Nayankumar Harshadlal Shah vs State Of Gujarat
2024 Latest Caselaw 3391 Guj

Gujarat High Court

Nayankumar Harshadlal Shah vs State Of Gujarat on 18 April, 2024

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

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      R/CR.MA/674/2021                               ORDER DATED: 18/04/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 674 of 2021

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                   NAYANKUMAR HARSHADLAL SHAH & ORS.
                                 Versus
                        STATE OF GUJARAT & ANR.
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Appearance:
MR K J PANCHAL(2422) for the Applicant(s) No. 1,2,3
MR S M SOJATWALA(3499) 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 : 18/04/2024

                              ORAL ORDER

1. By this quashing application under Section 482 of Cr.P.C., the applicants-original accused seek quashment of FIR being C.R.No.11187009200022 of 2020 registered with Mahila Police Station, Mahisagar for the offence punishable under Sections 498A, 323, 504 and 114 of the Indian Penal Code and Sections 3 and 7 of Dowry Prohibition Act.

2. This Court has heard learned counsel Mr. K.J. Panchal, Mr. S.M. Sojatwala and Ms. C.M. Shah for the respective parties.

3. The second respondent - Dixita Shah married to Nayan Shah, resident of Surat and it was the second

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marriage of the parties. Both the parties have child from their earlier wedlock. The second respondent with son Ved, after the marriage, went to matrimonial home at Surat where she lived in a joint family consisting of mother-in-law and daughter born out from the earlier marriage of husband. It is the case of second respondent that after three months of marriage, she was subjected to harassment mentally and physically by the husband and his mother and the daughter. The allegations to the effects are that on the petty issue of household works, she had been abused and was beaten by the husband. The husband and his family was not happy with the son Ved and mentally they are not prepared to accept him and asked the second respondent to send the son at orphanage. In the pandemic period, on the health issue of her as well as her son, the husband failed to take care of them and refused to bear the medical expenses. On this issue when dispute arose, the same was tried to settle through community persons but after some time, again the husband and his family started harassing her, as a result, she went into depression and lastly, she was driven out from the matrimonial home and since then, she has been living at her parental home. In these background facts, the aforesaid FIR for the offence of cruelty and demand of dowry being lodged. After registration of FIR, the husband as well as others i.e. applicants herein have preferred the quashing petition. At the time of admission

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of the matter, the husband withdrew his application. So far present applicants are concerned, the direction was issued not to file chargesheet against them without permission of this Court. Meanwhile, the learned trial court proceeded with the matter qua the husband. The learned trial court vide its judgment and order dated 20.06.02023, after appreciation of evidence and hearing the parties, acquitted the husband Nayan Shah. The judgment rendered in Case No.550 of 2021 tendered by learned counsel for the applicants is ordered to be taken on record.

4. In these background facts, learned counsel Mr. Panchal has submitted that, the allegations made against the applicants in any manner do no attract the ingredients of Section 498A and provisions of Dowry Prohibition Act and therefore, the allegations accepted to be true as it is, do not make out or establish any case against the applicants. On the factual aspects, assailing the acquittal order of husband, he submitted that, the husband was center in the case and learned trial court after appreciation of evidence of wife as well as other witnesses, disbelieve the case and observed that, the allegations made in the FIR would not fall under the definition of cruelty and demand of dowry and therefore, the allegations whatever alleged against the applicants are same and once, it has been tested before the trial

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court, the questioned FIR on this ground alone deserves to be quashed. Mr. Panchal, learned counsel would further submits that, the daughter has nothing to do with the matrimonial dispute as since 2018 onwards, she was at Vidhyanagar pursuing her studies. He would further urge that the undisputed whatsapp conversation reveals that proper care always been taken by the husband and it was the wife who having a tendency to raise unnecessary issues and same does not fall under the definition of cruelty.

5. In view of the aforesaid contention, learned counsel Mr. Panchal has submitted that the uncontroverted allegations and made in the FIR prima-facie do not make out a case and in that view of the matter, the continuation of proceedings qua the applicants would nothing but a sheer abuse and misuse of the process of law and court.

6. On the other hand, Mr. Sojatwala, opposing the application, has submitted that, so far as applicants are concerned, the findings of acquittal recorded by the trial court cannot be taken into consideration and therefore, the submissions made by the applicants are misconceived. He would further urge that, the Court should not convert itself to that of trial court and dwell into the disputed question of facts and therefore, when prima-facie case is made out for the alleged offence qua the applicants, Court may not exercise its inherent powers.

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7. 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.

8. 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 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

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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 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

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view to spite him due to private and personal grudge."

9. 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 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.

10. Having regard to the facts and circumstances of the

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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?

11. Having considered the contentions raised by learned counsel for the respective parties and on perusal of the allegations qua the applicants, this Court is of considered view that, the acquittal of the husband on the same set of allegations can be one of the grounds for consideration of case of other co-accused. Now, so far as applicants are concerned, they are mother-in-law and daughter. The allegations made against them are to the effect that they have abated and aided the alleged act of cruelty committed by the husband and they were neglecting the son Ved. On close scrutiny of allegations on these aspects, this Court is of prima-facie view that, in the entire FIR, no any specific instances of harassment with time and other particulars being disclosed and same seems to be general in nature and the language employed for the allegations, are not sufficient so as to attract the ingredients of the offence alleged. Since 2018, the applicant-daughter was pursuing her further studies at Vidhyanagar. In such circumstances, prima-facie, this Court is of the view that, due to matrimonial dispute with the husband, the mother- in-law and daughter being impleaded in the alleged offence by alleging casual and general allegations of

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harassment which do not in any manner make out a case against the applicants.

12. Resultantly, the application succeeds. The FIR being C.R.No.11187009200022 of 2020 registered with Mahila 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.

(ILESH J. VORA,J) TAUSIF SAIYED