Gujarat High Court
Kunal Atulbhai Shah (Disposed Of Not ... vs State Of Gujarat on 4 March, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/9194/2022 ORDER DATED: 04/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 9194 of 2022
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KUNAL ATULBHAI SHAH (DISPOSED OF NOT PRESS AS PER HON'BLE
COURT ORDER DT.1/6/22) & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DELETED for the Applicant(s) No. 1
MR YASH J PATEL(11240) for the Applicant(s) No. 2,3
NOTICE SERVED 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 : 04/03/2024
ORAL ORDER
1. By invoking inherent powers of this Court, the
applicants-original accused, who are facing the
charges for the offences of cruelty and demand of
dowry, have preferred this application for quashing of
the FIR registered with the FIR being CR No.
11196017220425 of 2021 registered with
Panigate Police Station, Dist.: Vadodara, for the
offences 498A, 323, 506 and 114 of Indian Penal
Code and under Sections 3 and 7 of the Dowry
Prohibition Act, 1961.
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2. This Court has heard learned counsel Mr. Yash Patel
and Ms. C.M. Shah, learned Additional Public
Prosecutor for the respective parties. The second
respondent who has lodged the FIR, though served,
did not remain present.
3. Brief facts emerges from the record are that the
marriage of the second respondent NikIta Kunal Shah
was solemnized on 28.01.2011 and both are blessed
with baby boy Henil. The second respondent was
belonging to Vadodara and after the marriage, she
went to her matrimonial home at Ahmedabad. The
applicants are father-in-law and mother-in-law. Since
October, 2020, she is living at Vadodara. In the
month of February, 2020, the accused No. 1 - Krunal
filed a divorce petition inter-alia alleging the act of
desertion etc. In the divorce proceedings, the second
respondent gave undertaking that, she will not create
any problem and do not harass the applicants and
accordingly, for some time she again came to her
matrimonial home at Ahmedabad. In these
background facts, after a period of 2 years from the
living her at matrimonial home, she lodged an FIR on
05.05.2022, inter-alia, alleging that, she was
subjected to cruelty and harassment at the instance
of her husband and his parents. So far, husband is
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concerned, it is alleged that, he do not like her and
pressurize her to give divorce. So far as applicants
are concerned, it is alleged that, they were
demanded Rs.15,00,000/- to be brought from her
parental house as her parents got substantial amount
from the property belongs to their forefather. The
alleged demand of dowry being made before 6 years
from the date of registration of the FIR i.e.
05.05.2022. It is further alleged that, after 3 months
of her marriage life, she was tortured and harassed
mentally and physically by the applicants on the
patty issue of domestic work and she was beaten
thrice by the father-in-law and was forced to sign
blank papers which were used in the divorce
proceedings as well as for the custody of the child. In
the FIR, it is alleged that on 03.10.2020, the
applicants have demanded keys of her cupboard and
on refusal of it, she was forced to leave the house
and since then, she is staying at Vadodara with her
parents.
4. In the aforesaid facts, the applicants are before this
court and have prayed to quash the criminal
proceedings.
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5. Mr. Yash Patel, learned counsel has submitted that,
none of the incidents as alleged, that the applicants
being senior citizens have been falsely implicated
with an intention to harass them and also to extort
money from them, as their son being a tuition
teacher having no sufficient income and the father-
in-law being retired officer of the BSNL, is in a sound
position to settle the issue. That this is the second
FIR, as on earlier occasion i.e. on 04.10.2021, the
second respondent made a complaint to the Police
Commissioner and in the said proceedings, the
statement of the wife - second respondent was
recorded and in the said statement, she had stated
that she do not want to proceed with the complaint
proceedings and accordingly on 26.11.2021, the
proceedings of the complaint was ordered to be
'filed' by the Panigate Police Station. That the second
respondent unequivocally stated before the Family
Court that she made a false allegations against the
applicants and in future she will not allege against
them and live peacefully with them.
6. In the aforesaid facts and circumstances, considering
the conduct and delay in lodging the FIR, Mr. Yash
Patel has submitted that, the criminal proceedings
has been manifestly attended with malafide and with
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ulterior motive, with a view to harass them and built
up a pressure on them to come to a compromise at
her terms and conditions and allegations seems to be
false, vexatious, and inherently improbable and the
allegations which are seems to be vague and
general, do not attract the ingredients of the offence
alleged and thus, therefore, the proceedings would
nothing but a sheer harassment to the applicants and
gross abuse of process of law.
7. Ms C.M. Shah, learned Additional Public Prosecutor
has submitted that, the High Court at this stage,
would not ordinarily entered into a disputed question
of fact and therefore, when the allegations made in
the FIR disclosed the commission of offence, the
court may not quash it and allowed the investigation
to be continued in the matter.
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
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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.
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
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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.
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(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
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accused and with a view to spite him due to
private and personal grudge."
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
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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 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. Having heard the learned counsel for the respective
parties, the issue falls for my consideration is whether
the case is made out for quashing the criminal
proceedings by invoking the inherent powers of this
Court.
13. Having considered the contentions raised by learned
counsel for respective parties and on perusal of the
allegations made in the FIR, this Court is of the
considered view that, the second respondent - wife
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sat silent for about 2 years and 6 months, as after
leaving the matrimonial home, she did not raise any
grievance in relation to the alleged cruelty and
demand of dowry. It needs to be noted that the facts
of earlier complaint, which she do not want to
proceed, having been suppressed while registering the
questioned FIR for the same offence. It is her case
that, after 3 months of the marriage, she was
subjected to mental and physical torture by the
husband and in-laws. Since March, 2011 to May, 2022,
she sat silent and after period of about 10 years, she
resorted to the criminal proceedings, alleging the
vague and general allegations of cruelty and demand
of dowry. In the complaint, there is no any explanation
about the delay in lodging the FIR as well as how
much amount was being received from the transaction
of property by her parents and on what occasion, the
applicants asked her to bring Rs.15,00,000/- from the
parental house. Even there is no date and time
disclosed and/or mention about the physical torture
alleged against the father-in-law. The theary of taking
signature on blank papers are seems to be aftert
thought as she wants to get out from the undertaking
dated 28.02.2020 filed before the Family Court.
14. In the aforesaid reasons, this Court is of the
considered view that, the institution of the FIR is
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manifestly frivolous and instituted with the ulterior
motive and the allegations qua the applicants are
seems to be vague and general without specifying any
instances of physical harassment and the allegations
of dowry also seems to be inherently improbable and
no prudent man can believe it.
15. For the reasons recorded, this Court is convinced
that, the implication of the applicants in the
questioned FIR would amount to misuse of process of
law and it is well settled that, the power under Section
482 has to be exercised by the High Court, inter-alia
to prevent abuse of process of any court or otherwise
to secure ends of justice and it is boundant duty of the
constitutional Court to see that the criminal
proceedings should not be encouraged, when it is
found to be malafide or otherwise an abuse of process
of the court.
16. 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.
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17. Resultantly, the application succeeds. FIR being CR
No. 11196017220425 of 2021 registered with
Panigate Police Station, Dist.: Vadodara, and
other consequential proceedings thereto against
present applicants are hereby quashed and set aside.
18. The observations made hereinabove are prima-facie
in nature and confined to the adjudication of the
present application. The investigation agency as well
as the trial Court shall not get influence by the said
observation during the investigation as well as at the
course of trial. Direct service permitted.
(ILESH J. VORA,J)
P.S. JOSHI
