Chandrakant Babulal Shah vs State Of Gujarat

                                                                                          NEUTRAL CITATION




     R/CR.MA/11915/2018                                      ORDER DATED: 31/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 11915 of 2018

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                  CHANDRAKANT BABULAL SHAH & 3 other(s)
                                Versus
                      STATE OF GUJARAT & 1 other(s)
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Appearance:
MR DAIFRAZ HAVEWALLA(3982) for the Applicant(s) No. 1,2,3,4
MR MANAN A SHAH(5412) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 31/08/2023

                                   ORAL ORDER

1. Rule. It is revealed from the documents that that applicant No.1 is father-in-law of the complainant, applicant No.2 is mother-in-law of the complainant, applicant No.3 is sister-in-law and applicant No.4 is brother-in-law of the complainant.

2. The present application is filed by the applicants by challenging the impugned F.I.R. C.R. No.I 134 of 2018 registered with the Adajan Police Station, Surat for the offences punishable under Sections 498A, 323, 504, 506(2) and 114 of the Indian Penal Code and Sections 3, 5 and 7 of the Dowry Prohibition Act.

NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined 2.1 Brief facts as per the case of the applicants in the application are as such that it starts by introducing the woman who gave birth to a son named Parv, emphasizing that she is currently aged 5 years. She details her allegations in an FIR. She claims that her husband and his family, including the applicants, have harassed her, specifically about not bringing a dowry.

The text highlights a series of incidents, some involving physical abuse, including a severe incident while she was in Surat attending her brother's wedding in 2015. This abuse allegedly involved her husband, and his parents incited him during this incident.

2.2 The woman reports that on 20th May 2016, she was asked to bring a dowry of Rs. 25,00,000/- from her father, or she would not be allowed to enter her matrimonial home. These allegations form the basis for her complaint, which she filed on 2nd June 2018, citing offenses under Section 498A, 323, 504, 506(2), and 114 of the IPC (Indian Penal Code), as well as Section 3, 5, and 7 of the Dowry Prohibition Act. This complaint was registered with the ADAJAN Police Station in Surat. The text then transitions to the case presented by the Page 2 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined applicants. Applicant No.1, who resides in Indore, is involved in the business of sanitary pipes. The text highlights the details of the marriage between the applicant's son and the woman, emphasizing that it was performed according to Hindu customs and that the engagement took place in Indore. The marriage reception was scheduled for Indore on 25th February 2008.

2.3 It is further the case of the applicants in this application are as such that within four months of the marriage, the couple embarked on a foreign trip for their honeymoon in Switzerland and Paris in June 2008. The husband took out a life insurance endowment policy in the woman's name on 28th September 2013, which he consistently paid premiums for. The woman used to visit her parents in Surat for extended periods several times a year. The husband made train reservations for the woman and their son for a journey on 20th May 2016, and also booked their return journey for 11th June 2016.

The applicants had planned a family tour to Dubai, scheduled from 24th October 2016 to 31st October 2016, but this was canceled due to a police complaint filed by the woman. Despite the police complaint and subsequent Page 3 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined complications, the husband sent a legal notice to the woman, urging her to return to their matrimonial home.

In response, the woman provided a reply on 10th October 2017, making allegations regarding the police complaint and the applicants' involvement. The applicants were surprised to learn that the woman had filed a police complaint against her husband and the applicants upon reaching Surat. Despite never receiving a copy of the police complaint, they visited Surat after receiving a telephonic intimation from the Adajan Police Station.

2.4 It is further the case of the applicants in this application are as such that the woman did not return to her matrimonial home despite the MOU, prompting the husband to file a petition under Section 9 of the Hindu Marriage Act in the Family Court at Indore.

Finally, the applicants stress that they are the parents and in-laws of the woman, and their aim has always been to facilitate the reconciliation of the couple. They assert that they have no connection to the alleged offenses and are falsely implicated solely due to their relation to the husband. Hence, the present application.

NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined

3. Heard learned senior advocate Mr. R. R. Marshall assisted by Mr. Daifraz Havewalla, learned advocate for the applicants, Mr. Manan A. Shah, learned advocate for the respondent No.2 - complainant, and Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP) for the respondent No.1 - State.

4. At the very outset, learned senior advocate Mr. R.R.

Marshall, on instructions received from his clients, submits that he does not press this application qua the applicant Nos.1 & 2. Permission as prayed for is granted. The present application is dismissed qua the applicant Nos.1 & 2 only.

5. The present applicant is considered qua the applicant Nos.3 & 4.

6.1 Learned senior advocate Mr. R.R. Marshall has drawn my attention to the impugned F.I.R., whereby it is revealed that no specific allegation alleged against the present applicant Nos.3 & 4 except one line that the sister-in-law of the complainant is instigating the husband. It is also revealed that the charge-sheet is filed Page 5 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined during the pendency of the application and in the charge-sheet, there is no material available against the applicant Nos.3 & 4. Therefore, he has contended that the present complaint is filed by the complainant after 10 years of marriage life, whereby on bare reading of the complaint, it is revealed that the present applicant Nos.3 & 4 are residing separately from the complainant and the no ingredients of sections as alleged the F.I.R.

is satisfied.

6.2 He has highlighted that the complaint is filed by implicating the entire family members with a view to harass the applicants, more particularly present applicants, against whom no offence is made out even from the reading of the F.I.R. Therefore, he has submitted that considering the phenomena that wherever there is matrimonial dispute between husband and wife, the complainant implicates every family members of the husband irrespective of any harassment caused by the family members by making general allegation. Therefore, he has submitted that this is a fit case where the Court should exercise the powers under Section 482 of the Criminal Procedure Code, 1973 in view of the judgment Page 6 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, to prevent the abuse of process of law. Hence, he prays to allow the present application.

7. Mr. Manan A. Shah, learned advocate for the respondent No.2 - complainant has drawn my attention to the affidavit-in-reply filed by him and has highlighted that prior to filing of this F.I.R., there is written complaint made by the present complainant to the Police Authority concerned and MOU is also executed by him.

The husband of the complainant has also taken unconditional apology. He has also submitted that considering the averments made in the F.I.R., prima facie, all the members of the family are involved in the commission of the offence. He has submitted that since the charge-sheet is filed, there is some material against the applicants including the present applicants and therefore, he has prayed to dismiss this application by now exercising the powers under Section 482 of the Criminal Procedure Code. However, when the Court has specifically made query that is there any specific allegation against the applicants. He has fairly submitted Page 7 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined that except the instigation, no other allegation is coming out on record of the application.

8. Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP) for the respondent No.1 - State has also the submissions made at the bar by the learned advocate for the respondent No.2 and has also further highlighted that the powers under Section 482 should be exercised very sparingly and when the police has investigated thoroughly, and charge-sheet is filed, it is not appropriate to scuttle the proceeding initiated pursuant the impugned F.I.R. at this stage and let the applicants face the trial. Therefore, he prays to dismiss this application.

9.1 I have considered the rival submissions made at bar. I have also perused the material evidence available on record. It is fruitful to refer the provisions of Sections 498A, 323, 504, 506(2) and 114 of the Indian Penal Code and Sections 3, 5 and 7 of the Dowry Prohibition Act, as under:

"Section 498A in The Indian Penal Code:-

NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined 376 [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 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 506 in The Indian Penal Code:-

506. Punishment for criminal intimidation.--Whoever Page 9 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, 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 description for a term which may extend to two years, or with fine, or with both.

Section 3 in the Dowry Prohibition Act, 1961:-

3. Penalty for giving or taking dowry.--1[ (1) ] If any person, after the commencement of this Page 10 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]: --1[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]\:" Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than 4[five years].] 5[(2) Nothing in sub-section (1) shall apply to, or in relation to,-- 1[(2) Nothing in sub-section (1) shall apply to, or in relation to,--"

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;

(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the Page 11 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined rules made under this Act: Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.] Section 5 in the Dowry Prohibition Act, 1961:-

5. Agreement for giving or taking dowry to be void.-- Any agreement for the giving or taking of dowry shall be void. --Any agreement for the giving or taking of dowry shall be void."

Section 7 in the Dowry Prohibition Act, 1961:- 1[7. Cognizance of offences.--

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of an offence under this Act except upon--

(i) its own knowledge or a police report of the facts which constitute such offence, or

(ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any Page 12 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined recognized welfare institution or organisation;

(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act. Explanation.-- For the purposes of this sub-section, "recognized welfare institution or organisation" means a social welfare institution or organisation recognized in this behalf by the Central or State Government. (2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to any offence punishable under this Act.] 2[(3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.] 2[(3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act."

9.2 At this stage, it will be fruitful to mention the judgment of the Hon'ble Supreme Court in the case of Preeti Gupta & Anr. (supra), wherein it is observed in paragraph 33 thus:-

NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined "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 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 Page 14 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined extremely long and painful."

9.3 Additionally, it become evident that the allegations made in the impugned F.I.R. qua the present applicant Nos.3 & 4, who happen to sister-in-law and brother-in-

law of the complainant are general in nature, which are made in only one line. It is also clear that the impugned F.I.R. is filed after marriage span of ten years and essentially, the dispute seems to be between the husband and wife, whereby other family members are also roped in the F.I.R.

9.4 Further, it will also be fruitful to mention 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 Page 15 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined 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 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.

NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined (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.

(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 Page 17 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023 NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined 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."

9.5 In light of the above and considering the role of the present applicant Nos.3 & 4, I am of the opinion that the present applicant Nos.3 & 4 are wrongly implicated in the impugned F.I.R. and continuation of the proceeding against the present applicant Nos.3 & 4 would amount to abuse of process of law, resulting to harassment to the present applicant Nos.3 & 4.

Therefore, the present application is required to be considered qua the present applicant Nos.3 & 4. For applicant Nos.1 & 2, the present application is already dismissed herein above.

10. Accordingly, the present application is allowed qua the present applicant Nos.3 & 4.

NEUTRAL CITATION R/CR.MA/11915/2018 ORDER DATED: 31/08/2023 undefined

11. The impugned F.I.R. C.R. No.I 134 of 2018 registered with the Adajan Police Station, Surat for the offences punishable under Sections 498A, 323, 504, 506(2) and 114 of the Indian Penal Code and Sections 3, 5 and 7 of the Dowry Prohibition Act and consequential proceedings are quashed and set aside qua the present applicant Nos.3 & 4.

Rule is made absolute.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 19 of 19 Downloaded on : Sun Sep 17 03:04:33 IST 2023