Gujarat High Court

Alpaben Murjibhai Kasoondra vs State Of Gujarat on 19 June, 2023

Bench: Sandeep N. Bhatt

      R/CR.MA/312/2017                                ORDER DATED: 19/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 312 of 2017

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                ALPABEN MURJIBHAI KASOONDRA & 3 other(s)
                                Versus
                      STATE OF GUJARAT & 1 other(s)
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Appearance:
MR HARDIK H DAVE(6295) for the Applicant(s) No. 1,2,3,4
MR PRATIK Y JASANI(5325) 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 : 19/06/2023

                                  ORAL ORDER

1. This application is filed under Section 482 of

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

short) praying for quashing and setting aside the FIR

being C.R.No.I-130 of 2016 registered with Rajkot Mahila

Police Station for the offences punishable under Sections

406, 498-A, 313 and 114 of the Indian Penal Code.

2. The brief facts leading to filing of this

application are such that the respondent no.2-original

complainant got married with the original accused no.1

and because of the torture meted out by her husband,

her mother-in-law and other members of the family for

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having a baby girl and therefore the impugned complaint

is filed, which is sought to be quashed in this

application.

3. Heard learned advocate Mr.Siddhant Parikh for

learned advocate Mr.Hardik Dave for the applicants,

learned APP Mr.Joshi for respondent no.1-state and

learned advocate Mr.Pratik Jasani for respondent no.2-

complainant.

4. Learned advocate Mr.Parikh for the applicants

has drawn my attention to the tenor of the FIR and

submitted that the present applicants are sisters-in-law

and brothers-in-law of the complainant-accused nos.3 to 6

in the impugned FIR. He has submitted that even on bare perusal of the FIR, no specific role is attributed to

the present applicants and the allegations are made

against the accused no.1-husband accused no.2-mother-in-

law of the complainant. He has further submitted that

in the FIR, general allegations are made against the

present applicants and no offence is made out under the

provisions of Sections 406, 498A, 313 and 114 of the

Indian Penal Code.

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5. He has further submitted that during the

pendency of this application, there is further development

that this Court has quashed the FIR against the accused

nos.1 and 2 vide order dated 9.7.2019 passed in Criminal

Miscellaneous Application No.2830 of 2017, in view of the

divorce agreement dated 24.7.2018.

6. He, therefore, submitted that on bare perusal

of the FIR, no prima facie offence is made out against

the present applicants and that the proceedings qua the

accused nos.1 and 2 are already quashed, the present

application be allowed and the complaint be quashed

against the present applicants also, as no fruitful

purpose would be served in continuing the proceedings.

7. Per contra, learned advocate Mr.Jasani for the respondent no.2 has submitted that prima facie, case is

made out against the present applicants from the bare

reading the FIR. There is specific allegation against the

present applicants and the complaint needs full fledged

trial. He has further submitted that the Court should be

slow in exercising discretion under Section 482 of the

Code and should exercise the powers sparingly. He,

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therefore, prayed to dismiss this application.

8. Learned APP Mr.Joshi has supported the

contentions raised by learned advocate Mr.Jasani and

submitted that prima facie, the FIR discloses offence

against the applicants and looking to the totality of the

facts and circumstances of the present case, FIR against

the present applicants does not deserve to be quashed

and set aside as it is required to be tested by full

fledged trial. He also submitted that the Court should be

slow in exercising the inherent powers under Section 482

of the Code. He, therefore, prayed to dismiss this

application.

9. I have considered the rival submissions made

at the bar and I have also considered the contents of

the FIR. It transpires from the material on record that

the main allegation is made against the husband and

the mother-in-law of the complainant who are accused

nos.1 and 2 in the FIR against whom the FIR is

quashed vide order passed by this Court because of the

settlement arrived at between the parties in terms of the

divorce agreement dated 24.7.2018. Therefore, no fruitful

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purpose will be served in continuing the proceedings

against the applicants against whom only general

allegations are made in the FIR and no offence, prima

facie, is made out against them.

10. 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 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

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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 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

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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."

11. 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

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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;]

[(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

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decided cases."

12. 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

instrument of harassment or for seeking private vendetta

or with ulterior motive to pressurise accused or to settle