Kiritbhai Kanjibhai Khetani vs State Of Gujarat
2024 Latest Caselaw 8635 Guj

Gujarat High Court

Kiritbhai Kanjibhai Khetani vs State Of Gujarat on 12 September, 2024

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                             R/CR.MA/2768/2022                             ORDER DATED: 12/09/2024

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                             R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                            FIR/ORDER) NO. 2768 of 2022
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                                              KIRITBHAI KANJIBHAI KHETANI & ORS.
                                                             Versus
                                                   STATE OF GUJARAT & ANR.
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                       Appearance:
                       MRS REKHA H KAPADIA(2246) for the Applicant(s) No. 1,2,3,4,5,6
                       MS.AKSHITABA SOLANKI(6782) for the Respondent(s) No. 2
                       MR TRUPESH KATHIRIYA, APP for the Respondent(s) No. 1
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                           CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                       Date : 12/09/2024

                                                        ORAL ORDER

1 Rule. Learned APP waives service of notice of rule on behalf of respondent-State.

2. By way of the present 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 C.R. No.I-11202001200019 of 2020 registered with Mahila Police Station, Jamnagar for the offences under Sections 498A, 323, 506(1) and 114 of Indian Penal Code, 1860 read with section 4 of the Dowry Prohibition Act as well as all the consequential proceedings arising therefrom.

3. Heard learned advocate for the respective parties.

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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. 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. In the present case, the applicant Nos.1 & 2 are father- in-law and they are senior citizen and both are residing separately. Applicant No.3 & 5 are brother-in-law, applicant Nos.4 is wife of applicant No.3 and applicant No.6 is wife of applicant No.5. All the applicants are residing separately and they have been falsely arraigned as accused and the allegations against them are false and frivolous. They have been roped into the present criminal proceedings to pressure the other applicants into a quick and beneficial monetary settlement for the complainant. The allegations made against the all the accused have no basis. All the allegations are general in nature. It is submitted that the It appears that the marriage was solemnized in the year 2002 and the incident took place between 12.11.2002 to 12.11.2020. Prima facie, perusing the complaint, it appears that due to scuffle between the husband and wife, the matrimonial proceedings including Domestic Violence proceedings was going on and maintenance was awarded Rs. 6000/- p.m. in favour of the respondent No.2. Thereafter, the settlement took place in the year 2016 and they stayed in her matrimonial home and after two months, she resides separately. Given this context, the complaint lacks sufficient grounds to proceed against the petitioners. In view of above, the present

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application deserves consideration.

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. The accused made her life hard to live, compelling her to leave her matrimonial home. Therefore, this is not a fit case to exercise the jurisdiction. Thus, prima facie involvement of the petitioner is established and therefore, present application may not be entertained.

6. Learned advocate for the respondent No.2 has adopted the arguments advanced by the learned APP and submitted that though order of maintenance was passed against the husband, till date, he is not going to pay any amount of maintenance and husband is not before this Court. It is needless to say that as husband is not before this Court and whatever remedy is available to secure the presence or to recover the amount of maintenance, separate mechanism is provided under the Act. It appears that allegations are general in nature.

6. Having heard the learned advocates for the respective parties and considering the facts and circumstances of the case, It appears that the applicant Nos.1 & 2 are father-in-law and they are senior citizen and both are residing separately. Applicant No.3 & 5 are brother-in-law, applicant Nos.4 is wife of applicant No.3 and applicant No.6 is wife of applicant No.5. They have

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been falsely arraigned as accused and the allegations against them are false and frivolous. They have been roped into the present criminal proceedings to pressurize the other applicants into a quick and beneficial monetary settlement for the complainant during the divorce. The allegations made against the all the accused are general in nature and have no basis. It appears that the marriage was solemnized in the year 2002. Considering the aforesaid fact, after the year 2016-2017, no any specific allegations are levelled except making taunt against the present in-laws thereto in the year 2008. The main grievance of the petitioner, the administration of the house hold work was entrusted to applicant No.4 - sister in law, except this no allegations are levelled. Even other allegations are also levelled, whatever allegations levelled against the family members are that they are involved in the offence. It appears that due to continuous mental and physical harassment by her in-laws, the complainant has filed the present complaint. The allegations against them are general, such as instigating and verbally harassing the complainant.

It is needless to say that as husband is not before this Court and whatever remedy is available to secure the presence or to recover the amount of maintenance, separate mechanism is provided under the Act. It appears that allegations are general in nature.In view of above the present application deserves consideration.

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7. Considering the fact that the allegations levelled against the applicants are general in nature. The respondent No. 2 claims to have faced physical and mental harassment. It appears that the present FIR is baseless and motivated by ulterior motives. It is alleged that the present applicants-accused have instigated the accused - husband and thereby, they have abetted an offence. Considering the aforesaid fact, it appears that allegation is general in nature and no evidence of physical and mental cruelty was collected. It appears that it is the case of over implication. Considering the aforesaid fact, this Court is of the considered view that this is a clear case of over implication and there is no positive act on the constant harassment, either mental or physical harassment on the part of the present accused. With a view to pressurize them, they have dragged into litigation. In view of above, the present complaint deserves to be quashed. 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) Achin Gupta V. State of Haryana, 2024 INSC 369, (iii) 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

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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 scrutinised with great care and circumspection."

7.1. In case of Geeta Mehrotra and Anr. vs. State of Uttar Pradesh & Anr. reported in (2012)10 SCC 741, the Hon'ble Supreme Court observed as under:-

"19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial

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litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

"there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts." The view taken by the judges in this matter was that the courts would not encourage such disputes.

21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of

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dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power."

8. So far as offence under Sections 498A and 323 of IPC are also concerned, in this regard, it would be apposite the refer the judgment of the Hon'ble Apex Court in case of Kahkasan Kausar alias Sonam and Ors. vs. State of Bihar and Ors. reported in (2022) 6 SCC 599. Even, no allegation is levelled against the present accused to cause any injury to the complainant and no any evidence or medical certificate is produced about the treatment of alleged injury.

9. So far as offence under Section 506(2) of IPC 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:

"A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal

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intimidation. 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)"

9.1. Reference is required to be made in case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, 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 channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :

(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

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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."

10. In the result, the applications are allowed only qua applicants. The impugned complaint being C.R. No.I- 11202001200019 of 2020 registered with Mahila Police Station, Jamnagar as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside only qua applicants herein. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(HASMUKH D. SUTHAR,J) KUMAR ALOK