Gujarat High Court

Nutanben Amitkumar Sharma vs State Of Gujarat on 9 October, 2023

Bench: Sandeep N. Bhatt

                                                                                      NEUTRAL CITATION




      R/CR.MA/18056/2020                                 ORDER DATED: 09/10/2023

                                                                                       undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 18056 of 2020

                                  With
               R/CRIMINAL MISC.APPLICATION NO. 5143 of 2021
                                  With
               R/CRIMINAL MISC.APPLICATION NO. 1464 of 2021
==========================================================
                           NUTANBEN AMITKUMAR SHARMA
                                      Versus
                                STATE OF GUJARAT
==========================================================
Appearance:
MR.DARSHAN A. DAVE(7921) for the Applicant(s) No. 1
MR DHARMESH R PATEL(5592) for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 09/10/2023
                              COMMON ORAL ORDER

1.1 Since the prayers and issues involved in the present

petitions are identical in nature, hence, at the request of

learned advocates for the parties, the matters are taken

up for final consideration and Criminal Misc. Application

No.18056 of 2020 is considered as lead matter and all

the matters are heard together.

1.2 The present application is filed by the

applicants under Section 482 of the Code of Criminal

Procedure, 1973, for quashment of the impugned FIR

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

being C.R. No.11188012200017 of 2020 registered with

the Mahila Police Station Modasa at Aravalli for the

offences punishable under Sections 498A, 323, 504,

506(2), 294(b) and 114 of the Indian Penal Code and

Section 4 of the Dowry Prohibition Act.

2. Brief facts as per the case of the application in

Criminal Misc. Application No.18056 of 2020 are as such

that on 08.09.2020, the Respondent no.2 - original

complainant filed the aforementioned F.I.R. alleging that

the marriage of the respondent No.2 was solemnized with

Vikas i.e. accused No.1 who is the son of the

Shyambabu Gulzarilal on 17.01.2017 as per hindu

marriage rites and customs. Out of the wedlock, the respondent No.2 have birth one girl child namely Dishita,

who is aged about seven months and she is residing

with the complainant at her parental home. It is the

case of the applicant in this applicant that the

complainant was residing in joint family in one house at

her matrimonial home and she was treated well during

initial period, thereafter, the accused persons used to

instigate the husband of the complainant and her

husband used to give mental as well as physical torture

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

to the complainant. That, the accused No.1 i.e. the

husband of the complainant asked for ten lakhs rupees

dowry from the complainant to start his business and if

she will not bring, he will burn her and she was warned

to do whatever she wanted to do. That, the complainant

had given the birth to dead child in the past, at that

time the accused persons used to torture her mentally

and physically and used to demand for dowry and hence,

the complainant went to her parental home. It is further

the case of the applicant in this applicant that, the

father of the complainant had settled the dispute and

thereafter, she was brought back to her matrimonial

home. That, the accused No.1 i.e. her husband used to

give fist blows to the complainant. That, the complainant was pregnant and hence, she went to her parental house

at Modasa and on 04.01.2020, she had given birth to

girl child. It is further the case of the applicant in this

applicant that, the accused persons mentioned in the

impugned F.I.R. did not come to see the child and in

turn, when the accused persons were called for

settlement at her home, they raised dispute and quarrel

with the complainant and got provoked and given fist

blows to the complainant and her father and demand

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

dowry from the complainant. Hence, the complaint is

preferred. The applicant hereby prefer this application

under Section 482 of the Code of Criminal Procedure,

1973 before this Hon'ble Court for quashing and setting

aside the F.I.R. bearing F.I.R. C.R. No. 11188012200017

of 2020 registered with Modasa Mahila Police Station,

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

and 114 323, of the Indian Penal Code and section 4 of

Dowry Prohibition Act.

3. Heard learned advocates. Rule. Learned APP

and learned advocate for the complainant waive service

of notice of rule for and on behalf of the respective

respondents.

4. Learned advocate for the applicant(s) in

respective applications has submitted that the allegations

made in the present FIR are general in nature and it is

filed with an oblique motive to exert pressure on the

applicants. Furthermore, he has pointed out that the

original accused No.6 (applicant in Criminal Misc.

Application No.18056 of 2020), Nutanben, wife of

Amitkumar Sharma, is the sister-in-law (Nanand) of

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

respondent No.2, the complainant. The original accused

Nos. 4 and 5 (applicant No.1 and 2, respectively, in

Criminal Misc. Application No.1464 of 2021), Dilipkumar

and Anitaben, are the brother-in-law and sister-in-law of

the respondent No.2, the complainant. Lastly, the original

accused Nos. 1 and 2 (applicant No.1 and 2, respectively,

in Criminal Misc. Application No.5143 of 2021),

Shyambabu Gulzarilal Sharma and Jayadevi, are the

father-in-law and mother-in-law of the respondent No.2,

the complainant. He has submitted that there were

quarrels between the husband and wife, however, the in-

laws are falsely dragged into the litigation. He has

submitted that this is a case of over implication and the

entire family is dragged by the complainant. He has relied upon the judgment of the Hon'ble Apex Court in

the case of Kahkashan Kausar versus State of Bihar

reported in (2022) SCC 6 599. He has submitted that

this is an abuse of process of law and therefore, this

application may be allowed.

5. Per contra, learned advocate for complainant has submitted that there is a prima facie case against the

applicants. He has submitted that all the applicants have

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

played vital role in torturing the complainant mentally

and physically. He has submitted that after giving birth

of a baby girl, the in-laws have started harassment to

the complainant. He has submitted that many a times,

the husband came at home in a drunken condition and

has beaten the complainant. He has submitted that the

other in-laws have tried to give fuel to the quarrels

between husband and wife and thereby they have

tortured mentally to the complainant. He has submitted

that this is not a fit case where this Court should

exercise the powers under Section 482 of the Code in

favour of the applicants.

6. Learned APP for the State has submitted that this is a case of abuse of law as the applicant(s) has

sufficiently tortured the complainant as can be seen from

the impugned FIR. He has submitted that looking to the

complaint itself, prima facie case is made out against the

applicant(s). He has submitted that due to the birth of a

baby girl, the complainant was tortured by the in-laws,

she was beaten by the husband and the in-laws have

tried to see that the husband and wife gets separated.

He, therefore, submitted that there is no case made out

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

to interfere by exercising powers under Section 482 of

the Code as it is a case for trial.

7. I have heard rival contentions made by the

learned advocates for the respective parties. I have also

perused the documents available on record. Considering

the submissions made by the learned advocates for the

respective parties and also considering the documents

available on record, the following factors are weighed

with this Court for consideration of this application.

 The marriage is solemnised between the complainant

- wife and accused No.1 - husband in the year

2017.

 The impugned FIR is of the year 2020.

 The allegations are of the year 2014-15.

 Looking to the complaint itself, the complainant and

applicant No.1 - husband were residing separately.

 The allegations are general in nature.

 The original accused No.6 (applicant in Criminal

Misc. Application No.18056 of 2020), Nutanben, wife

of Amitkumar Sharma, is the sister-in-law (Nanand)

of respondent No.2, the complainant.

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

 The original accused Nos. 4 and 5 (applicant No.1

and 2, respectively, in Criminal Misc. Application

No.1464 of 2021), Dilipkumar and Anitaben, are the

brother-in-law and sister-in-law of the respondent

No.2, the complainant.

 The original accused Nos. 1 and 2 (applicant No.1

and 2, respectively, in Criminal Misc. Application

No.5143 of 2021), Shyambabu Gulzarilal Sharma

and Jayadevi, are the father-in-law and mother-in-

law of the respondent No.2, the complainant

 There are no other family members.

 All the family members are dragged into the

litigation by the complainant.

 It is a case of over implication.

 No specific incident is stated in the FIR which is

the primary specific requirement of the sections

invoked by the complainant.

 Prima facie, it seems that the impugned FIR is a

pressurise tactic by the complainant.

 It is more social imbalance, less criminality.

8. Further, it will also be fruitful to refer to the

judgment of the Hon'ble Supreme Court of India in the

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

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 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

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

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.

(7) Where a criminal proceeding is manifestly attended with

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

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."

9. 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 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.]

NEUTRAL CITATION

R/CR.MA/18056/2020 ORDER DATED: 09/10/2023

undefined

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 decided cases."

10. 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 applicant/s 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 pressurize accused or to settle

the score.

11. For the reasons recorded above, the following

NEUTRAL CITATION