Gujarat High Court

Harishchandra Maganbhai Patel vs State Of Gujarat on 8 August, 2023

Bench: Sandeep N. Bhatt

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      R/CR.MA/4142/2017                               ORDER DATED: 08/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 4142 of 2017

                                  With
               R/CRIMINAL MISC.APPLICATION NO. 7165 of 2017
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               HARISHCHANDRA MAGANBHAI PATEL & 2 other(s)
                                Versus
                      STATE OF GUJARAT & 2 other(s)
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Appearance:
MR ADIL R MIRZA(2488) for the Applicant(s) No. 1,2,3
MS SONAL D VYAS(999) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1 - State
RULE SERVED BY DS for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 08/08/2023
                               COMMON ORAL ORDER

1. Since the issues involved in the present applications

are identical in nature, Criminal Misc. Application No.4142 of 2017 is considered as leading matter.

2. The present application is filed for seeking following

main reliefs:-

"(B) Your Lordships may be pleased to quash and set

aside the FIR being C.R. No.II-110 of 2016 registered

with Vapi Town Police Station, District Valsad, for

offences punishable under Sections 498A, 323, 504 and

114 of the Indian Penal Code;

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(C) Pending admission, hearing and final disposal of

this application, Your Lordships may be pleased to stay

the further proceedings of the FIR being C.R. Noll-110

of 2016 registered with Vapi Town Police Station,

District Valsad, for offences punishable under Sections

498A, 323, 504 and 114 of the Indian Penal Code;

(D) Your Lordships may be pleased to grant such other

and further relief/s that may be deemed fit and proper

in the interest of justice."

3. Brief facts as per the case of the applicants in this

application are, as stated in the FIR are as such that

the first informant resides at the address mentioned in

the FIR. It is stated in the FIR that the first informant is residing with her parents. It is also stated in the FIR

that the first informant is having son viz., Shivan aged

1 year and six months. It is also stated in the FIR that

the computerized application dated 10.03.2016 is shown

to the first informant and also Special Criminal

Application No 3996 of 2016 along with the order passed

thereon is also shown to the first informant and made to

understand that the said application was made by the

first informant and there is also a signature of the first

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informant. It is also stated in the FIR that the first

informant got married in the month of May, 2013 at

Umargam Court and after that the first informant was

residing for some time at her parental home. It is

further stated in the FIR that as the mother-in-law of

the first informant was not keeping good health, she was

time and again staying at the matrimonial home also. It

is further stated in the FIR that at that time the

marriage life of the first informant was going well. It is

further stated in the FIR that later on in the year 2014,

the marriage of the first informant took place with the

accused No.1 in the FIR as per rituals and after that

the first informant had went to her matrimonial home.

It is further stated in the FIR that at that time, the father-in-law of the first informant namely

Harishchandrabhai, brother-in-law Vivekbhai, mother-in-

law Premilaben and sisterin-law in Pruviben along with

husband Gauravbhai started harassing the first informant

from the very next day. It is also alleged that the first

informant was to go at her parental home next day for

some rituals. However, all the above mentioned accused

did not allow the first informant to go to her parental

home. Upon requests being made by the first informant,

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the first informant was made to visit her parental home

for one hour and when the first informant returned

back, the father in law of the first informant namely

Harishchandrabhai inquired as to what did the first

informant have brought from her parental home. It is

also alleged that she was also told that the

arrangements were not made in the marriage as per the

previous talks and the first informant was taunted and

was verbally abused by using filthy language. It is also

alleged that the brother-in-law viz. Vivekbhai also

verbally abused by using filthy language. It is also

alleged that the mother-in-law as well as the sister-in-

law also supported the said accused persons. It is stated

in the FIR that after the said marriage, the first informant had resided for one month at Vapi at that

time, as there was marriage of the cousin of the first

informant namely Krunal, he had come to the first

informant from her matrimonial home, but she was not

permitted to go and was only permitted to go on the

day of marriage for some hours. It is also stated that at

that time, the husband of the first informant also

accompanied the first informant and during that time,

the said persons have not even talked with the parents

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of the first informant. It is further alleged that during

one month, all the above mentioned persons started

taunting in small matters and harassed the first

informant. It is also alleged in the FIR that the first

informant was also asked to get the expenses incurred in

the marriage or else the first informant should go back

to her parental home. It is further stated that the first

informant and her husband Le accused No. 1 namely

Gauravbhai went to Lutun (UK) in the month of March,

2014 and that the first informant resided at that place

along with her husband and her sister-in-law. It is

alleged that the first informant was also harassed by her

husband and her sister-in-law namely Purviben in some

small matters and even physically assaulted. It is also alleged that after some time, the brother-in-law of the

first informant namely Vivek and the mother-in-law

Premilaben also went at UK and all the said accused

persons together harassed the first informant and

taunted her. It is also stated in the FIR that the first

informant then became pregnant and at that time also,

she was physically assaulted. However, keeping in mind

the social obligations and the marriage life is not

spoiled, the first informant stayed there. It is further

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stated that the mother-in-law as well as the brother-in-

law before birth of the child namely Shiven returned

back to India. It is further alleged that the first

informant was studying there and at that time also, the

husband as well as the sister in law Purviben was

harassing the first informant. It is stated that after that,

the health of the mother in-law of the first informant

got deteriorated and, therefore, they returned to Indin in

October, 2015 along with the husband namely

Gauravbhai and sister in law namely Parviben, It is

further stated that after two three days. mother of the

first informant expired and as per the rituals, as the

first informant was required to go to her parental home,

the father of the first informant namely Jayantibhai was to come to pick the first informant and inquiry was

made in that regard and no reply was made and the

harassment continued by way of taunting in small

matters. After that the first informant was permitted to

go to her parental home and first informant stayed there

for 8 to 10 days and during that period, the first

informant had informed regarding the harassment

imparted by the family members. However, with a view

to see that the marital life is not spoiled, no complaint

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was made. It is further stated that the in-laws again

came to stay with the first informant and the first

informant went at Vapi and resided there upto February,

2016. It is further stated that during that period also,

the husband as well as the brother in-law, father-in-law

and sister-in law were taunting and harassing the first

informant. It is also alleged that on one day, the in-laws

have driven out of the first informant from their

residence and the first informant was made to sleep

along with her son outside the residence and after that,

the first informant on 10.02.2016 left for her parental

home and told about all the harassment made to her

parents and family members. It is also stated on

14.02.2016, the in-laws of the first informant had come to again take back the first informant however, the first

informant did not go there. At that time also, the

husband of the first informant verbally abused and after

8 to 10 days, the first informant as well as her father

went to Jyoti Samaj, Navsari, for getting divorce: and an

application was made and Jyoti Samaj had called both

the parties on 10.03.2016, however, on 09.03.2016 at

about 9:30 in the morning, the husband of the first

informant along with two three persons came in white

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coloured car and took away son Shivan and left and

after that the application was made to the police and an

application was made with the Navsari Court for getting

the possession of the child and even a petition was filed

before the Honourable High Court. It is also stated that

firstly habeas corpus petition was made and after order

being passed in the said habeas corpus petition, the

inquiry was made by the Police Officers and it was

found that the husband of the first informant had taken

their son Shivan on 09.03.2016 from Mumbai Airport via

Jet Airways Flight to Dubai and, therefore, the FIR

came to be lodged against the present applicants along

with the accused No.1, who is the husband of the first

informant. Further, pursuant to the registration of the FIR, the present applicant Nos. 1 and 2 were arrested

and were granted bail by the police on 20.11.2016.

Hence, the present application is preferred.

4. Heard learned counsel Mr. Adil Mirza, representing

the applicants, Ms. Sonal Vyas, learned counsel,

represent the respondent No.2 - complainant and learned

Additional Public Prosecutor (APP) Mr. Dhawan Jayswal,

representing the respondent No.1 - State.

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5.1 Learned counsel Mr. Adil Mirza, representing the

applicants, has submitted that Criminal Misc. Application

No. 4142 of 2017 has been filed by the father-in-law,

brother-in-law, and sister-in-law of the first informant.

He has produced on record the death certificate of the

first informant's father-in-law, who passed away on April

29, 2021. The present application is thereby abated qua

the applicant No.1 - Harish.

5.2 Furthermore, qua the applicant Nos. 2 & 3, he

argues that considering the allegations in the impugned

F.I.R., it is evident that the applicants are falsely

implicated in the complaint. He contends that no offense is established against the applicants. He also points out

that even if there were allegations against the husband,

given subsequent developments, no viable case remains

against him. He asserts that the complaint is filed with

a mala fide intention.

5.3 Additionally, in light of the withdrawal of the

application related to the Domestic Violence Act, and

considering that the Court has kept the matter before

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the Lok Adalat for an appropriate order, the prayers

made in the present application would not survive.

Continuing this application is deemed fruitless, in line

with the judgment of the Hon'ble Supreme Court in the

case of State of Haryana V/s Bhajan Lal, reported in

AIR 1992 SC 604. Therefore, he prays to allow this

application.

6 On the contrary, Ms. Sonal Vyas, learned counsel

representing respondent No.2 - the complainant, opposes

the contentions put forth by the learned counsel for the

applicants. She contends that despite the withdrawal of

proceedings under the Domestic Violence Act, the

impugned F.I.R. establishes a prima facie case under Section 498A of the Indian Penal Code against the

accused individuals. She urges this Court not to exercise

its powers under Section 482 of the Criminal Procedure

Code, 1973 at this juncture.

7 Learned Additional Public Prosecutor (APP) Mr.

Dhawan Jayswal, representing respondent No.1 - the

State, supports the submissions of the learned counsel

representing respondent No.2 - the complainant. He

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asserts that a prima facie offense is made out from a

bare reading of the impugned F.I.R. He contends that

this Court should not exercise the powers under Section

482 of the Criminal Procedure Code, 1973, which must

be exercised very sparingly.

8.1 I have heard the learned counsels representing the

respective parties. I have considered the rival

submissions made at the bar by the respective parties. I

have also considered the tenor of the F.I.R.

8.2 It is clear that the father-in-law of the first

informant passed away during the pendency of the

proceedings. Moreover, the brother-in-law and sister-in-law of the first informant have been implicated in the

impugned F.I.R. filed under Sections 498A, 323, 504 &

114 of the Indian Penal Code, 1973, as follows:

"Section 498A in The Indian Penal Code:-

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

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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.

Section 323 in The Indian Penal Code:-

323. Punishment for voluntarily causing hurt.--Whoever,

except in the case provided for by section 334,

voluntarily causes hurt, shall be punished with

imprisonment of either description for a term which

may extend to one year, or with fine which may extend

to one thousand rupees, or with both.

Section 504 in The Indian Penal Code:-

504. Intentional insult with intent to provoke breach of

the peace.--Whoever intentionally insults, and thereby

gives provocation to any person, intending or knowing

it to be likely that such provocation will cause him to

break the public peace, or to commit any other offence,

shall be punished with imprisonment of either

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description for a term which may extend to two years,

or with fine, or with both.

Section 114 in The Indian Penal Code:-

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 committed such act or offence."

8.3 Given the aforementioned and taking into account

that the complainant was initially residing with all

family members and subsequently moved to London with

her husband, it is alleged that further harassment

ensued from her sister-in-law.

8.4 In this context, it is relevant to mention the

judgment of the Hon'ble Supreme Court in the case of

Preeti Gupta & Anr. (supra), where it is observed in

paragraph 33:

"33. The ultimate object of justice is to find out the

truth and punish the guilty and protect the innocent.

To find out the truth is a herculean task in majority

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of these complaints. The tendency of implicating

husband and all his immediate relations is also not

uncommon. At times, even after the conclusion of

criminal trial, it is difficult to ascertain the real truth.

The courts have to be extremely careful and cautious

in dealing with these complaints and must take

pragmatic realities into consideration while dealing with

matrimonial cases. The allegations of harassment of

husband's close relations who had been living in

different cities and never visited or rarely visited the

place where the complainant resided would have an

entirely different complexion. The allegations of the

complaint are required to be scrutinized with great

care and circumspection. Experience reveals that long

and protracted criminal trials lead to rancour, acrimony

and bitterness in the relationship amongst the parties.

It is also a matter of common knowledge that in cases

filed by the complainant if the husband or the

husband's relations had to remain in jail even for a

few days, it would ruin the chances of amicable

settlement altogether. The process of suffering is

extremely long and painful."

8.5 In light of the above, and taking into account the

withdrawal of the complaint under the Domestic Violence

Act and considering the totality of the facts and

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circumstances of the present case, no fruitful purspose

would be served in continuing the present application, in

line of the judgment of the Hon'ble Supreme Court in

the case of State of Haryana V/s Bhajan Lal reported in

AIR 1992 SC 604, wherein the Hon'ble Supreme Court

has observed thus -

"In the backdrop of the interpretation of the

various relevant provisions of the Code under

Ch.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 Art.226 or the

inherent powers under sec.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.

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(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 sec.156(1) of the Code

except under an order of a Magistrate within

the purview of sec.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

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sec.156(2) of the Code.