Gujarat High Court

Nareshbhai Hargovanbhai ... vs State Of Gujarat on 18 August, 2023

Bench: Sandeep N. Bhatt

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      R/CR.MA/18031/2021                                ORDER DATED: 18/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 18031 of 2021


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     NARESHBHAI HARGOVANBHAI SOLANKI(Does not press as per order
                         dt.13/10/2021)
                             Versus
                      STATE OF GUJARAT
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Appearance:
DELETED for the Applicant(s) No. 1
MR M R MOLAVI(3362) for the Applicant(s) No. 2,3
KAASH K THAKKAR(7332) 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 : 18/08/2023

                                    ORAL ORDER

1. At the outset, it is pointed out that vide order

dated 13.10.2021, the present application was disposed of

as not pressed qua applicant no.1.

2. Today, after arguing for some time, learned

advocate for the applicant, upon instructions, seeks

permission to withdraw this application qua applicant

no.3. Accordingly, permission is granted. This application

is disposed of as withdrawn qua applicant no.3. Notice is

discharged qua applicant no.3.

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3. Now, this application remains to be considered

qua applicant no.2 only.

4. This application is filed under Section 482 of

the Code of Criminal Procedure, 1983 (`Code' for short)

praying for quashing of the FIR being C.R.No.I-

11217006211090 of 2021 registered with Chanasma Police

Station, Patan filed under Sections 498(A), 506(2) and

114 of the Indian Penal Code and Section 4 of the

Dowry Prohibition Act.

5. The facts of the case of the present applicants are as

under:-

5.1 The complaint came to be filed by the

respondent no.2-complainant on 8.9.2021 stating that she

was being taunted for not bringing anything from

parental home and harassed physically and mentally;

that the complainant married with original accused no.1-

Nareshbhai Solanki before six years and out of the

wedlock, they have a daughter aged five years. It is this

FIR which is prayed to be quashed by way of this

application.

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6. Heard learned advocate Mr.Molavi for the applicant

no.2 and learned APP Mr.Joshi for the respondent no.1

and learned advocate Mr.Thakkar for respondent no.2.

6.1. Learned advocate Mr.Molavi for the applicant no.2

submitted that from the tenor of the FIR, there is no

specific allegation against the applicant no.2 establishing

his role for commission of offence under the sections

invoked in the FIR. He further submitted that

considering the FIR, except general allegation, no specific

allegation is made against applicant no.2. He submitted

that applicant no.2 is father-in-law of the complainant

and aged about 60 years and working as a farmer and he has no connection whatsoever with the offences as

alleged in the complaint. He, therefore, prayed to allow

this application against applicant no.2 as the continuation

of the proceedings will amount to abuse of process of

law and cause undue harassment to the applicant no.2.

6.2 Per contra, learned APP Mr.Joshi for

respondent no.1-state has submitted that prima facie case

is made out against the applicant no.2 also and therefore

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this Court may not exercise the inherent powers under

Section 482 of the Code.

6.3 Learned advocate Mr.Thakkar for respondent

no.2-complainant has submitted that there is some

allegation made in the complaint against the applicant

no.2 which clearly implicate the applicant no.2 father-in-

law of the complainant in the commission of the said

offence and the same is required to be tested at the

time of trial. He, therefore, submitted that this Court

should not exercise inherent powers at this stage which

is, otherwise, required to be exercised sparingly.

7. I have considered the rival submissions of the parties and also the FIR and other documents produced

on record. The allegations alleged are mainly against the

husband and also to some extent to the mother-in-law

and brother-in-law of the respondent no.2-complainant.

The role of the father-in-law is described by way of

general allegation and no specific incident or any

occurrence is attributed to the father-in-law-applicant no.2

herein in the entire FIR. Even in the affidavit filed by

the complainant in the present proceeding, no such

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material is available, which prima facie, involves the

present applicant no.2-father-in-law in the commission of

the offences alleged in the impugned FIR.

8. It will also be fruitful to mention the judgment

of 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.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face

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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 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.

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(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."

9. In view of the above and on perusing the

contents of the FIR, continuation of the proceedings against the applicant no.2 will amount to undue

harassment and also amount to abuse to process of law

as, considering the tenor of the FIR, no prima facie case

under Sections 498(A), 323, 506(2) and 114 of Indian

Penal Code and Section 4 of the Dowry Prohibition Act

is made out qua applicant no.2.

10. In this view of the matter, this is a fit case

to exercise the inherent powers under Section 482 of the

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