Gujarat High Court

Kachanben Amrubhai Shrimali vs State Of Gujarat on 25 January, 2023

Bench: Gita Gopi

    R/CR.MA/21406/2018                                      JUDGMENT DATED: 25/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 21406 of 2018
                                With
          CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2022
           In R/CRIMINAL MISC.APPLICATION NO. 21406 of 2018

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          KACHANBEN AMRUBHAI SHRIMALI
                                     Versus
                               STATE OF GUJARAT
==========================================================
Appearance:
MR PUNAM G GADHVI(3724) for the Applicant(s) No. 1
VAISHALI J SHAH(8753) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
==========================================================
    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                   Date : 25/01/2023

                                   ORAL JUDGMENT

1. Rule. Learned Additional Public Prosecutor

waives service of Rule on behalf of the

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respondent-State.

2. This application has been filed under

Section 482 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as

"Cr.P.C.") for quashing the FIR bearing CR

No.I-6/2018 registered with Mehsana City "A"

Division Police Station for offences

punishable under sections 498(A) and 114 of

the IPC as well as Sections 3 and 7 of the

Dowry Prohibition Act and to terminate all

subsequent proceedings in connection with

the FIR.

3. The complainant is the daughter-in-law of

the applicant and wife of accused no.1-

Ritesh Shrimali. Mr. Gadhvi submits that the

applicant is having one daughter and two

sons and is residing at District Patan with

the family, while the son Ritesh accused

no.1 is living separately with his family.

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4. Mr. Gadhavi submits that the son of the

applicant is advocate and the allegation

against the present applicant as mother-in-

law along with the sister-in-law is of

rebuking often for domestic work, while in

FIR, she states that whenever she used to

come to the parental home, she had informed

that she was harassed by her mother-in-law

and sister-in-law who used to instigate her

husband to ask for one-fourth share from her

father's property and bring that as dowry.

The complainant has alleged that 5 months

prior to the complaint, her husband, present

applicant and the sister-in-law had removed

her from the house by asking her to bring

one-fourth share from father's house. She

has alleged that she had given Rs.70,000/-

earlier to her husband and Rs.30,000/- to

the father-in-law. Inspite of that, they

were demanding more dowry. It is alleged

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that on the day of FIR, her parents-in-law

and her husband had come to her house,

quarreled with her, abused her threatening

not to return back without taking one-fourth

share of the property.

5. The facts of the matter reflect that the

matrimonial life is more than 12 years and

the husband is a lawyer. She states that she

was harassed for domestic work while no such

specific allegations are found in the FIR

suggesting any such details of such

harassment which could fall under the

definition of cruelty as envisaged under

Section 498A of the IPC. The fact of asking

her share from the parental house would not

constitute an offence to consider any act of

cruelty which could be in the form of

willful conduct as would have drawn the

complainant to commit suicide or to cause

grave injury or danger to life, limb or

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health mental or physical of the woman and

the harassment is with a view to coerce 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 other person related to her to meet

such demand. The complainant's husband is an

advocate by profession. Asking for the share

in the property of the father would not fall

as unlawful demand as the law provides for

the share of the daughters in the ancestral

property. The complainant has not specified

as to in what form she was harassed for the

share in the property of the father and how

the present applicant would have influenced

her in such demand. The harassment so

alleged does not create any proximate link

of accusing cruelty for dowry demands. The

offence would also not fall within the

statutory limit of drawing inference of any

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cruelty as the matrimonial life is more than

12 years.

6. Learned Additional Public Prosecutor submits

that this is a case of dowry demand and it

has to be viewed very seriously. It is urged

not to exercise the discretion against the

mother-in-law.

7. This Court would like to refer to the

decision of the Apex Court in the case of

Geeta Mehrotra & Anr. v. State Of U.P. &

Anr. reported in (2012) 10 SCC 741. The

Court held as under:-

              "24.    However,     we    deem    it
              appropriate to add by way of
              caution   that    we   may   not   be

misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused

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specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over- implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

25. In the case at hand, when the

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brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.

26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as

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already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant's husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose under Sections ingredients of offence 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.

27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant- respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry

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when they are only related as brother and sister of the complainant's husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed."

8. In case of G.V. Rao V. L.H.V. Prasad,

reported in (2000) 3 SCC 693, referring to

the matrimonial disputes, it was observed by

the Hon'ble Supreme Court that the High Court

should have quashed the complaint arising out

of the matrimonial dispute, wherein all the

family members had been roped into the

matrimonial litigation. The Court had made a

specific observation in paragraph-12, which

reads as under:-

"12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly

R/CR.MA/21406/2018 JUDGMENT DATED: 25/01/2023

erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their 'young' days in chasing their 'cases' in different courts."

9. In case of State of Haryana V. Bhajan Lal &

Ors., reported in AIR 1992 SC 604, the

Hon'ble Apex Court formulated as many as

seven categories of cases, wherein the

extraordinary power under Section 482 could

be exercised by the High Court to prevent

abuse of process of the court. It was

clarified that it was not possible to lay

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down precise and inflexible guidelines or any

rigid formula or to give an exhaustive list

of circumstances in which such power could be

exercised. The Hon'ble Apex Court in the said

case made the following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide in myriad kinds of cases wherein such power should be exercised:

(a) 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;

(b) where the allegations in the

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First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) 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;

(d) 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 Section 155(2) of the Code;

(e) 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;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a

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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;

(g) 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. Thus, in view of observations and reasons

given hereinabove and taking into

consideration the facts and circumstances of

the case, the impugned FIR and subsequent

proceedings arising therefrom are required to

be quashed and set aside.

11. In the result, the petition is allowed. The

FIR bearing CR No.I-6/2018 registered with

Mehsana City "A" Division Police Station and

the proceedings initiated in pursuance

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thereof are quashed and set aside qua the