Gujarat High Court

Keshabhai Jivabhai Makwana vs State Of Gujarat on 7 August, 2023

Bench: Sandeep N. Bhatt

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     R/CR.MA/21233/2021                           ORDER DATED: 07/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 21233 of 2021

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                          KESHABHAI JIVABHAI MAKWANA
                                     Versus
                              STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 07/08/2023

                                ORAL ORDER

1. Rule returnable forthwith. Mr. Soaham Joshi, learned

APP waives service of notice of rule on behalf of respondent

no.1 - State of Gujarat.

2. When the matter is called out, learned APP has

submitted that the investigation is over and chargesheet is

about to file. In view of this, Mr. Rohan Majmudar, learned

advocate for the petitioners, upon instructions, does not press

this petition qua petitioner no.2 viz.Kirankumar Keshabhai

Makwana.

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Therefore, the present petition is disposed of as not

pressed qua the petitioner no.2 viz.Kirankumar Keshabhai

Makwana with a view to avail of appropriate legal remedy

available under the law.

Learned advocate for the petitioners argued the matter

for the petitioner no.1 i.e. the father of the petitioner no.2.

3. The brief facts of the present case are as under:-

3.1 As per the case of the FIR, the marriage of the

complainant's daughter Payal solemnized with Kirankumar

Keshabhai Makwana residing at Khimanavas, Taluka Vav,

District Banaskantha, who presently residing at Staff Quarter

Bhansali Hospital, Deesa as per the customs of society in the

year 2018 and after that her Daughter Payal lived with her

husband Kirankumar and her mother-in-law at Khimanavas,

Taluka Vav. Thereafter, after a year ago, the husband of the

deceased got a job as a staff nurse in Deesa Bhansali Hospital

and she agreed to live with her husband in the staff quarters

at Bhansali Hospital, Deesa. Her daughter Payal used to come

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to visit his parental home once a month and stay with her

parents for a day or two and returned back to her husband's

house at Deesa. After marraige, her husband kept her well for

a year and then started harassing her after getting a job as a

staff nurse at Bhansali Hospital, Deesa.

3.2 It is the case of the complainant that the daughter

complainant came to meet her parents for the first time after

her husband came to stay at Deesa, she said her parents that,

"My husband Kirankumar is telling me that you should bring

two lakh rupees from your parents." When deceased has

denied to bring money from her parents, the husband slapped

the deceased and told that you should talk to your parents. It

is further stated that when daughter of complainant started

crying saying to him, "Get two lakh rupees from your father",

the parents calmed her down and did not let her talk to

anyone so that she would not disturb her household and sent

her back to stay with her husband at Disa and thereafter,

after lapse of six months, when his daughter Payal again came

to see the complainant, told that, "My husband is asking me

what your father wants to give you and I have a job so I will

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get another wife too, saying to me asked for two lakh rupees,

when I did not give it to him and he tortured the Payal and

Keshabhai Jivabhai Makwana also told his son Kirankumar to

bring two lakh rupees. Even then I explained to my daughter

Payal that her household should not be ruined and live well

with her husband. As per the FIR, on 07/10/2021 at around

07:30 PM the father of the deceased called on mobile phone of

the petitioner no.2 twice but he did not receive the phone and

after that at around 23.40 p.m. Keshabhai Jeevabhai Makwana

called the husband of the complainant and told that "Your

daughter Payal has been admitted to Bhansali Hospital for

treatment so please come soon so that the husband of the

complainant went Deesa without informing about the same to

the family members and thereafter on next day morning, the

husband of the complainant came home and told the

complainant that their daughter Payal is dead in Deesa

Bhansali Hospital and she has been declared dead by Dr.

Shrina of Bhansali Hospital. Therefore, the impugned FIR is

registered with the Deesa City South Police Station.

4. Mr. Rohan Majmudar, learned advocate for the

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petitioners has submitted that on bare reading of FIR, only

accusation is made to the extent that at one point of time, the

present petitioner no.1 - the father-in-law on his instance, the

petitioner no.2 - husband has demanded Rs.2 lakh from the

deceased. Thereafter, he has further submitted that the

father-in-law is undisputably staying separately from the

petitioner no.2 - husband as well as deceased - wife and they

are residing in different villages. He has further submitted

that looking to the allegations made, there is no absolutely

incident and no specific role is attributed to the petitioner

no.1 except the general allegations made at one place in the

FIR and therefore, he submitted that no ingredients of

Section-498A, 306 are satisfied read with Sections-3 and 7 of

the Dowry Prohibition Act.

5. Mr. Majmudar, learned advocate has submitted that the

petitioner no.1 being an elder person aged about 60 years, his

case can be considered, as otherwise also, looking to the FIR,

no offence is made out. Mr. Majmudar, learned advocate

further submitted that in view of the judgment of Hon'ble

Apex Court in the case of State of Haryana Vs. Bhajanlal

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reported in AIR 1992 SC 604, this Court should exercise the

discretionary power under Section-482 of Cr.P.C.

6. Per contra, Mr. Soaham Joshi, learned APP has strongly

opposed the prayer made in the present petition and

submitted that now the investigation is carried out and

charge-sheet is about to file in the present proceedings as the

investigation is almost over. He has further submitted that

considering the averments made in the FIR, prima-facie, the

offence is made out against the father-in-law also and

therefore, he prays that this Court should not exercise

discretion by exercising inherent powers under Section-482 of

Cr.P.C. where prima-facie case is made out against the

petitioner no.1. He further submitted that the power under

Section-482 should be exercised very sparingly and therefore,

he prays to dismiss this petition.

7. I have considered the rival submissions made at the bar.

I have also consider the tenure of the FIR. Sections-306, 498A

& 114 of IPC as well as Sections-3 & 7 of the Dowry

Prohibition Act reads as under:

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498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

114. Abettor present when offence is committed.-- Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have

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committed such act or offence.

3. Penalty for giving or taking dowry.--1[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable

[with imprisonment for a term which shall not be less than

[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]: --1[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]\:"

Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than 4[five years].] 5[(2) Nothing in sub-section (1) shall apply to, or in relation to,

-- 1[(2) Nothing in sub-section (1) shall apply to, or in relation to,--

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;

(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under

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this Act: Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.]

7. Cognizance of offences.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of an offence under this Act except upon--

(i) its own knowledge or a police report of the facts which constitute such offence, or

(ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;

(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.

Explanation.--For the purposes of this sub-section, "recognized welfare institution or organisation" means a social welfare institution or organisation recognized in this behalf by the Central or State Government.

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(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to any offence punishable under this Act.]

[(3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]

[(3)Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]"

8. Considering the FIR, it transpires that the allegations

made in the FIR at one place, whereby, it is alleged that the

husband of the deceased i.e. petitioner no.2 has not pressed

the petition before this court, has demanded Rs.2 lakh at the

instance of present petitioner no.1, who happens to be the

father of the petitioner no.2, even otherwise, there is mo

material available on the record, which implicate the

petitioner no.1 remotely in the said offence. Moreover,

considering the undisputed fact that the petitioner no.1 is

residing separately from the petitioner no.2 - son as well as

the deceased and at the time of incident, he was also not

present and considering the fact that the ingredients of