Ramijibrahimbhai Panwala(Dispose As ... vs State Of Gujarat
2024 Latest Caselaw 5442 Guj

Gujarat High Court

Ramijibrahimbhai Panwala(Dispose As ... vs State Of Gujarat on 25 June, 2024

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      R/CR.MA/20401/2022                         ORDER DATED: 25/06/2024

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 20401 of 2022

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     RAMIJIBRAHIMBHAI PANWALA(DISPOSE AS NOT PRESSED) & ORS.
                              Versus
                     STATE OF GUJARAT & ANR.
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Appearance:
DELETED for the Applicant(s) No. 1
MS. BHAVNA D ACHARYA(6406) for the Applicant(s) No. 2,3,4,5,6
MR.RUTURAJ S VYAS(9773) for the Respondent(s) No. 2
MS KINJAL N CHAUHAN(13314) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                            Date : 25/06/2024
                             ORAL ORDER

1. RULE. Learned advocates waive service of notice for the respective respondents. Respondent No.2 duly served, none appear on behalf of the respondent No.2.

2. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the applicants have prayed to quash and set aside the complaint being FIR C.R. No.11184011220012 of 2022 registered with Mahila Police Station, Chhotaudepur for the offences under Sections 498A, 504, and 114 of Indian Penal Code, 1860 as well as all the consequential proceedings arising therefrom.

3. The brief facts of the case are that the complainant has filed the present complaint due to continuous mental and physical harassment by her in-laws and her husband, who

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wants to remarry to another woman and he also wants to divorce her.

4. Learned advocate for the applicants submits that the applicants herein have nothing to do with the offence and have been falsely implicated in the present case. He submits that the husband of the complainant, who is accused No.1 is not before the Court. Accused No.2 is father in law, accused No.3 is brother in law, accused No.4 is Uncle in law, accused No.5 is mother in law and accused No.6 is aunt in law and all are distant relatives. A bare perusal of the FIR reveals that all the facts narrated are either false or twisted with the intent to mislead the court and the investigating authority. The allegations against them have no basis, as they also do not live under the same roof as the complainant.

4.1 It is further submitted that the complaint was filed with the intent to destroy the social and economic prestige of the applicants and to harass them and the husband to extort money and ensure a handsome settlement in the event of a divorce. All allegations of physical, verbal, and emotional torture are false and baseless. None of the incidents alleged in the complaint ever took place. Even if the allegations made in the complaint are taken at face value, they do not attract the provisions of the Indian Penal Code. Even if the entire complaint is read in its entirety, the allegations made against the applicants are of such a general and ambiguous nature that they are not supported by any evidence. Therefore, the learned advocate for the applicants requests that the present application be allowed.

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5. The learned APP appearing for the respondent-State has opposed the application and submitted that the complainant was subjected to mental and physical harassment by the accused and also received life threats. The accused made her life hard to live, compelling her to leave her matrimonial home. In view of the above, the learned APP requested that the application be dismissed.

6. Having heard the learned advocates for the respective parties and considering the facts and circumstances of the case, it appears that due to continuous mental and physical harassment by her in-laws, the complainant has filed the present complaint. The allegations are general in nature, and the husband of the complainant is not before the court. The other accused are distant relatives of the complainant, most of whom live separately from her. The allegations against them are general, such as instigating and verbally harassing the complainant. It also appears from the complaint that the present applicants compelled respondent No. 2 to divorce her husband so that he could solemnize a second marriage.

7. In view of the above, as far as the second marriage is concerned, the parties belong to the Muslim community, and there is no need for a divorce to have a second marriage. The husband of the complainant, who is accused No. 1, is not before the court. Accused No. 2 is the father-in-law, accused No. 3 is the brother-in-law, accused No. 4 is the uncle-in-law, accused No. 5 is the mother-in-law, and accused No. 6 is the aunt-in-law.

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All are distant relatives and live separately. Except for the offense of instigating and verbally harassing the complainant, no other allegations have been leveled against the applicants, and the allegations are general in nature.

8. Considering the aforesaid facts, it appears that this is a case of over-complication. Keeping this in view, the Coordinate Bench of this Court protected the applicants by its order dated 09.11.2022.

9. It appears that applicants are facing charge of Section 498A of IPC. Therefore, as per the allegations made in the complaint, ingredient of Section 498A is made out. In this regard, it would be apposite to refer the decisions of the Apex Court in cases of (i) Abhishek vs. State of Madhya Pradesh reported in 2023INSC779 / (Criminal Appeal No. 1457 of 2015),

(ii) of Preeti Gupta and another vs. State of Jharkhand, another [(2010) 7 SCC 667], it is observed that "this Court noted that the tendency to implicate the husband and all his immediate relations is also not uncommon in complaints filed under Section 498A IPC. It was observed that 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, as allegations of harassment by husband's close relations, who were living in different cities and never visited or rarely visited the place where the complainant resided, would add an entirely different complexion and such allegations would have to be scrutinized with great care and circumspection.

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10. Even in the judgment passed by the Hon'ble Apex Court in the case of Achin Gupta v. State of Haryana, 2024 INSC 369, the same view was observed. Needless to say, the husband is not before this Court, as discussed above. Prima facie, it appears that with ulterior motives, the present applicants are being falsely dragged into litigation. This is a clear case of over- implication, and no purpose would be served by proceeding further with the litigation. Since 2023, interim relief has been granted in favor of the present applicants. In view of the above, it appears that with a view to exerting pressure on the applicants to settle the dispute with the husband, the present applicants are being dragged into litigation, thereby abusing the process of law. Hence, the present impugned complaint is required to be quashed and set aside because the allegations are trivial in nature, and there has been no progress since 2022.

11. So far as Section 504 is concerned, the learned Apex Court in the case of Mohammad Wajid and Anr. v. State of U.P. and Ors., reported in 2023 LiveLaw (SC) 624: 2023 INSC 683, has held that:

"Indian Penal Code, 1860; Section 504 - Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and

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circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant - In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant. (Para 25- 26)

Indian Penal Code, 1860; Section 504 - One of the essential elements for constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present. (Para 28)

12. This Court deems if appropriate to refer to the judgment passed by the Hon'ble Apex Court in the case of Sunil Kumar versus State of Uttar Pradesh, reported in 2023 8 SCC 481 and in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, wherein the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:

"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

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decisions relating to the exercise of the extraordinary power under Art. 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.

(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. 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 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

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with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

13. In the aforesaid backdrop, complaint is filed. It is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard- and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon'ble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported in AIR 2006 SC 2872.

14. In the result, the application is allowed. The impugned complaint being C.R. No.11184011220012 of 2022 registered with Mahila Police Station, Chhotaudepur as well as all consequential proceedings initiated in pursuance thereof are

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hereby quashed and set aside qua the applicants herein. Rule is made absolute to the aforesaid extent. Direct service is permitted. If the applicant/s is/are in jail, the jail authority concerned is directed to release the applicant/s forthwith, if not required in connection with any other case.

(HASMUKH D. SUTHAR,J) ALI