed to surrender the passport of other accused, except accused No.1. This shows the conduct of respondent No.2 that to what extent the harassment was CR.MA/4851/2006 17/53 JUDGMENT caused to the petitioners. It was contended that thereafter, the said Hindu Marriage Petition preferred, came to be filed wherein also, in para-3 altogether new story was narrated by the respondent No.2. 9.Therefore, learned advocate for the petitioners submits that the proceedings as prayed for by the petitioners are required to be quashed, firstly having regard to the conduct of the respondent No.2 and especially when the different versions after time limit have been made by the petitioner No.2, it goes to suggest that frivolous and vexatious, complaint has been filed by the respondent No.2 only with a view to harass the petitioners and which reveals mala fide on the part of the respondent No.2. It was, secondly, urged that when admittedly, after April, 1998, the parties have not resided together, the version of petitioner No.2 after long gape of seven years prima faice, should not be believed and hence the proceedings are required to be quashed. It is CR.MA/4851/2006 18/53 JUDGMENT submitted that there are contradiction in the version of the respondent No.2 made at various stages and ultimately, filing of FIR is ex-facie malafide and false. It is submitted that cruelty as defined under Section 498-A is not a continuous offence as to continue even after wife abandons house of in-laws. Assuming the cruelty alleged by the respondent No.2 on its face value, then also the version of cruelty pertains to a period upto April, 1998 for which the complaint filed on 18.12.2005 would be time barred and no cognizance could have been taken by the learned Magistrate of the offence under Section 467 of the Criminal Procedure Code as punishment of three years is provided under Section 498-A of the Indian Penal Code. It is submitted that the ingredients of Sections 3 and 7 of Dowry Prohibition Act are totally absent, even if the FIR is taken on its face value and, therefore, the learned Metropolitan Magistrate ought not to have been taken the cognizance of the said offence CR.MA/4851/2006 19/53 JUDGMENT of Sections 3 and 7 of the Dowry Prohibition Act. It is submitted that examining the whole criminal case for the grounds stated above, this is exceptional and rarest of rare case, the complaint has been filed only with a view to harass the petitioners, the complaint along with the criminal case are required to be quashed within the exercise of powers under Section 482 of the Code of Criminal Procedure. If the complaint along with the background and the conduct of the complainant is taken together, no prima facie ingredients of offence as alleged are revealed in the FIR. It is further contended that conduct of the complainant and time gap referred above are special features of case to be taken into consideration by this court in inherent powers. It is submitted that above all, in criminal case, in support of respondent No.2, all witnesses which are cited are relatives of respondent No.2. Learned advocate for the petitioners places reliance on the following decisions. CR.MA/4851/2006 20/53 JUDGMENT [1] In the matter of B. S. Joshi and Others Vs. State of Haryana and Another, as reported in (2003) 4 SCC 675, paragraphs No.6, 10, 11 and 13 are relied upon. In para-6, it is observed that exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. In para-10, the Apex Court has observed that when there are no chances of conviction, it would be futile to continue a prosecution. In para-11, the Apex Court has cited a decision of the Apex Court in case of Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre, case wherein it is observed that special features of a case be taken by the High Court, into consideration in the interest of justice to permit a prosecution to continue. In para-13 is heavily relied upon by the learned advocate for the petitioners, wherein the Apex Court has observed that there may be many reasons which need not be mentioned for not encouraging matrimonial litigation so that the parties may CR.MA/4851/2006 21/53 JUDGMENT ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and that process the parties lose their “young” days in chasing their “cases” in different courts. It is submitted on relying upon the ratio laid down that matrimonial disputes may not be encouraged and that special feature has appeared in this case, to be taken into consideration by the High Court in proceedings under Section 482 of the Code of Criminal Procedure. [2] In the matter of Ruchi Agarwal Vs. Amit Kumar Agrawal and Other, as reported in (2005) 3 S.C.C. 299. Learned advocate for the petitioners has relied upon this decision for the conduct of the parties wherein the Apex Court has held on the conduct of the parties that the conduct of the wife to back out from the compromise entered into and especially when the husband had performed his promise, indicated that criminal complaint from which the said appeal had arisen, was filed by CR.MA/4851/2006 22/53 JUDGMENT the appellant to harass the respondent and was held to be an abuse of process of the court if said criminal proceedings were allowed to continue. In para-9, the Apex Court has observed that subsequent events and the conduct of the appellant, would indicate that the criminal proceedings if allowed to stand, would amount to abuse of process of law. It is contended that likewise in this case, the above said conduct revealed by the respondent No.2 if taken into consideration, the criminal prosecution against the petitioners clearly appears to have been filed to harass the petitioners and is nothing but abuse of process of law. [3] In the matter of Ramesh and Others Vs. State of T.N., as reported in (2005) 3 SCC 507 wherein considering the scope of Sections 498-A and 406 and Section 4 of the Dowry Prohibition Act on facts, the Apex Court has observed that the allegations made against the sister-in-law were only to the extent causing derogatory remarks as against the informant and not pertaining to dowry demand and misappropriation of property and, CR.MA/4851/2006 23/53 JUDGMENT therefore, the Supreme Court has held that so far as sister-in-law was concerned, the Magistrate was not justified in taking cognizance of the said offence as ingredients of such offence were absent. This decision is relied upon by learned advocate for the applicants on the issue of limitation as well. In paras 8 and 9, the Supreme Court has observed that starting point of limitation for the offence of cruelty as described under Section 489-A of the Indian Penal Code would be last act of cruelty and subjection of a woman to cruelty by her husband or relatives would cease as well as she leaves the matrimonial home. It is submitted on relying upon the said decision that in the present case in 1998, respondent No.2 left the house of in-laws and that is starting point of limitation and within three years from that the complaint is not filed under Section 498-A, but came to be filed only after seven years. It is submitted that the Magistrate, therefore, ought not to have taken cognizance of the offence alleged, because under CR.MA/4851/2006 24/53 JUDGMENT Section 468 of the Code of Criminal Procedure offences are time barred. [4] The last decision which the learned advocate for the petitioners relied upon, in the matter of State of Punjab Vs. Sarwan Singh, as reported in AIR 1981 S.C. 1054 wherein the Apex Court explained the object and seriousness of the provision of the limitation embodied in the Code of Criminal Procedure. In the said decision, the Apex Court observed that the object which the statue seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Art.21 of the Constitution of India rights become absolute and may not be disturbed likewise. 10.It is, therefore, submitted that for the above reasons, the complaint should be quashed under Section 482 of the Code of Criminal Procedure. 11.Learned APP Ms.Mita Panchal for the respondent No.1 – State of Gujarat was heard. 12.Learned advocate Mr.T.S.Nanavati for the CR.MA/4851/2006 25/53 JUDGMENT respondent No.2 submitted that the scope of this proceedings is narrow under Section 482 of the Code of Criminal Procedure. It is submitted that it is to be