Shabbir @ Sameer Faijmiya Saiyed vs State Of Gujarat
2023 Latest Caselaw 3477 Guj

     R/CR.MA/13454/2014                           JUDGMENT DATED: 28/04/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 13454 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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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 copy              NO
       of the judgment ?

4      Whether this case involves a substantial question              NO
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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               SHABBIR @ SAMEER FAIJMIYA SAIYED & 3 other(s)
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
DELETED for the Applicant(s) No. 1
MR GAURAV CHUDASAMA(5660) for the Applicant(s) No. 2,3,4
MR AFTABHUSEN ANSARI(5320) for the Respondent(s) No. 2
MS VRUNDA SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                              Date : 28/04/2023

                             ORAL JUDGMENT

1. The order dated 02.09.2014 passed by the Co-ordinate Bench of this Court reflects that the present application has

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been disposed of qua applicant No.1 as not pressed for by the learned advocate for the applicant.

2. Mr.Gaurav Chudasama, the learned advocate appearing for the applicants, does not press this application qua applicant Nos.2 and 3 - original accused Nos.2 and 3. Hence, the present application stands disposed of qua applicant Nos.2 and 3 as not pressed for. Rule is discharged qua applicant Nos.2 and 3. Interim relief, if any, granted earlier, stands vacated.

3. This application has been filed by the applicant No.4 - original accused No.4 under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being I C.R.No.91 of 2014 registered with Sarkhej Police Station, Dist.: Ahmedabad for the offfence punishable under Sections 498(A), 323, 294(b) and 506(1) of the Indian Penal Code and to quash all other consequential proceedings arising out of the aforesaid FIR qua the applicant.

4. The brief facts of the present application are that, the marriage of the accused No.1 and respondent No.2 herein was solemnized in the year 2008. It is alleged in the FIR that after 8 to 10 days of the marriage, in-laws had started torturing respondent No.2 by stating that they did not like her and she had not brought anything in dowry. It is also alleged in the FIR that the relatives of the husband i.e. accused Nos.2, 3 and accused No.4 herein were also instigating husband resulting into beating her and speaking abusive language and after one year she was driven out of the house and therefore, FIR came to be lodged before Sarkhej Police Station being I C.R. No.66 of

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2010 dated 21.02.2010 for the offence punishable under Sections 498(A), 323 and 114 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act. Thereafter, on 10.05.2010, settlement was arrived at between the parties and Mutual Understanding Agreement was executed and the complainant had again started residing with her husband in a separate house and gave birth to two daughters. It is alleged in the FIR that in the year 2013, mother-in-law, father-in-law and sister- in-law had come to reside with them and had started torturing her on the ground of giving birth to two daughters. It is further alleged that sister-in-law, who is the applicant No.4 herein, used to come frequently to the house and use to torture her and instigating the husband of the complainant on the ground that the complainant could not give birth to a male child. It is further alleged in the FIR that husband had set up his business at Surendranagar, therefore, they had started to stay at Kadiya Society, Surendranagar and there also, mother-in-law, father- in-law and sister-in-law were giving harassment and instigating the husband. Before 15 days of the impugned FIR, the complainant was beaten by the husband and driven out from the house threatening that if she comes back, he will kill her. Thereafter, the complainant stayed with her maternal aunt and filed the impugned FIR.

5. Learned advocate Mr.Chudasama appearing for the applicant submitted before this Court that the applicant No.4 is the sister-in-law of the complainant. She is a married lady staying separately from the applicant Nos.2 and 3 and having no any intervance in the life of complainant who is staying with the in-laws in a separate house. Mr.Chudasama further

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submitted that in fact, looking to the allegations made in the FIR also, no ingredients for the alleged Sections are made out. He further submitted that the marriage of the applicant No.4 was solemnized in the year 1995 and since then she is staying separately from the parents i.e. applicant Nos.2 and 3 herein. Learned advocate Mr.Chudasama therefore, submitted that this application may be allowed and the impugned FIR be quashed and set aside.

6. On the other hand, learned advocate Mr.Aftabhusen Ansari appearing for the respondent No.2 - original complainant submitted that the ingredients of Section 498A are clearly made out. The husband of the complainant, who is the brother of the present applicant No.4, is not making payment of the maintenance and therefore, it is very difficult for the complainant to survive and maintain herself with two daughters in absence of any source of income. Mr.Ansari further submitted that the brother of the applicant No.4 is absconding and not remained present in any of the proceedings.

6.1 Learned advocate Mr.Ansari has relied upon the judgment of the Apex Court in case of Taramani Parakh Vs. State of M.P. & Ors., reported in 2015 (3) SCALE 616 in support of his submissions and submitted that the present application may be dismissed.

7. Learned APP has adopted the submissions made by the learned advocate for the complainant and submitted that looking to averments made in the FIR, complaint may not be

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quashed.

8. I have heard the learned advocate appearing for the respective parties and perused the material placed on record. It transpires that the present applicant No.4 who is a married lady and residing separately from her parents i.e. applicant Nos.2 and 3 since 1995. Even in the cause-title also the address is shown as : "Residing at :19/1/181, Pathanavas, Patadi, Panch-Hatadi, Vistar Patdi, Tal. Dasada, Dist.: Surendranagar". Looking to the allegations made in the FIR also, no any specific allegation is made out in the FIR against the applicant No.4 herein.

9. The judgment of the Apex Court in the case of State of Karnataka Vs. L.Muniswamy, reported in (1977) 2 SCC 699 held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. In paragraph 7 of the judgment, it has been observed as under :

"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The

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ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."

10. The judgment of the Apex Court in the case of Bhajan Lal Vs. State of Haryana, reported in 1992 SCC (Cri.) 426 has elaborately considered the scope and ambit of section 482 of the Code. In paragraph 102, the Apex Court has enumerated 7 categories of cases where power can be exercised under section 482 of the Code. Much celebrated paragraph 102 is extracted herein below :

"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

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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 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."

11. In the case of Rashmi Chopra Vs State of Uttar Pradesh and another, reported in (2019) 15 SCC 357 wherein the Apex Court while dealing with the allegation of dowry demand and harassment to the girl quashed the criminal proceedings considering it as abuse of the process of law and it was held that allegations under section 498-A of IPC and Dowry Prohibition Act were made only to harass and put pressure on the husband and his relatives. In the said matter of Rashmi Chopra (Supra), general allegation was "they started harassing the daughter of applicant demanding additional

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dowry of rupees one crore". In the referred case also, similar allegations are made herein also and role attributed to the applicant No.4 herein is to instigate the husband of the complainant.

12. In view of the above discussion, the facts of the present matter would not attract the ingredients of sections invoked in the FIR. Hence, this Court is inclined to consider this application qua applicant No.4.

13. In the result, the present application succeeds and the same is allowed qua applicant No.4 - Nurjaha @ Nurnishaben (sister-in-law) and the impugned FIR being I C.R.No.91 of 2014 registered with Sarkhej Police Station, Dist.: Ahmedabad filed against present applicant No.4 is hereby quashed and set aside and all other proceedings arising out of the aforesaid FIR are also quashed and set aside. Rule is made absolute.

Direct service permitted.

(M. K. THAKKER,J)

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