Jagatsinh @ Jagdishbhai Vishaji Bihola vs State Of Gujarat
2024 Latest Caselaw 1551 Guj

Gujarat High Court

Jagatsinh @ Jagdishbhai Vishaji Bihola vs State Of Gujarat on 20 February, 2024

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

                                                                                   NEUTRAL CITATION




     R/CR.MA/17663/2022                             ORDER DATED: 20/02/2024

                                                                                    undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 17663 of 2022

==========================================================
            JAGATSINH @ JAGDISHBHAI VISHAJI BIHOLA & ORS.
                               Versus
                      STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR JAYPRAKASH UMOT(3581) for the Applicant(s) No. 1,2,3,4,5,6,7,8
NOTICE SERVED for the Respondent(s) No. 2
MS CHETNA SHAH, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 20/02/2024

                               ORAL ORDER

1. By invoking inherent powers of this Court, the applicants-original accused, who are facing the charges for the offences of cruelty and demand of dowry have preferred this application for quashing of the FIR being CR No.11215004220206 of 2022 registered with Bhadran Police Station, Anand, for the offences 498A, 323, 504 and 114 of Indian Penal Code and under Sections 3 and 7 of the Dowry Prohibition Act.

2. The applicants are father-in-law, mother-in-law, grand mother-in-law, uncle-in-law, aunt-in-law and other distant relatives of the second respondent. Admittedly, the marriage of the second respondent

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

with accused no.1 Virendrasinh Bihola was solemnized on 27.04.2015 and thereafter, she came to Gandhinagar at her matrimonial home to fulfill the marital obligations. Admittedly, the married life for a period of three years went normal and without any issues. The husband is serving with State Government as a Driver. The questioned FIR is being lodged against the entire family in total number nine. The accused no.5 to 9 who are distant relatives living separately in the same area where the other accused are residing. According to say of the second respondent, she was subjected to mental and physical harassment by the husband and his relatives. The main allegation made against the husband is to the effect that he used to come at home at late night and is in habit of consuming liquor and never taken care of her in terms of monetary needs and as and when she asked for personal expenses, the husband without any reason, used to beat her and hurled abusive. So far role attributed to the present applicants are concerned, it is alleged that, they had aided and abeted the act of cruelty allegedly committed by the husband. So far offence of dowry is concerned, it is alleged that, as and when she raised the issue of constructing new home, the applicants asked her to bring a substantial amount from the parental home to construct the said home

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

and thereby they demanded dowry and other articles. It is further alleged that, on the petty issue of household works, she was tortured by the husband and in-laws that she having no any art for cooking etc.

3. In the aforesaid facts and circumstances, the questioned FIR was being lodged against the entire family members for the act of cruelty and demand of dowry.

4. This Court has heard learned counsel Mr. Jayprakash Umot and Ms. C.M. Shah, learned Additional Public Prosecutor for the respondent State. The second respondent, though served, has chosen to remain absent from the proceedings.

5. Mr. Umot, learned counsel has submitted that, this is a case of false application and in absence of specific allegations against the any one of the applicants, except common and general allegations, no offence under Section 498A is made out. Thus, therefore, he would urge that, the implication of the applicants being made in a casual manner with oblique motive and same deserves to be quashed and set aside.

6. In the aforesaid contentions, the learned counsel Mr.

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

Umot has submitted that, the FIR qua the applicants is absolutely false and frivolous and on reading of it, the offence of cruelty and demand of dowry is clearly not made out, as, the allegations are totally vague and general in nature and having been alleged with a view to harass the applicants and thus, therefore, the institution of the FIR, implicating the applicants, would amount to sheer abuse of process of law and court and same deserves to be quashed and set aside.

7. Ms. Chetna Shah, learned State Counsel has submitted that, the High Court at this stage, would not ordinarily entered into a disputed question of fact and therefore, if the allegations made in the FIR disclosed the commission of offence, the court may not quash it and allowed the investigation to be continued in the matter.

8. The scope and power of the High Court to quash the first information report is well settled. The power under Section 482 of the Code has to be exercised sparingly and cautiously to prevent the abuse of process of Court and to secure the ends of justice. The High Court should refrain from giving a prima- facie decision, unless there are compelling circumstances to do so. Taking the allegations, as

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

they are, without adding or subtracting anything, if no offence is made out, only then, the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 of the Cr.P.C.

9. The Apex Court in case of State of Haryana vs. Bhajan Lal reported in (1992) Supp 1 SCC 335 has laid down the guidelines that must be adhered to while exercising inherent powers under Sections 482 of the Code to quash the criminal proceedings. The relevant paragraph 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

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

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

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

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

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

10. Since the FIR in question emanates from matrimonial disputes. Recently, the Apex Court in case of Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar & Ors. reported in (2022) 6 SCC 599 held and observed that, in recent times, matrimonial litigation in the country has increased significantly which led in an increased tendency to employ provision such as 498A Indian Penal Code as instruments to settled personal scores against the husband and his relatives. In para-17 of the judgment, it is observed that:

"17. ..... this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analyzing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

judgments has warned the courts from proceeding against the relatives and in- laws of the husband when no prima facie case is made out against them.".

11. In matrimonial case, the Apex Court in the case of Preeti Gupta and another vs. State of Jharkhand and another reported in (2010) 7 SCC 667 observed that, a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that, exaggerated version of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in very large number of cases.

12. Having heard the learned counsel for the respective parties, the issue falls for my consideration is whether the case is made out for quashing the criminal proceedings by invoking the inherent powers of this Court.

13. Having regard to the facts and circumstances to the present case and on perusal of the allegations made in the FIR, this Court is of the considered view that, this is a case of over implication and the entire family members have been arraigned as accused which itself establish the tendency of second respondent to harass

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

the applicants against whom no any specific allegation of cruelty as well as demand of dowry being made in the FIR. On careful reading of FIR, it emerges that, the second respondent was having a matrimonial dispute with the accused no.1-husband as he was in habit of consuming liquor and did not taken proper care of the personal expenses of the second respondent. Thus, therefore, due to marital discord with the husband, the questioned FIR is being lodged, implicating therein the entire family members with a view to mounting pressure on them either to resolve the said dispute, or to teach a lesson to the family members of the husband who was careless in maintaining the wife. Thus, therefore, the allegations made against the applicants accepted in its entirety as it is, do not make out any offence and prima-facie, it appears that, the criminal proceedings qua the applicants having been instituted with malafide and ulterior motive.

14. For the reasons recorded, this Court is convinced that, the implication of the applicants in the questioned FIR would amount to misuse of process of law and it is well settled that, the power under Section 482 has to be exercised by the High Court, inter-alia to prevent abuse of process of any court or otherwise to secure ends of justice and it is boundant duty of the constitutional Court to see that the criminal

NEUTRAL CITATION

R/CR.MA/17663/2022 ORDER DATED: 20/02/2024

undefined

proceedings should not be encouraged, when it is found to be malafide or otherwise an abuse of process of the court.

15. For the aforementioned reasons, the case is fully covered by the categories (i) and (vii) as enumerated by the Apex Court in the case of State of Haryana Vs. Bhajanlal and therefore, this Court is convinced that the continuation of the criminal proceedings would be an abuse of process of the Court and law.

16. Resultantly, the application succeeds. FIR being CR No.11215004220206 of 2022 registered with Bhadran Police Station, Anand, and other consequential proceedings thereto against present applicants are hereby quashed and set aside.

17. The observations made hereinabove are prima-facie in nature and confined to the adjudication of the present application. The investigation agency as well as the trial Court shall not get influenced by the said observation during the investigation as well as at the course of trial. Direct service permitted.

(ILESH J. VORA,J) TAUSIF SAIYED