NEUTRAL CITATION
R/CR.MA/18031/2021 ORDER DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18031 of 2021
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NARESHBHAI HARGOVANBHAI SOLANKI(Does not press as per order
dt.13/10/2021)
Versus
STATE OF GUJARAT
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Appearance:
DELETED for the Applicant(s) No. 1
MR M R MOLAVI(3362) for the Applicant(s) No. 2,3
KAASH K THAKKAR(7332) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/08/2023
ORAL ORDER
1. At the outset, it is pointed out that vide order dated 13.10.2021, the present application was disposed of as not pressed qua applicant no.1.
2. Today, after arguing for some time, learned advocate for the applicant, upon instructions, seeks permission to withdraw this application qua applicant no.3. Accordingly, permission is granted. This application is disposed of as withdrawn qua applicant no.3. Notice is discharged qua applicant no.3.
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3. Now, this application remains to be considered qua applicant no.2 only.
4. This application is filed under Section 482 of the Code of Criminal Procedure, 1983 (`Code' for short) praying for quashing of the FIR being C.R.No.I- 11217006211090 of 2021 registered with Chanasma Police Station, Patan filed under Sections 498(A), 506(2) and 114 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.
5. The facts of the case of the present applicants are as under:-
5.1 The complaint came to be filed by the respondent no.2-complainant on 8.9.2021 stating that she was being taunted for not bringing anything from parental home and harassed physically and mentally; that the complainant married with original accused no.1- Nareshbhai Solanki before six years and out of the wedlock, they have a daughter aged five years. It is this FIR which is prayed to be quashed by way of this application.
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6. Heard learned advocate Mr.Molavi for the applicant no.2 and learned APP Mr.Joshi for the respondent no.1 and learned advocate Mr.Thakkar for respondent no.2. 6.1. Learned advocate Mr.Molavi for the applicant no.2 submitted that from the tenor of the FIR, there is no specific allegation against the applicant no.2 establishing his role for commission of offence under the sections invoked in the FIR. He further submitted that considering the FIR, except general allegation, no specific allegation is made against applicant no.2. He submitted that applicant no.2 is father-in-law of the complainant and aged about 60 years and working as a farmer and he has no connection whatsoever with the offences as alleged in the complaint. He, therefore, prayed to allow this application against applicant no.2 as the continuation of the proceedings will amount to abuse of process of law and cause undue harassment to the applicant no.2. 6.2 Per contra, learned APP Mr.Joshi for respondent no.1-state has submitted that prima facie case is made out against the applicant no.2 also and therefore Page 3 of 8 Downloaded on : Sun Sep 17 01:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/18031/2021 ORDER DATED: 18/08/2023 undefined this Court may not exercise the inherent powers under Section 482 of the Code.
6.3 Learned advocate Mr.Thakkar for respondent no.2-complainant has submitted that there is some allegation made in the complaint against the applicant no.2 which clearly implicate the applicant no.2 father-in- law of the complainant in the commission of the said offence and the same is required to be tested at the time of trial. He, therefore, submitted that this Court should not exercise inherent powers at this stage which is, otherwise, required to be exercised sparingly.
7. I have considered the rival submissions of the parties and also the FIR and other documents produced on record. The allegations alleged are mainly against the husband and also to some extent to the mother-in-law and brother-in-law of the respondent no.2-complainant. The role of the father-in-law is described by way of general allegation and no specific incident or any occurrence is attributed to the father-in-law-applicant no.2 herein in the entire FIR. Even in the affidavit filed by the complainant in the present proceeding, no such Page 4 of 8 Downloaded on : Sun Sep 17 01:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/18031/2021 ORDER DATED: 18/08/2023 undefined material is available, which prima facie, involves the present applicant no.2-father-in-law in the commission of the offences alleged in the impugned FIR.
8. It will also be fruitful to mention the judgment of 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.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face Page 5 of 8 Downloaded on : Sun Sep 17 01:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/18031/2021 ORDER DATED: 18/08/2023 undefined 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 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. Page 6 of 8 Downloaded on : Sun Sep 17 01:40:24 IST 2023
NEUTRAL CITATION R/CR.MA/18031/2021 ORDER DATED: 18/08/2023 undefined (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. In view of the above and on perusing the contents of the FIR, continuation of the proceedings against the applicant no.2 will amount to undue harassment and also amount to abuse to process of law as, considering the tenor of the FIR, no prima facie case under Sections 498(A), 323, 506(2) and 114 of Indian Penal Code and Section 4 of the Dowry Prohibition Act is made out qua applicant no.2.
10. In this view of the matter, this is a fit case to exercise the inherent powers under Section 482 of the Page 7 of 8 Downloaded on : Sun Sep 17 01:40:24 IST 2023 NEUTRAL CITATION R/CR.MA/18031/2021 ORDER DATED: 18/08/2023 undefined Code. Accordingly, this application is allowed qua applicant no.2. The impugned FIR being C.R.No.I- 11217006211090 of 2021 registered with Chanasma Police Station, Patan, as well as subsequent proceedings, if any, arising out of the same FIR are hereby quashed and set aside qua applicant no.2 only. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 8 of 8 Downloaded on : Sun Sep 17 01:40:24 IST 2023