Akashkumar Rajubhai Patel vs State Of Gujarat
2023 Latest Caselaw 2812 Guj

   R/CR.MA/14958/2016                              ORDER DATED: 10/04/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 14958 of 2016

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                AKASHKUMAR RAJUBHAI PATEL & 9 other(s)
                              Versus
                    STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BHARAT T RAO(697) for the Applicant(s) No. 1,10,2,3,4,5,6,7,8,9
MR RAJKUMAR CHAUMAL(3501) for the Respondent(s) No. 2
MR LB DABHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                            Date : 10/04/2023

                             ORAL ORDER

1. By this application filed under Section 482 of Cr.P.C., the applicants, seek to invoke inherent powers of this Court, praying for quashment of First Information Report being I- C.R.No.111 of 2016 registered with Prantij Police Station, Dist: Sabarkantha for the offences punishable under Sections 498A, 323, 504 and 114 of the Indian Penal Code.

2. Facts and circumstances giving rise to filing of present application are that, the applicant no.1 is the husband of respondent no.2, whereas, applicants no.2 and 3 are mother-in-law and father-in-law of respondent no.2-wife. The applicants no.4 to 9 are sisters-in-law and their husbands respectively, whereas applicant no.10 is the neighbour of applicant no.1. The applicants have been charged with Section 498A, 323, 504 of the Indian Penal

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Code. The marriage was solemnized on 06.12.2014. The respondent no.2-wife was serving as Nurse, with the private hospital. On 10.05.2016, the respondent no.2-wife eloped with one Vishal Patel with whom she had intimate relations. On 11.05.2016, missing complaint was being lodged by the applicant no.1-husband. On 26.05.2016, the questioned FIR came to be filed by the wife, against in all 10 persons, alleging inter-alia that, after some time of the marriage, she was subjected to mental and physical cruelty by the husband and his relatives. It is alleged that, the accused pressurized her to leave the job and she was tortured by the accused with respect to household works. So far sisters-in-law are concerned, it is alleged that, on different occasions, they used to come at the matrimonial home and supported the act of accused no.1 to 3.

3. In the aforesaid facts, the offence was registered against the applicants and after completion of investigation, charge-sheet came to be filed for the offences as referred above.

4. Heard learned counsel Mr.B.T. Rao for the applicants, learned Additional Public Prosecutor Mr.L.B. Dabhi for the respondent-State. Though called out, learned counsel Mr. Rajkumar Chaumal for the respondent no.2 did not remain present.

5. Mr. B.T. Rao, learned counsel appearing for and on behalf of the applicants submitted that, this is a classic example

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of misuse of process of law as by making exaggerated version of the concocted incident, without specific instances of harassment, total 10 persons have been impleaded as accused in the questioned FIR; the allegations made in the FIR seems to be general and vague and the proceedings initiated with malafide and/or ulterior motive and to pressurize the accused no.1- husband to withdraw the complaint filed under Section 497 of the Indian Penal Code; that, admittedly, the accused no.4 to 9 are living separately at their respective places and they have nothing to do with the alleged act of cruelty and other allegations leveled in the FIR; that, before marriage, the respondent no.2 had an affair with one Vishal Patel and she eloped with him from the parental home and same facts are being admitted by the father and mother of the private respondent; that, the respondent-wife after lodging the FIR, settled at U.S.A and she is not interested to pursue the proceedings; that, by way of compromise, the marriage was dissolved by way of notarized agreement wherein the respondent-wife has agreed to withdraw the criminal proceedings.

6. In view of the aforesaid contentions, learned counsel Mr. Rao would submits that, the allegations made in the FIR even if they are taken at their face value and accepted as it is, do not prima-facie constitute the offence under Section 498A etc.

7. On the other hand, learned Additional Public Prosecutor for the respondent-State Mr. Dabhi vehemently opposed

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the plea of quashing and contended that, this is not a exceptional case to exercise inherent powers of this Court and when prima-facie offence is made out, the Court should not exercise to stifle a legitimate prosecution.

8. The scope and power of the High Court to quash the first information report is well settled. The power under Section 482 of the Code has to be exercised sparingly and cautiously to prevent the abuse of process of Court and to secure the ends of justice. The High Court should refrain from giving a prima-facie decision, unless there are compelling circumstances to do so. Taking the allegations, as they are, without adding or subtracting anything, if no offence is made out, only then, the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 of the Cr.P.C.

9. The Apex Court in case of State of Haryana vs. Bhajan Lal reported in (1992) Supp 1 SCC 335 has laid down the guidelines that must be adhered to while exercising inherent powers under Sections 482 of the Code to quash the criminal proceedings. The relevant paragraph reads thus:

"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 series of decisions relating to the exercise of the extraordinary power under Article 226 or the 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

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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 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. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fides 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."

10. Since the FIR in question emanates from matrimonial disputes. Recently, the Apex Court in case of Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar & Ors. reported in (2022) 6 SCC 599 held and observed that, in recent times, matrimonial litigation in the country has increased significantly which led in an increased

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tendancy to employ provision such as 498A Indian Penal Code as instruments to settled personal scores against the husband and his relatives. In para-17 of the judgment, it is observed that:

"17. ..... this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."

11. In matrimonial case, the Apex Court in the case of Preeti Gupta and another vs. State of Jharkhand and another reported in (2010) 7 SCC 667 observed that, a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that, exaggerated version of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in very large number of cases.

12. In the case of Geeta Mehrotra and Anr. v. State of Uttar Pradesh and Anr reported in (2012) 10 SCC 741, it is observed that, family members of the husband are being implicated without allegations of active involvement and they are being implicated casually.

13. Heard at length learned counsel for the applicant

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and learned State counsel. Perused the material placed on record.

14. Having regard to the facts and circumstances of present case, the issue arise for determination is whether the applicants have made out a case for quashing of FIR?

15. The applicants herein are husband, mother-in-law, father-in-law, married sisters and their husbands and neighbour. The marriage was solemnized on 06.12.2014. The married sisters living separately at their respective matrimonial homes. It is not in dispute that, the respondent no.2 fell in love with one Vishalkumar and prior to lodgement of the FIR, she eloped with him and stayed together for about 2 to 3 days. When it came to knowledge of the applicant no.1-husband that the respondent no.2- wife did not report at home, he along with mother and father of the wife searched her near the vicinity and it was found that, she eloped with one Vishalkumar. The mother and father of the respondent no.2-wife have jointly filed an affidavit stating, inter-alia that, there was no fault on the part of the husband and in-laws and allegations of ill treatment alleged in the FIR are false and concocted. Record indicates that, the respondent no.2- wife after registration of the FIR, left India and since last 3 years, she is settled at U.S.A. In these background facts and considering the allegations leveled in the FIR which are vague and general in nature and there is no specific instances of harassment being alleged against each of the accused, which led to conclusion that, the FIR is filed

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with malafide intention and it is a counterblast to the complaint of adultery filed by the applicant no.1-husband. The impleadment of 10 persons without there being any specific instances of harassment speaks for themselves. It needs to be noted that, after lodgement of the FIR, the marriage was dissolved and parties have agreed to withdraw the litigations arising out of matrimonial disputes.

16. For the foregoing reasons, considering the peculiar facts and circumstances of present case, it prima-facie establishes that, the allegations made in the FIR accepted as it is, do not constitute an offence under Section 498A, 323 and 504 of the IPC. The case is fully covered by categories (i), (iii), (v) and (vii) as enumerated by the Apex Court in Bhajan Lal's case (supra). Thus, the unfounded proceedings filed against the applicants, needs to be quashed to prevent the abuse of process of Court and to secure the ends of justice.

17. Resultantly, this application is allowed. The impugned FIR being I-C.R.No.111 of 2016 registered with Prantij Police Station, Dist: Sabarkantha as well as other consequential proceedings are hereby quashed and set aside qua the applicants herein. Accordingly, Rule is made absolute. Direct service is permitted.

(ILESH J. VORA,J) TAUSIF SAIYED