Gujarat High Court
(Abdul) Raufbeg Arifbeg Mughal vs State Of Gujarat on 29 September, 2023
Bench: Divyesh A. Joshi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7010 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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(ABDUL) RAUFBEG ARIFBEG MUGHAL & 3 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MA KHARADI(1032) for the Applicant(s) No. 1,2,3,4
MR SANDIP M PATEL(5649) for the Respondent(s) No. 2
MR. MANAN MEHTA, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 29/09/2023
ORAL JUDGMENT
1. By way of this application under Section 482 of the
Cr.P.C., the applicants seek to invoke the inherent powers of
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this Court praying for quashing of the First Information Report
being C.R. No.II-36 of 2014 registered with the Dahod Mahila
Police Station for the offence punishable under Sections 498-A,
504, 506(2) and 114 of the Indian Penal Code and Sections 3
and 7 of the Dowry Prohibition Act.
2. The facts, giving rise to the present application, may be
summarized as under;
2.1 The respondent No.2-original complainant got married
with the applicant No.1 almost about 21 years ago. Similarly,
the sister of the respondent No.2 also got married with the
applicant No.2 about 21 years ago.
2.2 Initially, the marriage life of both the couples was smooth
and steady. However, after some time, i.e, after the death of
the father of the respondent No.2, some property related
disputes arose at the parental side of the respondent No.2. The
applicant Nos.1 and 2 were the cousins of the respondent
No.2 and her sister.
2.3 It is the case of the prosecution that after a period of
some time, the applicant Nos.1 and 2 started taunting her with
regard to dowry. The applicant No.1 also told the respondent
No.2 that he does not like her and he will give divorce to her
and, thereafter, get married with another woman.
2.4 It is the case of the prosecution that the sister-in-law and
mother-in-law of the respondent No.2 were instigating her
husband and they also used to give mental and physical
torture to her. It is also alleged that the applicant Nos.1 and 2
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herein along with her mother-in-law and sister-in-law started
giving mental and physical torture to her for getting the
property of her father. They also threatened to kill the
respondent No.2 and his sister.
2.5 Thereafter, on account of such incessant and continuous
harassment, the respondent No.2 lodged a complaint with the
Mahila Police Station, Dahod against all the applicants herein.
Hence the present petition.
3. Learned advocate Mr. M.A. Kharadi appearing on behalf
of the applicants has submitted that the impugned FIR
registered by the complainant is illegal, improper, against
provisions of law, against the facts and circumstances of the
case, against the settled proposition of law and is nothing but
a clear abuse of process of law and, therefore, the same is
required to be quashed and asset aside. Learned advocate Mr.
Kharadi has submitted that at the time of registering the
complaint, the authority has exceeded the jurisdiction vested
in it and thereby committed an illegality or irregularity and if
the present complaint is allowed to stand, then the same
shall cause gross miscarriage of justice and, therefore, the
impugned FIR is required to be quashed and set aside.
Learned advocate Mr. Kharadi has submitted that the
respondent No.2-complainant is a well educated woman which
is apparent from the operative part of the complaint wherein
she has stated that she has studied upto M.A. and, therefore,
she has misused his knowledge by narrating false and
fabricated story at the time of registration of the complaint
and, hence, has committed an abuse of process of law by
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lodging impugned FIR by levelling false and fabricated
allegations against the applicants herein. Learned advocate
Mr. Kharadi has further submitted that if the Hon'ble Court
would go through the contents of the complaint, then it is
found out that the ingredients of section 498-A are at all not
satisfied. Learned advocate Mr. Kharadi has also submitted
that despite the FIR being lodged, no cruelty as mentioned in
the section has ever been shown by any of the applicants, and
on the contrary the complainant and her sister had driven
out the applicant Nos.1 and 2 from their own residential
premises and said fact can be seen from the letter purportedly
written by the applicant No.1 in favour of the complainant
which is produced on record. Learned advocate Mr. Kharadi
has submitted that the parents of the applicant Nos. 1 and 2
are residing separately in the same premises and that can be
seen from the ration card of the parents.
4. Learned advocate Mr. Kharadi has submitted that the
marriage was solemnized almost eleven years ago from the
date of registration of the complaint and since then they were
living happily married life as husband and wife. The applicant
No.1 is the husband of the complainant and their marriage was
solemnized almost eleven years ago from the date of the
registration of the complaint and the sister of the complainant
also got married with the applicant No.2. In short, both the
brothers have married with two sisters and they were residing
in the same house under one roof at Dahod, and out of the
wedlock, they became parents. Learned advocate Mr. Kharadi
has further submitted that the mother-in-law of the
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complainant is maternal aunt of the complainant and their
relationship was internally connected with each other.
Learned advocate Mr. Kharadi has also submitted that
throughout their marriage life, they have given excellent
treatment befitting to the wife, is given to the complainant and
her sister and the said fact can be seen from the respective
annual report cards of their children who are studying in the
best English medium school of the town. Learned advocate Mr.
Kharadi has submitted that the complainant has failed to show
any act much less an overt act attributable to the applicant
Nos.3 and 4. The applicant No.3 is the mother-in-law and
residing separately from the complainant and her sister.
Similarly, the applicant No.4 is the bride of the third son of the
applicant No.3 and she has been dragged into the dispute only
with a view to pressurize the entire family and to teach them a
lesson. Learned advocate Mr. Kharadi has further submitted
that if the Hon'ble Court would make cursory glance upon the
contents of the complaint, then it is found out that at one place
it is alleged by the complainant that the accused persons were
harassing her and her sister with a view to grab the property
of their father. The applicants are residing at Dahod, whereas
the parental house of the complainant is at Rajasthan and by
no stretch of imagination, it can be said that the applicants
have ever acted with an intention to usurp the property of the
father of the complainant which is situated at Rajasthan.
Learned advocate Mr. Kharadi has submitted that a bare
perusal of the complaint reveals that none of the ingredients
to constitute the offence under Section 498-A of the IPC is
satisfied.
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5. Learned advocate Mr. Kharadi has further submitted that
the father-in-law of the complainant, namely, Arifbeg
Ahmedbeg Mughal has filed a Regular Civil Suit No.59 of 2014
on 6th May, 2014 in the court of the Principal Civil Judge, Dahod
for the purpose of declaration as well as injunction. Learned
advocate Mr. Kharadi has submitted that the father-in-law of
the complainant is the absolute owner and occupant of the
said property and after occurrence of the said incident, he
thought it fit to file the suit to vacate the said premises so that
in future any dispute would not be cropped up between them.
6. In such circumstances, referred to above, learned
advocate Mr. Kharadi prays that there being merit in his
application, the same be allowed and the impugned FIR be
quashed and set aside.
7. Though served, none appears on behalf of the
respondent No.2.
Notice issued by this Court has been duly served to the
respondent No.2-complainant and learned advocate Mr. Sandip
Patel has filed his appearance on behalf of the complainant. He
has filed an affidavit-in-reply in this matter. Today, though
called out twice, learned advocate Mr. Sandip Patel has not
appeared and, therefore, matter is proceeded in absence of
learned advocate Mr. Patel.
8. Learned APP Mr. Manan Mehta who appears on behalf of
the State has submitted that notice issued by this Court was
duly served to the complainant and she has filed an affidavit-
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in-reply to oppose the present application. Learned APP Mr.
Mehta has submitted that bare perusal of the complaint
clearly shows that there was physical as well as mental torture
meted out to her by the applicants. It is specifically alleged
that the applicant-husband used to tell her that he has to
marry with some other woman and he wants divorce from her.
The applicant Nos.3 and 4 are the mother-in-law and sister-in-
law and were instigating the husband regarding not doing
household work and also instigating him to drive her away
from the matrimonial house. Learned APP has also submitted
that it is stated in the affidavit that after the death of the
father of the complainant, the applicant Nos.1 and 2 want to
get custody of the property of the father of the complainant
and for that purpose, they are creating pressure upon her and
her mother and they have refuted the said demand of the
applicants and, therefore, the applicants have become more
aggressive and started giving more physical and mental
torture to the complainant to transfer the said property in their
favour. It is also stated that under the pressure, signature of
the complainant was also obtained on the blank paper and,
therefore, her mother had also issued legal notice to them. It
is further stated that the applicants are totally money minded
and they are not believing in relationship and applicants are
only interested in grabbing the property and their attitude
supports the case of the respondent as the father-in-law of
the complainant has already filed the suit before the
competent Court against them for seeking permanent
injunction and, therefore, with a sole purpose to bring the
truth on the surface, the present complaint is required to be
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investigated by the competent authority and therefore no
interference is required at the end of this Court at this
juncture. Learned APP has further submitted that it is clearly
stated in the affidavit-in-reply that the contention pertaining to
demand of dowry as well as physical and mental torture is
clearly spelt out from the bare reading of the complaint and,
therefore, this is a fit case wherein the extraordinary inherent
jurisdiction in favour of the present applicants cannot be
exercised by this Court.
9. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
only question that falls for my consideration is whether I should
quash the FIR?
10. It appears from the materials available on record that the
impugned FIR is registered on 30 th April, 2014 at Dahod Police
Station for the offence as referred to hereinabove. It is found
out from the record that the marriage between the applicant
No.1 and the complainant was solemnized almost about
eleven years ago from the date of registration of the
complaint. The sister of the complainant also got married with
the applicant No.2 herein. Both the applicant Nos.1 and 2 are
real brothers and got married with two real sisters. The span of
marriage life was eleven years when the impugned FIR came
to be lodged. Initially, the marriage life of both the couples
was smooth and steady. However, after the death of the
father of the complainant, some property related disputed
cropped up between the applicants and the family members
of the complainant. It is to be noted that both the applicants
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herein and the parents of the complainant are relatives. The
said dispute, subsequently, culminated into a long drawn
litigation between the two families. The said fact is apparent
on the face of the record in the form of legal notices issued by
the parties to each other which are on record. Pursuant to
registration of the complaint, the Investigating Machinery has
come into motion and carried out the investigation in a
particular direction, however, before the Investigating
Authority reached to any particular conclusion, the present
application has been filed by the applicants on 06.05.2014
and obtained stay and since then, stay is in operation. The
applicants have come with a specific case that they have not
committed any offence and if the Hon'ble Court would go
through the allegations levelled in the complaint, in that event,
not a single ingredient to constitute the offence much less the
offence mentioned in the complaint can be made out and,
therefore, the complaint is required to be quashed and set
aside. It is also the case of the applicants that if the
investigation is allowed to be proceeded further, in that
event, without any fault on the part of the applicants-
accused, they will have to suffer and have to go through
rigorous proceedings of the investigation which ultimately
tantamount to the abuse of process of law without
commission of any crime.
11. Before considering the above stated arguments, this
Court thought it fit to go through the allegations levelled in the
complaint and it is found out from the bare perusal of the
complaint that at the time of registration of the complaint, the
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complainant has specifically stated in a clear terms that their
marriage was solemnized as per the rites and rituals of their
religion. Initially, their marriage life was good and smooth and
out of the wedlock, they have been blessed with a baby girl. It
is specifically stated in the operative part of the complaint that
the applicants started harassing her by demanding the dowry.
The applicant No.1 had administered threat to the complainant
with the aid and instigation of the applicant Nos.3 and 4. The
applicant No.1 used to tell her that he does not like her and he
will give divorce to her and will remarry with another woman.
The rest of the applicants-accused are aiding and instigating
the applicant No.1. The allegations and accusation made by
the complainant against the accused in the body of the
complaint clearly goes on to show that the ingredients of
Section 498-A are prima facie made out.
12. Practically, in all matters under Section 482 of the Code of
Criminal procedure, the accused approaches the Court on the
ground that the First Information Report (FIR), on the face of it,
does not disclose ingredients that would constitute a
cognizable offence. Thus, the inherent power of the High Court,
in its jurisdiction under Section 482, is invoked for seeking the
quashing of the FIR.
13. It is settled proposition of law and the Hon'ble Apex
Court, time and again, in catena of decisions, held that the
inherent powers under Section 482 of the Cr.P.C. include
powers to quash the first information report, investigation or
any criminal proceedings pending before the High Court or any
courts subordinate to it and are of wide magnitude and
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ramification. Such powers can be exercised to secure ends of
justice, prevent abuse of the process of any court and to make
such orders as may be necessary to give effect to any order
under this Code, depending upon the facts of a given case.
The court can always take note of any miscarriage of justice
and prevent the same by exercising its powers under Section
482 of the Cr.P.C. These powers are neither limited nor
curtailed by any other provisions of the Code. However, such
inherent powers are to be exercised sparingly and with caution
in rarest of rare cases.
14. At this juncture, I would like to put reliance upon certain
case laws wherein the ratio is being laid down by the Hon'ble
Apex Court for exercising the extraordinary inherent powers
under Section 482 of the Cr.P.C. to deal with the matters
pertaining to quashing of the FIR.
15. In C.B.I. Vs. Tapan Kumar Singh, (2003) 6 SCC 175 :
AIR 2003 SC 4140, the Honourable supreme court has held in
paragraph 22 that, "The law does not require the mentioning of
all the ingredients of the offence in the FIR. It is only after
completion of the investigation that it may be possible to say
whether any offence is made out on the basis of the evidence
collected by the investigating agency." It is observed that an
FIR is not an encyclopedia which must disclose all the facts and
details relating to the offence alleged to have been committed.
It requires no debate that an FIR is merely a report by the
informant about the commission of a cognizable offence and it
cannot be ruled out that minute details may not be mentioned.
It cannot be ignored that an FIR pertains to an offence, which is
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alleged to have been committed and the informant, in a
disturbed state of mind and shaken on account of a serious
offence committed, approaches a police station for recording
an FIR.
16. In the State of Punjab Vs. Dharam Singh, (1987 SCC
(Cri.) 621 : 1987 Supp. SCC 89, the Honourable Supreme Court
held that the High Court had erred in quashing the FIR by
going beyond the averments, to consider the merits of the
case even before the investigating agency has embarked upon
the legal exercise of collecting evidence.
17. In Kurukshetra University Vs. State of Haryana
(1997) 4 SCC 451 : AIR 1977 SCC 2229( a Three Judges bench),
the Honourable Supreme Court has observed thus:-
"It surprises in the extreme that the High Court thought
that in the exercise of its inherent powers under Section
482, Criminal Procedure Code, it could quash an FIR. The
Police had not even commenced investigation into the
complaint filed by the warden of the University and no
proceeding at all was pending in any Court in pursuance
of the FIR. It ought to be realized that inherent powers do
not confer any arbitrary jurisdiction on the High Court to
act according to its whim or caprice."
18. It is also a settled proposition of law that Section 482 of
the Cr.P.C. empowers the High Court to exercise its inherent
powers to prevent abuse of process of law. In proceedings
instituted on complaint exercise of inherent powers to quash
proceedings is called for only in cases where the complaint
does not disclose any offence or is frivolous, vexatious or
oppressive. If allegations set out in the complaint do not
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constitute offence of which cognizance is taken by the
Magistrate, it is open to High Court to quash the same in
exercise of inherent powers under Section 482. It is not,
however, necessary that there should be meticulous analysis
of case, before trial to find out whether case would end in
conviction or not. The complaint has to be read as a whole if
it appears on consideration of allegations in light of statement
on oath of complainant, then that ingredients of
offence/offence are disclosed and there is no material to show
that complaint is malafide, frivolous or vexatious, in that event,
there would be no justification for interference by the High
Court.
19. In State of Haryana v Bhajan Lal, 1992 Supp (1) SCC
335, the Apex Court held:
"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.
(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
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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 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
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private and personal grudge.
103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases; that the court will not
be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations
made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its
whim or caprice." (emphasis supplied)"
20. The Supreme Court, in S W Palanitkar v State of
Bihar, (2002) 1 SCC 24, held:
"... whereas while exercising power under Section 482
CrPC the High Court has to look at the object and
purpose for which such power is conferred on it under the
said provision. Exercise of inherent power is available to
the High Court to give effect to any order under CrPC, or
to prevent abuse of the process of any court or otherwise
to secure the ends of justice. This being the position,
exercise of power under Section 482 CrPC should be
consistent with the scope and ambit of the same in the
light of the decisions aforementioned. In appropriate
cases, to prevent judicial process from being an
instrument of oppression or harassment in the hands of
frustrated or vindictive litigants, exercise of inherent
power is not only desirable but necessary also, so that
the judicial forum of court may not be allowed to be
utilized for any oblique motive. When a person
approaches the High Court under Section 482 CrPC to
quash the very issue of process, the High Court on the
facts and circumstances of a case has to exercise the
powers with circumspection as stated above to really
serve the purpose and object for which they are
conferred.(emphasis supplied)"
21. The law on the subject was also examined in Parbatbhai
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Aahir v State of Gujarat, (2017) 9 SCC 641. In Habib
Abdullah Jeelani, (2017) 2 SCC 779, it was opined:
"inherent power in a matter of quashment of FIR has to
be exercised sparingly and with caution and when and
only when such exercise is justified by the test
specifically laid down in the provision itself There is no
denial of the fact that the power under Section 482 CrPC
is very wide but it needs no special emphasis to state
that conferment of wide power requires the Court to be
more cautious. It casts an onerous and more diligent
duty on the Court. (emphasis supplied)"
22. The legal position was also considered in Kamal Shivaji
Pokarnekar v State of Maharashtra, (2019) 14 SCC 350.
In Mahendra K C v State of Karnataka, 2021 SCC OnLine
SC 1021, this Court stated:
"23. ... the High Court while exercising its power under
Section 482 of the CrPC to quash the FIR instituted
against the second respondent-accused should have
applied the following two tests : i) whether the
allegations made in the complaint, prima facie constitute
an offence; and ii) whether the allegations are so
improbable that a prudent man would not arrive at the
conclusion that there is sufficient ground to proceed with
the complaint."
23. In view of the aforesaid discussion, I am of the opinion
that this is not a case where the extraordinary inherent
powers of this Court can be exercised.
24. In the result, this application fails and is hereby
dismissed. Rule is discharged.
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25. At this juncture, learned advocate Mr. Kharadi has
requested that since from the very beginning the stay upon
the investigation is in operation, the same may be extended
for further four weeks so as to enable the applicants to
approach the Hon'ble Apex Court for challenging the said
judgment and order. The request is acceded to. The interim
relief granted earlier in the form stay is hereby extended for a
period of four weeks.
Sd/-
(DIVYESH A. JOSHI,J)
VAHID
