Rajeshbhai Vrajlal Joshi vs State Of Gujarat
2024 Latest Caselaw 7834 Guj

Gujarat High Court

Rajeshbhai Vrajlal Joshi vs State Of Gujarat on 2 August, 2024

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      R/CR.MA/11229/2017                                      ORDER DATED: 02/08/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 11229 of 2017

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                           RAJESHBHAI VRAJLAL JOSHI & ORS.
                                       Versus
                              STATE OF GUJARAT & ANR.
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Appearance:
MS HINA DESAI(1023) for the Applicant(s) No. 1,2,3,4,5,6
PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                   Date : 02/08/2024

                                    ORAL ORDER

1. The respondent No.2, although served with the notice of rule issued by this Court, has chosen not to remain present either in person or through an advocate and oppose this application.

2. By this application under section 482 of the Code of Criminal Procedure,1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the first information report being C.R. No.I-09 of 2016 registered before the Mahila Police Station, Surat City and subsequent proceedings being Criminal Case No.4171 of 2017 pending in the court of the learned Judicial Magistrate, First Class, Surat.

3. Brief facts leading to the filing of the present application are that the respondent No.2-original complainant got married with the accused No.1 on 08.12.213 as per Hindu rites and rituals at Surat. After the marriage, the respondent No.2

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started residing at her matrimonial home in a joint family. It is alleged that soon after the marriage, due to the instigation by the other co-accused, the accused No.1 started quarreling with the respondent No.2. Thereafter, on 21.12.2013, the accused No.1, being a citizen of America, he left India and went to America by giving assurance to the respondent No.2 that he will also call her to America. The allegations are also to the effect that thereafter, the other co-accused persons started harassing the respondent No.2 physically as well as mentally as also they were taunting her that she did not get anything in dowry. Thereafter, the accused persons demanded Rs.25 Lakh from the respondent No.2 under the guise of carrying out some business activity. Thereafter, the respondent No.2 was driven out of her matrimonial home and she was also not allowed to talk to her husband. It is also alleged that after some time, her husband came back to India, however, he did not bother to meet the complainant. The accused also took away her ornaments. With this sort of allegations, the impugned FIR has been registered.

4. Learned advocate Ms. Hina Desai appearing for the applicants would submit that the present FIR is nothing but a sheer abuse of process of law. She would further submits that the applicants herein are the accused Nos.2 to 6 respectively who are the brothers and sister-in-laws of the respondent No.2 and the accused No.1. Learned advocate Ms. Desai would also submit that the applicants herein are residing separately from the respondent No.2 since beginning, which is evident from the statement of the mother of the complainant recorded by the police. She would further submit that it is alleged in the FIR

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itself that the respondent No.2 and the accused No.1 were having their own independent flat which the accused No.1 sold out behind the back of the respondent No.2. Learned advocate Ms. Desai would also submit that the impugned FIR has been filed maliciously after a period of almost three years from the date the accused No.1 left the country. She would also submit that the impugned FIR has been filed with an ulterior motive arraigning all the members of the family just with a view to wreak vengeance against the accused No.1. Even if the allegations made in the complaint are accepted in their entirety, they do not disclose commission of any offence and make out a case against the applicants. Learned advocate Ms. Desai would further submit that except the allegations of instigation, there is nothing incriminating in the complaint against the applicants herein. Learned advocate Ms. Desai would also submit that considering the above stated factual aspect, this is a fit case, in which, this Court can exercise its extraordinary jurisdiction by quashing and setting aside the complaint registered against the applicant.

5. On the other hand, this application has been vehemently opposed by Mr. Soham Joshi, the learned APP appearing for the respondent-State. Mr. Joshi would submit that a plain reading of the FIR would suggest that there is a prima facie case against the applicants for the purpose of putting them on trial. He would submit that there are allegations of harassment and the prosecution should be permitted to establish its case in the course of the trial. In such circumstances, he prays that there being no merit in this application, the same be rejected.

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6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should quash the complaint.

7. A plain reading of the FIR reveals that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, yet has arrayed the brothers and sister-in-laws of the husband residing separately at their respective houses. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out primafacie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge.

8. In Preeti Gupta v. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:

"28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

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29. The courts are receiving a large number of cases emanating from section 498A of the Indian Penal Code which reads as under :

"498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation. For the purposes of this section, 'cruelty' means :

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

30. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

31.The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and

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should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with 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 the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

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34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble Minister for Law and Justice to take appropriate steps in the larger interest of the society."

9. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Supreme Court in the case of State of Haryana vs. Bhajan Lal, reported in (1992) Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and is maliciously instituted with an ulterior motive, the high court shall not hesitate in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure to quash the

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proceeding. Under category seven (7) as enumerated in Bhajan Lal (supra), it is held thus, "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". There cannot be any dispute that the inherent power given to the High Court under Section 482 of the Code of Criminal Procedure is with a purpose and object of advancement of justice. Similar observations are also made by the Apex Court in the case of Vineet Kumar and Others vs. The State of Uttar Pradesh and Another, reported in (2017) 13 SCC 369. The facts and circumstances of this case clearly attract category No.7 as quoted supra.

10. In the result, this application succeeds and is allowed. The first information report being C.R. No.I-09 of 2016 registered before the Mahila Police Station, Surat City and subsequent proceedings being Criminal Case No.4171 of 2017 pending in the court of the learned Judicial Magistrate, First Class, Surat is hereby ordered to be quashed qua the applicants herein. All consequential proceedings arising from the same also stands terminated. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(DIVYESH A. JOSHI,J) VAHID