Gujarat High Court
Bansilal Mafatbhai Kharva vs State Of Gujarat on 21 February, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/SCR.A/12950/2022 ORDER DATED: 21/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12950 of 2022
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BANSILAL MAFATBHAI KHARVA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2,3,4,5
MS CM SHAH APP for the Respondent(s) No. 1
TAHIR S SAIYED(8983) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 21/02/2024
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.11196015220606 of 2022
registered with Navapura Police Station, Dist.:
Vadodara City, for the offences 498A, 323, 294(B)
and 114 of Indian Penal Code and Sections 3 and 7 of
the Dowry Prohibition Act.
2. Brief facts emerges from the record are that the
applicants are father-in-law, mother-in-law, sisters-in-
law and husband of the sister-in-law of the second
respondent - Madhuriben Kharva. The marriage of the
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second respondent with Mr. Jignesh Kharva was
solemnised on 06.02.2011 and thereafter, she went to
matrimonial home at Vadodara. It is alleged in the FIR
that, she has been subjected to cruelty by the
husband and his relatives and more particularly, after
the birth of the daughter, she had been harassed on
the household works. The second allegation made in
the FIR is that, the applicants demanded a dowry and
always on that issue, hurled abusive and tortured her.
In such circumstances, she was compelled to leave
the matrimonial home and since 2018, she is residing
at her parental home.
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. P.P.
Majmudar, Ms. C.M. Shah, learned Additional Public
Prosecutor and Mr. Tahir S. Saiyed for the respective
parties.
5. Mr. P.P. Majmudar, learned counsel has submitted that,
the FIR lacks the ingredients of offence alleged and
allegations made are absurd and inherently
improbable in the present case and further, he would
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submit that, the allegations made in the complaint do
not disclose the offence alleged and no case is made
out against the applicants. 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.
Majmudar 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. Mr. Tahir Saiyed, learned advocate 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.
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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 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
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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 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.
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(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
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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."
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
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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
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. 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.
12. The husband Jignesh Kharva is not before this Court.
The sister-in-law namely Kirti Dipal is living with her
husband at her matrimonial home. It is not in dispute
that, since 2018, the second respondent wife is living
at her parental home. The husband Jignesh by public
notice, informed to all that, since 2018, his wife has
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left at her matrimonial home and living separately
with her parents. The questioned FIR is filed on
24.11.2022. In this background facts, this Court is of
the considered view that, the allegations of
harassment made against the applicants are seems to
be false and having been made with oblique motive
and to harass the applicants. The implication of two
sisters-in-law would itself speak the attitude and
conduct of the wife in lodging the false FIR. The
allegations of the cruelty are general in nature and
there is no any specific instances being disclosed in
relation to the demand of dowry and cruelty. It needs
to be noted that, since 2018 to 2022, the second
respondent set silent and did not initiate any action
against the applicants with respect to alleged
harassment and demand of dowry and that too,
without any explanation on this aspect, the FIR being
registered.
13. 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
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proceedings should not be encouraged, when it is
found to be malafide or otherwise an abuse of process
of the court.
14. 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.
15. Resultantly, the application succeeds. Rule is made
absolute to aforesaid extend. FIR being CR
No.11196015220606 of 2022 registered with
Navapura Police Station, Dist.: Vadodara, and
other consequential proceedings thereto against
present applicants are hereby quashed and set aside.
16. 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 influence by the said
observation during the investigation as well as at the
course of trial. Direct service permitted.
(ILESH J. VORA,J)
P.S. JOSHI/23/02
