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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 684 OF 2016
JUDGMENT
1. Rahul Vishwas Mahajan ) Age – 40 years, Occ: Service ) Presently residing at: ) Defence Force (Navy), ) R/o. 167/120-140 Pyrmont St. ) Pyrmont. NSW Australia 2009. ) C/o. the Applicant Nos. 2 and 3 ) Having their address at: ) R/o. Kashyapi Society, G- Wing, ) Flat No. F-12, Saubhagya Nagar, ) Gangapur Road, Nashik – 13. )
2. Vishwas Ramdas Mahajan ) Age – 68 years, Occ: Advocate, )
3. Sou. Vaishali Vishwas Mahajan, ) Age – 59 years, Occ: Housewife, ) Applicant Nos. 2 & 3. ) R/o. Kashyapi Society, G- Wing, ) Flat No. F-12, Saubhagya Nagar, ) Gangapur Road, Nashik – 13. )...Applicants Vs.
1. The State Of Maharashtra ) At the instance of: ) Nirmal Nagar Police Station, ) Mumbai. ) 2025:BHC-AS:37558-DB
2. Sou. Rupali Rahul Mahajan ) Age – 37 yrs., Occ: Construction ) Project Manager & Architect, ) R/o. 3/209, Military Road, ) Neutral Bay, NSW, Australia 2089. ) R/o. C/o Shri Vijay Badge, ) Gulmohar Society, Building ) No. 2/42, New MIG Colony, ) Bandra East, Mumbai – 51. )...Respondents Mr. Vishwanath S. Talkute for Applicants. Smt. Savita M. Yadav, for the Respondent-State. Ms. Sukeshi Bhandari a/w. Mr. Akshay Chauhan for Respondent No.2. Mr. Jarande, PSI, Nirmal Nagar Police Station, Mumbai. CORAM: A. S. GADKARI AND RAJESH S. PATIL, JJ.
JUDGMENT ( Per: RAJESH S. PATIL, J.):-
1) By this Application filed under Section 482 of the Code of Criminal Procedure, 1973, the Applicants are seeking quashing of C.C. No.881/PW/2009, pending on the file of the Additional Metropolitan Magistrate, Bandra, arising out of First Information Report (FIR) No. 38 of 2009, dated 10th February 2009, registered with Nirmal Nagar Police Station, Mumbai, for the offences punishable under Sections 498-A, 406, 506 read with Section 34 of the Indian Penal Code (IPC), with the consent of Respondent No.2, the informant.
2) By an Order dated 20th March 2017, this Court had issued Rule and continued the interim relief granted on 3rd October 2016 till further Orders. In Paragraph No.1 of said Order, it was observed that, “prima facie, it appears to us that, continuation of criminal proceeding will be abuse of process of law in the light of the Judgment and Orders (Exhibit-C and D)”. To the Petition photocopy of Order dated 23rd December 2013, passed by Federal Circuit Court of Australia, granting divorce (Exhibit-C) and copy of Judgment and Decree dated 18th June 2014, passed by Family Court Judge at Bandra, dissolving marriage between Applicant No.1 and Respondent No.2 are annexed.
3) We have heard learned Advocates for both sides and with their help we have minutely perused the documents on record.
4) The FIR is filed in the year 2009 by the Respondent No.2 (wife of the Applicant No.1) for offences punishable under Sections 498-A, 406, 506 read with Section 34 of the IPC against her husband (Applicant No.1); father-in-law (Applicant No.2) and mother-in-law (Applicant No.3). The Applicant No.1 and Respondent No.2 got married on 11th May 2004. Out of the said wedlock of Applicant No.1 and Respondent No.2, daughter – Arya was born on 10th October 2008 in Australia, who is presently aged about 16 years and 9 months and is staying with the Respondent No.2 in Australia. Both the Respondent No.2 and Applicant No.1 are staying in Australia from the year 2004. As disputes arose in the matrimonial life of the Respondent No.2 and Applicant No.1, complaints were filed by the Respondent No.2 against the Applicant No.1 and his family members viz.
(i) under Section 498-A, 406 and 506 of IPC, (ii) a Domestic Violence complaint and (iii) she also filed divorce proceedings in Family Court at Mumbai. Pursuant to FIR lodged by the Respondent No.2, under Section 498-A, 406 and 506 of IPC, the Applicants were detained by the police and Applicant No.1, could travel back to Australia after an Order dated 17th March 2009, was passed in the Revision Application No. 345/2009, by the Sessions Judge, Mumbai.
4.1) On the ground that, the marriage has broken down, the Applicant No.1 had also filed divorce proceedings in Australia against the Respondent No.2. After a while, parties arrived at a mutual settlement and in the said divorce proceeding ultimately on 21st November 2016, the Consent Terms were executed between the Respondent No.2 and Applicant No.1. Certain important terms of the Consent Terms are reproduced herein below:- “PARENTING
6. That the Mother and Father have the joint parental responsibility for the child namely Arya Rahul Mahajan born on 10 October 2008 (“Arya”).
7. That Arya live with the Mother.
8. That the Father spends time with Arya as agreed between the parties.
9. That the Mother is permitted to travel with Arya outside of the Commonwealth of Australia on the following conditions:
9.1. the Mother provides the Father with at least fourteen (14) days’ written notice of her intention to travel outside of the Commonwealth of Australia with Arya; 9.[2] The Mother provides the Father with a copy of all itineraries, travel documents, contact numbers and addresses for where the Arya will be living with the Mother during this period;
9.3. The Mother provides the Father with evidence of a return ticket for Arya; and 9.[4] The Mother facilitate and encourage telephone communication between Arya and the Father during the overseas’ trip.
10. That the Mother be permitted without the consent of the Father to make an Application for the passport for Arya and any other associated documents required to travel.
11. That all previous Orders are discharged.
12. That there is no Order as to costs.”
5) Apart from the Consent Terms which were executed in the Court at Australia, the Respondent No.2 and Applicant No.1 also entered into the Consent Terms in C.C. No.881/PW/2009 before 32nd Metropolitan Magistrate Court at Bandra, Mumbai, on 7th February 2015. The important paragraphs of the said Consent Terms entered into the proceeding filed under Sections 498-A, 406 and 506 of IPC being C.C.No.881/PW/2009 read as under:
6) The Consent Terms entered into between the Applicant No.1 and Respondent No.2 in C.C.No.881/PW/2009, in clause 5 specifically records that the Respondent No.2 will cooperate with the Applicants and would seek quashing of the present FIR. However, now the Respondent No.2 is not ready to adhere to it. The question that arose to be answered is, whether Respondent No. 2 can be permitted to withdraw her statement.
7) On this issue, the Applicant has referred to three judgments viz. the Supreme Court in the case of Ruchi Agarwal Vs. Amit Kumar Agrawal and others, reported in (2005) 3 SCC 299 and the judgments of the Delhi High Court in the case of Kirti Jain alias Shalu Jain and Another Vs. J. P. Jain, reported in 2006 SCC OnLine Del 1891 and Manas Acharya Vs. State & Anr., reported in 2012 SCC OnLine Del 4462.
7.1) In Ruchi Agarwal (supra), the Supreme Court held that, after partially performing her part of compromise by withdrawing case filed under Section 125 CrPC but not withdrawing Petition filed under complaint under Ss. 498-A, 323 and 506 IPC and Ss.[3] and 4, Dowry Prohibition Act, 1961, as agreed by her in the compromise, will amount to abuse of process of law. Paragraph Nos.[8] and 9 of the said Judgment read as under:-
8. Learned counsel appearing for the appellant, however, contended that though the appellant had signed the compromise deed with the abovementioned terms in it, the same was obtained by the respondent husband and his family under threat and coercion and in fact she did not receive lump sum maintenance and her Stridhan properties. We find it extremely difficult to accept this argument in the background of the fact that pursuant to the compromise deed the respondent husband has given her a consent divorce which she wanted, thus had performed his part of the obligation under the compromise deed. Even the appellant partially performed her part of the obligations by withdrawing her criminal complaint filed under Section
125. It is true that she had made a complaint in writing to the Family Court where Section 125 CrPC proceedings were pending that the compromise deed was filed under coercion but she withdrew the same and gave a statement before the said court affirming the terms of the compromise which statement was recorded by the Family Court and the proceedings were dropped and a divorce was obtained. Therefore, we are of the opinion that the appellant having received the relief she wanted without contest on the basis of the terms of the compromise, we cannot now accept the argument of the learned counsel for the appellant. In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.
9. In view of the abovesaid subsequent events and the conduct of the appellant, it would be an abuse of the process of the court if the criminal proceedings from which this appeal arises is allowed to continue. Therefore, we are of the considered opinion to do complete justice, we should while dismissing this appeal also quash proceedings arising from criminal case Cr. No.224 of 2003 registered in Police Station, Bilaspur, (District Rampur) filed under Sections 498A, 323 and 506 IPC and under Sections 3 and 4 of the Dowry Prohibition Act against the respondents herein. It is ordered accordingly. The appeal is disposed of. (Emphasis supplied)
7.2) Delhi High Court in the case of Kirti Jain alias Shalu Jain (supra) held that, after entering into settlement and subsequently not adhering to the terms it amounts to clearly motivated which is impermissible. Paragraph No.11 of the said judgment reads as under:
7.3) Similarly, Delhi High Court in the case of Manas Acharya (supra) held that, once parties have resolved their disputes by way of an agreement before the Mediation Centre, wherein there was no disclosure of factum of return of jewellery/Stridhan and the settlement amount was in a total lump-sum amount towards maintenance as well as dowry articles, the wife cannot be allowed to wriggle out of it. Hence, the Petition filed by the husband was allowed and the FIR registered as well as other proceedings arising therefrom were quashed.
7.4) Considering the ratio laid down by the Supreme Court, and the view taken by the Delhi High Court, we are of the opinion that, in the present proceedings, the Respondent No.2, should not be permitted to withdraw from the statements/undertakings given by her in the Consent Terms.
8) In the present proceedings, admittedly immediately after marriage, within fifteen days, admittedly Applicant No.1 left India and went to Australia. The Respondent No.2, thereafter, left her matrimonial home and went to stay with her parents. Four months thereafter the Respondent No.2 went to Australia to stay with her husband, Applicant No.1, while Applicant Nos.[2] and 3 (father-in-law and mother-in-law of the Respondent No.2) stayed in India. The Respondent No.2 thereafter came back to India in the month of February 2005 and went back to Australia on 3rd September 2005 and again returned to India in the month of February 2006 and remained in India till March 2006. After the babygirl was born, Respondent No.2 returned to India, on 30th December 2008. Thereafter various complaints have been filed. On her own case the Respondent No.2 had said that, while she was in India and her husband, Applicant No.1 in Australia, on few occasions, she visited matrimonial home, where Applicant Nos.[2] and 3 were residing. The Respondent No.2’s allegation in the FIR is that, when she visited her matrimonial home, the Applicant Nos.[2] and 3 did not give food to her and made her to starve, so also, they took away her monies. Her “Stridhan” is lying with the Applicants. These are all the allegations in the FIR.
9) The complaint filed under Section 498-A of IPC is filed on 10th February 2009. Immediately, within one month, on 1st March 2009, the Respondent No.2 filed complaint under Domestic Violence Act. The allegation in the FIR is that, the Applicants have cheated the Respondent No.2 by falsely informing her about the education of the Applicant No.1 and also about the fact that, he was working as a Mechanical Engineer, when in fact he was working as a taxi driver in Australia. The Applicants have denied this fact.
10) The Consent Terms does not mention about the return of ‘Stridhan’. Even there is no mention that the Applicant No.1 is in custody of ‘Stridhan’ of the Respondent No.2. So also, there is no mention about the custody of daughter Arya. Admittedly, daughter Arya, who is now 16 years and 9 months old, is staying with the Respondent No.2 in Australia. The Court at Australia while granting custody of daughter Arya to the Respondent No.2 has imposed certain conditions.
11) We have gone through the contents of the FIR. The Applicant Nos.[2] and 3 are the senior citizens, who are aged 77 years and 68 years respectively and are staying in their own home at Nashik. The Respondent No.2 is staying in Australia from 2004. Even when the Applicant No.1 and Respondent No.2 were married and staying together in India, they were not staying in the same home in which the Applicant Nos.[2] and 3 are residing. Considering the allegations made in the FIR, we do not find any significant allegation which makes out a case for the offences punishable under Sections 498-A, 406, 506 read with Section 34 of the IPC.
12) As regards the Applicant No.1, he is also residing in Australia from the year 2004. The marital life of the Applicant No.1 and Respondent No.2 was in turmoil. They both started living separately in Australia. However, the FIR has been lodged in Mumbai in the year 2009. Before lodging the present FIR, various other complaints have been filed by the Respondent No.2 against the Applicant No.1 and his family members. The Consent Terms were entered into between the Applicant No.1 and Respondent No.2, firstly in Australia and thereafter, in the divorce proceedings in Mumbai.
13) Going through the entire allegations as narrated in the FIR, we find that, the offence punishable under Sections 498-A, 406, 506 read with 34 of the IPC are not made out.
14) The Supreme Court in the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, has laid down certain tests to verify as to whether accused persons needs to be made to face a trial or the FIR can be quashed. A perusal of the FIR and charge-sheet in the present proceeding, we are of the opinion that, no case is made out against the Applicants about the alleged offences, even if the FIR and other material on record is accepted.
15) In our view, the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie disclose the commission of any offence and there is no material to substantiate the allegations made therein.
16) We are satisfied that C.C. No.881/PW/2009, pending on the file of the Additional Metropolitan Magistrate, Bandra, arising out of FIR No. 38 of 2009, dated 10th February 2009, registered with Nirmal Nagar Police Station, Mumbai, needs to be quashed.
17) Accordingly, the Application is allowed in terms of prayer clause (a). (RAJESH S. PATIL, J.) (A.S. GADKARI, J.) Designation: PS To Honourable Judge