UPENDRASINH ACHALSINH RAJPUT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. The accused Nos. 1 to 6 in Criminal Case No. 18 of 1996 on the file of the learned Metropolitan Magistrate of Court No. 11, Ahmedabad have filed the present petition under Sec. 482 of the Code of Criminal Procedure to quash the said prosecution. The marriage between the petitioner Upendrasinh A. Rajput and respondent No. 4 Manishaben took place as per Hindu religious rites on 23-5-1994. Thereafter, she joined the petitioner Upendrasinh Rajput at his house at Baroda and was dwelling with him till August 19, 1993. During this period, she has also conceived a child, but it is her claim that she was treated with cruelty by making dowry demand. Consequently she filed Criminal Case bearing Nos. 151 of 1994 and 152 of 1994 for the offences punishable under Secs. 403, 406 and 114 and offence punishable under Sec. 498(A) of the I.P.C. and dowry case against her husband and his relatives in the Court of Metropolitan Magistrate, Court No. 11, Ahmedabad. In these cases the learned Metropolitan Magistrate ordered for carrying out investigation under Sec. 156(3) of the Code of Criminal Procedure. But it seems that thereafter complainant, Manishaben was induced to withdraw the said prosecution by disclosing to her that her ornaments will be returned to her and after her delivery she and her child will be taken back by her husband or he would make the necessary arrangements for her maintenance. Thereafter, Manishaben had also filed an application under Sec. 125 of Code of Criminal Procedure on 15th December, 1994 as she found that her husband was not taking her back and was not also making provision of maintenance of herself and her child. In view of the inducement given to her, she had already informed the Magistrate that she does not wish to prosecute the said complaints lodged by her and the police be directed not to carry out the investigation and the learned Magistrate had disposed of the said cases as prayed by her.

(2.) In the proceeding taken by her under Sec. 125 of the Code of Criminal Procedure, there was an order of maintenance in her favour and she had also started executing the said order, and, thereafter, her husband filed a Marriage Petition bearing H.M.P. No. 62 of 1996 in the Court of Civil Judge (S.D.), Vadodara, on 14-3- 1996 seeking a decree of divorce. The respondent No. 4-complainant Manishaben has lodged a private complaint on 19-3-1996 in the Court of Metropolitan Magistrate, Court No. 11, Ahmedabad. In the said complaint, she has enumerated all the incidents of cruelty given to her which she had enumerated in her Criminal Case No. 152 of 1994 and then she further added one more incident alleged to have been taken place on 17-3-1996 by saying that on that day her husband and all his relatives had come to her place and they had abused her and threatened her that she should either pay Rs. 50,000.00 or she should sign a divorce deed brought by them and they went away. This private complaint is lodged by her in the Court on 19th March, 1996 and the learned Metropolitan Magistrate of Court No. 11 of Ahmedabad was pleased to direct the police of Mahila Police Station to carry out the investigation under Sec. 156(3) of the Code of Criminal Procedure. When the petitioners came to know about the same, they have come before this Court and they are seeking quashing of the said order as well as criminal proceeding of Criminal Case No. 18 of 1996 pending in the Court of Metropolitan Magistrate, 11th Court, Ahmedabad.

(3.) It is vehemently contended before me by the learned Advocate for the petitioners that the complainant had already compromised the alleged incident of cruelty in her earlier Criminal Case No. 152 of 1994 and consequently the present prosecution of Criminal Case No. 18 of 1996 for the said acts of cruelty is not tenable. It must be mentioned that admittedly there was no recording of a compromise by the complainant and the accused as provided by the provisions of Sec. 320 of Cr. P.C. The offence punishable under Sec. 498(A) is a non-compoundable offence, and hence no composition of the said offence can be recorded by any Magistrate. Then sub-sec. (9) of Sec. 320 of the Code of Criminal Procedure clearly lays down that no offence shall be compounded except as provided by the said section. Now in view of this statutory provision of sub-sec. (9) of Sec. 320, the contention of Mr. Hasurkar, the learned Advocate for the petitioners that there was earlier composition of the said offence of cruelty between the respondent No. 4 Manishaben and the present petitioners could not be accepted. Therefore, in the circumstances, it will have to be held that there is no composition of the offence in question as per the provisions of the law.