Bombay High Court
Amarlal Hasomal Lalwani And Ors vs The State Of Maharashtra And Anr on 18 January, 2024
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai, N. R. Borkar
2024:BHC-AS:2977-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 619 OF 2019
1. Amarlal Hasomal Lalwani
2. Inderlal Hasomal Lalwani
3. Ashok Hasomal Lalwani
4. Raju Hasomal Lalwani
5. Durga I. Lalwani
6. Sita Ashok Lalwani ..Applicants
v/s.
The State of Maharashtra & Anr. ..Respondents
Mr. Ganesh Gole a/w. Vivek Sharma, Virat Shelatkar, Ajeet Shirodkar,
Bhavin Jain i/b. Ritesh Ratnam for the Applicants.
Ms. Heena Mistry, advocate appointed for Respondent No.2.
Mrs. M.M.Deshmukh, APP for the State.
CORAM : ANUJA PRABHUDESSAI, &
N. R. BORKAR, JJ.
DATED : 18th JANUARY, 2024.
JUDGMENT (PER ANUJA PRABHUDESSAI, J.).
1. With the consent of parties, heard finally at the stage of admission.
2. This is an application under Section 482 of Cr.P.C. to quash Crime
No. 100 of 2019 dated 29.03.2019 registered with Gandhinagar Police
Station, Kolhapur for offences punishable under Section 498A, 323, 504,
506 r/w. 34 of the Indian Penal Code.
3. The aforesaid crime was registered pursuant to the FIR lodged by
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respondent no.2. The marriage of respondent no.2 and applicant no.1
was solemnized in the year 2001. The applicant and respondent no.2
have a son from the said wedlock. Respondent no.2 left the
matrimonial home in the year 2014, She lodged the FIR in the year
2019 alleging that since about six months from the date of her marriage
her husband and his family members had subjected her to physical and
mental cruelty. She has also alleged that her husband had forced her to
get a car and cash of Rs.1 Lakh from her parents, and had abused and
assaulted her for not meeting the unlawful demand. She has stated that
she was thrown out of the house in the year 2014 at 2.00 a.m. Since
then, she is residing at her parental home. It is on the basis of these
allegations that the aforesaid crime came to be registered.
4. Shri Gole, learned Counsel for the applicant states that there is
considerable delay in lodging the FIR. He submits that the respondent
left the house in the year 2014. Hence applicant no.1 filed divorce
proceedings in December 2015. He submits that pursuant to the order
passed by the Family Court, Kolhapur, as well as by the learned JMFC,
in 125 proceeding, the applicant has been paying maintenance to
respondent no.2 as well as to the child. He submits that the respondent
has been lodging several complaints before various authorities. On
26.12.2018 she had lodged a similar complaint before the Dy.
Superintent of Police, Kolhapur by suppressing the fact that several
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proceedings were pending between the parties. Learned Counsel for the
petitioner further states that the divorce decree has been granted in the
month of January 2024. He has further stated that on 5.1.2019 the
respondent no.2 came to his shop and created ruckus, for which
applicant no.1 had lodged a N.C. Complaint. He submits that she has
roped the entire family of the applicant on the basis of omnibus
allegations. He submits that the allegations in the FIR even if accepted
in their entirety, the same do not disclose commission of any cognizable
offence.
5. Per contra, learned Counsel for the respondent submits that
respondent no.2 was thrown out of the house in the year 2014. She
further submits that the applicant did not have any intention to take back
respondent no.2, which is evident from the fact that he had filed a suit
for divorce within a few months from the date of issuing notice for
restitution of conjugal rights. She further submits that the allegations in
the FIR disclose an offence under Section 498A, which is a serious
offence.
6. We have perused the records and considered the submissions
advanced by the learned Counsel for the respective parties.
7. In the instant case, the records reveal that the marriage of
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petitioner no.1 and respondent no.2 was solemnized in the year 2001. It
is not in dispute that the respondent no.2 is living in her parental home
since the year 2014. The first information report is lodged in the year
2019 in respect of the alleged incidents from 2001 to 2014. In
Hasmukhlal D. Vora & Anr. vs. The State of Tamil Nadu 2022 SCC
Online SC 1732, the Apex Court has observed that :
"26. While inordinate delay in itself may not be ground
for quashing of a criminal compliant, in such cases,
unexplained inordinate delay o such length must be taken
into consideration as a very crucial factor as grounds for
quashing a criminal complaint.
27. While this court does not expect a full-blown
investigtion at the stage of a criminal complaint, however, in
such cases where the accused has been subject to the anxiety
of a potential initiation of criminal proceedings for such a
length of time, it is only reasonable for the court to expect
bare-minimum evidence from the Investigating Authorities.
28. At the cost of repetition, we again state that the purpose
of filing a complaint and initiating criminal proceedings
myust exist solely to meet the ends of justice, and the law
must not be used as a tool to harass the accused. The law, is
meant to exist as a shield to protect the innocent, rther than
it being used as a sword to threaten them.
29. ... While it is true that the quashing of a criminal
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complaint must be done only in the rarest of rare cases, it is
still the duty of the High Court to look into each and every
case with great detail to prevent miscarriage of justice. The
law is a sacrosanct entity that exists to serve the ends of
justice, and the courts, as protectors of the law and servants
of the law, must always ensure that frivolous cases do not
pervert the sacrosanct nature of the law."
8. In the instant case respondent No.2 has not offered any plausible
explanation for such inordinate delay in lodging the FIR. It is not in
dispute that the applicant had by notice dated 25.06.2015 called upon
respondent no.2 to resume the matrimonial ties. Respondent no.2
neither replied to the said notice, nor did she join the matrimonial home.
It is also on record that applicant no.1 had filed a divorce petition in the
year 2015. Respondent no.2 had also filed an application for
maintenance before the Family Court as well as before the Magistrate,
and that pursuant to the orders passed by the Family Court and the
Magistrate, the applicant has been paying maintenance. In all these
years, respondent no.2 did not lodge the report against the petitioners
alleging cruelty. The First Information Report reveals that on 5.1.2019
respondent no.2 had visited the shop of the petitioner, and the petitioner
had lodged a complaint against her for creating a ruckus. It is only
thereafter that the respondent no.2 had lodged the FIR. The aforesaid
circumstances indicate that the FIR is not bonafide and is filed with
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oblique motive.
9. Be that as it may, the Applicants have invoked the powers of this
Court under Section 482 of Cr.P.C. to quash the first information report.
It may be mentioned that Section 482 of Cr.P.C. confers inherent powers
on the Court to make such orders as may be necessary to give effect to
any order under the Code, or to prevent the abuse of the process of any
Court or otherwise to secure the ends of justice. In State of Haryana
and others v/s. Ch. Bhajan Lal and others AIR 1992 SC 694 the Apex
Court has set out by way of illustration the broad categories of cases in
which the inherent powers under Section 482 of Cr.P.C. could be
exercised. The illustrations relevant to decide the case in hand are :
"108. ... (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.
...
3. Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
...
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
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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."
10. In Geo Verghase v/s. State of Rajasthan and Anr. AIR 2021 SC
4764, the Apex Court has reiterated that :-
" 34. ... Undoubtedly, every High Court has
inherent power to act ex debito justitiae i.e., to do
real and substantial justice, or to prevent abuse of
the process of the Court. The powers being very
wide in itself imposes a solemn duty on the Courts,
requiring great caution in its exercise. The Court
must be careful to see that its decision in exercise of
this power is based on sound principles. The
inherent powers vested in the Court should not be
exercised to stifle a legitimate prosecution. However,
the inherent power or the extra-ordinary power
conferred upon the High Court, entitles the said
Court to quash a proceeding, if it comes to the
conclusion that allowing the proceeding to continue
would be an abuse of the process of the Court, or the
ends of justice require that the proceeding ought to
be quashed."
11. In this backdrop, the only question for consideration is whether the
FIR discloses commission of offence under Section 498A of IPC. It
may be noted that cruelty is the essence of an offence under Section
498A of IPC. The term 'cruelty' for the purpose of Section 498-A of the
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IPC has been specifically defined. In order to constitute an offence
under section 498-A, there must be prima facie material to prove that the
Applicants by their willful conduct of such a nature had driven the
Respondent No.2 to commit suicide or caused grave injury or danger to
her life, limb or health or that they had harassed her with a view to
coercing her to satisfy unlawful demand of dowry.
12. In Manju Ram Kalita v/s. State of Assam (2009) 13 SCC 330, the
Apex Court while considering the meaning of 'cruelty' held thus:-
" 21. In Girdhar Shankar Tawade v/s. State of
Maharashtra, AIR 2002 SC 2078; this Court held
that 'cruelty' has to be understood having a specific
statutory meaning provided in Section 498A I.P.C.
and there should be a case of continuous state of
affairs of torture by one to another.
22. 'Cruelty' for the purpose of Section 498-A I.P.C.
is to be established in the context of S.498-A as it
may be different from other statutory provisions. It
is to be determined/inferred by considering the
conduct of the man, weighing the gravity or
seriousness of his acts and to find out as to whether
it is likely to drive the woman to commit suicide etc.
It is to be established that the woman has been
subjected to cruelty continuously/persistently or at
least in close proximity of time of lodging the
complaint. Petty quarrels cannot be termed as
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'cruelty' to attract the provisions of Section 498-A
IPC. Causing mental torture to the extent that it
becomes unbearable may be termed as cruelty. "
13. Reverting to the facts of the case, the allegations in the FIR are
that (i) at the time the marriage respondent no.2 was informed that the
applicant no.1 was a non smoker and that he did not consume alcohol.
However, within six months from the marriage he started consuming
alcohol, over which there used to be altercation between them; (ii) her
sisters-in-law, respondent nos.5 and 6 would compel her to cook and do
other household work during her pregnancy; (iii) they would not give
her adequate medical treatment and did not allow her to visit her parents
on festivals; (iv) her husband forced her to get a car and cash of Rs.1
lakh from her parents and when she refused to meet the unlawful
demand, he abused and assaulted her.
14. Apart from making a vague statement that her husband had
demanded a car and cash from her parents, she has not given any further
details, particularly the year in which such demand was made. This was
relevant in view of the delay in lodging the FIR. The other incidents
narrated in the FIR had occurred within a period of six months from the
date of marriage. As noted above, in all these years the respondent no.2
had not lodged any FIR alleging cruelty, and the allegations made in the
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FIR are stale. The allegation leveled in the FIR, even if accepted in
totality, do not disclose commission of cognizable offence. In such
circumstances, compelling the petitioners to face criminal trial will
amount to an abuse of process of the Court. Hence the application is
allowed.
. Crime No.100 of 2019 dated 29.03.2019, registered with
Gandhinagar Police Station, Kolhapur, is hereby quashed.
( N.R.BORKAR, J.) (ANUJA PRABHUDESSAI, J.)
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