IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 27669 of 2017
KALPESHPARI HASMUKHPARI GOSWAMI
STATE OF GUJARAT
CORAM: MR.JUSTICE A.S. SUPEHIA
Date : 08/01/2019
1.0 The present application has been filed by the petitioners original accused under Section 482 of the Code of Criminal Procedure, 1974 (“the Code” for short) seeking quashing and setting aside the F.I.R. being C.R.No.I238 of 2017 registered with Mahila Police Station, Rajkot for the offences punishable under sections 376, 406 and 420 of the Indian Penal Code, 1860 (“the IPC” for short). Rule. H.K.Patel, learned APP waives service of Rule for the respondent State.
2.0 The brief facts leading to filing of the present application are as under:
2.1 It is alleged in the F.I.R. that the first informant is residing at the address shown in the F.I.R. with her parents and that she is working as a Teacher in the Primary Section of Vinay Mandir Vidhya Ankul School since about 11/ 2 months, where she is alleged to have earlier worked.
2.2 It is alleged that her marriage was performed on 02.12.2009 in the Ramapir Temple with the applicant and thereafter she started living with the applicant and after about a month her inlaws started harassment. It is alleged that as she could not tolerate the harassment, she left her parental house. Thereafter, the husband instituted a suit for divorce, wherein the husband is alleged to have made a prayer for restitution of conjugal rights. On 08.08.2013, the matter is alleged to have been settled between the complainant and the applicant and the complaint was taken back to the matrimonial house. Thereafter, on 13.09.2013, the first informant and the applicant had gone to the court for withdrawing the case filed by the husband. It is alleged that her husband had obtained her signature on a stamp paper of Rs.100/and got it notarized before a notary by saying that the same was being done for the purpose of withdrawal of the case, however, later on, it was learnt by the complainant that it was taken for the purpose of obtaining divorce with mutual consent. It is alleged that after about 10 months, on 14.07.2014, on the occasion of Jaya Parvati Jaagran (night long prayer meet), she was taken to her parental house where the husband informed her that their divorce had taken place. It was further informed by the husband that he wanted to marry with one Sindhi girl and asked the complainant to inform his father to take all articles from his home and by saying so the applicant is alleged to have left from there. Therefore, the first informant on 15.07.2014 lodged a complaint with the Mahila Police Station for settling the issue between them. However, the Mahila Police Station served a copy of divorce papers and a copy of marriage certificate of husband with one another girl. Thereafter, the complainant secured a copy of the alleged divorce deed executed on the stamp paper of Rs.100/on 23.09.2013. It is alleged that the applicant before the Family Court has contended that they are living happily. Thus, it is alleged that the husband has cheated her by obtaining signature on the stamp paper of Rs.100/by deceiving her and got married with one another girl Payal Aylani and he having consummated the marital affair with the complainant. It is further alleged that the husband has deceived her and committed breach of trust. Thus, for the aforesaid allegations, the F.I.R. came to be lodged.
3.0 Mr.Limbani, learned advocate for the applicant has submitted that after the marriage the dispute between the applicant and the respondent no.2 had arisen, and therefore, the applicant instituted a suit under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights and also prayed for a decree of divorce before the Family Court, Rajkot.
3.1 Learned advocate Mr.Limbani has submitted that subsequently the matter came to be amicably settled between the parties and they started to live together again.
3.2 Learned advocate Mr.Limbani has submitted that the divorce in question had taken place of a writing executed on the stamp paper of Rs.100/. He has submitted that the purshis was filed for withdrawal of the suit by the applicant in view of the settlement arrived at between the parties and below the same, the Family Court passed an order permitting withdrawal of the suit being H.M.P. No.257 of 2012 by the applicant. He has also is submitted that the respondent no.2 filed an application to the Police Inspector, Rajkot on 15.07.2014 for settling the matter. He has also submitted that on 22.07.2014, the statement of the complainant was recorded by Assistant SubInspector, Mahila Police Station, Rajkot by stating that the husband is having an affair with another girl and, therefore, her matrimonial life is not going smoothly and requested for getting divorce from her husband. Thereafter, the complainant has filed a private complaint before the Chief Judicial Magistrate, Rajkot being Criminal Inquiry Case No.502 of 2014 praying to register the offence under sections 420, 465, 466, 467 471 and 406 of the IPC, wherein the Police SubInspector has filed a report in detail before the 16th Additional Magistrate, Rajkot stating that no offence is made out.
3.3 Learned advocate Mr.Limbani has submitted that the complainant gave a written complainant to the Police Inspector, Rajkot (Rural), Rajkot praying to register offence under sections 494, 114, 465, 466, 471 and 114 of the IPC against the petitioner, wherein the charge of section 406 and 420 of the IPC was dropped in reference to earlier complaint dated 22.06.2015 and chargesheet subsequently came to be filed under sections 498A, 494, 323 and 504 of the IPC and sections 3 and 4 of Dowry Prohibition Act,1961. He has submitted that the complainant has also filed an application under section 125 of the Cr.P.C. seeking maintenance before the Family Court, Rajkot on 07.07.2016 vide Criminal Misc. Application No.596 of 2016 wherein he has prayed for maintenance of Rs.20,000/per month.
3.4 Learned advocate Mr.Limbani has submitted that the complaint of rape is filed in 2017 after the complainant has separated herself from the applicant in the year 2014. Then in such a case the ingredients of rape cannot get attracted against the applicant. He has submitted that the complaint is filed after a period of 3 years of separation.
3.5 Learned advocate Mr.Limbani has submitted that the respondent herself has given a statement before the Police on 22.07.2014 in pursuance of the complaint initiated by her, wherein she has stated that she was seeking divorce from her husband, which amounts to her consensual act of staying with the applicant voluntarily.
3.6 Learned advocate Mr.Limbani has submitted that the complainant has filed a private compliant wherein the report has been filed in detail by the police examining the averments made in the complaint by the complainant that prima facie no case is made out, and therefore, the present FIR is filed with a view to cause harassment to the applicant which is nothing, but an abuse of process of law.
3.7 Learned advocate Mr.Limbani has submitted that the complainant has filed another complaint for offence punishable under sections 406 and 420 of the IPC which is also investigated by the police and the report is filed to the effect that no offence of sections 406 and 420 is made out. However, charge sheet is filed for offence punishable under sections 498A, 494, 324 and 504 of the IPC which clearly shows that the aspect of rape has been examined earlier. However again a complaint is filed which is registered and the same is impermissible in law and hence the impugned F.I.R. is liable to be quashed and set aside.
3.8 Learned advocate Mr.Limbani has submitted that the complainant has nowhere stated in the whole complaint that the sexual act is committed against her will or consent, which is imperative to constitute an offence of section 375 of the IPC, therefore also on this ground alone, the impugned F.I.R. is liable to be quashed and set aside.
3.9 Learned advocate Mr.Limbani has submitted that the wife at present believes that the accused is her husband and to that effect she made an averment in the application made under Section 125 of the Code and on the basis of that, she has sought maintenance. Therefore, this clearly shows that the complaint is filed with malicious to intention to harass the applicant, which squarely falls within the ratio laid down in the reported judgement in the case of State of Haryana Versus Bhajan Lal reported in AIR 1992 SC 604.
3.10 Learned advocate Mr.Limbani has submitted that the signature of the wife – respondent no.2 on the stamp paper on each page has been obtained with her knowledge and consent and she being an educated lady, who has completed her studies in M.A. Therefore, the question of deceiving the complaint cannot arise at all.
4.0 In response to the aforesaid submissions, learned Advocate Mr.H.R.Prajapati, for the complainant has submitted that the impugned F.I.R. does not require any interference by this Court since the respondent no.2 was in fact subjected to rape by the applicant, since he made her believe that she was lawfully wedded wife, and he had fraudulently created the divorce agreement dated 23.9.2013. He has submitted that on one hand the applicant fraudulently obtained her signature on the divorce agreement and on the other hand before the Family Court he disclosed that they were living happily as husbandwife and he is withdrawing the Family suit seeking divorce. Mr.Prajapati has submitted that since the applicant was aware that the respondent no.2 is not going to give him divorce, he had fraudulently obtained her signature on the divorce agreement.
4.1 Mr.Prajapti has further contended that when the respondent no.2 went to the Mahila Police Sstation to give her application dated 15.07.2014, she was informed by the police inspector of the Mahila Police Station that nothing can be done into the matter as the applicant has taken divorce from her and a copy of divorce deed dated 23.6.2013 was shown to her and further it was also informed that he had married to one Sindhi lady named Payal Ishwarlal, and hence she was constrained to file the criminal complaint dated 07.11.2014 before the Chief Judicial Magistrate Court at Rajkot against the applicant which was registered as Criminal Inquiry case No.502/2014. Mr.Prajapati has submitted that in order to favour the applicant the Police SubInspector, Mahila Police Station submitted the false inquiry report by stating that no offence under sections 420, 406, 465, 467 and 471 of the IPC was made out against the applicant.
Thereafter, her subsequent complaints did not yield any response and ultimately pursuant to the complaint dated 23.7.2017 made to Police Commissioner, Rajkot, a preliminary inquiry was held and the offence under sections 376, 406 and 420 of the IPC are registered against the applicant.
4.2 Mr.Prajapati has submitted that the case of the respondent no.2 will fall under the provisions of section 375 of the IPC fourth description and under section 376(B) of the IPC. He has submitted that prima facie the ingredients of the offence under the aforesaid provisions are established against the applicant, hence the present application seeking quashing of the same may be rejected
4.3 Learned APP Mr.Patel has maintained the arguments of learned Advocate Mr.Prajapati and has urged that the impugned F.I.R. may not be quashed at this stage and the investigation may be allowed to be proceeded further.
5.0 I have heard the learned advocates for the respective parties at length. The documents as pointed out by them are also perused.
5.1 The applicant is shown as accused in the impugned F.I.R. which is registered for the offences punishable under sections 376, 406 and 420 of the IPC. The allegations against the applicant in brief are that he had obtained the signature of respondent no.2 on a stamp paper of Rs.100/and got it notarized by saying that the same was being executed for the purpose of withdrawal of the case, however, later on it was learned by her that it was obtained for the purpose of divorce with mutual consent. It is alleged by the respondent no.2 that she came to know the same after 10 months on 14.07.2014, and thereafter she lodged a complaint before Mahila Police Station, and hence during the period of 10 months, the applicant had physical relationship with her though the applicant had the knowledge of divorce, and he was also married to one other Sindhi lady.
5.2 Before embarking on the submissions advance by the learned advocates for the respective parties, it will be apposite to refer to the documents annexed in the writ application.
5.3 The applicant filed H.M.P. No.257 of 2012 before the Family Court, Rajkot for restitution of conjugal rights and in alternative for grant of divorce. The copy of the deed of divorce dated 23.9.2013 at Annexure ‘D’ running into ‘8’ pages bears the signatures of the respondent no.2 along with her photographs and identity proof of the applicant and respondent no.2. Thereafter, the applicant gave a withdrawal purshis on 01.10.2013 in H.M.P. No.257/2012 by stating that they have compromised and are happily staying together. Pursuant to the withdrawal purshis, the Family Court, Rajkot passed an order dated 01.10.2013 permitting the withdrawal of the suit. Thus, the suit filed for restitution of conjugal rights/ seeking divorce stood disposed of as withdraw.
5.4 In the application dated 15.07.2014 made to the PI, Mahila Sub Inspector, the respondent no.2 has specifically stated that during pendency of the suit, she had accompanied her husband as they had arrived at a settlement. It is also stated by her that the applicant had forced her to take divorce by threatening her. It is further stated by her that she was left by her husband on 15.07.2014 at her parental home. Lastly, she has requested the Police Inspector to summon the applicant and her inlaws for entering into compromise.
5.5 The Assistant SubInspector, Mahila Police Station, Rajkot City, recorded the statement of the respondent no.2 on 22.07.2014, wherein she has asserted that her husband had willingly dropped her at her parental home and she does not want to stay with her and does not want to live with him anymore and also wants to have divorce
5.6 In Criminal Inquiry Case No.502 of 2014, the Police SubInspector, Mahila Police Station, Rajkot City filed a detailed report on 18.04.2015 before 16th Additional Chief Judicial Magistrate, Rajkot opining that no offence under sections 420, 406 ,465, 467 and 471 of the IPC were established against the applicant
5.7 Thereafter, the respondent no.2 gave a written complainant to the Police Inspector, Rajkot (Rural), Rajkot praying to register the offence under sections 494, 114, 465, 466, 471 and 114 of the IPC against the applicant, wherein the charge of section 406 and 420 of the IPC was dropped in reference to earlier complaint dated 22.06.2015 and subsequently a charge sheet came to be filed under sections 498A, 494, 323 and 504 of the IPC and section 3 and 4 of Dowry Prohibition Act.
5.8 The respondent no.2 also filed an application under section 125 of Cr.P.C. seeking maintenance before the Family Court, Rajkot on 07.07.2016 vide Criminal Misc. Application No.596 of 2016, wherein she has prayed for maintenance of Rs.20,000/per month.
5.9 It is not in dispute that the respondent no.2 is a teacher having qualification of M.A and is also serving as a teacher. It is difficult to comprehend that she did not understand the contents of the deed of divorce dated 23.09.2013 and had put her signatures on all the pages including her identity proof. As regards the offences under sections 406 and 420 of the IPC, which stipulates punishment for the offences of criminal breach of trust and cheating are concerned, the allegations as narrated in the F.I.R. do not constitute the offence. Sections 405 and 415 of the IPC define criminal breach of trust and cheating, the same read as under:
SECTION 405 : Criminal breach of trust Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits
“criminal breach of trust”.
SECTION 415 : Cheating Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
5.10 In the present case the contents of the F.I.R. do not establish the offence of criminal breach of trust. There is nothing alleged in the F.I.R. which can satisfy the definition of criminal breach of trust. As regards the offence of cheating is concerned, the respondent no.2 has alleged that the applicant had fraudulently taken her signatures on the divorce deed. The compromise deed was prepared during pendency of the suit. The suit was filed on 29.10.2012, and the compromise deed was entered into on 23.09.2013, and the suit was withdrawn on 01.10.2013. The applicant has not taken any benefit of the deed of compromise in the suit instituted by him. On the contrary the suit was withdrawn by him by stating that the respondent no.2 and the applicant had arrived at a settlement and they are residing happily. Thus, it cannot be said that the respondent no.2 was deceived by the applicant in any manner.
Thereafter, the respondent no.2 went and stayed with the applicant and as stated by her in her application and statement before Police Inspector, Mahila Police Station, Rajkot, the applicant left the respondent no.2 at her parental home on 15.07.2014. It is pertinent to note that pursuant to the FIR being C.R.No.54 of 2015 registered on 22.06.2015 for the offences under sections 406 and 420 of the IPC against the applicant, the Investigating Officer has filed the charge sheet dated 26.08.2015 for the offences punishable under sections 498A, 494,324 and 504 of the IPC. In the charge sheet it is specifically stated that no offence under sections 406 or 420 of the IPC is established against the applicant and they were deleted. Again, the respondent no.2 gave an application before the Police Commissioner, Rajkot and thereafter, the impugned F.I.R. was lodged for the offences under sections 376, 406 and 420 of the IPC. Thus, the facts suggest that no offence under section 406 or 420 of the IPC is established in the present case.
5.11 Assuming, the allegations made by the respondent no.2 are taken at its face value, then also no offences under section 375 or 376(B) of the IPC are established against the applicant since the applicant had withdrawn the suit which seeking prayer for restitution of conjugal rights and in the alternative for divorce by stating that the respondent no.2 and the applicant have settled the matter and they are living happily. The contention of the learned Advocate Mr.Prajapati asserting the offence under fourth description to section 375 of the IPC does not merit acceptance. Relevant provision of Section 375 of the IPC is reproduced as under:
SECTION 375 : Rape
A man is said to commit “rape” if he
under the circumstances falling under any of the following seven descriptions:
Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
5.12 Examining the allegations made by the respondent no.2 in context of the fourth description, at no stretch of imagination it can be held that the applicant had committed the offence of rape on the respondent no.2 by obtaining her consent because she believes that the applicant is another man to whom she is or believes herself to be lawfully married. The applicant was lawfully married to the respondent no.2. In her application dated 15.7.2014 and the statement dated 22.7.2014 made to the P.I Mahila Police station, she has stated that a compromise had arrived between her and the applicant, and he had taken her with him, but thereafter he left her at her parental home on 15.7.2014. Thus, in wake of such facts, it is absolute that the ingredients of section 375 are not established in the present case.
5.13 It is also contended that the offence under section 376(B) are also ascertained against the applicant. Section 376(B) of the IPC reads as under:
SECTION 376B : Sexual intercourse by husband upon his wife during separation [Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
5.14 In the present case, unquestionably, there is no decree of divorce in existence and it is also not the case of the respondent no.2 that she had stayed with the applicant against her will or consent when he took her after the withdrawal of the suit. The preceding application and her statement before the Police Inspector, Mahila Police Station establishes that she had accompanied the applicant willingly after a compromise was arrived between them. She is blissfully silent on the aspect of maintaining the physical relationship against her will. Since there was no separation and the respondent no.2 on her own volition went with the applicant and stayed with him after the settlement, it cannot be said that the applicant had committed the offence under section 376(B) of the IPC. Having sexual intercourse during such period of willful cohabitation does not amount to having entering in physical relationship without her consent. Thus, the allegations do not satisfy the ingredients of section 375(B) of the IPC also.
5.15 The conspectus of the foregoing analysis and observations is that none of the offences as recorded in the impugned F.I.R. are established. It appears that the same is filled with oblique motive and for undue harassment and to wreck vengeance on the applicant. Hence, the impugned F.I.R. is required to be quashed and set aside by invoking the inherent powers of this Court under section 482 of the Code.
6.0 In light of foregoing observations, the F.I.R. being C.R.No.I238 of 2017 registered with Mahila Police Station, Rajkot is hereby quashed and set aside. Rule is made absolute. The present application stands disposed of, accordingly. Direct service is permitted.
Sd/(A. S. SUPEHIA, J)