Gujarat High Court
Vishal Naresh Kaundhiya vs State Of Gujarat on 24 January, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/SCR.A/7734/2022 ORDER DATED: 24/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7734 of 2022
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VISHAL NARESH KAUNDHIYA
Versus
STATE OF GUJARAT
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Appearance:
MS. SHIVANGI M RANA(7053) for the Applicant(s) No. 1,2,3,4,5
NOTICE SERVED for the Respondent(s) No. 2
MS CHETNA SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 24/01/2024
ORAL ORDER
1. Rule. Learned APP waives service of Rule for and on
behalf of the respondent-State.
2. By this application under Section 482 of Cr.P.C, the
applicants have invoked inherent powers of this Court for
quashing of the FIR being C.R. No.I-11191033220286 of 2022
registered with Meghaninagar Police Station, Ahmedabad City
for the offence punishable under Section 498A, 323, 294(b)
and 114 of the Indian Penal Code and Sections 3 and 7 of the
Dowry Prohibition Act.
3. This Court has heard learned counsel Ms. Shinvangi Rana
and learned Additional Public Prosecutor Ms. Chetna Shah for
the respective parties. The private respondent-original
complainant, though served, has neither appeared, nor filed
any affidavit.
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4. Brief facts giving rise to file the present application are
that, the applicants are husband and in-laws of the respondent
no.2. The marriage of the respondent no.2 with Vishal
Nareshbhai was solemnized on 23.02.2019. After the marriage,
she went to matrimonial home to discharge her obligation. She
delivered a baby boy after one year of marriage. The
respondent no.2 has lodged an FIR, inter alia, alleging that she
was subjected to physical and mental harassment by the
husband and his relatives and on the petty issue of the
household works, she was harassed by the applicants. It is
further alleged that, in order to save her married life, she
decided to tolerate the alleged harassment. Despite of this, the
harassment was continued and she was thrown out from the
matrimonial home for which she lodged the complaint before
the concerned police station where compromise was arrived at
and accordingly she came back at her matrimonial home and
again she was harassed by demanding dowry in the form of
silver ornaments to be brought from her parental home.
However, after some time, there was no change in the
situation and again, due to continuous harassment meted out
to her, she was compelled to left the matrimonial home
without her child on 20.07.2021 and subsequently, the
husband has denied to handover the custody of the child for
which she was compelled to file the application before the
Court under Section 97 of Cr.P.C. In the aforesaid facts, as a
last resort, she lodged an FIR on 21.05.2022 against the
applicants for the aforesaid offences.
5. Ms. Rana, learned counsel for the applicants has
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R/SCR.A/7734/2022 ORDER DATED: 24/01/2024
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submitted that the impugned FIR is absolutely false and
frivolous and on reading of it, the offence of cruelty is clearly
not made out. The wife-respondent has suppressed the
material facts while lodging the FIR with respect to facts of
customary divorce dated 10.07.2021. That the allegations are
of general in nature and by making exaggerated version of day
to day domestic issues of the life, and without any active
involvement of anyone, the applicants have been falsely
implicated in a criminal prosecution with a view to harass and
defame them in the society.
6. Ms. Rana, learned counsel would further urge that during
the pendency of this application, the proceedings for custody
matter and others were withdrawn by the respondent-wife and
she got remarried and now settled at her new home and
therefore, if the allegations made in the FIR, even if they are
accepted as it is, do not prima-facie constitute an offence of
cruelty as alleged and therefore, the criminal proceedings
which has been filed with malafide intention may be quashed
to prevent the abuse of process of Court.
7. The private respondent who has lodged the FIR, though
served, has not remained present before this Court.
8. The State counsel Ms. Chetna Shah has submitted that,
the contentions raised herein are related to the disputed facts
and therefore, at this stage, the Court may not enquire about
the truthfulness or otherwise of the allegations made by the
wife herein.
9. Before adverting to the contentions raised by learned
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advocate for the applicants, it is appropriate to refer the
settled legal position of law on quashing of the FIR in the case
of matrimonial dispute.
10. 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
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
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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."
11. 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
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against the relatives and in-laws of the husband when
no prima facie case is made out against them.".
12. 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 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.
13. In the facts of the present case, the marriage of
respondent no.2 was solemnized on 23.02.2019. Admittedly,
she left the matrimonial home on 20.07.2021 and the present
FIR is being filed on 21.05.2022 i.e. after a period of ten
months of her leaving the matrimonial home. The customary
divorce executed by the parties on 10.07.2021 and it is a
notarized deed signed by the independent witnesses. The
statement is made by learned counsel Ms. Rana that the
proceedings before the trial Court in relation to the custody
matter as well as maintenance have been withdrawn by the
wife and she got remarried and now settled at her new home.
In these background facts, the issue require to be considered is
whether the essential ingredients of criminal offence are
present or not?
14. After careful examination of the contents of FIR and
having regard to the admitted facts as discussed above, this
Court is of prima-facie view that, after obtaining the customary
divorce, the wife wants the custody of the child and for that
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she lodged the questioned FIR alleging therein the general
allegations of harassment without there being any specific
instances of physical and mental harassment. Thus, in a casual
manner the allegations made in the FIR and considering the
contents of FIR, the ingredients of offence of cruelty and other
provisions of Indian Penal Code as referred, are not
established. In such circumstances, this Court is convinced that
the proceedings being instituted with malafide intention and
same is nothing but an abuse of process of Court.
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. Resultantly, the application succeeds and is allowed. The
FIR being C.R. No.I-11191033220286 of 2022 registered with
Meghaninagar Police Station, Ahmedabad City and other
consequential proceedings thereto are quashed and set aside
qua the applicants herein. Rule is made absolute. Direct
service is permitted.
(ILESH J. VORA,J)
TAUSIF SAIYED
