Gujarat High Court

Govindbhai Devjibhai Popat vs State Of Gujarat on 28 August, 2023

Bench: Sandeep N. Bhatt

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     R/CR.MA/19070/2018                            ORDER DATED: 28/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 19070 of 2018
                                 With
             R/CRIMINAL MISC.APPLICATION NO. 17922 of 2018
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                   GOVINDBHAI DEVJIBHAI POPAT & 1 other(s)
                                  Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
MR DIPEN K DAVE(3296) for the Applicant(s) No. 1,2
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 28/08/2023

                                ORAL ORDER

1. The present applications are filed under Section

482 of the Code of Criminal Procedure, 1973 (`Code' for

short) for quashing the FIR bearing C.R.No.I-190 of 2018

registered with the Women Cell Police Station, Rajkot

against the present applicants for the offences punishable

under Sections 498A and 114 of Indian Penal Code and

Sections 3 and 4 of Dowry Prohibition Act.

2. The facts leading to filing of this application

are such that a complaint is filed by the respondent no.2

against her husband-accused no.1, the in-laws- applicants

of Criminal Miscellaneous Application No.19070 of 2018

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and elder brother of the accused no.2-applicant of

Criminal Miscellaneous Application No.17922 of 2018

stating that they harassed her mentally and physically

and demanded dowry.

3. Heard learned advocate Mr.Dave for the

applicants, learned APP Mr.Jayswal for respondent no.1

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

4. Learned advocate Mr.Dave has submitted that

the marriage between the accused no.1 and the

respondent no.2 was solemnized on 12.12.2016 and

thereafter they went for honeymoon to Thailand from

14.12.2016 to 24.12.2016 and upon their return the

accused no.1 went to resume his job in Dubai on 29.12.2016 and thereafter on 30.12.2016, the respondent

no.2-complainant went to her parents' house and on

2.1.2017, left for Mysore to resume her job. He

submitted that thereafter the accused no.1 sponsored

spouse visa and somewhere in the month of February,

2017, the respondent no.2 left for Dubai to join accused

no.1. He submitted that due to differences between the

accused no.1 and respondent no.2, the respondent no.2

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came back to live in India and the applicants being the

elder members of the family, tried to resolve the dispute

between them. He submitted that the respondent no.2

has hardly stayed for ten days in total with the

applicants and therefore there is no cause of complaint

against the applicants; that there is no statement in the

whole complaint as to what kind of instigation was given

by the applicants to the accused no.1. He submitted that

the allegations are merely general, vague and casual

statements against the present applicants. He, therefore,

prayed to allow these applications which are filed with a

view to harass the applicants.

5. Per Contra, learned APP Mr.Jayswal for

respondent no.1 and learned advocate Mr.Jasani for respondent no.2 have strongly opposed the same and

submitted that this Court should not exercise powers

under Section 482 of the Code which should be exercised

sparingly as prima facie case is made out against the

applicants. He, therefore, prayed to dismiss these

applications.

6. I have considered the rival submissions of the

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parties and also the FIR and other documents produced

on record. Prima facie, it transpires that this is

essentially a dispute between husband and wife and

thereafter due to some disputes between them, the

complainant wife has resorted to filing this complaint by

alleging that her husband and the present applicants

are responsible for harassing the present complainant. It

transpires that the respondent no.2-complainant did not

have any occasion to stay for more time with the

present applicants and she was residing with her

husband separately in Dubai. The allegations made

against the present applicants are very vague and

general in nature, without any specific instances to

connect them with the offences punishable under the sections invoked in the impugned FIR.

7. In the case of Preeti Gupta & Anr. V/s. State

of Jharkhand & Anr., reported in (2017) 7 SCC 667, it is observed in paragraph 33 and 34 thus:-

"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 of these complaints. The tendency of implicating husband and all his

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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.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases."

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8. In the case of Thesima Begam and Another V/

s State of Tamil Nadu reported in (2020)14 SCC 580, it is held by the Hon'ble Apex Court in paragraphs 2,3 and 6 as under:

"2. Brief facts leading to the filing of this appeal are that the marriage between de facto complainant i.e. Rafeek Nisa (Respondent 2 herein), and Shajahan was solemnised on 23- 4-2000. It appears that they could not put on well and some matrimonial disputes arose between the parties which ruptured the matrimonial relationship. Respondent 2 made a complaint to the Inspector of Police against her husband Shajahan under Section 498-A and Section 406 of the Penal Code, 1860 ("IPC") read with Section 4 of the Dowry Prohibition Act, 1961. In this complaint, she implicated her mother-in-law, brother-in-law as well as the appellants herein who are sister-in-law and husband of the sister-in- law.

3. After investigation, charge-sheet was filed and in this charge-sheet, names of the appellants were also included. The appellants at that stage filed petition under Section 482 of the Code of Criminal Procedure, 1973 ('CrPC') for quashing of the charge-sheet against them. The High Court rejected this petition vide order dated 22-4-2016 only on the ground that trial in the case was begun and, therefore, the

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High Court would not interfere with the said process.

6. In view of the aforesaid stand taken by the complainant herself, we see no justifiable reason for the investigating officer to rope in the appellants as well as in the charge- sheet. Interestingly, even in the charge-sheet submitted by the investigating officer, she has very categorically stated that insofar as appellants are concerned, they were living in foreign country. In spite thereof, the investigating officer filed charge-sheet against all the persons including the appellants, mechanically and without application of mind."

9. Further, 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

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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 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

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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 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."

10. In view of the above and on perusing the

contents of the FIR and the applicants are sister-in-law

and her husband of the respondent no.2-complainant and

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are residing at Australia since last ten years, no offences

can be believed and no offences as alleged in the FIR

can be said to be made out against the present

applicants and therefore continuation of the proceedings

against them is nothing but an abuse of process of law

and continuation of further proceedings pursuant to the