Gujarat High Court

Arvindbhai Prabhashankar ... vs State Of Gujarat on 3 March, 2023

Bench: Ilesh J. Vora

     R/CR.MA/2141/2016                           JUDGMENT DATED: 03/03/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 2141 of 2016


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA
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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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              ARVINDBHAI PRABHASHANKAR TRIVEDI & 2 other(s)
                                Versus
                      STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
A R ROCKEY(7592) for the Applicant(s) No. 1,2,3
KHUSHI P JADAV(7351) for the Applicant(s) No. 1,2,3
MR. HARDEEP L MAHIDA(7112) for the Applicant(s) No. 1,2,3
MR SAMIR AFZAL KHAN(3733) for the Respondent(s) No. 2
MS VRUNDA SHAH, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 03/03/2023
                      ORAL JUDGMENT

1. By way of this application, under Section 482 of the Code

of Criminal Procedure, 1973, applicants seek to invoke

extraordinary jurisdiction of this Court for quashing of

private complaint being Criminal Case No.3304 of 2003

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(New C.C.No.415 of 2013) filed by respondent no.2, for the

offences punishable under Sections 498(A), 420, 406, 504,

506(2) and 114 of the Indian Penal Code and Sections 3

and 5 of the Dowry Prohibition Act.

2. Facts and circumstances giving rise to file present

application are that applicants are father-in-law, mother-

in-law and sister-in-law of respondent no.2. The marriage

of Rushilkumar Arvindkumar Trivedi-accused no.1 was

solemnized on 29.05.2001 as per Hindu Rites and Rituals

and thereafter, the complainant was residing at her

matrimonial house. A private complaint has been filed on

03.12.2003, inter alia alleging that she had been subjected

to physical and mental cruelty by the applicants and

husband. It is alleged against the applicants that due to

their instigation and support to the husband, she was

beaten by the husband and he was demanding dowry as

they want to purchase residential flat at Vidhyanagar,

Anand. It is further alleged that, the applicants have

illegally retained her ornaments and other things, whereby

committed an offence of criminal breach of trust and

cheating. In the aforesaid facts, a private complaint for the

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offences as referred above, is filed against the applicants

and husband before the Magistrate Court, Petlad at Anand.

Pursuant to the complaint, the Court has issued summons

and accordingly, on 05.07.2006, charges came to be

framed for the aforesaid offences. The husband - accused

no.1 filed petition for divorce before the learned Senior Civil

Court, Anand. During the pendency of the divorce petition

(HMP No.63 of 2006), parties have settled the dispute

amicably and executed a registered divorce deed and

submitted an application for dissolution of marriage before

the learned Civil Court. Pursuant to the compromise pursis

Exh.12 dated 12.08.2006, the learned Civil Court dissolved

the marriage and passed a decree of divorce. In view of the

decree of dissolution of marriage, the complainant -

respondent no.2 had performed the second marriage and

since many years, she is residing at London and out of the

said wedlock, a child has also been born.

3. In the aforesaid facts, the husband and applicants moved

an application at Exh.78 before the Magistrate Court at

Petlad, inter alia stating that since 2003, the complainant

was not remaining present as she is not interested to

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prosecute the applicants and therefore, due to non-

appearance of the complainant, the applicants may be

acquitted. The learned Trial Court, vide order dated

03.09.2009, dismissed the complaint for non-prosecution

and acquitted the applicants for the offences. The wife -

respondent no.2, aggrieved with the order, filed a Revision

Application before the Court of Sessions at Anand, mainly

on the ground that the learned Trial Court having no

jurisdiction to pass an order under Section 256 of Code of

Criminal Procedure, 1973 as the case is warrant triable

case whereas Section 256 of the Cr.P.C. is applicable to the

trial of summons cases. The learned Sessions Court,

Anand, after hearing the parties, vide its order dated

04.04.2011, set aside the order of the learned Trial Court,

acquitting the accused - applicants under Section 256 of

the Cr.P.C. and directed the learned Trial Court to proceed

with the case in accordance with law.

4. It is in the aforesaid context, the present application has

been preferred by the applicants, alleging that the

complaint has been filed with malafide and/or with an

ulterior motive and the same is nothing but an amount of

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abuse of process of law, and therefore, it requires to be

quashed and set aside.

5. Mr.H.L. Mahida, learned advocate for the applicants would

submit that the applicant nos.1 and 2 are senior citizen,

whereas applicant no.3 is living separately at her

matrimonial home. He would further submit that after

filing of the complaint, parties have settled the dispute

amicably and pursuant to the compromised, the learned

Civil Court has drawn the decree of divorce and thereafter,

she remarried to another person and since long, she is

living at U.K. He would further submit that she has never

attended the Court proceedings and each and every date,

accused were remained present and when the Court has

dismissed the complaint from non-prosecution, she has

intentionally challenged the order of the Trial Court which

conduct shows that the complaint has been filed with

oblique motive and to harass the applicants. He would

further submit that even on merits, the allegations leveled

in the FIR are general and vague, which do not disclose the

cognizable offence and do not prima facie constitute an

offence of cruelty and demand of dowry.

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6. In the aforesaid contentions, learned advocate for the

applicants would submit that this is a fit case to exercise

inherent powers by this Court to quash the criminal

proceedings.

7. On the other hand, Mr.S.A. Khan, learned advocate for

respondent no.2-wife and Ms.Vrunda Shah, learned

Additional Public Prosecutor have vehemently opposed the

prayer of the quashing and contended that, the allegations

made in the complaint, prima facie constitute an offence of

cruelty and disclose a cognizable offence. It is submitted

that jurisdiction of this Court under Section 482 of the

Cr.P.C. is extremely limited as the complaint cannot be

quashed particularly when there is a sufficient evidence

available on record to put the accused persons to trial. It is

further submitted that the allegations of cruelty are

question of facts to be established by leading evidence

before the learned Trial Court as the Court will not be

justified upon an inquiry as to the reliability or

genuineness or otherwise of the allegations made in the

FIR. In nutshell, it is submitted that there is no

extraordinary circumstances exists to exercise inherent

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jurisdiction of this Court.

8. Having regard to the facts and circumstances of present

case, the issue arises for consideration whether the

complaint is liable to be quashed in exercise of

extraordinary and inherent jurisdiction ?

9. The scope and power of the High Court to quash the first

information report of criminal proceedings under Section

482 of the Cr.P.C. is well settled. The Hon'ble Supreme

Court in the case of State of Haryana and others Vs.

Bhajanlal and others, 1992 Supp. SCC 335, has laid

down the guidelines that must be adhered to while

exercising inherent powers under Section 482 of the

Cr.P.C. the relevant paragraph read thus:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter 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 Article 226 or the inherent powers under Section 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 defned and suffciently

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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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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 Section 155(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 of 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.

(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 State of Andhrapradesh Vs. Golconda Lingaswamy

and others, 2004(6) SCC 522, the Hon'ble Apex Court

categorically held that in exercise of powers, the Court

would be justified to quash any proceedings if it finds that

initiation or continuance of it amount to abuse of process

of Court or quashing of this proceedings would otherwise

serve the ends of justice.

11. Keeping the above proposition of law in mind and having

regard to the facts and circumstances of the case, the

crucial question of consideration is whether case is made

out to exercise inherent powers of this Court ?

12. It is not in dispute that after filing the complaint,

respondent no.2 never remained present before the Court.

She once was remained present before the Civil Court,

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Anand to submit settlement pursis Exh.12 and pursuant

to the settlement, the Civil Court vide its decree and

judgment dated 12.08.2006 dissolved the marriage. After

dissolution of marriage, she married to another person and

since then, she is living with her husband at U.K. In such

circumstances, this Court is of the considered view that

inference can be drawn against respondent no.2-wife that

she is not interested in pursuing the prosecution against

the applicants, but keeping hanging sword on the

applicants, with a view to harass them, she keeps continue

the proceedings. It is necessary to refer the observations

made by the Division Bench of the Bombay High Court

[Vrushali Jayesh Kore Vs. State of Maharashtra

(2023(1) Crime (Bombay)], Para-9 of the judgment of the

Division Bench read thus:

"It is pertinent to note that unfounded criminal charges and long drawn criminal prosecution can have serious consequences. A person subjected to such litigation suffers immense mental trauma, humiliation and monetary loss. Reckless imputations can also result in serous repercussion on career progression and future pursuits and most importantly it stigmatizes reputation, brings disrepute and lowers the image of a person amongst friends, family and colleagues. It is to be noted that loss of

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character or bruised reputation cannot be restored even by judicial reprieve. As Shakespeare has famously said that "Good name in man and woman, dear my lord, is the immediate jewel of their souls: Who steals my purse steals trash; 'tis something, nothing; 'twas mine, 'tis his, and has been slave to thousands: But he that filches from me my good name Robs me of that which not enriches him and makes me poor indeed." In legal parlance, right to reputation and dignity of an individual is held to be an integrated part of Articles 21 and 19(2) of the Constitution. Therefore, it is imperative for the Court to exercise power under Section 482 of the Code of Criminal Procedure, in ft cases, to safeguard and protect the rights of every person subjected to such litigation and prevent misuse of criminal process for personal vendetta."

13. In view of the above position of law and having regard to

the facts and circumstances of the case and after going

through the criminal complaint and subsequent

development as discussed hereinabove, more particularly

conduct of respondent no.2, I am of the view that it is clear

abuse of process of law on the part of the complainant and

therefore, it is a fit case to exercise inherent powers to

prevent abuse of process of Court and to secure the ends

of justice.

14. Resultantly, this application is allowed. The proceedings

of Criminal Case No.3304 of 2003 (New C.C.No.415 of

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