NEUTRAL CITATION
R/CR.MA/18056/2020 ORDER DATED: 09/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 18056 of 2020
With
R/CRIMINAL MISC.APPLICATION NO. 5143 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 1464 of 2021
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NUTANBEN AMITKUMAR SHARMA
Versus
STATE OF GUJARAT
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Appearance:
MR.DARSHAN A. DAVE(7921) for the Applicant(s) No. 1
MR DHARMESH R PATEL(5592) for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/10/2023
COMMON ORAL ORDER
1.1 Since the prayers and issues involved in the present petitions are identical in nature, hence, at the request of learned advocates for the parties, the matters are taken up for final consideration and Criminal Misc. Application No.18056 of 2020 is considered as lead matter and all the matters are heard together.
1.2 The present application is filed by the applicants under Section 482 of the Code of Criminal Procedure, 1973, for quashment of the impugned FIR Page 1 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined being C.R. No.11188012200017 of 2020 registered with the Mahila Police Station Modasa at Aravalli for the offences punishable under Sections 498A, 323, 504, 506(2), 294(b) and 114 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.
2. Brief facts as per the case of the application in Criminal Misc. Application No.18056 of 2020 are as such that on 08.09.2020, the Respondent no.2 - original complainant filed the aforementioned F.I.R. alleging that the marriage of the respondent No.2 was solemnized with Vikas i.e. accused No.1 who is the son of the Shyambabu Gulzarilal on 17.01.2017 as per hindu marriage rites and customs. Out of the wedlock, the respondent No.2 have birth one girl child namely Dishita, who is aged about seven months and she is residing with the complainant at her parental home. It is the case of the applicant in this applicant that the complainant was residing in joint family in one house at her matrimonial home and she was treated well during initial period, thereafter, the accused persons used to instigate the husband of the complainant and her husband used to give mental as well as physical torture Page 2 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined to the complainant. That, the accused No.1 i.e. the husband of the complainant asked for ten lakhs rupees dowry from the complainant to start his business and if she will not bring, he will burn her and she was warned to do whatever she wanted to do. That, the complainant had given the birth to dead child in the past, at that time the accused persons used to torture her mentally and physically and used to demand for dowry and hence, the complainant went to her parental home. It is further the case of the applicant in this applicant that, the father of the complainant had settled the dispute and thereafter, she was brought back to her matrimonial home. That, the accused No.1 i.e. her husband used to give fist blows to the complainant. That, the complainant was pregnant and hence, she went to her parental house at Modasa and on 04.01.2020, she had given birth to girl child. It is further the case of the applicant in this applicant that, the accused persons mentioned in the impugned F.I.R. did not come to see the child and in turn, when the accused persons were called for settlement at her home, they raised dispute and quarrel with the complainant and got provoked and given fist blows to the complainant and her father and demand Page 3 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined dowry from the complainant. Hence, the complaint is preferred. The applicant hereby prefer this application under Section 482 of the Code of Criminal Procedure, 1973 before this Hon'ble Court for quashing and setting aside the F.I.R. bearing F.I.R. C.R. No. 11188012200017 of 2020 registered with Modasa Mahila Police Station, Aravalli the offences under Sections 498 (A), 504, 506(2) and 114 323, of the Indian Penal Code and section 4 of Dowry Prohibition Act.
3. Heard learned advocates. Rule. Learned APP and learned advocate for the complainant waive service of notice of rule for and on behalf of the respective respondents.
4. Learned advocate for the applicant(s) in respective applications has submitted that the allegations made in the present FIR are general in nature and it is filed with an oblique motive to exert pressure on the applicants. Furthermore, he has pointed out that the original accused No.6 (applicant in Criminal Misc. Application No.18056 of 2020), Nutanben, wife of Amitkumar Sharma, is the sister-in-law (Nanand) of Page 4 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined respondent No.2, the complainant. The original accused Nos. 4 and 5 (applicant No.1 and 2, respectively, in Criminal Misc. Application No.1464 of 2021), Dilipkumar and Anitaben, are the brother-in-law and sister-in-law of the respondent No.2, the complainant. Lastly, the original accused Nos. 1 and 2 (applicant No.1 and 2, respectively, in Criminal Misc. Application No.5143 of 2021), Shyambabu Gulzarilal Sharma and Jayadevi, are the father-in-law and mother-in-law of the respondent No.2, the complainant. He has submitted that there were quarrels between the husband and wife, however, the in- laws are falsely dragged into the litigation. He has submitted that this is a case of over implication and the entire family is dragged by the complainant. He has relied upon the judgment of the Hon'ble Apex Court in the case of Kahkashan Kausar versus State of Bihar reported in (2022) SCC 6 599. He has submitted that this is an abuse of process of law and therefore, this application may be allowed.
5. Per contra, learned advocate for complainant has submitted that there is a prima facie case against the applicants. He has submitted that all the applicants have Page 5 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined played vital role in torturing the complainant mentally and physically. He has submitted that after giving birth of a baby girl, the in-laws have started harassment to the complainant. He has submitted that many a times, the husband came at home in a drunken condition and has beaten the complainant. He has submitted that the other in-laws have tried to give fuel to the quarrels between husband and wife and thereby they have tortured mentally to the complainant. He has submitted that this is not a fit case where this Court should exercise the powers under Section 482 of the Code in favour of the applicants.
6. Learned APP for the State has submitted that this is a case of abuse of law as the applicant(s) has sufficiently tortured the complainant as can be seen from the impugned FIR. He has submitted that looking to the complaint itself, prima facie case is made out against the applicant(s). He has submitted that due to the birth of a baby girl, the complainant was tortured by the in-laws, she was beaten by the husband and the in-laws have tried to see that the husband and wife gets separated. He, therefore, submitted that there is no case made out Page 6 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined to interfere by exercising powers under Section 482 of the Code as it is a case for trial.
7. I have heard rival contentions made by the learned advocates for the respective parties. I have also perused the documents available on record. Considering the submissions made by the learned advocates for the respective parties and also considering the documents available on record, the following factors are weighed with this Court for consideration of this application.
The marriage is solemnised between the complainant
- wife and accused No.1 - husband in the year 2017.
The impugned FIR is of the year 2020.
The allegations are of the year 2014-15. Looking to the complaint itself, the complainant and applicant No.1 - husband were residing separately. The allegations are general in nature. The original accused No.6 (applicant in Criminal Misc. Application No.18056 of 2020), Nutanben, wife of Amitkumar Sharma, is the sister-in-law (Nanand) of respondent No.2, the complainant. Page 7 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023
NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined The original accused Nos. 4 and 5 (applicant No.1 and 2, respectively, in Criminal Misc. Application No.1464 of 2021), Dilipkumar and Anitaben, are the brother-in-law and sister-in-law of the respondent No.2, the complainant.
The original accused Nos. 1 and 2 (applicant No.1 and 2, respectively, in Criminal Misc. Application No.5143 of 2021), Shyambabu Gulzarilal Sharma and Jayadevi, are the father-in-law and mother-in- law of the respondent No.2, the complainant There are no other family members.
All the family members are dragged into the litigation by the complainant.
It is a case of over implication.
No specific incident is stated in the FIR which is the primary specific requirement of the sections invoked by the complainant.
Prima facie, it seems that the impugned FIR is a pressurise tactic by the complainant. It is more social imbalance, less criminality.
8. Further, it will also be fruitful to refer to the judgment of the Hon'ble Supreme Court of India in the Page 8 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined 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 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 Page 9 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined 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.
(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 Page 10 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined 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. It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:
[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.] Page 11 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined
24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."
10. In view of above settled position of law and after considering the facts as alleged in the FIR and circumstances of the present case, it transpires that continuation of further proceedings pursuant to the said FIR will cause greater hardships to the applicant/s and no fruitful purpose would be served if such further proceedings are allowed to be continued. The Court must ensure that criminal prosecution is not used as instrument of harassment or for seeking private vendetta or with ulterior motive to pressurize accused or to settle the score.
11. For the reasons recorded above, the following Page 12 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023 NEUTRAL CITATION R/CR.MA/18056/2020 ORDER DATED: 09/10/2023 undefined order is passed.
11.1 The present application is allowed. 11.2 The F.I.R. bearing F.I.R. C.R. No. 11188012200017 of 2020 registered with Modasa Mahila Police Station, Aravalli the offences under Sections 498 (A), 504, 506(2) and 114 323, of the Indian Penal Code and section 4 of Dowry Prohibition Act, qua the original accused Nos.2 to 6 only.
11.3 The consequential proceedings arising out of the impugned FIR, if any, are also hereby quashed and set aside qua the original accused Nos.2 to 6 only. 11.4 Rule is made absolute to the aforesaid extent, qua the original accused Nos.2 to 6 only. Direct service is permitted.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 13 of 13 Downloaded on : Mon Oct 16 20:31:18 IST 2023