Kokilaben Simonbhai Macwan (Kokilaben ... vs State Of Gujarat
2024 Latest Caselaw 8520 Guj

Gujarat High Court

Kokilaben Simonbhai Macwan (Kokilaben ... vs State Of Gujarat on 9 September, 2024

                                                                                                       NEUTRAL CITATION




                             R/CR.MA/21423/2021                           ORDER DATED: 09/09/2024

                                                                                                        undefined




                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                           FIR/ORDER) NO. 21423 of 2021

                       ==========================================================
                            KOKILABEN SIMONBHAI MACWAN (KOKILABEN SIMONBHAI SHAH)
                                                    Versus
                                           STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MR JOHNSEY P MACWAN(5498) for the Applicant(s) No. 1
                       MS SHREYA M SONI(10618) for the Applicant(s) No. 1
                       MR TRUPESH KATHARIYA, APP for the Respondent(s) No. 1
                       ROMESH C NIVEN(9064) for the Respondent(s) No. 2
                       ==========================================================

                          CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                      Date : 09/09/2024
                                                       ORAL ORDER

1. RULE. Learned APP waives service of notice for the respondent-State.

2. By this application, under Section 482 of the Cr.P.C., original accused no.2-Swapnil Macwan seeks to invoke inherent powers of this Court praying quashing of the FIR, being I- C.R.No.11215018210040 of 2021, registered with Mahila Police Station, Anand for the offence punishable under Sections 498(A), 323, 504, 506(2) and 114 of the Indian Penal Code.

3. The brief facts of the case are that the complainant got married to accused No. 5, Vinodbhai. Accused No. 3, the petitioner herein, is the sister of accused No. 1. The accused No. 1 is a deputy engineer working in Porbandar. When accused No. 1 would come home to Anand, the complainant noticed his

NEUTRAL CITATION

R/CR.MA/21423/2021 ORDER DATED: 09/09/2024

undefined

unusual behavior, including making unpleasant gestures toward a woman in the neighborhood. Accused No. 3, the petitioner herein, allegedly aided accused No. 1 in harassing the complainant. On 26.11.2021, the accused persons, along with accused No. 1, went to the complainant's house and threatened her with dire consequences. As a result, the complainant filed a complaint.

4. The learned advocate for the applicants submits that the applicant has nothing to do with the offense and has been falsely implicated in the present case. The present applicant is the sister-in-law of the complainant and resides separately. The allegation against the petitioner is that she incited the complainant's husband and helped him quarrel with the complainant. A perusal of the FIR reveals that the facts narrated are either false or twisted with the intent to mislead the court and the investigating authority. The allegations against the petitioner have no basis, as she does 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. 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 applicant

NEUTRAL CITATION

R/CR.MA/21423/2021 ORDER DATED: 09/09/2024

undefined

isof such a general and ambiguous nature that they are not supported by any evidence. Therefore, the learned advocate for the applicant requests that the present application be allowed.

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. Learned advocate appearing for the respondent No.2 has adopted the submissions of the learned APP and submits that the applicant is directly involved in the offence of mentally and physically harassing the complainant and therefore, he requests that the present application be dismissed.

7. Having heard the learned advocates for the respective parties and considering the facts and circumstances of the case, it appears that the complainant got married to accused No. 5, Vinodbhai. Accused No. 3, the petitioner herein, is the sister of accused No. 1. The accused No. 1 is a deputy engineer working in Porbandar. When accused No. 1 would come home to Anand, the complainant noticed his unusual behavior, including making unpleasant gestures toward a woman in the neighborhood. Accused No. 3, the petitioner herein, allegedly aided accused No. 1 in harassing the complainant. On 26.11.2021, the accused persons, along with accused No. 1, went to the complainant's

NEUTRAL CITATION

R/CR.MA/21423/2021 ORDER DATED: 09/09/2024

undefined

house and threatened her with dire consequences. As a result, the complainant filed a complaint The allegations are general in nature. And husband of the complainant, is not before the court, and the petitioner herein is distant relative of the complainant, and live separately from her. The allegations against her are general, such as instigating and verbally harassing the complainant. Even the Coordinate Bench of this Court on 10.01.2024 has quashed the compliant against accused No.2- Swapnil Hasmukhbhai Parmar in Criminal Misc. Application No.1528 of 2022.

8. It appears that applicant is 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], (iii) Achin Gupta V. State of Haryana, 2024 INSC 369, 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

NEUTRAL CITATION

R/CR.MA/21423/2021 ORDER DATED: 09/09/2024

undefined

would have to be scrutinised with great care and circumspection.

12. 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. It is a clear case of over-implication. The allegation against the applicants is that they have instigated the complainant's husband. 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 and the applicant has been protected since December 2021. 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 2021.

9. So far as under Section 504 and 506 are 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

NEUTRAL CITATION

R/CR.MA/21423/2021 ORDER DATED: 09/09/2024

undefined

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 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)

Indian Penal Code, 1860; Section 506 - Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. (Para 27) 3 Interpretation of Statutes- All penal statutes are to be construed strictly - Court must see that the thing charged is an offence within the plain meaning of the words used and must not strain the words. (Para 19-

21)"

10. 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

NEUTRAL CITATION

R/CR.MA/21423/2021 ORDER DATED: 09/09/2024

undefined

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 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

NEUTRAL CITATION

R/CR.MA/21423/2021 ORDER DATED: 09/09/2024

undefined

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."

11. In the result, the application is allowed. The impugned complaint being I-C.R.No.11215018210040 of 2021, registered with Mahila Police Station, Anand as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicants herein. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(HASMUKH D. SUTHAR,J) ALI