Gujarat High Court

Anjuben Karsanbhai Jadav vs State Of Gujarat on 11 June, 2021

Bench: Nikhil S. Kariel

R/CR.MA/15109/2016                                  CAV JUDGMENT DATED: 11/06/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 15109 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2    To be referred to the Reporter or not ?                      No

3    Whether their Lordships wish to see the fair copyNo
     of the judgment ?

4    Whether this case involves a substantial questionNo

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== ANJUBEN KARSANBHAI JADAV & 4 other(s) Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

MR HRIDAY BUCH(2372) for the Applicant(s) No. 1,2,3,4,5 MR BHUNESH C RUPERA(3896) for the Respondent(s) No. 2 MS MOXA THAKKAR ADDITIONAL PUBLIC PROSECUTOR(2) for the

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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

Date : 11/06/2021

CAV JUDGMENT

1. Rule. Learned APP Ms. Moxa Thakkar waives service of rule

on behalf of respondent no.1- State. Learned Advocate Shri Bhunesh

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Rupera waives service of rule on behalf of respondent no.2- original

complainant.

2. By way of the present application, invoking jurisdiction of this

Court under Section 482 of the Code of Criminal Procedure,1973

( for short 'Cr.P.C.'), the applicants pray for quashing of Criminal

Complaint being C.R. No. I- 34 of 2016 registered with Sarkhej

Police Station on 01.06.2016 against the applicants for the offence

punishable under Sections 498A, 323, 294B, 504(1) and 114 of the

Indian Penal Code and offence punishable under Sections 3 and 7 of

the Dowry Prohibition Act. It would be pertinent to mention here

that complainant in the impugned complaint-respondent no.2 herein

is wife of one Mr. Chirag Karsanbhai Jadav and whereas accused in

the complaint- applicants herein are all in-laws of the complainant.

Applicant no.1 being the mother-in-law, applicant no.2 being father-

in-law, applicant no.3 being brother-in-law, applicant no.4 being

sister-in-law who is stated to be married and applicant no.5 being

aunt of the husband of the complainant.

3. Brief facts leading to the filing of the present complaint, can be

summarized as herein-below.

The complainant had got married to Chiragbhai Karsanbhai

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Jadav on 14.12.2010 and as per the customs of their community, the

complainant had lived with the parents and after two years of the

marriage, she had been taken to her matrimonial house by her in-

laws. The present complaint came to be registered on 01.06.2016

and whereas it is mentioned in the complaint itself that the

complainant was not residing in her matrimonial house since

'Diwali' of the year 2013.

The allegations levelled in the complaint inter alia being that at

the time of marriage of the complainant on 14.12.2010, she had

been presented with gold and silver ornaments by her parents. That

even after her marriage, when she was residing in her parental

house, husband of the complainant used to frequently visit her and

at that time he had objected to the complainant pursuing her studies

and whereas on one occasion, the husband of the complainant had

allegedly tore the hall ticket for her second year examination. It is

further alleged that after she had gone to her matrimonial house, she

had given all her ornaments to her mother-in-law and father-in-law.

That when she was residing in her matrimonial home, her sister-in-

law had come to reside at the matrimonial home of the complainant

for her delivery and whereas it is alleged that the mother-in-law,

sister-in-law as well as father-in-law used to taunt her by saying that

she did not know how to do household work and she did not know

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how to cook properly. It is further alleged that during this period

after the sister-in-law of the complainant had given birth to a baby

boy, applicant no.5 i.e paternal aunt of the husband of the

complainant had come to reside in the matrimonial home of the

complainant and it is alleged that mother-in-law, sister-in-law and

paternal aunt-in-law of the complainant were abusing her and used

to mentally torture her and whereas she would be permitted to eat

only after all the members of the house had their food. It is further

alleged that on occasion of marriage of brother of the complainant,

initially applicants did not permit the complainant to attend the said

marriage. It is further alleged that upon being refused permission to

attend the marriage of her brother, the complainant had started

crying at which time it is alleged that husband of the complainant as

well as brother-in-law of the complainant had assaulted the

complainant. It is further stated that after intervention of parents of

the complainant, her in-laws had relented and husband of the

complainant had left her at her matrimonial home a week before the

marriage and whereas the husband of the complainant had shown

his disinclination to attend the marriage and whereas upon being

persuaded by the parents of the complainant, husband of the

complainant as well as in-laws of the complainant had attended the

marriage but after coming back from the marriage, husband of the

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complainant had quarreled with the complainant stating that parents

of the complainant did not know how to gift their only son-in-law.

It is also alleged that in- laws of the complainant had also taunted

her for the same.

Thereafter it is alleged that the in-laws of the complainant had

demanded Rs. 19,00,000/- from the complainant asking her to get

the said amount from her father for purchasing a shop for the

husband of the complainant. It is alleged that when the complainant

had told that her father would not have such huge amount, she had

been abused and taunted and whereas the in-laws of the

complainant were regularly telling her that she would be allowed to

reside in her matrimonial home only after she brings the said Rs.

19,00,000/- and therefore ultimately since the complainant used to

oppose such demand, after Diwali of the year 2013, husband of the

complainant had left the complainant at her paternal home. It is

further alleged that on 31.03.2016 at around 12 P.M. father-in-law

of the complainant had come near the paternal home of the

complainant and had called her father and whereas the father-in-law

of the complainant had told her father to get the amount of

Rs.19,00,000/- immediately whereafter the complainant could be

able to return her matrimonial home. It is further alleged that

father-in-law of the complainant works in the Municipal

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Corporation and had threatened the father of the complainant that

he would file false case against father of the complainant and that

he would also ensure that acid is thrown on the face of the

complainant. Thus threatening, father-in-law of the complainant had

left. On the above allegations the impugned criminal complaint

came to be filed.

4. Heard learned Advocate Shri Hriday Buch for the applicants,

learned APP Ms. Moxa Thakkar for the respondent no.1- State

and learned Advocate Shri. Bhunesh Rupera for respondent no.2-

original complainant. Learned Advocate Mr. Hriday Buch at the

outset submits that he would not press application as far as

applicants no. 1 and 2 are concerned. i.e for the father-in-law and

mother-in-law. Learned Advocate Shri Hriday Buch submitted that

as regards other applicants-accused this is clear case of the

complainant misusing the due process of law by filing complaint

with vague allegations almost two and half years after she had left

her matrimonial home. Learned Advocate further submits that since

allegations have been primarily made against husband of the

complainant, he is not joined as applicant in this application and

whereas the allegation levelled against the other applicants are

absolutely general in nature. He further submits that this is also clear

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case of over implication inasmuch as brother in-law of the

complainant is also arraigned as accused, who at the time of filing of

the complaint was around 21 years and during the period when the

allegations had been levelled would be aged around 18 and 19

years. Learned Advocate further submits that as far as sister-in-law

of the complainant is concerned, she had got married in the year

2008 and is residing separately. Further as regards the paternal aunt-

in-law, it is submitted that she is also residing separately and is aged

around 81 years. Learned Advocate further submits that from the

bare perusal of the complaint, no allegations as would constitute

offence punishable under Section 498A of the Indian Penal Code

are made out. He further submits that the complaint is a clear case

of counter-action by the complainant inasmuch as while the

complaint is filed in the month of June 2016, the husband of the

complainant had preferred application before the learned Family

Court at Ahmedabad under Section 9 of the Hindu Marriage Act

praying for restitution of conjugal rights. The said application had

been preferred in the month of July 2015 and whereas this

complaint is filed almost a year of the same is nothing but a

counter-action by the complainant. He further submits that as

regards the allegations under the Dowry Prohibition Act namely the

act of the applicants having sought for an amount of Rs.19,00,000/-

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from he complainant, no such demand had been ever made and

furthermore if such demand has been made, the complainant would

have lodged the complaint immediately after leaving her

matrimonial home. In conclusion, learned Advocate for the

applicants submits that from the plain reading of the complaint, no

offence is made out and therefore he submits that this Court may

be pleased to quash the same qua the applicants.

5. As against the same, learned Advocate Mr. Bhunesh Rupera

for the respondent no.2- original complainant submits that the

complaint specifically alleges cognizable offences committed by the

applicants herein. He further submits that complaint had not been

filed immediately, with the hope that the things can be resolved and

the complainant could continue her married life. He further submits

that from the sequence of events, it becomes clear that harassment

was with regard to taunting the complainant for not having

knowledge how to do household work and had not having

knowledge in cooking properly, the complainant had somehow

undergone suffering just with a view to save her married life. That it

was only after the demand for an exorbitant sum had been made by

the applicants and harassment for getting such exorbitant sum went

beyond tolerable limits, that the complainant had raised her voice.

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Moreover learned Advocate for the respondent no.2 submits that

from the complaint, it becomes clear that it was the husband of

complainant who had left the complainant at her paternal home in

the year 2013 and that the complainant had not voluntarily left her

matrimonial home. He further submits that as far as offences under

the Dowry Prohibition Act are concerned, along with allegations

before the year 2013 there is specific allegation about the father-in-

law of the complainant having come near the paternal house of the

complainant and had called the father of the complainant and had

asked him to arrange for the money immediately and give it to the in-

laws of the complainant so that the complainant can return to her

matrimonial home. Learned Advocate therefore submits that this is

not a case of vague allegations being levelled against the applicants

and whereas in view of the specific allegations, he submits that this

Court may not interfere with the complaint.

6. Learned APP Ms. Moxa Thakkar for respondent no.1- State

submits that serious allegations have been levelled against the

applicants herein and therefore this Court may not interfere with the

impugned complaint.

7. Learned Advocates for the parties have made no other

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submissions.

8. In view of the statement of learned Advocate Shri Hriday C.

Buch that he does not press this application insofar as applicants no.

1 and 2 are concerned, now before this Court there are three

applicants namely applicant no.3 being bother-in-law, applicant no.4-

being sister-in-law and applicant no.5 being paternal aunt-in-law. As

far as allegations against such applicants in the complaint are

concerned, against the applicant no.3- brother-in-law the allegations

being that he along with his brother i.e. husband of the complainant

had assaulted the complainant when the complainant had cried after

being told that she would not be allowed to attend her brother's

marriage. As far as applicant no. 4 is concerned, i.e. sister-in-law, it is

pointed out that she had got married in the year 2008 i.e two years

prior to the marriage of the complainant and approximately five years

before complainant had come to her matrimonial home. It is further

submitted that the said applicant had come to her matrimonial home

for the purpose of delivery of her child and whereas after delivery she

had returned back to her matrimonial home. The allegations against

the said applicant being general in nature and no specific allegation

has been mentioned.

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8.1 As far as applicant no. 5 is concerned, she is the paternal

aunt-in-law of the complainant who is aged around 81 years and who

is stated to be residing at completely different place than the

matrimonial home of the complainant. Before analyzing whether the

acts allegedly done by the applicants no. 3, 4 and 5 would constitute

'cruelty' as defined under Section 498A of the Indian Penal Code, this

Court deems it appropriate to refer to the decision of Preeti Gupta &

Anr vs. State of Jharkhand & Anr reported in 2010 (7) SCC 667 at

para 29, 33 and 34 which read as under:

"29. Admittedly, appellant 1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant 2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent 2 and her husband. Their implications in the complaint is meant to harass and humiliate the husband's relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations."

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8.2 Analyzing allegation against the applicants no.3, 4 and 5 with

regard to ratio laid down by the Hon'ble Supreme Court in case of

Preeti Gupta & Anr(supra), this Court does not have any hesitation

in coming to the conclusion that this is a clear case of over

implication of the said applicants. It would be pertinent to mention

here that applicant no. 3 during the period mentioned in the

complaint would be aged round 18 years , studying in around 11 th

and 12th standard and to expect the said person to assault his sister in

law along with his brother would be in the opinion of this Court is

completely far fetched. It is clearly appearing that the said allegation

is mainly with regard to the husband of the complainant and the

name of the applicant no. 3 has been mentioned just to make sure

that he is implicated in the complaint.

8.3 As far as applicants no. 4 and 5 are concerned, in the

considered opinion of this Court, the allegations levelled against the

applicant are absolutely vague and general in nature and whereas the

said allegations in the opinion of this Court, would not constitute

'cruelty' as defined under Section 498A of the Indian Penal Code.

This Court is of the opinion that the allegations were not of such

nature as would have driven the complainant to cause any grave

injury or danger to life by the complainant herself.

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9. As far as the allegations under the Dowry Prohibition Act are

concerned, the allegations are mainly against the husband of the

complainant as well as the mother-in-law and father-in-law of the

complainant who are not before this Court any more.

9.1. Furthermore, this Court is of the clear opinion that the

complaint insofar as the applicants no. 3, 4 and 5 are concerned,

this is clear case of counter action by the complainant more than

two and half years after she had left her matrimonial home and

almost after an year after husband of the complainant had preferred

application for restitution of conjugal rights. For this reason also this

Court is not inclined to accept the contention on part of the learned

Advocate for respondent no.2- original complainant that there was

sufficient reasons for the delay which had occurred in lodging the

complaint. This Court is of the opinion that inso far as applicants

before this Court now, the present complaint is nothing but abuse

of process of the Court and abuse of process of law. This Court is

also of the opinion that the present case clearly falls under categories

(1), (5) and (7) laid down by the Hon'ble Supreme Court in case of

State of Haryana and Ors. vs. Ch Bhajan Lal and Ors. reported in

1992 SCC Supl.(1) 335. Paragraph 102 of the said judgement is

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reproduced hereinbelow:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a seres of decisions relating to the exercise of the extraordinary power under Article 226 or inherent powers under Section 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 or myriad kinds of cases wherein such powers 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 made 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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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 Section 155(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.

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(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.

9.2 As stated hereinabove, this Court is of the clear opinion that

the present case falls under categories (1), (5) and (7). This Court is

of the opinion that the allegations made in the First Information

Report as against the applicants no. 3 , 4 and 5 even if they are taken

at their face value and accepted in their entirety do no prima facie

constitute any offence against the applicants. Furthermore, this

Court is also of the opinion that uncontroverted allegations made in

the complaint do not make out case against the applicants no. 3, 4

and 5 herein and that allegations more particularly allegations against

the applicant no. 3, 4 and 5 are clearly absurd and inherently

improbable on the basis of which no prudent person can reach just a

conclusion that there is sufficient ground for proceeding against the