Gujarat High Court

Saddam Hussain Ashratali ... vs State Of Gujarat on 30 January, 2023

Bench: Gita Gopi

     R/CR.MA/12854/2020                            ORDER DATED: 30/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 12854 of 2020

                                     With

         CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2023

                                        In

              R/CRIMINAL MISC.APPLICATION NO. 12854 of 2020
==========================================================
     SADDAM HUSSAIN ASHRATALI AHMADBHAI MANSURI & 5 other(s)
                           Versus
                 STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
(MR H A SHAH)(6071) for the Applicant(s) No. 1,2,3,4,5,6,7
MR. DARSHIT H SHAH(9894) for the Applicant(s) No. 1,2,3,4,5,6,7
MR. SOEB R. BHOHARIA(2205) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL APP for the Respondent(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 30/01/2023

                              ORAL ORDER

1. The present petition has been filed under

section 482 of the Code of Criminal Procedure for

quashing and setting aside the FIR being C.R. No.I-

11209014200135 registered with Gambhoi Police Station,

Dist.: Sabarkantha for offfences punishable under

sections 498A, 323, 504, 506(2) and 114 of IPC.

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

2. Mr. Darshit H.Shah, learned advocate for the

petitioners submits that the complainant had never

resided with petitioner no.1 and even at the time of

lodging of the complaint, after the settlement too, the

petitioner no.1 had never resided with the complainant

rather all the other family members had accepted the

complainant and allowed her to stay in the house, but

petitioner no.1 was not having cordial relation with the

parents and had left the parental home and therefore the

complainant though given shelter by the parents-in-law

without any rhyme and reason had filed the FIR alleging

of dowry demand.

2.1 Mr. Shah submits that in fact in presence of

representatives of the community and other family

members settlement was drawn and the father-in-law and

other family members had settled the matter, and thus

the parents-in-law had permitted her to stay in the house

and complaint itself suggests that the husband was not

residing with them.

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

2.2 Mr. Shah submits that if at all the complainant

had any issue, she could have brought to the notice of the

representatives of the community members who have

settled the dispute and without any cause and giving any

details, the FIR has been filed alleging that the parents-

in-law were physically harassing her, and by taking the

side of her husband they used to abuse her stating that

she has not brought any ornaments from his parents'

house and had removed her from the house.

2.3 Mr. Shah submits that the very allegation in the

FIR is false since the complainant herself has written a

request letter dated 15.04.2019, wherein she has stated

that her marriage was against her wish and even after the

marriage she had no interest to carry on the matrimonial

relationship and had requested to release her from the

marriage, as she wanted to settle with some other person.

Mr. Shah states that the complainant has also stated in

the letter that she had on her own will released herself

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

and in the said request letter she had admitted of having

received Rs.4,500/- as 'Mehar' amount on the date of

marriage, and petitioner no.1 has also given consent to

her request by way of communication dated 03.06.2019.

Mr. Shah, thus submitted that the FIR is a pressure

tactics and appears to be misuse of the provisions of law.

3. Mr. Valimohammed Pathan, learned advocate

for respondent no.2 submits that there is consistent view

of the Supreme court and of this Court too that in such

matters husband should be prosecuted.

4. Learned Public Prosecutor, submitted that any

First Information Report should be quashed in

accordance with the guidelines of the Apex Court and the

parameters laid down therein.

5. The facts of the case suggests that the

complainant had left the family and requested, the

husband - petitioner no.1, herself to release her from the

marriage. The FIR itself suggests that only on the

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

settlement before the representatives of the community

and other family members, the complainant was

permitted to stay in the house; however, the husband was

not residing with her. The allegation regarding dowry

demand appears to be got up, since the communication

dated 15.04.2019 does not suggest any such dowry

articles, rather the complainant has admitted about the

'Mehar' amount which she has received in cash, and the

record suggests that the husband - petitioner no.1 has

also replied to her letter of request accepting to release

her, and thereafter it appears that, on 18.02.2020 again

the parents has gathered for settlement, but husband has

failed to remain with in-laws. Further, a public notice has

also been given by the petitioner no.2 on 17.07.2019

informing that their son is not under their obedience and

he has been disowned from the family.

6. In case of Geeta Mehrotra & Anr. Vs. State

of U.P. & Anr., reported in 2012 (10) SCC 741, the

Apex Court while observing the facts of the case has held

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

that, when large number of family members have been

included in FIR by casually mentioning their names and

contents did not disclose their active involvement,

cognizance of matter against them would not be justified.

The Court quashed the FIR under Section 482 Cr.P.C.

considering the fact that there was social reference of the

family members of the husband (unmarried sister and

elder brother of husband) in FIR as co-accused as well as

parents of the husband. It was noted that there were no

specific allegation or prima facie case against the co-

accused. The Apex Court in the said judgment 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 specially in a matter

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

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.

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

25. In the case at hand, when the 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

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

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 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






   R/CR.MA/12854/2020                                           ORDER DATED: 30/01/2023

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 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."

6.1 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

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

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 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."

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

6.2 In case of State of Haryana V. Bhajan Lal

and others, AIR 1992 SC 604, the 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

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 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:

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

(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 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;

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

(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 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."

7. The FIR itself appears to be a pressure on the

family members, where parents-in-law had rather helped

the complainant to settle the issue and had given her

R/CR.MA/12854/2020 ORDER DATED: 30/01/2023

shelter. The communication between husband and wife

suggests the internal disputes between both of them,

where the complainant had no desire to continue her

matrimonial life with the husband and the husband had

acceded to her request and on the other hand petitioner

no.1 - son is also not having cordial relation with the

parents. The detail as to any dowry demand or any

physical harassment is not reflected in the FIR. The injury