Anantkumar Dayaram Panchal vs State Of Gujarat
2023 Latest Caselaw 5800 Guj

                                                                                      NEUTRAL CITATION




      R/CR.MA/1428/2017                                  ORDER DATED: 09/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 1428 of 2017

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                ANANTKUMAR DAYARAM PANCHAL & 4 other(s)

                                     Versus

                          STATE OF GUJARAT & 1 other(s)
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Appearance:
ADITYA A CHOKSI(7835) for the Applicant(s) No. 1,2,3,4,5
MS. SHIVANGI M RANA(7053) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
MR. YAGNESHKUMAR S JOSHI(8074) for the Respondent(s) No. 2

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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 09/08/2023

                                  ORAL ORDER

1. When the matter is called out, learned advocate for

the applicant has produced on record the death

certificates of the applicant No.3 & 4 viz., - Narmadaben

and Satishbhai, which are taken on record, whereby it is

revealed that applicant Nos.3 & 4 has passed away on

13.4.2020 and 9.1.2023 respectively and therefore, the

present application as become abated qua the applicant

Nos.3 & 4. Hence, the present application is disposed of

as having become abated qua the applicant Nos.3 & 4.

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QUA THE PRESENT APPLICATION NOS.2 & 5:-

2. The present application is filed for seeking following

reliefs:

"A. YOUR LORDSHIP may be pleased to issue an

order or directions quashing and setting aside the

impugned order wide dated 27.03.2015 & subsequent

proceedings thereto passed by the Hon'ble Court of

Learned Judicial Magistrate First Class, Court No.1,

Vadodara in Criminal Miscellaneous Application No.

987 of 2015 (at Annexure A).

B. YOUR LORDSHIP may be pleased to grant ad

interim relief qua stay on further proceedings of

Miscellaneous Application No. 987 of 2015 (at Criminal

of Annexure A) pending before the Hon'ble Magistrate

Court First of Learned Judicial Class, Court No.1

Vadodara during pendency and final disposal of the

present application

C. YOUR LORDSHIP may Pass any such other and /

or further orders that may be thought just and proper,

in the facts and circumstances of the present case."

3.1 Brief fact of the case as per the case of applicants

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in this application are as such that on 04.02.1999 the

marriage between applicant No.1 and respondent No.2

solemnized with the Hindu rituals at Anand. Thereafter

respondent No.2-Wife started living at her matrimonial

residence in Ahmedabad with the family of applicant

No.1. Out of their matrimonial relation applicant No.1

and respondent No.2 gave a birth to a girl child on

18.02.2000. It is further the case of the applicants in

this application that one or another reason be it quarrel

or be it extensive verbal fights, the marriage life

between the applicant No.1 and respondent No.2 could

not survive happily even after giving birth to a child.

So, on 24.04.2002 respondent No.2- Wife willingly left the

matrimonial home with the minor child to stay at her Parental home at Anand.

3.2 It is further the case of the applicants in this

application that on 07.10.2003 respondent No.2-Wife as

well as the child namely 'Happy' made an application

under Section 125 of the Code of Criminal Procedure,

1973 being Criminal Miscellaneous Application No. 526 of

2003 against applicant No.1-Husband before Hon'ble

Court of the 5th Additional Senior Civil Judge and

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Judicial Magistrate First Class claiming Maintenance of

Rupees 5000/- for maintaining social life as well as for

herself and for the minor child 'Happy'. It is further

the case of the applicants in this application that during

the pendency of above mentioned application for

maintenance, on 21.06.2006, the respondent No.2-wife and

applicant No.1- Husband jointly submitted compromise

pursis' before the Hon'ble Trial Court stating that from

10.06.2006 again they have started living together

happily with child 'Happy' after the socially elder and

elderly relatives of their families intervened to resolve

the matrimonial issues and has arrived at compromise.

And also it was stated that the said above mentioned

application for maintenance.

3.3 It is further the case of the applicants in this

application that respondent No.2-wife and applicant No.1-

Husband continued to live together happily with 'Happy'

for almost two years from the date of above referred

joint compromise pursis made available to Hon'ble Trial

Court. It is further the case of the applicants in this

application that even though their marriage life could not

remain stable and therefore on 18.03.2008 respondent

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No.2-Wife again left the matrimonial home willingly with

child 'Happy' and till today still staying in the parental

house at Anand. It is further the case of the applicants

in this application that on 18.03.2008 respondent No.2-

wife addressed a letter to the Police Inspector

Narayanpura Police Station, Ahmedabad City stating that

applicant No.1-Husband has given a threat to her life if

respondent No.2-Wife does not withdraw the case for

maintenance against him as well as requested Police in

her letter not to take any actions as of now against the

Husband.

3.4 It is further the case of the applicants in this

application that on 13.07.2009, the Hon'ble Court of the 5th Additional Senior Civil Judge and Judicial Magistrate

First Class passed an order for maintenance of Rupees

1800/- to the respondent No.2-Wife and maintenance of

Rupees 600/- to the child 'Happy' to be payable every

month by the applicant No.1 Husband from the date of

filling the said application. It is further the case of the

applicants in this application that on 13.09.2011 the

respondent No.2-wife made an application under Section

127 of the Code of Criminal Procedure, 1973 being

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Criminal Miscellaneous Application No. 719 of 2011

before the Hon'ble Court of Learned Principal Family

Judge Vadodara with prayer to increase the amount of

maintenance from Rupees 1800/- to Rupees 20000/- for

herself and Rupees 600/- to Rupees 10000/- for the child

'Happy'. It is further the case of the applicants in this

application that on 11.02.2015 the Hon'ble Court of

Learned Principal Family Judge Vadodara partly allowed

the above application and ordered increase of

maintenance to respondent No.2-wife from Rupees 1800/-

to 4200/- and to Child Rupees 600/- to 2400/- thus total

rupees 9000/- per month payable from the date of filling

application under section 127 by the respondent No.2-

wife. It is further the case of the applicants in this application that on 08.12.2014 the applicant No.1-

Husband filed Family Suit No. 1992 of 2014 before the

Learned Family Court Ahmedabad for Declaration of

Divorce Decree under Section 13 of the Hindu Marriage

Act. Wherein on 25.03.2015 respondent No.2-wife made

an application for Maintenance under Section 24 of the

Hindu Marriage Act claiming Rupees 30000/- per month.

The Family Court wide order dated 17.10.2016 partly

granted the above application for maintenance under

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section 24 and ordered applicant No.1- Husband to pay

Rupees 9500/- per month as interim maintenance to the

respondent No.2- wife and the daughter 'Happy' from the

date of filling application till the final disposal of main

application. It is further the case of the applicants in

this application that the allegations levelled in the

impugned complaint are absolutely absurd, false,

concocted & got up with a view to harass the old aged

in-laws of respondent No.2-wife. As far as the impugned

proceedings are concerned, proceedings are commenced

mechanically and in a routine manner. The same is

sheer abuse of the process of law and hence applicants

is preferred.

4. Heard learned counsel Mr. Aditya A. Choksi,

representing the applicants, Mr. Yagneshkumar S. Joshi,

learned counsel, representing the respondent No.2 -

complainant and Mr. Dhawan Jayswal, learned

Additional Public Prosecutor (APP), representing the

respondent No.1 - State.

5.1 The learned counsel, Mr. Aditya A. Choksi,

representing the applicants, has put forth arguments. He

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contends that the present applicant No.2, who is

approximately 90 years old and bedridden, is the father-

in-law of the complainant. Additionally, present applicant

No.5, around 60 years old, is the sister-in-law of the

complainant, residing separately from the complainant's

husband. He has drawn my attention to the application

submitted before the Magistrate under Form No.2, Rules

6(i), 6(ii), 6(iii), and 17(iii) of the Domestic Violence Act

whereby no satisfactory averments on the contrary is

found. Furthermore, he points out that the complainant

stated in Form No.2 that there has been no marital

consummation between her and her husband for the past

12 years.

5.2 Furthermore, the counsel submits that, upon

considering the allegations made in column 4 of Form

No.1 and other forms, no evidence or specific allegations

are found against any of the applicants. He adds that

there are other ongoing proceedings stemming from the

dispute between the husband and wife. He emphasizes

that the husband provides maintenance to the wife

amounting to Rs.6,500/- under Section 125 of the

Criminal Procedure Code. Additionally, he notes that

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divorce proceedings initiated by the husband were

granted. Considering these factors, he argues that no

fruitful purpose would be served in continuing this

application considering the age of the applicants and the

lack of allegations against them.

5.3 Therefore, the present application is required to be

allowed by quashing the proceedings under Domestic

Violence Act qua the present applicant Nos.2 & 5.

5.4 Furthermore, he has drawn my attention to the fact

that qua the applicant No.1 - husband, the present

application is not pressed.

5.5 Furthermore, he has drawn my attention to the fact

that qua the ori. accused No.6, Co-ordinate Bench of this

Court has quashed the proceedings in Criminal Misc.

Application No.7145 of 2017 dated 5.7.2019.

5.6 Basing his arguments on the aforementioned grounds,

he prays to allow this application in view of the

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

State of Haryana V/s Bhajan Lal reported in AIR 1992

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SC 604, by quashing the proceedings under the Domestic

Violence Act as Protection Officer has not recorded

anything against the present applicants which can be

considered in terms of Domestic Violence Act.

6. On the contrary, Mr. Yagneshkumar S. Joshi, the

learned counsel representing respondent No.2 - the

complainant, presents his arguments. He asserts that a

prima facie offense has been established. Moreover, he

points out that the applicant has an alternative remedy

available through an appeal under Section 29 of the

Domestic Violence Act. He further contends that there

isn't a specific justification warranting interference with

the present proceedings under the Domestic Violence Act. According to him, the provisions of the Act are designed

to protect married women from offenses related to

domestic violence. Hence, he argues that the complaint

should not be quashed at this stage without subjecting it

to the trial process. Additionally, he maintains that the

provisions of the Domestic Violence Act are beneficial

legislation, and the details provided by the Protection

Officer's report should not be construed too rigidly.

Therefore, he prays not to interfere by exercising the

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jurisdiction under Section 482 of the Criminal Procedure

Code.

7. Mr. Dhawan Jayswal, learned Additional Public

Prosecutor (APP), representing the respondent No.1 -

State has supported the contentions raised by the

learned advocate for the respondent No.2. He has

submitted that this Court should exercise the powers

under Section 482 of the Criminal Procedure Code, very

sparingly and prima facie allegation is made by naming

all the accused persons in the complaint, this Court

should not interfere.

8.1 I have considered the rival submission made at the bar. I have also taken into account the fact that the

applicant, being approximately 90 years old and the

father-in-law, does not have any explicit or indirect

involvement that would constitute an offense under the

provisions of the Domestic Violence Act. Furthermore,

there is no trace of any allegations within the said

report against applicant No.5 - the sister-in-law, who

resides separately from the complainant's husband, that

would amount to an offense under the Domestic Violence

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Act. The pertinent provisions of the Domestic Violence

Act are not met as per the contentions put forth in the

current application.

8.2 Additionally, it's notable that the complainant - wife,

in the present case, has implicated all the family

members of her husband and even paramount neighbors

in the proceedings under the Domestic Violence Act.

According to the complaint itself, there has been no

marital intimacy between the complainant and her

husband for the past 12 years. This fact establishes that

the complainant has not been residing with her husband

for the past 12 years. Consequently, it appears prima

facie that the initiation of proceedings under the Domestic Violence Act, along with other actions taken by

the complainant, is driven by a malicious intent. It

seems to be an attempt to harass the family members of

the husband due to an underlying dispute between the

husband and wife. The conduct exhibited by the

complainant - wife strongly suggests that her claim of

no marital intimacy for the past 12 years, followed by

the initiation of various proceedings including the present

complaint, is nothing but an abuse of process of law. It

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is noteworthy that in numerous cases, the Hon'ble Apex

Court has observed that provisions under Section 498A of

the IPC as well as the provisions of the Domestic

Violence Act are often misused, advisedly or otherwise,

resulting in an undesirable outcome. Such practices have

been disapproved and frowned upon by the courts.

8.3 Further, it will also be fruitful to mention 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

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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 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

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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

sec.156(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

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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."

8.4 In light of the aforementioned observations, this is

a fit case where this Court should exercise the powers

under Section 482 of the Criminal Procedure Code, 1973

by preventing the abuse of process of law.

9. Accordingly, the present application is allowed.

10. The impugned order wide dated 27.03.2015 &

subsequent proceedings thereto passed by the Hon'ble Court of Learned Judicial Magistrate First Class, Court

No.1, Vadodara in Criminal Miscellaneous Application No.

987 of 2015 are hereby quashed and set aside qua the

Present Application Nos.2 & 5.

Rule is made absolute.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA