Gujarat High Court

Memudaben Iqbalbhai Mansuri vs State Of Gujarat on 11 January, 2024

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     R/CR.MA/26748/2017                              ORDER DATED: 11/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 26748 of 2017

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                MEMUDABEN IQBALBHAI MANSURI & 4 other(s)
                               Versus
                     STATE OF GUJARAT & 1 other(s)
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Appearance:
MR TUSHAR CHAUDHARY(5316) for the Applicant(s) No. 1,2,3,4,5
MR MAULIK N SHAH(5280) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 11/01/2024

                              ORAL ORDER

1. The present application is filed under Section 482

of the Code of Criminal Procedure, 1973 (`Code' for short)

with the following prayers:

"7(A) Your Lordship may be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to quash and set aside the First Information Report being C.R.No.I-24/2017 produced at Annexure-B registered with Mahila Police Station, Himmatnagar Sabarkantha;

(C) Pending admission, hearing and final disposal of this application, Your Lordships may be pleased to stay further investigation and proceedings of the First Information Report being C.R.No.I-24/2017 produced at Annexure-B registered

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with Mahila Police Station, Himmatnagar Sabarkantha; (D) xxxxx"

2. The facts of the case of the present applicants, as

stated in the application, are as under:-

2.1 The respondent no.2 herein had lodged the

impugned FIR for the offences punishable under Sections

498(A), 323, 504, 506(2) and 114 of the Indian Penal Code

and Sections 3 and 4 of the Dowry Prohibition Act against

the applicants herein and her husband on 24.10.2017 alleging

that after the marriage, the applicants started giving mental

and physical torture to her for insufficient dowry and used to

instigate her husband in turn, he used to beat her; that only

with a view to save her marriage life, she gave Rs.4.00 lacs

to them and even thereafter, she was not kept well; that

they used to threaten the respondent no.2-complainant that

they will give divorce to her and bring another lady for the

original accused no.1 and also threatened to kill her. It is

this complaint which is prayed to be quashed qua the

applicants.

3. Heard learned advocate Mr.Chaudhary for the

applicants, learned APP Mr.Joshi for respondent no.1 and

learned advocate Mr.Shah for respondent no.2.

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3.1. Learned advocate Mr.Chaudhary has submitted

that the applicant no.1 is mother-in-law, applicant no.2 is

father-in-law, applicant no.3 is brother-in-law, applicant nos.4

and 5 are sisters-in-law of the respondent no.2; that the

respondent no.2 got married with the original accused no.1

viz.Riyazhusen Mansuri prior to thirteen years from the date

of registration of the FIR and out of the wedlock, they had

two children; that after the marriage, the respondent no.2

started to reside with the applicants herein in a joint family,

however, after some time, some dispute took place with her

husband and hence, the respondent no.2 started residing

separately along with her two minor children since 2011 at

Himmatnagar and at present, she is serving as a teacher

since long; that the respondent no.2 left her matrimonial

house with her own will and wish and now in the month of

August, 2017, the respondent no.2 issued notice through her

advocate with regard to her rights in the property; that the

impugned FIR is also filed recently and suddenly on

24.10.2017; that there is no explanation for the inordinate

delay caused in filing the impugned FIR against the

applicants; that the applicant nos.1 and 2 are retired from

government services and they are residing separately; that

the applicant nos.3 to 4 are residing at Ahmedabad since

2003; the applicant no.5 is residing at Gandhinagar since

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2004; that because of the dispute between husband and wife,

she started residing separately since 2011 and she has

implicated all the family members in the aforesaid offence

and that too, filed in the year 2017. He, therefore, prayed to

allow this application by exercising powers under Section 482

of the Code.

4. Per contra, learned APP Mr.Raval has submitted that considering the tenor of the FIR, prima facie, the

ingredients of the sections invoked are made out. He,

therefore, submitted that there is no case made out to

interfere by exercising powers under Section 482 of the Code

as it is a case for trial.

5. Learned advocate Mr.Shah for respondent no.2 has

submitted that the respondent no.2 was ill treated by the

applicants; that she had submitted a detailed application on

23.9.2017 to the Police Inspector, Mahila Police Station,

Himmatnagar, Sabarkantha wherein she has mentioned in

detail as to under what circumstances, she was mentally and

physically tortured; that initially also, she gave an application

before the Gambhoi Police Station, Himmatnagar,

Sabarkantha owing to the torture of her husband and her in-

laws; that the applicants promised to keep her nicely but

they did not and therefore the present FIR is filed; that

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prior also, the respondent no.2 was thrown out of her

matrimonial house but she returned back only to save her

matrimonial life; that the applicants are responsible for the

disputes in the matrimonial life of the respondent no.2; that

the applicants have tried to leave the country; that the

respondent no.2 is a teacher and mother of two children and

therefore, she has no reason to file any false complaint to

just harass anyone. He, therefore, prayed to dismiss this

application and subject the applicants to trial.

6. I have considered the rival submissions of the

parties and also the FIR and other documents produced on

record. It transpires that there are marital relations between

the complainant and the original accused no.1 i.e. they are

wife and husband and their marriage span is of more than

thirteen years; that no specific incident is stated in the FIR

which is the primary specific requirement of the sections

invoked by the complainant; that the complainant has left

her matrimonial house since 2011 and in the year 2017, she

has issued notice for share in the property in the month of

August, 2017 and the impugned FIR is also filed on

24.10.2017. The entire family members are implicated by the

complainant though they are all residing separately since long

and financially independent. There are no specific instances

stated in the FIR for satisfying the ingredients of the

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sections invoked in the FIR. This case is one more glaring

example of impleading all the family members, whether

staying together or at a far away place independently, in the

FIR, just to harass them and take them to task by taking

recourse of law.

7. At this stage, it is fruitful to refer to the

judgment of Preeti Gupta & Anr. V/s. State of Jharkhand &

Anr., reported in (2017) 7 SCC 667, wherein it is observed in paragraph 33 thus:-

"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

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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."

8. Further, it will also be fruitful to mention the

judgment of Hon'ble Supreme Court in the case of State of

Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.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 Art.226 or the inherent powers under sec.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

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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 sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.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 sec.156(2) of the Code.

(5) Where the allegations made in the FIR or complaint are

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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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) 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."

9. In view of the above and on perusing the contents

of the FIR, it appears that the applicants, who are the

family members of the original accused no.1-husband, are

unnecessary roped in by the complainant and there are

casual references made by her without allegations of active

involvement and no specific instances are narrated by the

complainant. No specific details are stated in the FIR. There

is no active involvement established of the applicants in

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meting out cruelty from the contents of the F.I.R.