Gujarat High Court

Chirag Ayubbhai Mansuri vs State Of Gujarat on 13 June, 2023

Bench: Sandeep N. Bhatt

      R/CR.MA/20774/2017                           ORDER DATED: 13/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 20774 of 2017
==========================================================
                     CHIRAG AYUBBHAI MANSURI & 1 other(s)
                                   Versus
                         STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR KEYUR A VYAS(3247) for the Applicant(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 13/06/2023

                                ORAL ORDER

1. This application is filed under Section 482 of

the Code of Criminal Procedure, 1973 (`Code' for short)

for the following reliefs:

"7(A) YOUR LORDSHIPS may be pleased to quash and set aside the proceedings being Criminal Misc.Application No.121 of 2016 pending in the Court of Metropolitan court at Ahmedabad, filed by the respondent no.2 herein. (B) Pending the admission, hearing and final disposal of this application, Your Lordships may be pleased to stay the further proceedings being Criminal Misc.Application No.121 of 2016, pending in the Court of Metropolitan court at Ahmedabad, filed by the respondent no.2 herein. (C) YOUR LORDSHIPS may be pleased to grant such other

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

and further relief and/or order in the interest of justice."

2. The brief facts as stated in the application are

such that the applicant no.1 and the respondent no.2

got married as per Muslim Rites and Customs on

1.5.2013, they prepared Talaknama on 6.6.2013,

thereafter, after the requisite waiting period as per the

Muslim laws was over, the applicant no.1 got married

with another lady on 4.9.2013. On 1.9.2013, the

respondent no.2 lodged FIR against the applicants under

various sections of Indian Penal Code and Dowry

Prohibition Act, thereafter, on 3.9.2016, the respondent

no.2 filed Criminal Miscellaneous Application No.121 of

2016 before the learned Metropolitan Court at

Ahmedabad under various provisions of Protection of Women from Domestic Violence Act, 2005, on 4.9.2016,

the respondent no.2 published in the news that the

applicant no.1 and his family members have harassed

the respondent no.2. It is stated that the respondent

no.2 lodged another complaint on 5.9.2016 against the

applicant no.1 and one another accused that they

intimated the respondent no.2 stating to withdraw the

complaint filed before the Mahila police station. That the

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

applicant issued defamation notice upon the publisher

and claimed damages upon the publishers against the

false and fabricated article published by the respondent

no.2. The applicants filed Criminal Miscellaneous

Application No.30004 of 2016 before this Court

challenging the FIR filed under the provisions of the

Indian Penal Code and Dowry Prohibition Act, wherein

Rule was issued and status quo was granted in favour

of the applicants. This application is filed to quash and

set aside the proceedings of Criminal Miscellaneous

Application No.121 of 2016.

3. Heard learned advocates for the applicant,

learned APP for the respondent -state. Though served, respondent no.2 has not filed any appearance.

3.1 Learned advocate Mr.Keyur Vyas submitted

that the complainant has not proceeded further with the

complaint before the learned trial Court. He has further

produced the case status of Criminal Misc.Application

No.121 of 2016 pending before the learned Metropolitan

Court, Ahmedabad and raised serious contentions about

the conduct of the present respondent no.2 and submitted

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

that earlier also, proceedings under the Indian Penal

Code and Dowry Prohibition Act are initiated against the

applicants, against which the present applicants have

approached this Court by way of Criminal Miscellaneous

Application No. 30004 of 2016, wherein initially, Rule is

issued and interim relief is granted in the said

application. Thereafter, the said application was disposed

of by directing the present applicants to approach the

trial Court.

3.2 He has also submitted that on bare reading of

the impugned complaint, no allegations under Section 12

of the Domestic Violence Act can be considered as made

out. The Talaknama is also executed between the parties much prior to this complaint, which is also part of the

record of the present petition. Even the proceedings

under Section 125 of the Code of Criminal Procedure is

filed, which is dismissed for default

3.3 Therefore, learned advocate for the applicants

submit that, in view of this factual background and also

considering the conduct of the complainant and, more

particularly, when no case is made out under the

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

provisions of the Domestic Violence Act as alleged in the

impugned complaint, this application is required to be

allowed

4. Per contra, learned APP Mr.Joshi for the

respondent state submitted that on bare reading of the

complaint, prima facie the offence is made out against

the applicants. He has further submitted that though the

original complainant is not contesting the present

application, but from the complaint lodged before the

competent Court by the complainant, it transpires that

there are serious allegations made against the present

applicants and therefore, no discretion should be

exercised in favour of the present applicants. He has submitted that the powers under Section 482 of the Code

should be exercised sparingly and therefore he prays that

the present application be dismissed.

5. I have considered the rival submissions and

also perused the record. On bare perusal of the

complainant, the general allegations are made against the

present applicants and considering the totality of the

facts and circumstances of the case, the proceedings

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

initiated under Section 125 of the Criminal Procedure

Code are also dismissed for default, the proceedings

preferred under the provisions of the Indian Penal Code

and the Dowry Prohibition Act were also challenged

before this Court, where the Court has taken note of the

conduct of the complainant and admitted the application

and granted stay and thereafter thereafter, relegated the

present applicants to the trial court. From the case

status report of the impugned complaint before the

learned Metropolitan Court, it transpires that the

applicant is not proceeding further in the matter. Even

in this case, the respondent no.2-complainant has not

remained present in spite of service of notice. It is a

fact that the Talaknama was executed between the parties dated 6.6.2016 and thereafter all the proceedings

are filed. This shows that the proceedings are nothing

but an afterthought to harass the present applicants.

Therefore, this application deserves to be allowed.

6. 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

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

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 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

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

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.

(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

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

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."

7. It is also relevant to refer to the judgment of

the Hon'ble Apex Court in the case of Inder Mohan

Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23

& 24 thereof, which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;]

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

[(ii) to prevent abuse of the process of court, and]

[(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

8. In view of above settled position of law and

after considering the facts as alleged in the FIR and

circumstances of the present case, it transpires that

continuation of further proceedings pursuant to the said

FIR will cause greater hardships to the applicants and

no fruitful purpose would be served if such further

proceedings are allowed to be continued. The Court must

ensure that criminal prosecution is not used as

R/CR.MA/20774/2017 ORDER DATED: 13/06/2023

instrument of harassment or for seeking private vendetta

or with ulterior motive to pressurise accused or to settle

the score.