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Friday, 14 March 2014

judgement where a husband took his 498A wife back and Later he was slapped with RAPE charges





IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2040 OF 2009


Rakesh Lilaram Rohira
Age – 36 years, OccupationBusiness,
Residing at 1601, Tivoli,
Hiranandani Gardens, Powai,
Mumbai – 400 076.                                                       ....Petitioner.


Vs.

1 The State of Maharashtra
Through the Senior Inspector
of Police,
Powai Police Station,
Mumbai.


2 Mrs. Priyanka Rakesh Rohira,
Age – 22 years, Occu.Nil,
Flat No. 13,
Shreemant Chintamani Apartment,
Behind Utsav Lawns,
Vidyanagari, NashikRoad,
Nashik.                                                                  ....Respondents.



Mr. S.R. Chitnis, Sr. Counsel i/by Mr. Pankaj Das for the Petitioner.
Mrs. P.P. Shinde, APP for the State.
Mr. S. Malik,for Respondent No.2.


CORAM : B.H. MARLAPALLE &
ANOOP V. MOHTA, JJ.
DATE : 8th July, 2010



ORAL JUDGMENT:(PERB.H.MARLAPALLE, J.)


1 Heard the learned counsel for the respective parties. Perused the record. Rule. Respondent No.2 has filed affidavit in reply.



2 The Petition is heard, at length, for final disposal at the admission stage itself.



3 The Petitioner, as a widower and Respondent No.2 as a divorcee, got married on 14/07/2006, at Thane and at that time the Petitioner had a daughter of 10 years of age from his first wife. On or about 27th August, 2007 i.e. after one year of cohabitation, the parties approached the Court of learned Civil Judge, Senior Division, at Thane with a Petition for divorce by the mutual consent. However, on or about 30th September, 2007, Respondent No.2 filed an application before the learned Civil Judge, Senior Division, at Thane, alleging that the consent, for obtaining divorce, was under duress and therefore, she raised objection. On or about 9th February, 2008, the Petitioner approached the Family Court and submitted a Petition for divorce. On 26th March, 2008 he approached the Powai Police Station and filed C.R. No. 197 of 2008 against his wife (Respondent No.2) for the offences punishable under Sections 419, 420, 467, 468 and 471 of the Indian Penal Code (IPC). The wife, approached the NashikRoad Police Station and filed C.R. No. 215 of 2008 against the Petitioner for the
offences punishable under Sections 498A, 306 of the IPC. Both of them approached this Court in Criminal Application No.1684 of 2008 and Criminal Application No. 1783 of 2008 respectively for Anticipatory Bail. By a common order dated 12th August, 2008, both the Applications were disposed off in terms of the consent terms. The Petitionerhusband, agreed to deposit an amount of Rs.5,00,000/(Rupees five lacs only) with the Registrar of this Court and the said amount was transferred to the Family Court. Both of them gave consent for quashing of the FIR registered against each other i.e. C.R. No. 197 of 2008 registered at the instance of the husband and C.R. No. 215 of 2008, registered at the instance of the wife and therefore, by the said order dated 12/08/2008 both the C.R.s came to be quashed by invoking the inherent powers under Section 482 of the Cr.P.C. and therefore, the anticipatory bail applications did not survive. However, this Court observed that if the husband failed to deposit Rs.5,00,000/within four weeks, the order would stand automatically cancelled and both the C.R.s would stand revived.




4 Criminal Application No. 3123 of 2008 and Criminal Application No.544 of 2008 filed by the husband came up before the learned Single Judge in the second round. The husband applied for anticipatory bail as he came to know that a fresh FIR was registered against him by the wife i.e.
C.R. No. 392 of 2008 with the Powai Police station, Mumbai for the offences punishable under Section 376A, 341 and 506 of the IPC. The husband also prayed for revival of his earlier FIR i.e. C.R. No. 197 of 2008 and also to recall the order to deposit an amount of Rs. 5,00,000/with the Registrar of this Court and recall the same. In the course of hearing of these applications, the wife revived her prayer for anticipatory bail in C.R. No. 197 of 2008 to be restored. The learned Single Judge, by her order dated 26th September, 2008, allowed the application and revived C.R. No. 197 of 2008 filed by the husband and recalled the directions to deposit an amount of Rs. 5,00,000/and granted anticipatory bail to the wife in C.R. No. 197 of 2008. We are informed that this order dated 26th September, 2008 is a subject matter of challenge in an SLP presently pending before the Supreme Court (SLP No. 7409 of 2009).



5 It is under these circumstances, the husband has filed the instant Petition praying for quashing of C.R. No. 392 of 2008 registered on the basis of a complaint filed by the wife for the offences punishable under Sections 376A, 341 and 506 of the IPC, registered with the Powai Police Station on 16/07/2008. On 9th November, 2009, this Court with the consent of the parties, referred them for mediation and stayed all the proceedings between the parties including the investigation in C.R. No. 392 of 2008 and the parties were referred to mediation, not once, but twice and the mediation was not successful.



6 The learned counsel appearing for the Petitioner submitted that the statement of the wife recorded by the Powai police, while registering C.R. No. 392 of 2008, if considered on its own, does not make out, even prima facie, the offences punishable under Sections 376A, 341 and 506 of the IPC and therefore, on the basis of the decisions in the case of Mohd. Shamim & Ors. Vs. Nahid Begum (Smt) & Anr. (2005) 3 S.C.C. 302, and State of Haryana Vs. Bhajan Lal, 1993 Cri.L.J. 1042, it was prayed to quash the FIR. It was submitted by the learned counsel appearing for the Petitioner that there was no separation of the parties either by a decree of divorce or under any custom envisaged between 13/06/2008 and 15/06/2008 and therefore, even prima facie an offence punishable under Section 376A of IPC was not made out. It was further submitted that the Respondent wife willingly joined the company of the Petitioner and they stayed together in hotel “Pride” at Bhandup during these 3 days, and hence there was no material in support of the charge under Section 341 of the IPC. It was further pointed out by reading through the statement of the wife recorded by the I.O. that the charge of criminal intimidation was not even prima facie, made out.



7 Mr. Malik, the learned counsel appearing for the wife, on the other hand, submitted that the inherent powers under Section 482 of the Cr.P.C. ought to be sparingly used and with care, caution and circumspection, when a triable case of a cognizable offence is made out in the statement recorded of the Complainant, the investigation and further trial should not be stiffled. While conceding that there was no separation by a decree of divorce by a competent Court, it is submitted by Mr. Malik, that whether there was a separation by “custom” or “usage”, is a matter of evidence and therefore, the parties must be allowed to lead evidence in the trial rather than shutting the doors of investigation and trial. It was also submitted that the terms “usage” and “custom” are required to be read in the facts of each case and on the basis of the evidence the parties may adduce during the trial. Mr. Malik relied upon the following decisions while opposing the Petition:

1 State of Haryana Vs. Bhajan Lal (Supra)
2 State of Karnataka Vs. M. Devendrappa & Anr., 2002 Cr.L.J. 1998.

3 Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi, AIR 1976, S.C. 1947

4 M/s. Medchl Chemicals & Pharma P. Ltd. Vs. M/s. Biological E. Ltd. & Ors., (2000)3 SCC 269.

5 Jehan Singh Vs. Delhi Administration, (1974) 4 SCC 522




8 The only question that we are required to address is whether the complaint made by the wife and registered with the Powai Police Station as C.R. No. 392 of 2008 on 16/07/2008 makes out, even prima facie, any ingredients of the alleged offences i.e. 376A, 341 and 506 of I.P.C.. We, therefore, deem it appropriate to reproduce the complaint as it is


“........ Upon getting annoyed with the said harassment, on the date 26/4/08, I have lodged an offence under Section 498(A) against my husband, at Nasik. Moreover, even Rakesh has lodged a false complaint against me at Powai Police Station. As we both have lodged the complaints against each other, Rakesh and I used to meet in the High Court for getting bail, but, he and I did not get anticipatory bail. For this reason, we both got harried, hence, on 12/06/2008 being the date of hearing, in the High Court, after the hearing, Shri Rakesh and I made formal discussion during which, Rakesh told me that he got fed up with the court and the police and that if I withdrew the case under Section 498(A) then he, by taking the prior permission of the members of his family, was ready to cohabit with me. At that time, even I, by thinking about my future life and believing the words of Shri Rakesh, immediately, signed and gave an affidavit to Rakesh’s advocate, in the Court, for withdrawing the complaint under Section 498(A) lodged by me in Nasik Road Police Station.




Thereafter, I started to go with Shri Rakesh in his red colour Santro Car Number 888 to Powai and when I was approaching Powai, Shri Rakesh, on reaching at the residence at Powai, told me, “Presently there is not a good atmosphere in the house, I will go in the house and I will persuade everybody in the house and then I will take you home.” Thereafter, we went, by his car, to Hotel (illegible) at Mulund to stay there. On that night, Rakesh made a lot of request to me to stay together there. Rakesh went away late in the night to persuade his family members, leaving me in the hotel.


On the next day, Rakesh and I had made a compromise with each other about withdrawing the cases against each other by meeting our advocates. In pursuance thereof, we both went to the Hon’ble High Court to hold a meeting with the advocate, (but) at that time, as my advocate had not come in the Court, we left the Court to go to Rakesh’s house again; on that day, Rakesh again avoided to take me to his house and he led me to hotel Pride at Bhandup. I was staying in the above mentioned Hotel from 13/6/08 to 15/6/08. During the said period, Shri Rakesh had a forcible physical relation with me against my wish. At that time, I tried to resist him but Rakesh did not pay heed to me and he intimidate me that he would again lodge complaint against me in Mumbai, if I told about the aforesaid things my family members and his family members by making phone calls to them and he threatened to kill me. I was restless, hence I did not tell the said thing to anybody. On account of the said incident I was not in a proper mental and physical state.




I stayed in the said hotel for two days and my parents and Rakesh’s friends Gopal and Gagan were aware about the same. On the date 14/6/08, Rakesh went away leaving me in the said hotel, to persuade his family members, but he did not come back. Thereafter, I had tried to make phone calls to him again and again, but was not getting any kind of response from him. However, as case (hearing) in to my complaint was in the High Court on the date 27/06/08, I took a halt on that day and on the next day I went to my native place at Nasik.




9 As per the wife, on 12/06/2009, she came to Mumbai and signed the affidavit for compromise between them keeping in mind the future interests of matrimonial life and agreed for withdrawal of the cases. Both of them proceeded in a car, to go to the house of the husband at Powai. However, before reaching the matrimonial home, the husband suggested that they should stay in a hotel for two days and in the meanwhile, he would persuade his parents and thereafter take her home. He left the hotel and came back late in the night. Between 13/06/2008 to 15/06/2008 they stayed in the hotel and he forced her to have physical relationship. When she resisted to have such a relationship, the husband did not agree and threatened that if she would telephone any of her family members, he would file one more case at Mumbai and therefore, the wife did not complain to anyone.


10 In the order dated 12/08/2008, the learned Single Judge in paras 4 and 5 recorded the statements of both the parties in the following words:


“4 - During hearing for these applications, the applicants stated that they do not wish to continue with the prosecution lodged by them against each other. Priyanka has stated that she does not wish to continue with the prosecution of her FIR. So also applicant Rakesh has stated that he does not wish to continue with the prosecution of this case i.e. C.R. No. 197 of 2008. It is the case of Priyanka that her jewellery weighing about 62 tolas and her clothes are lying at her matrimonial house. Mr. Marwadi, on instructions, denies this fact. However, now Mr. Marwadi states that without prejudice to the rights and contentions of applicant Rakesh he is willing to deposit Rs. 5 lakhs in this Court and the said amount may be transferred to the Family Court as and when the proceedings are instituted by the parties. The said amount of Rs. 5 lakh will be deposited within fourt weeks from today.

5. Looking to the above facts and looking to the fact that the dispute is in between husband and wife, I am inclined to quash the proceedings in both the cases. ...........”




11 There is no doubt as of now, that there is no decree of divorce granted by a competent Court and on the other hand, divorce petition filed by the husband is pending. The petition initially filed in the family Court at Mumbai has been transferred to the Court of learned Civil Judge, Senior Division at Nashik. Even as per the complaint dated 16/07/2008, the wife came from Nashik to Mumbai on 12/06/2008 so as to reconcile and restore the matrimonial relationship. While on the way to the matrimonial home, along with the husband, both stayed at hotel “Pride” at Bhandup from 13/06/2008 to 15/06/2008. The complaint has been filed exactly after one month i.e. on 16/07/2008. Though, the wife was before this Court on 12/08/2008, in the consent order so passed, quashing the FIRs filed by both of them against each other, the wife did not disclose that she had, in the meanwhile, registered C.R. No. 392 of 2008. In the case of Bhajan Lal (Supra), in the caveat placed on the inherent powers under Section 482 of Cr.P.C. of the High Court, it is stated 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.. One of such guidelines is 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. .......... The power conferred on the High Court under Article 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power due care and caution is to be exercised while invoking these powers.”

In the case of State of Karnataka (Supra), the Supreme Court held that the power under Section 482 of the Cr.P.C. should not be exercised to stiffle a legitimate prosecution and the High Court should not assume the role of a trial Court and embark upon an enquiry. The said power is required to be exercised sparingly, with caution and circumspection.



12 We have gone through the complaint in terms of the statement of the wife recorded on 16/07/2008 while registering C.R. No. 392 of 2008 and on the peculiar facts of this case, we are satisfied that even prima facie, there is no material in support of the charge under Section 376A of the IPC. The complaint read in its totality also does not make out the case for the offences punishable under Section, either 341 or 506 of the IPC. Despite the fact, both the husband and wife are engaged in series of litigation right from the Court of Civil Judge, Senior Division to the Supreme Court, as of now, we do not find any reason to subject the husband for an inquiry into C.R. No. 392 of 2008 as the said complaint read as it is, does not make out any case to proceed against him for the offences punishable under Sections 376A, 341 and 506 of the IPC. We do not agree with the submissions of Mr. Malik that there was a separation as per “custom” or “usage” between the parties and the same could be allowed to be proved in the trial. Such a case has not been made out in the Complaint and on the contrary, the complaint read as it is, goes to show that the wife came with the husband of her own and by way of afterthought, the C.R. has been registered one month later and the said act was even suppressed from the High Court when the consent order was passed on 12th August, 2008.


13 In the premises, this petition succeeds and the same is hereby allowed. Rule is made absolute in terms of prayer clause (a).
(ANOOP V. MOHTA, J.)                                                                                                              (B.H.MARLAPALLE, J.)


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