Dipak Rajeshbhai Chunara vs State Of Gujarat
2023 Latest Caselaw 8141 Guj

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      R/SCR.A/5781/2020                                        ORDER DATED: 08/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5781 of 2020

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                               DIPAK RAJESHBHAI CHUNARA
                                         Versus
                                   STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with
MR HEMANG M SHAH, ADVOCATE for the Applicants
MS MONALI BHATT, APP for the Respondents No. 1 - State
RULE SERVED BY DS for the Respondents No. 2 - Complainant
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                     Date : 08/11/2023

                                      ORAL ORDER

1. This is an application filed by the applicants for

quashment of the impugned complaint being C.R.

No.11191030200030/2020 registered with the Mahila Police Station (West), Ahmedabad City for the offences punishable

under Sections 498A, 406, 323, 294(B) and 114 of the Indian

Penal Code and Section 4 of the Dowry Prohibition Act.

2. The brief facts of the prosecution case are that

after one month from her marriage dated 14.12.2015 till the

date of complaint i.e. 11.07.2020, all the applicants together

have mentally and physically tortured the complainant for the

small things of house-hold chores, used filthy language,

demanded dowry of about ten lakhs, used her 'stri dhan' and

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thereby compelled to live dependable life. Hence, the

impugned complaint.

3. Rule is already issued and served to the

complainant twice, but she has chosen not to appear and

contest this application before this Court. Therefore, looking

to the pendency of the matters, this Court has no option but

to hear and decide this application on merit finally today.

4. Heard learned advocates.

5.1 Learned senior advocate Mr.Shalin Mehta with

learned advocate Mr.Hemang Shah for the applicants has

submitted that during the pendency of this application,

divorce is granted by the learned competent Court of Canada

to applicant No.1 and respondent No.2 and thereafter, the

complainant - respondent No.2 has re-married and now

settled at Canada. He has further submitted that he came to

know recently that while enjoying her second marriage, she

gets pregnant now-a-days. He has submitted that the

marriage was solemnised on 14.12.2015 and on 23.12.2015,

the complainant and applicant No.1 went to Canada together.

He has submitted that thereafter, both were living in

Canada. He has further submitted that though both are

living separately and in Canada, they quarrelled each other

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on many points. He has submitted that many times, the

complainant did not prepare food for applicant No.1 and

ignored her responsibilities towards applicant No.1. He has

submitted that the complainant and her parents started

harassment to applicant No.1 on each and every points on

video call. He has submitted that since such harassment

became so intolerable, on 26.06.2017, applicant No.1 tried to

commit suicide by drinking chemical detergent, but

fortunately, he was rescued.

5.2 He has submitted that the applicant has decided

to go back to India so both the families can sit together and

bring amicable solution in presence of the community leaders

and therefore, they have booked tickets for India dated

07.09.2017, but on 05.09.2017, the complainant got annoyed

and started shouting, went to neighbour's house and called

Canadian Police and informed them that applicant No.1 is

bringing her to India against her Will. The police officer

separated both of them and warned the applicant No.1 to

leave her alone and not to contact or meet the complainant

without her consent, failure to which strict action will be

taken against him. He has submitted that thereafter, the

applicant No.1 left his apartment and sent to his friend's

home, he cancelled the ticket of the complainant and left

Canada alone on 07.09.2017. The complainant had never

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contacted the applicant No.1 thereafter. The applicant No.1

stayed in India for about six months. He has submitted that

the complainant came to India on her own later on.

5.3 He has submitted that all the members of the

family tried to resolve the dispute amicably together, with

the help of the society leaders, but on insistence and

pressure of the parents of the complainant that applicant

No.1 and the complainant will live in Canada and not in

India. Ultimately, the applicants have surrendered and agreed

for the wish of the parents of the complainant and they

jointly went to Canada on 21.01.2018. He has submitted that

they were not in contact from 05.09.2017 till 17.12.2018. He

has submitted that during all these period of separation for

about three years i.e. from 05.09.2017 till date, respondent

No.2 and applicant No.1 had been living separately in

different districts of Canada and never consummated the

marriage.

5.4 He has submitted that the applicants have tried a

lot to settle the dispute but the complainant and her parents

did not cooperate and therefore, it failed. He has submitted

that ultimately, divorce petition was filed before the learned

Court at Canada, which was allowed. The complainant and

the applicant are separated and the complainant got

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remarried with another guy and settled in her matrimonial

life. He has submitted that it came to know that she is not

pregnant during his second marriage.

5.5 He has submitted that in view of above

background, this application is nothing but an abuse of

process of law and it would not be fruitful to continue with

it any further. He has submitted that the complainant has

wrongly dragged all the family members of applicant No.1 in

the offence in question. He has submitted that in view of the

decision of the Hon'ble Apex Court in the case of State of

Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, this

application may be allowed. He has also relied upon the

decision of the Hon'ble Apex Court in the case of Preeti

Gupta & Anr. V/s. State of Jharkhand & Anr., reported in

(2017) 7 SCC 667. He has submitted that the impugned FIR

may be quashed and the consequently, the proceedings arising

from the impugned complaint may also be quashed.

6. Per contra, learned APP for the State has

submitted that there is prima facie material against the

applicants and therefore, this application may be dismissed.

She has submitted that there are various allegations against

the applicants, which can be proved during the trial and

therefore, let the trial may be faced by them. She has

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submitted that this Court should not exercise its powers very

sparingly in favour of the applicants. She has submitted that

this application may be dismissed.

7.1 I have considered the rival submissions made by

the learned advocates for the respective parties. I have also

perused the documents available on record. I have considered

the averments made in this application. From record it

transpires that applicant No.1 and the complainant were

residing separately in Canada. The complainant had not

stayed with her in-laws except few days and therefore, the

allegations levelled against them would not stand any further.

The complainant had dragged all the family members

wrongly. It is a case of false and over-implication by the

complainant. Applicants No.2 to 5 were arrested and are on

bail.

7.2 It is noted that this Court has, while issuing rule,

granted interim relief that no coercive action shall be taken

against the applicants. There were various ups and downs

during their marriage life. Further, there are various

allegations against each other. However, since the

complainant gets remarried with another person and it is

reported that now, she is pregnant and is happy in her

matrimonial life, it would not be proper to observe anything

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qua the allegations and the averments made in this

application any further against any one. Further, the learned

competent Court at Canada has granted divorce, which holds

the filed still.

7.3 At this stage, it will be fruitful to mention the

judgment of the Hon'ble Supreme Court in the case of Preeti

Gupta (supra), wherein it is observed in paragraph 33 thus :-

"33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would

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have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."

7.4 Further, it will also be fruitful to mention the

judgment of Hon'ble Supreme Court in the case of Bhajan

Lal (supra), 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

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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 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.

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(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

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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."

7.5 Under the circumstances and keeping in mind the

ratio laid down by the Hon'ble Apex Court noted above, this

application needs to be allowed by quashing the impugned

complaint.

8. In view of above, this application is allowed. The

impugned complaint being C.R. No.11191030200030/2020

registered with the Mahila Police Station (West), Ahmedabad

City is hereby quashed and set aside, qua the applicants

only. Consequently, the proceedings arising from the

impugned complaint, if any, are also quashed and set aside,

qua the applicants only.

Direct service is permitted.

(SANDEEP N. BHATT,J) M.H. DAVE