Kaluram Dolaji Prajapati vs State Of Gujarat
2023 Latest Caselaw 2953 Guj

      R/CR.MA/19583/2014                             ORDER DATED: 17/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC. APPLICATION NO. 19583 of 2014

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                     KALURAM DOLAJI PRAJAPATI & 5 other(s)
                                   Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
MS ANUJA S NANAVATI(5229) for the Applicant(s) No. 1,2,3,4,5,6
ADVOCATE NOTICE SERVED for the Respondent(s) No. 3
DS AFF.NOT FILED (N) 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 : 17/04/2023

                                 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 CR No. 78 of 2014 registered with Kapadwanj Town Police Station, Dist.: Kheda, for the offences punishable under Sections 498A, 323, 506(2) and 114 of the Indian Penal Code and Section 3 and 4 of the Dowry Prohibition Act, 1961.

2. Facts and circumstances giving rise to file present application are that, the applicant nos. 1 and 2 are father-in-law and mother-in-law of respondent no. 3, whereas, the applicant nos. 3 and 4 are brother- in-law. The applicant nos. 5 and 6 are the sister-in-law and her husband of the respondent no.3 wife. The marriage of the respondent no. 3 with accused Rajesh Kaluram was solemnized on 03.04.2004.

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The respondent no. 3 wife has alleged that, she was subjected to mental and physical cruelty by the husband and in-laws. The questioned FIR is being filed on 21.11.2014. It is alleged in the FIR that the accused applicants started harassing her as she gave a baby girl. She was harassed on petty issues of household works. It is alleged that, when she had filed maintenance application, claiming maintenance from the husband, the parties have settled the dispute amicably and again she returned back at her matrimonial home. It is further alleged the wife respondent no.3 in her FIR that, again she was subjected to mental and physical harassment by the husband and in-laws. It is specifically alleged against the husband that, she was asked to bring Rs. 20 lakhs from her father and out of the demanded amount, her father had paid Rs.3 lakhs to the husband accused and thereafter also the husband was pressurized her for remaining amount, which she could not get it from her father, as a result of which, the husband and other family members left the Kapadwanj town, leaving alone her at the home. In the aforesaid circumstances, the FIR came to be filed for alleged offence of cruelty allegedly committed by the accused herein.

3. This Court has heard learned Senior Counsel Mr. S.I. Nanavati for M/s. Nanavati and Nanavati, appearing for and on behalf of the applicants. Despite service of notice, the respondent no. 3 has not been remained present nor filed reply affidavit.

4. Mr. S.I. Nanavati, learned Senior Counsel submitted that, after 7 years of the marriage, the questioned FIR has been lodged, wherein, the entire family members roped into, without any specific instances

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of harassment, except general and omnibus allegations made with a view to harass them. He has urged that, the applicant nos. 1 and 2 being mother and father of the accused husband, since long are living separately with elder son - applicant no.3 at Ahmedabad. The applicant no. 4 - younger son of the applicants is also living separately at Ahmedabad, whereas, the daughter - applicant no. 5, since her marriage is living at her matrimonial home and have nothing to do with the matrimonial dispute as raised in the FIR. In such circumstances, he submitted that, the allegations made in the FIR even if they are taken at their face value, do not prima-facie constitute an offences under Section 498A, 506(2), 323 of the IPC. Lastly, he has urged that, serious allegations having been made against the applicant accused, who is not before this Court and on perusal of the FIR, there is no allegations against the applicants that, they demanded cash amount to develop the business. Thus, it appears that, an attempt was made on the part of the respondent wife is to use the criminal proceedings as a weapon of harassment against the applicants and therefore, this is a fit case to exercise inherent powers to quash proceedings.

5. The respondent no. 3 - original informant, though served, has chosen not to remain present in the proceedings nor, has filed reply affidavit to oppose the prayer of quashing.

6. On the other hand, learned Additional Public Prosecutor Mr. L.B.

Dabhi vehemently opposed the plea of quashing and contended that, this is not an exceptional case to exercise inherent powers of this Court and when, the averments of the FIR disclosed the ingredients

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necessary to constitute an offence, the Court should not exercise its power to stifle a legitimate prosecution.

7. 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.

8. 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 not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and

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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

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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 tendency 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 analyzing 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

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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.

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 accused husband is not before this Court. The applicants are in-

laws, namely, mother-in-law, father-in-law, brother-in-law, sister-in- law and her husband. Since 2000, the applicant no. 5 is living with her husband - applicant no. 6 at Khambhat. Thus, before the marriage, the applicant no. 5 had left the house and since long, she is living at her matrimonial home. If we closely look at the allegations leveled in the FIR, nothing alleged against the applicant nos. 5 and

6. So far, applicant nos. 1 and 2 are concerned, they are living with applicant no. 3 at Ahmedabad. The record indicates that, both the brothers i.e. applicant no. 3 and 4 are settled at Ahmedabad and living at the places mentioned in the cause title of this petition. In these background facts, if we examine the contents of the FIR, this Court is of the opinion that, due to matrimonial dispute with the husband, the questioned FIR is being lodged, roping into the entire family without allegations of active involvement in the alleged harassment and they are being implicated casually. There is no any specific averments in the FIR that the applicants have demanded a

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cash amount to carry out the business. In such circumstances, the accusations made in the FIR, even if taken at their face value and accepted in their entirety, do not constitute offence under Section 498A, 323, 506(2) of the IPC and Sections 3 and 4 of the Dowry Prohibition Act. The case is fully covered by categories 1 and 7, as enumerated by the Apex Court in case of Bhajanlal (supra).

16. For the foregoing reasons, the application is allowed. Resultantly, the FIR being I CR No. 78 of 2014 registered with Kapadwanj Town Police Station, Dist.: Kheda, as well as other consequential proceedings are hereby quashed and set aside qua present applicants only. Direct service permitted.

17. The views expressed hereinabove are confined to the case of present applicants herein. The trial Court shall decide the case of the husband in accordance with law without being influenced by the observations made hereinabove.

(ILESH J. VORA,J) P.S. JOSHI