Gujarat High Court

Patel Rinkuben W/O Rajeshkumar ... vs State Of Gujarat on 30 November, 2023

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     R/CR.MA/17358/2020                          ORDER DATED: 30/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 17358 of 2020

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             PATEL RINKUBEN W/O RAJESHKUMAR NATHUBHAI
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR AMRISH S BAROT(3551) for the Applicant(s) No. 1
MR PAWAN A BAROT(6455) for the Applicant(s) No. 1,2
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
RICHA SHAH(7541) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                            Date : 30/11/2023

                             ORAL ORDER

1. The present application is filed under Section 482

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

with the following prayers:

"9(a) This Hon'ble Court be pleased to admit this application.

(b) This Hon'ble Court be pleased to quash and set aside the F.I.R. filed before Unja Police, Mahesana vide I CR No.9 of 2019 along with charge sheet dated 03/04/2019 which culminated in criminal case no.847 of 2019, pending in the court of Ld.JMFC, Unja and all the prior and subsequent proceedings thereto against

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present Applicants.

(c) This Hon'ble Court be pleased to pending the admission, hearing and final hearing of this petition, this Hon'ble Court be pleased to stay the further proceeding of criminal case no.847 of 2019, pending in the court of Ld.JMFC, Unja pertaining to FIR dated 03/10/2019 vide I C.R.No.9 of 2019 registered before Unja Police Station, Mehsana and all other proceeding thereto.

(d) xxxxx"

2. The facts of the case of the present applicants are as

under:-

2.1 The applicants state that the impugned FIR is

filed by the respondent no.2-complainant stating that she is

residing at Amikunj Society, Ahmedabad highway, Palanpur,

District Banaskantha and is serving as a primary teacher at

village Malan; that she and original accused no.1 got married

prior to eight years at village Brahmanvada and from the

said wedlock, one male child was born who is aged two

years; that as she is serving, she used to keep the son in

the holidays and in routine days, the son resides at her

matrimonial house; that on 14.1.2019 in the evening at 8

p.m., the complainant went to drop the son at matrimonial

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house and she came to know that her father-in-law had

expired in the morning and she was not informed due to

which there was fight with her husband and her husband

gave kick and fist blows to her and all the family members

of the husband had provoked him; that all in-laws gave kick

and fist blows to her and abused the complainant and one of

the brother-in-law gave slap to the complainant and another

brother-in-law gave threats to life and as she felt that she is

not safe, she left for one relative house at Siddhapur and on

next day reached to Palanpur and as she was feeling pain,

she went to civil hospital, Palanpur; that as there was

previous harassment, she lodged the impugned complaint for

the offences punishable under Sections 498A, 323, 504, 506(2)

and 114 of the Indian Penal Code. It is this complaint which

is prayed to be quashed by way of this application by the

applicants herein who are the sister-in-law of the complainant

and her husband.

3. Heard learned advocate Mr.Pawan Barot for the

applicants, learned APP Mr.Soaham Joshi for the respondent

no.1 and learned advocate Ms.Richa Shah for respondent no.2.

3.1. Learned advocate Mr.Barot for the applicants submitted

that the complaint is filed against the husband and all his

family members; that the sisters-in-law and their respective

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husbands are residing separately at their matrimonial house

since long and they are roped in the alleged offence with

malafide intention; that the applicants herein are residing

separately at Patan, then Kutch-Bhuj and presently at

Ahmedabad; that the span of marriage life is more than

eight years; that the complainant had served for seven years

as teacher at Surat and then transferred to Malan, Palanpur

and had never resided together in joint family; that the

allegations made in the complaint are general in nature and

the essential ingredients of the offence punishable under

Section 498A of the IPC are not made out. He, therefore,

submitted that this application be allowed.

3.2 In support of his submission he has placed

reliance in the case of Preeti Gupta & Anr. V/s. State of

Jharkhand & Anr., reported in (2017) 7 SCC 667 and

submitted that this is nothing but abuse of the process of

law and therefore the impugned FIR is required to be

quashed and set aside.

4. Per contra, learned APP Mr.Joshi for respondent no.1 and Ms.Shah for respondent no.2 have submitted that

considering the tenor of the FIR, prima facie, the ingredients

of Sections 498A, 323, 504, 506(2), and 114 of Indian Penal

Code are made out. They have further submitted that the

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Court has to take into consideration the allegations made in

the FIR which constitute the offences against the present

applicants. He, therefore, submitted that there is no case

made out to interfere by exercising powers under Section 482

of the Code as it is a case for trial.

5. I have considered the rival submissions of the

parties and also the FIR and other documents produced on

record. It transpires that there are marital relations between

the complainant and the original accused no.1 i.e. they are

wife and husband and their marriage span is of more than

eight years; that the marriage is solemnized on 18.5.2010 and

as the complainant was serving, she stayed away from her

matrimonial house; that no specific incident is stated in the

FIR which is the primary specific requirement of the sections

invoked by the complainant. Moreover, the entire family

members are implicated by the complainant and though the

applicants who are sister-in-law and her husband were

staying separately since long, they are roped in the

complaint.

6. At this stage, it will be fruitful to mention the

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

Gupta & Anr. (supra), wherein it is observed in paragraph

33 thus:-

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"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 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. Further, it will also be fruitful to mention the

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

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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 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

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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 grievance of the aggrieved party.

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(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."

8. In view of the above and on perusing the contents

of the FIR, it appears that the applicants are unnecessarily

roped in by the complainant and there are casual references

made by her without allegations of active involvement and no

specific instances are narrated by the complainant. No specific

details are stated in the FIR. The allegations against the

applicants who are sister-in-law and her husband are also

general and vague and are bereft of specific instances. There

is no active involvement established of the applicants in

meting out cruelty from the contents of the F.I.R.

9. In this view of the matter, this is a fit case to

exercise the inherent powers under Section 482 of the Code.