Gujarat High Court
Swapnil Hasmukhbhai Parmar ... vs State Of Gujarat on 10 January, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/1528/2022 ORDER DATED: 10/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 1528 of 2022
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SWAPNIL HASMUKHBHAI PARMAR (SWAPNILBHAI HASMUKHBHAI
MACWAN)
Versus
STATE OF GUJARAT
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Appearance:
MR.SHASHIKANT PARMAR(6346) for the Applicant(s) No. 1
MS CM SHAH, APP for the Respondent(s) No. 1
ROMESH C NIVEN(9064) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 10/01/2024
ORAL ORDER
1. By this application, under Section 482 of the Cr.P.C.,
original accused no.2-Swapnil Macwan seeks to invoke
inherent powers of this Court praying quashing of the FIR,
being I-C.R.No.11215018210040 of 2021, registered with
Mahila Police Station, Anand for the offence punishable
under Sections 498(A), 323, 504, 506(2) and 114 of the
Indian Penal Code.
2. Facts and circumstances giving rise to file quashing
petition are that the private respondent - wife married
with one Vinod Macwan accused no.1 and after the
marriage, she went to matrimonial home. This was the
second marriage of the respondent. The accused no.1-
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husband being a government servant was staying at
Porbandar and every fortnight, he was used to come at
Anand. The respondent wife was not happy with the
conduct and attitude of the husband as she doubted on
his character as a result, the matrimonial dispute arose
between the parties. In these background facts, the
respondent wife lodged an FIR against five persons
including the husband and his relatives inter alia alleging
that she was subjected to mental and physical cruelty.
The applicant herein is the nephew of accused husband.
So far role attributed to the applicant is concerned, it is
alleged that he along with his brother, by using filthy
language, threatened her and pressurized her to leave
the house.
3. This Court has heard learned counsels Mr.Shashikant
Parmar, Mr.Romesh Niven and Ms.C.M. Shah, learned APP
for the respondent - State.
4. Mr.Parmar, learned counsel for the applicant, has
submitted that the FIR is absolutely false and frivolous
and on reading of it, the offence of cruelty and causing
voluntary hurt is not made out. That on 25.10.2021, the
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applicant had left Anand for London (U.K.) as for further
study at London, he got student Visa and thus, therefore,
on the day of alleged offence, the applicant was not
present in Anand Town and in support of these
contentions, he relied on the Visa and passport to
establish the plea of alibi at the time of commission of
the offence.
5. In the aforesaid contentions, learned counsel Mr.Parmar
has submitted that the FIR lacks the ingredients of the
offence and considering the nature of allegations, the
facts mentioned in the FIR qua the applicant are absurd
and inherently improbable.
6. In such circumstances, relying on the parameters for
quashing laid down by the Apex Court in the case of
Bhajanlal (1992 SC Suple.1 335), it is submitted that the
allegations made in the FIR, even if they are taken at
their face value and accepted in their entirety do not
prima facie constitute any offence against the applicant
and therefore, this is a fit case to exercise the powers of
this Court.
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7. On the other hand, Mr.Romesh Niven, learned counsel
and Ms.C.M. Shah, learned APP have jointly submitted
that the contention with regard to the presence of the
applicant at the place of offence and supporting evidence
like passport, etc. produced cannot be examined at this
stage as the Court should not enter into disputed
questions of facts and examine the genuineness or
otherwise of the allegations made in the FIR and thus,
therefore, they submitted that the powers should not be
exercised.
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.
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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 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
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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 view to spite him
due to private and personal grudge."
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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
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
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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. In the case of Geeta Mehrotra and Anr. v. State of Uttar
Pradesh and Anr reported in (2012) 10 SCC 741, it is
observed that, family members of the husband are being
implicated without allegations of active involvement and
they are being implicated casually.
13. Having heard learned counsels for the respective parties,
the issue falls for consideration is whether the case is
made out for quashing the criminal proceedings by
invoking the extraordinary jurisdiction of this Court.
14. The applicant is the nephew of husband-accused
Vinodbhai. On bare reading of the FIR, it prima facie
appears that the respondent wife was having serious
matrimonial dispute with the husband Vinodbhai. The
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allegations made against the applicant seem to be
general in nature and no specific role being assigned to
the applicant. Since 25.10.2021, the applicant is not
staying in Anand Town as on the very same day, he left
Anand for London. The undisputed passport shows that
on 26.10.2021, he was at Heathrow Airport, London
(U.K.). In such circumstances, this Court is of the
considered view that the applicant being a relative of the
husband has been falsely implicated in the alleged
offence. Thus, therefore, so far role of the applicant is
concerned, the FIR lacks the ingredients of the offence
alleged.
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. Resultently, the application succeeds and is allowed.
The FIR being I-C.R.No.11215018210040 of 2021,
registered with Mahila Police Station, Anand and other
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consequential proceedings thereto are quashed and set
aside.
17. The views expressed hereinabove are confined to the
case of present applicants herein. The trial Court shall
decide the case of the husband in accordance with law
without being influenced by the observations made
hereinabove.
(ILESH J. VORA,J)
Rakesh
