NEETA SANJAY TADAGE Vs. VIMAL SADASHIV TADAGE

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the Petitioner Smt. Neeta Sanjay Tadage, challenge the order dated 3-3-1994 passed by the learned Judicial Magistrate, first Class, Court No. 5, Thane, below Exh. 60, allowing composition of offences between the parties registered under section 498-A read with 34 of the Indian Penal Code, which is annexed as exh. F to the petition.

(2.) THE Petitioner married Sanjay, son of respondent No. 1 and brother of Respondent No. 2 at Dhulia. After their marriage, she started residing at Thane with her husband, who is gainfully employed in the Police Department as police Constable. Soon after the marriage, the petitioner realised that the Respondents Nos. 1 and 2 were out to harass her and they started treating her with cruelty by putting her under restrains and even subjected her to starvation. She was not allowed even to write any letter to her parents at Dhulia without being censured by them. It is also alleged that the Respondents even went to the extreme end of levelling false insinuations about her character and in all these, the Petitioners husband did not take any initiative to improve the situation, but on the other hand, acted in concert. The Petitioner tolerated all this with patience due to the wishes of her parents, who desired that there should be no disruption of the family tie between the petitioner and her husband, but in spite of all this, there was no semblance of peace and harmony and the Respondents continued to ill-treat the petitioner. On or about 2-1-1994, the Respondents attempted to liquidate the Petitioner by holding her inside the house and poured kerosene on her person, but before they could set her on fire, the petitioner could free herself from their clutches and entered the bath room and closed it from inside. The Petitioners husband who was present in the house, watching T. V. realising danger as the Petitioner was shouting for help, went to the bath room and took her out, and by that time, the petitioner was in an unconscious state due to shock. She was also pregnant at that time. The petitioners husband then took her to a private nursing Home, where she was medically treated and saved. It appears that the Doctor In-charge of the nursing Home informed the Police of Vartak Nagar police Station and the statement of the Petitioner came to be recorded by the Police Sub-Inspector at the hospital itself and on the basis thereof, an offence came to be registered under section 498a read with 34 of the Indian Penal Code. It is the case of the Petitioner that the Police tried to give a colour that on account of the harassment and ill-treatment meted out to the Petitioner, she attempted to commit suicide and as the Petitioner, a married woman, was subjected to cruelty by the relatives of the husband, the cruelty being of such a nature as was likely to drive the woman to commit suicide, an offence under section 498-A read with 34 of the Indian Penal Code was registered at Vartak Nagar Police Station, Thane, on the same day at C. R. No. 1 2/94, against the respondents. Charge sheet came to be filed against both the Respondents on or about 10-2-1994 in the court of the Judicial Magistrate, First Class, court No. 5, at Thane, for offence under section 498-A read with section 34 Indian Penal Code, which was the subject matter of Criminal Case No. 67 of 1994. It appears that thereafter the petitioners husband shifted to Vasai as he was attached to the said Police Station and the petitioner started residing with him. After the incident, the husband of the Petitioner called her parents from Dhule who came to Thane on 3-1-1994, and sent the Petitioner with them to Dhule and as the Petitioner was carrying (pregnant at that time), she delivered a female child on 26-6-1994 at the Hospital of Dr. S. N. Deshpande. After delivery, the Doctor advised her not to undergo journey for sometime on account of her delicate health. It is the case of the Petitioner that after she went back to Dhule with her parents, the petitioner on some occasion was brought to Thane and also at Vasai, as the Respondents did not want to lose any control of the situation, particularly when the criminal case was pending in the magistrates Court. During this period, the petitioners husband Sanjay and the Respondents used to pressurize her to withdraw the complaint and for which they adopted all possible modes, though the Petitioner was not willing to succumb to their pressure and false promises, and was insisting that let the law take its own course and at least, she would not like to take any hasty action for a couple of years during which she can observe the conduct of the Respondents and would feel safety for her life as against the respondents and her husband who were making indecent haste and even pressurized her to sign documents purporting to be an application for compounding the offence. It is the case of the petitioner that the Respondents and her husband were successful in obtaining her signature on a couple of documents, without making her understand its contents and implication and thereafter she was made to go back to her house at Dhule. On 2-3-1995, the Respondents and husband of the petitioner filed two documents in the Court of the learned Magistrate one being a pursis and another an application for permission to compound the offence without letting the Petitioner understand the implication and even to give her say and thereafter she was made to go back to home. It is only when the Petitioner subsequently took inspection, she found that the documents contained prayer for compounding the offences alleging that harmony has been restored in the family and that the Petitioner does not want to pursue the complaint, which event occurred only after the petitioner received the registered notice form the husband dated 20-7-1994.

(3.) THE learned advocate appearing for the petitioner raised a question of law as to whether the Court has the power and jurisdiction to compound an offence under section 498a of the indian Penal Code which is non-compoundable, even with the permission of the Court, it was contended that the very purpose of inducting section 498-A was to afford full protection of law to the women like the Petitioner against her husband and his relatives and that by making the offence non-compoundable the Legislature intended that in such cases, the law should take its own course and the process should not be interfered with and it should culminate in the final order on the merits of the case. He further submitted that the learned magistrate has relied on two judgments rendered by this Court, viz. the case of Suresh Nathmal Rathi vs. State of Maharashtra, reported in 1991 Mh. L. J. 1106, and Radhabai Ramesh Malegave vs. State of maharashtra, reported in 1993 (1) Mh. L. J. 735. He submitted that these two decisions relied upon by the learned Magistrate does not lay down the law that the offence under section 498-A, Indian Penal Code is compoundable and submitted that in Rathis case, the wife came to live with her husband during the pendency of the case and was enjoying the marital life and so far as Radhabais case was concerned, a similar situation also existed there and the spouses were leading a happy matrimonial life for quite sometime even after filing the charge sheet and in those circumstances, the High Court directed compounding of offence only on the basis that the bickerings were wiped out and the spouses were leading a happy married life all throughout, and that compounding of offence under section 498a, indian Penal Code would further guarantee happy married life in future. Whereas in the present case immediately after the Petitioner was sent back on the pretext of delivery, she was called back and pressurized and deceived to sign certain documents, which she has later on realised was application for permission to compound offence under section 498-A, Indian Penal Code. As soon as the purpose was achieved, i. e. the learned magistrate passed the impugned order, the husband of the Petitioner issued a notice to her on 20-7-1994 asking the Petitioner to give her consent for divorce and so it can very well be said that the respondents have betrayed the Petitioner and the criminal case was compounded only with an object to get an acquittal in their favour with no desire to continue matrimonial relation and as such the ratio laid down in the two cases relied upon by the learned Magistrate for allowing composition became totally non-existent. It is therefore contended by the Petitioner that the impugned order should be set aside not only on the facts of the case, but also in law as composition of a non-compoundable case is not permitted either in law or on facts. It is contended by the Petitioner that the case registered against the Respondents is only under section 498-A read with 34, Indian penal Code on the ground that the Petitioner allegedly attempted to commit suicide whereas in fact this is a case where the Respondents have made attempt to commit murder of the Petitioner, which according to her has been wrongly investigated by the Police because her husband is a Police Constable and in these circumstances, she prays that the impugned order be set aside and the criminal Case bearing No. 67 of 1994 be restored on the file of the learned Magistrate and the respondents Nos. 1 and 2 who are accused, may be tried in accordance with the law for offence under sections 307, 498-A r/w 34 of the Indian Penal code.