NEUTRAL CITATION
R/CR.MA/4142/2017 ORDER DATED: 08/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4142 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 7165 of 2017
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HARISHCHANDRA MAGANBHAI PATEL & 2 other(s)
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR ADIL R MIRZA(2488) for the Applicant(s) No. 1,2,3
MS SONAL D VYAS(999) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1 - State
RULE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/08/2023
COMMON ORAL ORDER
1. Since the issues involved in the present applications are identical in nature, Criminal Misc. Application No.4142 of 2017 is considered as leading matter.
2. The present application is filed for seeking following main reliefs:-
"(B) Your Lordships may be pleased to quash and set aside the FIR being C.R. No.II-110 of 2016 registered with Vapi Town Police Station, District Valsad, for offences punishable under Sections 498A, 323, 504 and 114 of the Indian Penal Code;
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NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined (C) Pending admission, hearing and final disposal of this application, Your Lordships may be pleased to stay the further proceedings of the FIR being C.R. Noll-110 of 2016 registered with Vapi Town Police Station, District Valsad, for offences punishable under Sections 498A, 323, 504 and 114 of the Indian Penal Code; (D) Your Lordships may be pleased to grant such other and further relief/s that may be deemed fit and proper in the interest of justice."
3. Brief facts as per the case of the applicants in this application are, as stated in the FIR are as such that the first informant resides at the address mentioned in the FIR. It is stated in the FIR that the first informant is residing with her parents. It is also stated in the FIR that the first informant is having son viz., Shivan aged 1 year and six months. It is also stated in the FIR that the computerized application dated 10.03.2016 is shown to the first informant and also Special Criminal Application No 3996 of 2016 along with the order passed thereon is also shown to the first informant and made to understand that the said application was made by the first informant and there is also a signature of the first Page 2 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined informant. It is also stated in the FIR that the first informant got married in the month of May, 2013 at Umargam Court and after that the first informant was residing for some time at her parental home. It is further stated in the FIR that as the mother-in-law of the first informant was not keeping good health, she was time and again staying at the matrimonial home also. It is further stated in the FIR that at that time the marriage life of the first informant was going well. It is further stated in the FIR that later on in the year 2014, the marriage of the first informant took place with the accused No.1 in the FIR as per rituals and after that the first informant had went to her matrimonial home. It is further stated in the FIR that at that time, the father-in-law of the first informant namely Harishchandrabhai, brother-in-law Vivekbhai, mother-in- law Premilaben and sisterin-law in Pruviben along with husband Gauravbhai started harassing the first informant from the very next day. It is also alleged that the first informant was to go at her parental home next day for some rituals. However, all the above mentioned accused did not allow the first informant to go to her parental home. Upon requests being made by the first informant, Page 3 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined the first informant was made to visit her parental home for one hour and when the first informant returned back, the father in law of the first informant namely Harishchandrabhai inquired as to what did the first informant have brought from her parental home. It is also alleged that she was also told that the arrangements were not made in the marriage as per the previous talks and the first informant was taunted and was verbally abused by using filthy language. It is also alleged that the brother-in-law viz. Vivekbhai also verbally abused by using filthy language. It is also alleged that the mother-in-law as well as the sister-in- law also supported the said accused persons. It is stated in the FIR that after the said marriage, the first informant had resided for one month at Vapi at that time, as there was marriage of the cousin of the first informant namely Krunal, he had come to the first informant from her matrimonial home, but she was not permitted to go and was only permitted to go on the day of marriage for some hours. It is also stated that at that time, the husband of the first informant also accompanied the first informant and during that time, the said persons have not even talked with the parents Page 4 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined of the first informant. It is further alleged that during one month, all the above mentioned persons started taunting in small matters and harassed the first informant. It is also alleged in the FIR that the first informant was also asked to get the expenses incurred in the marriage or else the first informant should go back to her parental home. It is further stated that the first informant and her husband Le accused No. 1 namely Gauravbhai went to Lutun (UK) in the month of March, 2014 and that the first informant resided at that place along with her husband and her sister-in-law. It is alleged that the first informant was also harassed by her husband and her sister-in-law namely Purviben in some small matters and even physically assaulted. It is also alleged that after some time, the brother-in-law of the first informant namely Vivek and the mother-in-law Premilaben also went at UK and all the said accused persons together harassed the first informant and taunted her. It is also stated in the FIR that the first informant then became pregnant and at that time also, she was physically assaulted. However, keeping in mind the social obligations and the marriage life is not spoiled, the first informant stayed there. It is further Page 5 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined stated that the mother-in-law as well as the brother-in- law before birth of the child namely Shiven returned back to India. It is further alleged that the first informant was studying there and at that time also, the husband as well as the sister in law Purviben was harassing the first informant. It is stated that after that, the health of the mother in-law of the first informant got deteriorated and, therefore, they returned to Indin in October, 2015 along with the husband namely Gauravbhai and sister in law namely Parviben, It is further stated that after two three days. mother of the first informant expired and as per the rituals, as the first informant was required to go to her parental home, the father of the first informant namely Jayantibhai was to come to pick the first informant and inquiry was made in that regard and no reply was made and the harassment continued by way of taunting in small matters. After that the first informant was permitted to go to her parental home and first informant stayed there for 8 to 10 days and during that period, the first informant had informed regarding the harassment imparted by the family members. However, with a view to see that the marital life is not spoiled, no complaint Page 6 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined was made. It is further stated that the in-laws again came to stay with the first informant and the first informant went at Vapi and resided there upto February, 2016. It is further stated that during that period also, the husband as well as the brother in-law, father-in-law and sister-in law were taunting and harassing the first informant. It is also alleged that on one day, the in-laws have driven out of the first informant from their residence and the first informant was made to sleep along with her son outside the residence and after that, the first informant on 10.02.2016 left for her parental home and told about all the harassment made to her parents and family members. It is also stated on 14.02.2016, the in-laws of the first informant had come to again take back the first informant however, the first informant did not go there. At that time also, the husband of the first informant verbally abused and after 8 to 10 days, the first informant as well as her father went to Jyoti Samaj, Navsari, for getting divorce: and an application was made and Jyoti Samaj had called both the parties on 10.03.2016, however, on 09.03.2016 at about 9:30 in the morning, the husband of the first informant along with two three persons came in white Page 7 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined coloured car and took away son Shivan and left and after that the application was made to the police and an application was made with the Navsari Court for getting the possession of the child and even a petition was filed before the Honourable High Court. It is also stated that firstly habeas corpus petition was made and after order being passed in the said habeas corpus petition, the inquiry was made by the Police Officers and it was found that the husband of the first informant had taken their son Shivan on 09.03.2016 from Mumbai Airport via Jet Airways Flight to Dubai and, therefore, the FIR came to be lodged against the present applicants along with the accused No.1, who is the husband of the first informant. Further, pursuant to the registration of the FIR, the present applicant Nos. 1 and 2 were arrested and were granted bail by the police on 20.11.2016. Hence, the present application is preferred.
4. Heard learned counsel Mr. Adil Mirza, representing the applicants, Ms. Sonal Vyas, learned counsel, represent the respondent No.2 - complainant and learned Additional Public Prosecutor (APP) Mr. Dhawan Jayswal, representing the respondent No.1 - State. Page 8 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023
NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined 5.1 Learned counsel Mr. Adil Mirza, representing the applicants, has submitted that Criminal Misc. Application No. 4142 of 2017 has been filed by the father-in-law, brother-in-law, and sister-in-law of the first informant. He has produced on record the death certificate of the first informant's father-in-law, who passed away on April 29, 2021. The present application is thereby abated qua the applicant No.1 - Harish.
5.2 Furthermore, qua the applicant Nos. 2 & 3, he argues that considering the allegations in the impugned F.I.R., it is evident that the applicants are falsely implicated in the complaint. He contends that no offense is established against the applicants. He also points out that even if there were allegations against the husband, given subsequent developments, no viable case remains against him. He asserts that the complaint is filed with a mala fide intention.
5.3 Additionally, in light of the withdrawal of the application related to the Domestic Violence Act, and considering that the Court has kept the matter before Page 9 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined the Lok Adalat for an appropriate order, the prayers made in the present application would not survive. Continuing this application is deemed fruitless, in line with the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal, reported in AIR 1992 SC 604. Therefore, he prays to allow this application.
6 On the contrary, Ms. Sonal Vyas, learned counsel representing respondent No.2 - the complainant, opposes the contentions put forth by the learned counsel for the applicants. She contends that despite the withdrawal of proceedings under the Domestic Violence Act, the impugned F.I.R. establishes a prima facie case under Section 498A of the Indian Penal Code against the accused individuals. She urges this Court not to exercise its powers under Section 482 of the Criminal Procedure Code, 1973 at this juncture.
7 Learned Additional Public Prosecutor (APP) Mr. Dhawan Jayswal, representing respondent No.1 - the State, supports the submissions of the learned counsel representing respondent No.2 - the complainant. He Page 10 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined asserts that a prima facie offense is made out from a bare reading of the impugned F.I.R. He contends that this Court should not exercise the powers under Section 482 of the Criminal Procedure Code, 1973, which must be exercised very sparingly.
8.1 I have heard the learned counsels representing the respective parties. I have considered the rival submissions made at the bar by the respective parties. I have also considered the tenor of the F.I.R. 8.2 It is clear that the father-in-law of the first informant passed away during the pendency of the proceedings. Moreover, the brother-in-law and sister-in-law of the first informant have been implicated in the impugned F.I.R. filed under Sections 498A, 323, 504 & 114 of the Indian Penal Code, 1973, as follows:
"Section 498A in The Indian Penal Code:-
498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three Page 11 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 323 in The Indian Penal Code:-
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 504 in The Indian Penal Code:-
504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either Page 12 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined description for a term which may extend to two years, or with fine, or with both.
Section 114 in The Indian Penal Code:-
114. Abettor present when offence is committed.-- Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence." 8.3 Given the aforementioned and taking into account that the complainant was initially residing with all family members and subsequently moved to London with her husband, it is alleged that further harassment ensued from her sister-in-law.
8.4 In this context, it is relevant to mention the judgment of the Hon'ble Supreme Court in the case of Preeti Gupta & Anr. (supra), where it is observed in paragraph 33:
"33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority Page 13 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."
8.5 In light of the above, and taking into account the withdrawal of the complaint under the Domestic Violence Act and considering the totality of the facts and Page 14 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined circumstances of the present case, no fruitful purspose would be served in continuing the present application, in line of the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
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NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined (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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.
(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. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Page 16 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023 NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined sec.156(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is 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."
9. Accordingly, the present application is allowed. Page 17 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023
NEUTRAL CITATION R/CR.MA/4142/2017 ORDER DATED: 08/08/2023 undefined
10. Impugned FIR being C.R. No.II-110 of 2016 registered with Vapi Town Police Station, District Valsad, for offences punishable under Sections 498A, 323, 504 and 114 of the Indian Penal Code as well as consequential proceedings arising out of the impugned F.I.R. are hereby quashed and set aside.
Rule is made absolute.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 18 of 18 Downloaded on : Sun Sep 17 00:42:45 IST 2023