Jayprakash Mahipatram Jani vs State Of Gujarat
2023 Latest Caselaw 8244 Guj

Gujarat High Court

Jayprakash Mahipatram Jani vs State Of Gujarat on 28 November, 2023

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

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      R/CR.MA/23154/2022                                ORDER DATED: 28/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 23154 of 2022

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                           JAYPRAKASH MAHIPATRAM JANI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Applicant(s) No. 1,2,3,4
MS MAITHILI MEHTA APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                 Date : 28/11/2023

                                  ORAL ORDER

1. By this application filed under Section 482 of the Cr.P.C., the applicants who are in-laws of the private respondent, seek to invoke inherent powers of this Court, praying for quashment of the Criminal Complaint being CR. I No. 11206043220635 of 2022 registered with Mehsana Taluka Police Station, for the offence under Sections 498A and 114 of the IPC and under Sections 3 and 4 of the Dowry Prohibition Act.

2. Facts and circumstances giving rise to file this quashing petition are that, the applicants being father-in-law, mother-in-law and sister-in-laws of the private respondent, have preferred this petition, inter-alia stating that, the allegations of harassment having been made without any basis and the criminal proceedings put into motion with a view to harass them. The marriage of the private

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respondent with son of applicant nos. 1 and 2 was solemnized on 26.01.2010 and out of the said wedlock two children were born and presently, they are residing with the private respondent. The marriage was love marriage. It is alleged that, the husband Yogesh Polara is not doing anything for the livelihood of the family and having habit of consuming liquor, as a result, the matrimonial disputes cropped up with the wife - private respondent. So far applicants are concerned, it is alleged that, since 2020, the private respondent was subjected to mental and physical harassment by the husband, however, the applicants are indirectly inciting the act of the harassment and failed to make out amicable resolution and did not care about her maintenance.

3. In the aforesaid facts, the private respondent filed a criminal proceedings under the aforementioned offences, implicating five persons as accused.

4. After registration of the FIR, the applicants have preferred present quashing petition mainly on the ground that, the allegations made in the FIR 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 them.

5. This Court has heard learned counsel Mr. Yogendra Thakore and Ms. Maithili Mehta, learned Additional Public Prosecutor for the respondent State. Private respondent, though served, did not choose to remain present.

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6. Mr. Thakore, learned counsel appearing for the applicants has submitted that, after 11 years of the marriage, the questioned FIR has been lodged, wherein, the entire family members roped into, without any instances of harassment, except general and omnibus allegations made with a view to harass them. He would further that the father-in-law and mother-in-law, aged about 69 and 63 are citizen of USA and since long, they are living separately and enjoying their life in USA. So far sister-in-laws are concerned, Mr. Thakore submitted that, both the sisters are living separately at their respective matrimonial home and they never lived together and shared the house with the private respondent. In these background facts, Mr. Thakore contended that, the ingredients of the alleged offence are lacking as the applicants have nothing to do with the alleged harassment at the instance of husband accused and therefore, this is a fit case to exercise inherent powers to quash the criminal proceedings.

7. The respondent no. 2 - original informant, though served, has chosen not to remain present in the proceedings nor, has filed reply affidavit to oppose the prayer of quashing.

8. On the other hand, learned Additional Public Prosecutor Ms. Maithili Mehta, vehemently opposed the plea of quashing and contended that, this is not an exceptional case to exercise inherent powers of this Court and when, the averments of the FIR disclosed the ingredients necessary to constitute an offence, the Court should not exercise its power to stifle a legitimate prosecution.

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9. The scope and power of the High Court to quash the first information report is well settled. The power under Section 482 of the Code has to be exercised sparingly and cautiously to prevent the abuse of process of Court and to secure the ends of justice. The High Court should refrain from giving a prima-facie decision, unless there are compelling circumstances to do so. Taking the allegations, as they are, without adding or subtracting anything, if no offence is made out, only then, the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 of the Cr.P.C.

10. The Apex Court in case of State of Haryana vs. Bhajan Lal reported in (1992) Supp 1 SCC 335 has laid down the guidelines that must be adhered to while exercising inherent powers under Sections 482 of the Code to quash the criminal proceedings. The relevant paragraph reads 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 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:

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(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 or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fides 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."

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11. Since the FIR in question emanates from matrimonial disputes.

Recently, the Apex Court in case of Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar & Ors. reported in (2022) 6 SCC 599 held and observed that, in recent times, matrimonial litigation in the country has increased significantly which led in an increased tendency to employ provision such as 498A Indian Penal Code as instruments to settled personal scores against the husband and his relatives. In para-17 of the judgment, it is observed that:

"17. ..... this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analyzing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.".

12. In matrimonial case, the Apex Court in the case of Preeti Gupta and another vs. State of Jharkhand and another reported in (2010) 7 SCC 667 observed that, a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that, exaggerated version of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in very large number of cases.

13. In the case of Geeta Mehrotra and Anr. v. State of Uttar Pradesh

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and Anr reported in (2012) 10 SCC 741, it is observed that, family members of the husband are being implicated without allegations of active involvement and they are being implicated casually.

14. Having regard to the facts and circumstances of present case, the issue arise for determination is whether the applicants have made out a case for quashing of FIR?

15. The accused husband against whom the allegations of harassment are being made is not before this Court. The applicant nos. 1 and 2 being citizen of USA have settled there and since long, they are residing at the address mentioned in the application. The applicant nos. 3 and 4, who are sister-in-law of respondent no. 2 are also living separately as after their marriage, they never reside together with the private respondent. In these background facts and considering the allegations made in the FIR, this Court is of the considered view that, the applicants have been implicated in the alleged offence with a view to settled the matrimonial dispute for which the accused husband was failed to reconcile the entire matrimonial dispute. Thus, prima-facie, it appears that due to matrimonial dispute with the husband, the questioned FIR is being lodged roping into the mother, father and sisters of the accused husband without their being any active involvement in the alleged offence of harassment.

16. For the reasons recorded above, the accusations made in the FIR, even if taken into at their face value and taken in their entirety, do not constitute offence under Sections 498A and 114 of the IPC and

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under Sections 3 and 4 of the Dowry Prohibition Act qua the applicants. The case is fully covered by categories (1) and (7) as enumerated by the Apex Court in the case of Bhajan Lal (Supra).

17. For the foregoing reasons, the application is allowed. Rule is made absolute to aforesaid extent. Resultantly, the FIR being CR. I No. 11206043220635 of 2022 registered with Mehsana Taluka Police Station, Mehsana, as well as other consequential proceedings are hereby quashed and set aside qua present applicants only. Direct service permitted.

(ILESH J. VORA,J) P.S. JOSHI