Gujarat High Court
Shantaben Ishwarbhai Patel vs State Of Gujarat on 16 April, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/19043/2020 ORDER DATED: 16/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 19043 of 2020
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SHANTABEN ISHWARBHAI PATEL & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AMIT M BAROT(5868) for the Applicant(s) No. 1,2,3
MR JIGAR G GADHAVI(5613) for the Applicant(s) No. 1,2,3
NILIMA A BAROT(7358) for the Applicant(s) No. 1,2,3
MS. SHIVANGI M RANA(7053) for the Respondent(s) No. 2
MS CM SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 16/04/2024
ORAL ORDER
1. This Court has heard learned counsel Mr. Jigar
Gadhavi and Ms. Shivangi Rana for the respective parties.
2. Mr. Gadhavi, learned counsel for the applicants, upon
instructions, does not press this application qua applicant
no.3-husband namely Dharmendrakumar Ishwarbhai Patel.
Hence, the present application stands disposed of as
not pressed qua applicant no.3-husband namely
Dharmendrakumar Ishwarbhai Patel.
3. By this application under Section 482 of Cr.P.C., the
applicants who are mother-in-law and father-in-law of
second respondent, have preferred this quashing petition
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in relation to the FIR being C.R.NO.11187008200875 of
2020 registered with Virpur Police Station, Mahisagar for
the offence punishable under Sections 498A, 323, 504,
506(2) and 114 of the IPC and Sections 3 and 7 of Dowry
Prohibition Act.
4. Brief facts giving rise to file present application are
that, marriage of second respondent Ms. Shweta Patel was
solemnized with accused no.3-husband in the year of
2010-11. The duo-wife-husband are serving in a
Government School and have been posted at the Taluka
School at Jamkhambhaliya. According to the case of
second respondent, initial period of ten years of marriage
life went smooth and thereafter, the conduct of the
husband has been changed totally. It is alleged that, by
different sim cards, he was talking on mobile phone and
when he was cautioned by the wife, he hurled abusive and
caused physical injuries. He used to withdraw the entire
salary of the wife and all the ornaments and necessary
documents of the house being illegally retained by him
with ulterior motive. However, for the safety and future of
her son, the wife tolerated all the nonsense acts and
deeds of husband. In the year of 2019, she was severely
beaten up by the husband and asked her to give divorce
to him against which he had shown his willingness to pay
Rs.15 lacs and lastly, pressurized her to manage the funds
for purchasing the car. In such circumstances, she has
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lodged the aforesaid FIR, inter alia, alleging that during
the span of marriage, she was subjected to harassment by
the husband and his relatives as the parents also abated
and aided the act of cruelty allegedly committed by the
husband.
5. The applicants who are parents of husband, have
preferred this quashing application mainly on the ground
that, since the date of marriage they are living separately
at the village and they have nothing to do with the
matrimonial dispute of the husband and wife and
therefore, with ulterior motive, without any cause, they
have been impleaded as accused and same is nothing but
abuse and misuse of process of law and court.
6. Mr. Jigar Gadhavi, learned counsel appearing for and
on behalf of the applicants has submitted that, due to
negative attitude of husband, the parents have been
falsely impleaded by alleging vague and general
allegations of abatement in commission of cruelty and
therefore, the allegations made in the FIR if accepted as it
is in its entirety, do no disclose any offence against the
applicants and thus, this is a fit case for exercising
inherent powers of this Court.
7. Ms. Shinvangi Rana, learned counsel appearing for
the second respondent, opposing the application, has
submitted that, the court may not dwell into the disputed
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questions of facts as raised herein and therefore, the
allegations as made establish the prima-facie case against
the applicants and in that view of the matter, no case is
made out for exercising powers of this Court.
8. The Apex Court in number of cases, has laid down
the scope and ambit of Courts powers under Section 482
Cr.P.C. Every High Court has inherent power to act ex
debito justitiae to do real and substantial justice for the
administration of which alone exists or to prevent the
abuse of process of court.
9. In State of Haryana Vs. Bhajan Lal, the Apex Court,
after referring its various earlier judgments relating to the
exercise of extraordinary power under Article 226 of the
Constitution of India or the inherent powers under Section
482 Cr.P.C., laid down the categories of cases by way of
illustration wherein such power could be exercised either
to prevent abuse of process of court or otherwise to
secure the ends of justice. The said illustrations 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
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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 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
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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."
10. The present case arising out of matrimonial dispute.
Recently, the Apex Court in Kahakasan Kausar @ Sonam
Vs. State of Bihar (2022 Livelaw SC 141), after referring its
earlier judgments namely Rajesh Sharma (2018 10 SCC
472), Geeta Mehrotra vs. State of U.P. (2012 10 SCC 741),
K. Subbarao vs. State of Telangana (2018 14 SCC 452),
held and observe that, the tendency of implicating
husband and all his immediate relations is also not
uncommon. The Courts have to extremely careful and
cautious in dealing with these complaints and must take
pragmatic realities into consideration while dealing with
the 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 complaint are required to
be scrutinized with great care and circumspection. The
relative of the husband should not be dropped in on the
basis of omnibus allegations unless specific instances of
the involvement in the crime is made out. For lodging
proper complaint, mere mentioning of relevant sections
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and language of sections are not sufficient. Particulars of
offence committed by each accused and role played by
them in committing that offence need to be stated.
11. Having regard to the facts and circumstances of the
present case, the issue arise for consideration of this Court
is whether the FIR and consequential proceedings thereto
are liable to be quashed in exercise of inherent powers of
this Court?
12. Before adverting to the rival contentions, the
admitted facts may be required to be referred i.e. the
marriage took place in the year of 2010-11 and due to
their job as Teachers, the husband wife lived separately,
whereas, the parents are living separately at the address
mentioned in the cause title of this petition. In these
background facts, if we examine the allegations made in
the FIR, this Court is of considered view that, the entire
allegations being made against the husband as after ten
years of marriage, he has changed his attitude towards
wife and was in habit of made conversations with
someone on mobile phone which is the root cause of the
action and when said act was resisted, the husband
abused her and subsequently, she had been harassed with
a view to obtain divorce. Nothing specifically being alleged
against the parents and prima-facie, it appears that, they
never shared the house with the second respondent and
therefore, the allegations made against them for abating
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the husband in committing the act of cruelty without there
being any specific date and time of their stay at
Jamkhambhaliya, seems to be general and vague in
nature. Thus, the parents have been impleaded by making
casual allegations so as to built pressure on the husband
so as to resolve the dispute. In such circumstances, this
Court is convinced that the allegations in the FIR qua the
parents if taken at their face value to be true, do not
constitute any offence.
13. Resultantly, the application succeeds. The FIR being
C.R.NO.11187008200875 of 2020 registered with Virpur
Police Station, Mahisagar and other consequential
proceedings thereto are quashed and set aside qua the
applicants herein. Accordingly, Rule is made absolute.
Direct service is permitted.
14. The views expressed hereinabove are confined to the
case of present applicants herein. The trial Court shall
decide the case of the husband in accordance with law
without being influenced by the observations made
hereinabove.
(ILESH J. VORA,J)
TAUSIF SAIYED
