Gujarat High Court

Mahendrabhai Mulchandbhai ... vs State Of Gujarat on 9 October, 2023

Bench: Sandeep N. Bhatt

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     R/CR.MA/15459/2016                                       ORDER DATED: 09/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 15459 of 2016

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        MAHENDRABHAI MULCHANDBHAI KANTHARIYA & 5 other(s)
                           Versus
                 STATE OF GUJARAT & 1 other(s)
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Appearance:
 for the Applicant(s) No. 1,3,4,5,6
(MR SAMIR J DAVE)(268) for the Applicant(s) No. 2
MR MAULIK R SHAH(6385) for the Applicant(s) No. 1,3,4,5,6
UNSERVED EXPIRED (N) for the Applicant(s) No. 2
MR ADIL R MIRZA(2488) for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 09/10/2023
                                ORAL ORDER

1. When the matter is called out, learned advocate for

the applicants submits that during the pendency of the

matter, the applicant No.2 is expired and therefore, the

present application as become abated. Hence, the present

application is disposed of as having become abated qua

the applicant No.2.

2. Qua the applicant Nos.1, 3 & 4, he, on receiving

instructions from his clients, does not press this

application. Accordingly, the present application is

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dismissed as not pressed qua the applicant Nos.1, 3 & 4.

3. Hence, he has requested to consider this application

qua the applicant Nos.5 & 6, who happens to sister-in-

law of the complainant and brother-in-law of the

complaint, and accordingly, heard the learned advocate,

Mr. Maulik R. Shah, representing the applicant Nos.5 &

6, Mr. Adil R. Mirza, the learned advocate, representing

the respondent No.2 - complainant, and the learned

Additional Public Prosecutor (APP), representing the

respondent No.1 - State is heard. Rule, returnable

forthwith. Learned APP waives service of notice of Rule

on behalf of respondent - State.

4. The present application is filed by the applicants

under Section 482 of the Code of Criminal Procedure,

1973, for quashment of the impugned FIR being C.R.

No.I-7 of 2016 registered with the Mahila Police Station,

Surat for the offences punishable under Sections 498A,

323, 504, 506(2), 294(b) and 114 of the Indian Penal

Code and Sections 3 and 7 of the Dowry Prohibition Act.

5. Brief facts of the case as per the say of the

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applicant in this application are as such that applicant

no. 1 is husband, applicant nos. 2 and 3 are parents-in-

law, applicant no. 4 is brother-in-law and applicant nos.

5 and 6 are sister-in-law and brother-in-law of the

complainant herein. The respondent No. 2 - original

complainant is wife of applicant No. 1. It is the case of

the applicant in this application are as such that the

marriage of the applicant no. 1 and respondent no. 2

had solemnized in the year 1997 and out of the said

wed-lock, the respondent no. 2 gave birth of daughter

Khushi and son Smit. The respondent no. 2 had filed

complaint being C.R. No. 1-276/2003 with Katargam

Police Station, Surat on 7/8/2003 against the applicant

nos. 1 and 3 being husband and mother-in-law of the respondent no. 2 for the offences punishable under

sections 498-A, 323, 506 [2] and 114 of the IPC as also

under sections 3 and 7 of the Prevention of Dowry Act.

It is further the case of the applicant in this application

are as such that pursuant to the aforesaid complaint, the

police completed investigation and filed charge-sheet in

the Court of the Ld. Judicial Magistrate First Class,

Surat. Pursuant to the aforesaid charge-sheet, the

Criminal Case No. 4761/2003 was conducted against

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applicant nos. 1 and 3 herein and the Ld. Judicial

Magistrate First Class, Surat was pleased to acquit the

applicant nos. 1 and 3 vide judgment and order dated

7/5/2015. It is further the case of the applicant in this

application are as such that the respondent no. 2 also

filed Criminal Misc. Application No. 440/2003 under

section 125 of the Criminal Procedure Code in the Court

of Judicial Magistrate, Vadodara, wherein maintenance of

Rs.1,500/- pm for wife, Rs.1000/- each for son Smit and

daughter Khushi was awarded to the respondent no. 2

herein.

It is further the case of the applicant in this

application are as such that thereafter at the intervention of elders and relatives of the parties,

compromised was arrived at between the husband and

wife and they have agreed to reside together and

agreement to that effect was executed on 5/5/2015. After

the compromise, the respondent wife and applicant -

husband were residing together and because of some

minor dispute and difference, the respondent no. 2 filed

the complaint being C.R. No. 1-7/2016 before the Mahila

Police Station, Surat against the applicants, alleging that

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the applicants are quarreling with her on some minor

matter and some of the applicants are instigating the

applicant no. 1 husband, etc., on 16/2/2016 for the

incident of June, 2015. Thus, there is delay of 8 months

in filing the complaint, for which no explanation is

given.

It is further the case of the applicant in this

application are as such that thereafter the police started

investigation, which is going on. The charge-sheet is not

filed by the police. The applicant no. 4 is brother-in-law

of the complainant and is residing separately since last 5

years and the applicant nos. 5 and 6 are sister-in-law

and brother-in-law of the complainant and they are residing separately since last 25 years and they have

nothing to do or not concerned at all with the complaint

in question.

Hence, view of the aforesaid complaint being C.R.

No. 1-7/2016 filed by the respondent No.2 - complainant

against the applicants, the present application is

preferred.

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6. Learned advocate for the applicants has submitted

that the FIR is filed after a delay of almost 8 years

from the alleged incident. He 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. He has submitted that the

petitioner no. 4 is brother-in-law of the complainant and

is residing separately since last 5 years and the

petitioner nos. 5 and 6 are sister-in-law and brother-in-

law [husband of sister-in-law) of the complainant and

they are residing separately since last 25 years and they

have nothing to do or not concerned at all with the

complaint in question. Furthermore, he has submitted

that the complainant had earlier also filed complaint for the same offences against the petitioner nos. 1 and 3,

wherein the petitioner nos. 1 and 3 had been acquitted

by the trial Court, vide judgment and order dated

7/5/2015. The complaint in question is second one filed

for the same offences by the complainant. He has

emphasized that the complainant has filed complaint in

question after 8 months i.e. on 16/2/2016 for the alleged

incident of June 2015 thus it is an after thought and it

is filed with a view to harass the petitioners and there

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is no explanation rendered by the complainant for such

delay. He has submitted that on bare reading of the

complaint does not disclose any specific role having been

played by the petitioners. The complaint is based upon

the alleged bare statement of the complainant. He has

pointed out that the offence alleged against the

petitioners is not prima-facie made out. Further, it is

also submitted that no other act expressed or impliedly

is attributed to the present petitioners. Furthermore, he

has submitted that the petitioner nos. 2 and 3 are

father-in-law and mother-in-law of the complainant and

they are old aged persons. He has also submitted that

the petitioners are innocent. The petitioners state that

with a view to ruin their reputation in the society, the respondent no. 2 - complainant has falsely filed the

complaint. As such, the petitioners have not committed

any offence as alleged. Furthermore, it is submitted that

the respondent no. 2 has involved all the family

members in the complaint in question with a view to

harass them and to compel them to compromise the

matter as per her dictate. He has further submitted that

the impugned complaint is nothing else but sheer abuse

of process of law and, therefore, it is required to be

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quashed and set aside. The continuation of the impugned

complaint would clearly tantamount to abuse of legal

process. Furthermore, it is submitted that taking the

case of the prosecution at its face value as culled out in

the complaint, no offences much less offences punishable

under the provisions of the aforesaid section of the

Negotiable Instruments Act have been even prima-facie

made out against the present petitioners. It is submitted

that the he has dragged into the litigation by the

complainant. He has submitted that this is a case of

over implication and the entire family is dragged by the

complainant. He has relief upon the judgment of this

Court in the case of Jyantilal Vadilal Shah versus State

of Gujarat reported in 2023 (0) AIJEL-HC 245935. He has submitted that this is an abuse of process of law

and therefore, this application may be allowed.

7. Per contra, learned advocate for the respondent No.2 - complainant has submitted that there is a prima

facie case against the applicants. He has submitted that

all the applicants have played vital role in torturing the

complainant mentally and physically. He has submitted

that after giving birth a daughter Khushi and a son Smit. ,

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the in-laws have started harassment to the complainant.

He has submitted that many a time, 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.

8. Learned APP for the State has submitted that

this is a case of abuse of law as the applicants have

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

applicants. 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

to interfere by exercising powers under Section 482 of

the Code as it is a case for trial.

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9. 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 applicant No.1 - husband in the year

1997.

 The impugned FIR is of the year 2016.

 The allegations are of the year 2014-16.

 Looking to the complaint itself, the complainant and

applicant No.1 - husband were residing separately

and thereafter, together.

 The allegations are general in nature.

 This application is not pressed qua applicant Nos.1,

3, & 5.

 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.

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 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

pressurize tactic by the complainant.

 It is more social imbalance, less criminality.

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

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

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

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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.

(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

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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 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."

11. 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

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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.]

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."

12. 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

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ensure that criminal prosecution is not used as

instrument of harassment or for seeking private vendetta