Gujarat High Court
Niharikaben Dilipbhai Trivedi vs State Of Gujarat on 19 January, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/7737/2022 ORDER DATED: 19/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7737 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 9933 of 2022
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NIHARIKABEN DILIPBHAI TRIVEDI
Versus
STATE OF GUJARAT
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Appearance:
KAMAL J UPADHYAYA(7469) for the Applicant(s) No. 1
MR.ADITYA J PANDYA(6991) for the Applicant(s) No. 1
MR DILIP P JOSHI(1819) for the Respondent(s) No. 2
MS CM SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 19/01/2024
COMMON ORAL ORDER
1. Since the issue involved in both the applications are identical and
arise from the same FIR, they have been heard together and
disposed of by this common order.
2. The applicant Niharika Dilipbhai Trivedi (Cr.M.A. 7737 of 2022)
is the distant relative of the private respondent, whereas, the
applicants - Krutiben, Krupali and Darshan Bhavsar (Cr.M.a. No.
9933 of 2022) are sister-in-laws and family member of respondent
no. 2. The marriage of the respondent no. 2 with one Rohan Bhatti,
was solemnized in the year 2017 and after the marriage, the
respondent wife went to matrimonial home at Kutch-Gandhidham.
Due to matrimonial dispute, she lodged an FIR against the
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applicants and other family members of the husband, inter-alia,
alleging that, she has been subjected to mental and physical
harassment at the instance of husband and his relatives.
3. In the aforesaid background facts, the applicants, who are relatives
of the husband have preferred the aforesaid applications by
invoking inherent powers of Section 482 of the Cr.P.C., for
quashing of the criminal proceedings initiated by the respondent
wife.
4. Brief facts giving rise to file present applications are that, the
marriage was solemnized on 11.12.2017. The respondent wife
after the marriage went to her matrimonial home and it was a joint
family and family consisting of mother-in-law, father-in-law. The
sister-in-laws namely Krutiben and Krupali are living separately at
their respective matrimonial home. In the month January, 2021, the
respondent no. 2 wife due her pregnancy went to her parental home
for delivery. It is alleged that, when she came to parental home for
delivery, she used to talk on mobile with the in-laws and due to
some differences, she was harassed by in-laws on trivial issues and
after the birth of daughter, the husband and in-laws show
disinterest in taking her back to matrimonial home and when she
raised the issue with the in-laws, she was scolded by them and
asked that her behavior needed improvement. It is further alleged
that, on 23.01.2022, she came back at her matrimonial home,
where, the in-laws and husband misbehaved with her and was not
properly welcomed. It is further alleged by the respondent wife
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that, she was called at the house of uncle-in-law, where the
applicants and other members assembled for social purpose. In the
said gathering the objections were raised by the in-laws about the
coming return back by her at the matrimonial home. During the
said ruckus, it is alleged that the mother-in-law, father-in-law and
the applicant Darshan have beaten eaten up her and at that time, the
applicant Niharika Trivedi who being a distant relative of the
husband, threatened her that she will beat her and in that process,
the sister-in-laws have instigated the husband and others.
5. In the aforesaid facts, the respondent wife in her FIR alleges that,
she was mentally and physically harassed by the in-laws and
husband, whereby, they have committed the offence of cruelty and
causing voluntary hurt punishable under the provision of the Indian
Penal Code.
6. Mr. A.J. Pandya, learned advocate and Mr. A.L. Pandav, learned
counsel for the applicants have submitted that, the impugned FIR is
vindictive in nature and is clearly an abuse of process of law and
same is absolutely false and frivolous and on reading of it, the
offence of cruelty is clearly not made out. The allegations are
totally vague and highly improbable and it is a case of over
implication and proceedings is manifestly attended with malafide
and is maliciously instituted with a ulterior motive.
7. Mr. A.J. Pandya with Mr. K.J. Upadhyay, learned advocates
appearing for the applicant - Niharika Trivedi, has submitted that,
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on bare perusal of the FIR, nothing being alleged against her so far,
act of cruelty is concerned. The applicant being an elderly member
of the family, tried to mediate the dispute between husband and
wife and she has nothing to do with the marital discord of the
husband and wife. The applicant is living separately and never
shared the house with the respondent wife. The only allegations
qua the applicant is that, she had administered the threat to the
respondent wife, when she intervene in the dispute. In such
circumstances, Mr. Pandya has submitted that, by making
exaggerated version of the incident, the applicant, has been falsely
implicated without allegation of her active involvement and thus,
the casual implication in the criminal proceedings of her, would
tarnish her image in the society and the allegations so far applicant
is concerned, would not fall under the definition of 'cruelty' and
therefore, the criminal proceedings qua her is amount to gross
misuse of process of law and court and same deserves to be
quashed and set aside.
8. Mr. Pandav, learned counsel appearing for two sister-in-law and
one distant relative has submitted that both the sisters are living
separately at her matrimonial home and the allegations for the
abetment having been made without their being any specific
instances of harassment on their part and by making general and
omnibus allegations, they have been falsely implicated. So far as,
Darshan Bhavsar is concerned, on 23.01.2022, when dispute arose,
he along with mother-in-law and father-in-law have beaten up the
respondent wife. It is in this context, it is submitted that, this
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statement is casual in nature and highly improbable and no prudent
man would believe it that the distant relatives without any
justification, caused the injuries. The respondent wife failed to
place on record the supporting evidence in relation the injuries
sustained by her. Thus, therefore, it is submitted that, so far
applicants are concerned, the allegations do not constitute an
offence of cruelty and therefore, the continuation of the
proceedings, qua the applicants would nothing but an unnecessary
harassment and same may be quashed and set aside by invoking
inherent powers of this court.
9. On earlier occasion i.e. on 14.12.2023, the counsel appearing for
the respondent wife sought adjournment and matter was fixed for
final hearing on 21.12.2023 and on that day, the counsel Mr. Dilip
Joshi did not remain present and as a last opportunity, the matter
was again posted on 19.01.2024. When the matter was called out in
the first as well as second half, the learned counsel Mr. Joshi did
not remain present to assist the Court and in that circumstances, the
court has no option but to hear the matter on merits.
10. Mr. Chetna Shah, learned Additional Public Prosecutor for the
respondent State has submitted that, the factual aspects as
canvassed cannot be examined at this stage and the genuineness or
otherwise of the allegations made in the FIR, would be the subject
matter of trial and therefore, she prays that, this is not a fit case to
exercise the powers to quash the criminal proceedings.
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11. Having heard the learned counsel for the respective parties and on
perusal of the allegations leveled in the FIR, the issue falls for my
consideration is, whether case is made out to quash the questioned
FIR by invoking inherent powers under Section 482 of the Code?
12. Before adverting to the submissions made hereinabove, it is
necessary to refer the settled law on the aspect of quashing the
criminal proceedings, more particularly when the allegations
pertaining to matrimonial dispute.
13. 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.
14. 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:
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"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
channelized 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 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
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instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge."
15. 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.".
16. 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
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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.
17. 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.
18. In light of the aforesaid settled principles of law and considering the
role attributable to present applicants herein in the alleged offence of
cruelty and allegations leveled in the FIR, this Court is of the
considered view that, by alleging exaggerated version of the trivial
domestic issues, the applicant Niharika Trivedi, two sister-in-laws
and one Mr. Darshan Bhavsar, the distant relative have been
implicated in the very casual manner without their being any
specific allegation of cruelty. The allegation of giving threat by
applicant - Niharika Trivedi, who is distant relative of the husband,
without disclosing the specific background, the said allegation made
against her seems to be false and frivolous and inherently
improbable. So far as two sister-in-law are concerned, it is admitted
facts that they are living separately since long at their matrimonial
home and there is no specific allegation on which date and on what
ground, they instigated the in-laws for commission of the offence of
cruelty and thus, the allegations made against them are in nature of
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general, omnibus allegations and having been alleged to mount the
pressure on the husband and others with oblique purpose. The
applicant Darshan Bhavsar, was there in the dispute, as discussed
above, but how he physically assaulted to the respondent wife, that
has not been disclosed and merely a simply allegation that, he has
beaten up the respondent wife, cannot be accepted.
19. In the aforesaid circumstances, the allegations of cruelty and
physical violation, so far applicant is concerned, 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 them and
therefore, when there is false implication, it is the duty of the court
to see that the criminal proceedings should not be encouraged and
the person who is absolutely innocent is not subjected to prosecution
and humiliation on the basis of false allegations.
20. 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.
21. Resultantly, the application succeeds. Rule made absolute to
aforesaid extent. The FIR being I-C.R.No.11993012220025 of 2022,
registered with Mahila Police Station, Kutch East (Gandhidham),
and other consequential proceedings thereto qua present applicants
are quashed and set aside.
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22. 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)
P.S. JOSHI/22/01
