Gujarat High Court
Kamal S/O Hiralal Punjabi vs State Of Gujarat on 1 February, 2024
NEUTRAL CITATION
R/CR.MA/16100/2021 ORDER DATED: 01/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16100 of 2021
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KAMAL S/O HIRALAL PUNJABI
Versus
STATE OF GUJARAT
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Appearance:
KHUSHI P JADAV(7351) for the Applicant(s) No. 1,2,3
PARTY IN PERSON(5000) for the Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 01/02/2024
ORAL ORDER
1. This Criminal Misc. Application under Section 482 of the Code of
Criminal Procedure, 1973 is filed seeking quash of the FIR being C.R.
No.I-63 of 2019 registered with Chandkheda Police Station, District
Ahmedabad City for the offence punishable under Sections 498A and 114
of the Indian Penal Code, 1860 (for short "the IPC") and the criminal
proceedings in Criminal Case No.116 of 2020 on the file of the Chief
Judicial Magistrate, First Class, Gandhinagar.
2. Heard learned advocate for the petitioners, learned Additional
Public Prosecutor Mr.Hardik Soni for the first respondent-State and
second respondent in person, who is the de facto-complainant.
3. Facts germane to dispose of this petition may briefly be stated as
under:-
3.1 The de facto-complainant is the legally wedded wife of the first
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petitioner, who is A-1 in the above Criminal Case No.116 of 2020 on the
file of the Chief Judicial Magistrate, First Class, Gandhinagar. Petitioner
nos.2 and 3 are the parents of A-1 and the parents-in-law of the de facto-
complainant. The marriage between the de facto-complainant and the
petitioner was solemnized in the month of September, 2005. They had
conjugal life and they are blessed with one son and one daughter during
their lawful wedlock. After living amicably for some time, disputes arose
between the first petitioner and the de facto-complainant. It is stated that
the first petitioner, who is the husband of the de facto-complainant, has
developed illegal intimacy with a woman by name Poonam Sharma and
he got an extramarital relationship with her and when the de facto-
complainant questioned him in this regard, he used to beat her and subject
to her to both physical and mental harassment. It is also stated that
parents-in-law of the de facto-complainant also used to demand her to
pay her salary as the de facto-complainant has been working as a Teacher
and earning. Her husband also used to support his parents and demand the
de facto-complainant to pay her salary to them and when she refused for
the same, they all harassed her. Further, it is stated that the first petitioner
also constantly subjected her to both physical and mental harassment.
3.2 Therefore, the de facto-complainant lodged a report with the police
narrating the above events and requested to take appropriate action
against them.
3.3 The said report, which was lodged by the de facto-complainant was
registered as a crime in C.R. No.I-63 of 2019 with Chandkheda Police
Station, District Ahmedabad City for the offence punishable under
Sections 498A and 114 of the IPC. The crime was investigated and
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eventually, charge-sheet was filed against the petitioners in the trial court.
The said case is now pending in the trial court for framing charges.
3.4. The petitioners have challenged the legality and validity of the said
FIR registered against them mainly on two grounds; (i) a divorce petition
was filed by the petitioners against the de facto-complainant on
15.05.2019 and the summons in the said divorce petition was served on
the de facto-complainant on 17.07.2019 and thereafter, she lodged the
FIR with the police against the petitioners on 20.07.2019 and as such, the
present FIR was lodged as a counterblast to the divorce petition that was
filed by the first petitioner and it is not valid under law. The other ground
is that there is no evidence produced along with the FIR in proof of any
such physical or mental harassment as stated in the FIR and that the
allegations in the FIR are also vague and no details of harassment are
given in the FIR. Therefore, it is contended that the criminal proceedings
that are launched against the petitioners herein, are mere abuse of process
of court and they are liable to be quashed. Thus, precisely, the petitioners
sought quash of the FIR and the charge-sheet on the aforesaid grounds.
4. Learned counsel for the petitioners reiterated the aforesaid grounds
and vehemently contended that as the present case was registered against
the petitioners as a counterblast to the divorce petition filed by the first
petitioner that the petitioners are entitled for quash of the FIR and the
charge-sheet. She would also vehemently contend that allegations in the
FIR are vague and details of harassment and the money that was
demanded are not clearly specified and on that ground also, the
petitioners are entitled for quash of the FIR and the charge-sheet.
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5. Learned Additional Public Prosecutor Mr.Hardik Soni appearing
for the first respondent-State would contend that a clear allegation was
made in the FIR that the petitioners used to demand money in the form of
her salary and thereby, subjected her to harassment by making an illegal
demand for money, which clearly constitutes the offence punishable
under Section 498A of the IPC. He then contends that as the de facto-
complainant was harassed both physically and mentally in connection
with the demand for the said money and as the first petitioner also
subjected the de facto-complainant to harassment both physically and
mentally when she questioned him regarding his illicit intimacy with
Poonam Sharma that these facts clearly constitute the offence punishable
under Section 498A of the IPC. He would submit that sufficient evidence
was collected during the course of investigation in proof of the said
allegations and as such, the matter is to be left for the trial court to decide
the truth or otherwise the said allegations and that the present case is not a
fit case to quash the criminal proceedings that are launched against the
petitioners.
6. The second respondent de facto-complainant, who appeared in
person, vehemently contended before the court while explaining as to
why she did not lodge the report with the police earlier till the month of
July, 2019, stating that she intended to protect her marital tie with the first
petitioner and more particularly, in the interest of her children and as she
does not want to precipitate and further complicate the matrimonial
dispute, she endured all the harassment meted out by her in the hands of
the petitioner with a fond hope that the first petitioner would severe his
illegal relationship with the said woman and will continue marital
relationship with the de facto-complainant and in view of the said reason
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that she did not lodge the report with the police earlier. She would
contend that after the divorce petition was filed, she lost her hope that any
good sense prevail over the first petitioner and thereafter, she lodged the
report. Thus, she has explained the delay in lodging the report with the
police as stated above. She has also clearly stated that the details of
harassment are clearly spelt out by her during the course of investigation
and in her statement recorded by the police and sufficient evidence is now
produced by the Investigating Officer at the time of filing charge-sheet.
Therefore, she strongly opposed the application and prays to dismiss the
application.
7. As noticed supra, the applicant sought quash of the FIR mainly on
two grounds i.e. (i) the FIR was lodged after the divorce petition was
filed and (ii) the FIR contains vague allegations without details of
harassment and it is filed without any proof to substantiate the said
allegation of harassment.
8. As regards the first ground of delay in lodging the FIR is
concerned, it is relevant to note here that the harassment as complained
by the de facto-complainant is a continuous harassment right from the
year 2006 till the year 2019 when she lodged the FIR. According to her,
there was a demand made by the applicants to give away her salary to
them and in that connection, they all harassed her physically and
mentally. According to de facto-complainant, the first petitioner has
developed illegal intimacy with another woman and when she questioned
him in this regard, he started harassing her physically and mentally
without severing his illicit relationship with her. So, when the said
incidents relating to harassment are spread over from the inception of the
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marriage i.e. from the year 2006 till the FIR was lodged in the year 2019,
more particularly when the de facto-complainant as a responsible wife
waited with a fond hope that some good sense would prevail over the first
petitioner, who is her husband and that there will be change in his
conduct and attitude, and that he would severe his illegal relationship
with the woman with whom he had an affair and that he would continue
his matrimonial tie with the de facto-complainant, it cannot be said that
there is any unexplained delay in lodging the FIR. As the de facto-
complainant got two children and in the interest of their future also, she
does not want to complicate the issue and aggravate the nature of their
matrimonial dispute. As a reasonable and prudent thinking Hindu woman
and a responsible wife and mother and who is interested in her family life
and matrimonial life, she waited with all patience that there would be a
change in the conduct and attitude of the first petitioner. Unfortunately,
there was no change in him and he persisted on the said unreasonable
conduct and ultimately, went to the extent of filing a divorce petition
against her seeking divorce. Thereafter, she lost her hope that there will
be a change in the conduct and attitude of the first petitioner and she was
constrained to lodge report with the police. Therefore, on the mere
ground that the present report was lodged after the divorce petition was
filed, it cannot be said that the criminal proceedings that were launched
against the petitioners, amount to abuse of process of court. It is settled
law that every delay in lodging the FIR by itself is not fatal to the
prosecution case. It is only an unexplainted delay that may affect the
prosecution case. The said delay can be explained at any point of time
before the trial of the case is concluded. The same is now explained as
detailed supra. Whether the present FIR was lodged as a counterblast to
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divorce petition or not is the question of fact, which is required to be
ascertained and decided by the trial court after conducting full-fledged
trial and after recording the evidence to that effect. No finding to that
effect can be given now at this stage in the petition filed under Section
482 of the Cr.P.C. to quash the FIR. Upon that ground the FIR cannot be
quashed.
9. Apropos the second ground that vague allegations are made in the
FIR without giving the details of harassment and the quantum of money
that is demanded etc. is concerned, it is well settled law that the FIR is
not an encyclopedia to contain all the details and also the minute details.
Suffice to make an allegation and the details of the same can be given
subsequently either at the time of the investigation or during the course of
trial and ultimately it is for the trial court to appreciate the said evidence
and record a finding to that effect. As noticed supra, there are allegations
made in the FIR that there was a demand made by the applicants to the de
facto-complainant to pay money in the form of salary to them and that
they harassed her in this regard. So, it is a clear case, where she was
subjected to cruelty by making an illegal demand for money and thereby,
subjected her to cruelty. The details of the money that is demanded etc.
can be stated during the course of the investigation or during the course
of trial. Therefore, when the allegations set out in the FIR clearly
constitute an offence under Section 498A of IPC, the FIR that was
registered on the basis of the said allegations cannot be quashed.
10. As regards the proof is concerned, the investigation is now
completed and after collecting prima-facie evidence in support of the said
allegations, the charge-sheet has been also filed in the trial court. Now, it
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is at the stage of framing the charge. So, it cannot be said the there is no
sufficient proof in support of the said allegations. The trial has to be
conducted and the trial court has to appreciate the evidence that may be
adduced by the prosecution and then take a final call in this regard in the
final adjudication of the said case.
11. The judgment of the Apex Court in the case of Kahkashan Kausar
@ Sonam & Ors. vs. State of Bihar & Ors, passed in Criminal Appeal
No.195 of 2022, which is relied on by the petitioners has no application
to the facts of the present case.
12. Therefore, in the facts and circumstances of the case, no valid and
legal grounds are emanating from the record to quash and FIR and the
criminal proceedings being Criminal Case No.116 of 2020. The present
application being devoid of merits and it is dismissed.
Sd/-
(CHEEKATI MANAVENDRANATH ROY, J)
ABHISHEK
