Ishwarbhai Valjibhai Vaghela vs Labhuben Alias Lataben Bachubhai ...
2023 Latest Caselaw 3220 Guj

      R/SCR.A/3925/2013                              ORDER DATED: 25/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 3925 of 2013

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                  ISHWARBHAI VALJIBHAI VAGHELA
                              Versus
       LABHUBEN ALIAS LATABEN BACHUBHAI CHAUHAN & 1 other(s)
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Appearance:
MR PREMAL S RACHH(3297) for the Applicant(s) No. 1
MR PRANAV TRIVEDI, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 2
RULE SERVED for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 25/04/2023

                                ORAL ORDER

1. By way of the present application under section 482 of the Code of Criminal Procedure, the applicant accused Ishwarbhai Valjibhai Vaghela seeks to invoke the inherent powers of this Court under section 482 of the Code of Criminal Procedure for quashing the order dated 06.08.2012 passed by the Court of learned Judicial Magistrate First Class, Jafrabad, District: Amreli in private complaint being Criminal Case No.324 of 2010 on 06.08.2012 for the offences punishable under sections 498A, 420, 406 and 114 of the Indian Penal Code as well as quashing of all consequential proceedings arising therefrom.

2. Facts and circumstances giving rise to filing of the present application are that the respondent complainant married, to present applicant on 19.05.1995. The private complaint, as referred above, is filed against four persons, namely, the husband, father-in-law, mother-in-law and brother-in-law. It is alleged by the complainant respondent that after some time of

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the marriage, she was subjected to cruelty and harassment by the husband and his relatives. The main allegation alleged in the complaint is that the husband was asking the wife to bring Rs. 1,00,000/- from her parental home, as he had spent unnecessary amount towards the marriage ceremony. It is further alleged in the complaint that the husband was unemployed, whereas she is working as a teacher and, therefore, the husband was having more expectations that she should help the family in monetary aspects.

3. It is alleged by the respondent complainant that she had been harassed with a view to coercing her to meet unlawful demand of dowry and sometimes she was assaulted by the husband also. It is alleged that at the time of marriage, the earlier marriage of the applicant husband was subsisting and that the same has been suppressed by the husband and, thereby he has committed an offence of criminal breach of trust and cheating. It is alleged that in the month of September, 1996, she was driven out from the matrimonial home by the husband and in-laws and since then, she was compelled to live at her parental home.

4. In the aforesaid facts, the private complaint for the offence, as referred above, is being filed on 31.12.2007. Learned Judicial Magistrate First Class, Rajula vide order dated 16.06.2009 took cognizance of the offences and issued summons under section 204 of the Code of Criminal Procedure.

5. Being aggrieved by the order of issuance of the process, the instant application has been filed by the applicant husband inter alia stating that the proceedings initiated by the wife is thus

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abuse of process of law and Court and the same is filed with mala fide intention and ulterior motive and with the sole intention to harass and humiliate the applicant in the society.

6. Mr. Premal Rachh, learned counsel appearing for and on behalf of the applicant submitted that the complaint is being filed with mala fide intention and harass the applicant. He submitted that the marriage was solemnized on 19.05.1995. Due to matrimonial dispute, the respondent complainant left the matrimonial home on 26.09.1996, since then, she never came at matrimonial to perform the obligations on her part. Thus, he would urge that there is a gross delay of seven years in lodging the FIR for which there is no reasonable explanation putforth by the complainant to explain the delay. In such circumstances, it is evident that the allegations of harassment and demand of cash amount are concocted to lodge the complaint.

7. In the aforesaid contention, learned counsel Mr. Premal Rachchh would submit that even if the allegations made in the complaint are believed to be true, do not prima facie constitute any offence or make out a case against the applicant accused and, therefore, criminal proceedings initiated by the respondent complainant is nothing, but abuse of process of law and Court and the same is liable to be quashed.

8. Though served, no one appeared for and on behalf of the respondent complainant.

9. Mr. Pranav Trivedi, learned APP would submit that the averments in the complaint discloses the ingredients necessary to constitute an offence under section 498A and 420 of the

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Indian Penal Code. In such circumstances, he would urge that, at this stage, the contention raised by the applicant cannot be agitated by the Court in proceedings under section 482 of the Code of Criminal Procedure and the same is to be tried by the trial Court. Thus, therefore, he urges that the application is misconceived and liable to be dismissed.

10. Heard at length, learned counsel for the respective parties and perused the allegations levelled in the complaint against the applicant. The issue that falls for my consideration is as to whether the complaint is liable to be quashed in exercise of extraordinary inherent jurisdiction.

11. Having regard to the facts and circumstances of the case, before adverting to the contentions raised by the applicant herein, let us examine the scope and power of the High Court to quash the complaint under section 482 of the Code of Criminal Procedure.

12. 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.

13. The Apex Court in case of State of Haryana vs. Bhajan Lal, (1992) Supp 1 SCC 335 has laid down the guidelines that must

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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 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

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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."

14. 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., (2022) 6 SCC 599 held and observed that, in recent times, matrimonial litigations in the country have increased significantly which led in an increased tendency to employ provisions such as 498A Indian Penal Code, as an instrument to settle 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.".

15. In another matrimonial case, the Apex Court in the case of Preeti Gupta and another vs. State of Jharkhand and another, (2010) 7 SCC 667 has 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 incidents are reflected in a large number of complaints. The

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tendency of over implication is also reflected in very large number of cases.

16. In the case of Geeta Mehrotra and Anr. v. State of Uttar Pradesh and Anr , (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.

17. In light of the legal prepositions and applying the same to the present case, this Court is of the opinion that since 26.09.1996, she is living separately at her matrimonial home. The impugned complaint came to be filed on 31.12.2007. Upon reading the complaint, no reasonable explanation is offered to explain as to why she is filing the complaint after 11 years. It needs to be noted that she is working as a teacher and, therefore, it is expected from her that she should not sit quite for her right. Prior to the complaint, she has claimed the maintenance by filing application under section 125 of the Code of Criminal Procedure before the jurisdictional Court.

18. Before filing the impugned complaint, she had also filed a private complaint against the applicant accused for the offence of bigamy. In such circumstances, prima facie this Court is of the opinion that the proceedings of private complaint is maliciously instituted with an ulterior motive and pressurize the applicant husband to settle the matrimonial dispute.

19. In the case of All Cargo Movers (India) Private Limited and others vs. Dhanesh Badarmal Jain and another, (2007) 14 SCC 776, the Apex Court held that the criminal proceedings should

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not be encouraged when it is found mala fide or otherwise and abuse of process of the Court. It is further held that the superior Courts, while exercising the power, should also strive to serve the ends of justice.

20. For the foregoing reasons, the accusations made in order to prevent the abuse of process of law and Court and to meet the ends of justice, this is a fit case to exercise the inherent powers to quash the proceedings of the order dated 06.08.2012 passed by the Court of learned Judicial Magistrate First Class, Jafrabad, District: Amreli in private complaint being Criminal Case No.324 of 2010 qua the present applicant. All consequential proceedings arising from the order impugned qua the present applicant are also quashed and set aside. Application stands disposed of. Rule is made absolute accordingly.

(ILESH J. VORA,J) SUDHIR