Afsana Imran Vora vs State Of Gujarat
2025 Latest Caselaw 1244 Guj

Gujarat High Court

Afsana Imran Vora vs State Of Gujarat on 23 July, 2025

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                             R/SCR.A/10344/2025                               ORDER DATED: 23/07/202513 pt

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                           R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10344 of 2025
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                                                        AFSANA IMRAN VORA
                                                               Versus
                                                      STATE OF GUJARAT & ORS.
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                        Appearance:
                        MS. SHIVANGI M RANA(7053) for the Applicant(s) No. 1
                        MR MANAN MEHTA, APP for the Respondent(s) No. 1
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                           CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                          Date : 23/07/2025
                                                           ORAL ORDER

1. RULE. Learned advocates waive service of notice of rule on behalf of the respective respondents.

2. By way of this application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the applicants have prayed to quash and set aside the impugned judgment and order dated 26.05.2025 passed by the learned 6 th Additional Sessions Judge, Anand in Criminal Revision Application No.22 of 2025 (at Annexure-A) as well as order dated 26.10.2023 passed by the learned 3rd Additional Judicial Magistrate First class, Anand at Exhibit 10 in Criminal Case No.5704 of 2022 (at Annexure-B) as well as all the consequential proceedings arising therefrom.

3. It is the case of the complainant is that she The applicant herein, original complainant, had lodged an FIR against opponent Nos. 1 and 2 (i.e., the husband of the applicant and his first wife), as well as other relatives of the applicant's husband, for offences punishable under Sections 498A, 323, 504, and 114 of the IPC. Opponent Nos. 1 and 2, along with the other relatives of the applicant's husband, filed a quashing

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petition before the Hon'ble High Court of Gujarat, wherein the FIR against the other relatives of the applicant's husband came to be quashed. Upon completion of the investigation, a charge- sheet was filed against opponent Nos. 1 and 2, which was registered as Criminal Case No. 5704/2022. During the course of the trial in the said criminal case, the original complainant (applicant herein) was examined by the prosecution, and her examination-in-chief and cross-examination to some extent were recorded. Thereafter, the case was adjourned for her further cross-examination, and at that stage, while the trial was pending for further cross-examination of the original complainant, the learned Public Prosecutor moved an application at Exh.10 under Section 319 of CrPC for summoning one Radhikaben Narsinhbhai Rohit and to join her as an accused in the said trial. The said application was filed on the ground that on the ground that her husband had extra marital relationship with Radhikaben and they both along with mother of the Radhikaben treated the complainant cruelty and the name of Radhikaben Narsinhbhai Rohit had come on record during the deposition of the original complainant. After hearing the respective parties, the learned Trial Court rejected the application at Exh.10 filed by the 13 ptlearned Public Prosecutor. Being aggrieved and dissatisfied with the said order, the present applicant, original complainant, has filed the present revision application being Criminal Revision Application No.22 of 2025 (at Annexure-A) which was dismissed by an order dated 26.05.2025 by the learned 6 th Additional Sessions Judge, Anand. Therefore, the present petition.

4. Perusing the evidence on record, more particularly Exhibit-

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8 (at Annexure-C), it appears that the applicant was well aware of the relationship of her husband with Radhikaben for a long time. It also appears that the matter was settled earlier, and even an atrocity case was filed against the complainant by Radhikaben, while the complainant filed proceedings under Section 125 of the Cr.P.C. seeking maintenance from her husband.

5. It also appears that when the initial complaint was filed, the name of Radhikaben was not mentioned, and there was not even a whisper regarding any allegations of injury or insult on the part of the proposed accused. Even on perusal of the allegations levelled against Radhikaben, it is a settled principle of law that a "mistress" does not fall within the purview of Section 498A IPC. In this regard, reference may be made to U. Suvetha v. State by Inspector of Police, reported in (2009) 6 SCC 757, wherein the Court has held that:

"The word `cruelty" having been defined in terms of the aforesaid explanation, no other meaning can be attributed thereto. Living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same, in our opinion, would not attract the wrath of Section 498A of the Indian Penal Code. An offence in terms of the said provision is committed by the persons specified therein. They have to be the `husband' or his `relative". Either the husband of the woman or his relative must be subjected to her to cruelty within the aforementioned provision. If the appellant had not been instigating the husband of the first informant to torture her, as has been noticed by the High Court, the husband would be committing some offence punishable under the

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other provisions of the IPC and appellant may be held guilty for abetment of The word `cruelty" having been defined in terms of the aforesaid explanation, no other meaning can be attributed thereto. Living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same, in our opinion, would not attract the wrath of Section 498A of the Indian Penal Code. An offence in terms of the said provision is committed by the persons specified therein. They have to be the `husband' or his `relative". Either the husband of the woman or his relative must be subjected to her to cruelty within the aforementioned provision. If the appellant had not been instigating the husband of the first informant to torture her, as has been noticed by the High Court, the husband would be committing some offence punishable under the other provisions of the IPC and appellant may be held guilty for abetment of commission of such an offence but not an offence under Section 498A of the Indian Penal Code."

Since the proposed accused does not fall within the ambit of "relative" as contemplated under Section 498A, the said provision would not apply in this case as such.

6. Further, on perusal of the complaint, it appears that nothing reveals that the proposed accused caused any injury to the complainant. No such evidence of injury produced or adduced to connect the proposed accused. So for as Section 323 IPC is concerned, it stipulates that any person who intentionally causes bodily pain, injury, or disease to another person, without lawful justification, can be punished with imprisonment of up to one year, a fine of up to one thousand rupees, or both. However, at the time of lodging the complaint, no allegations were levelled

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against the proposed accused Radhikaben regarding causing injury to the complainant. Moreover, an offence under Section 323 IPC is non-congnizible offence, and in the present case, the incident is stated to have occurred between 2016 and 2019, while the complaint was filed only in the year 2022. Section 319 of the Cr.P.C. empowers the court to add an accused during the trial if there are reasonable grounds to believe in the involvement of the proposed accused. Therefore, in the absence of any such material, this Court is not inclined to exercise its jurisdiction under Articles 226 and 227 of the Constitution of India.

7. In view of the above, it appears that both the courts below did not commit any error in rejecting the complainant's application to join Radhikaben as an accused under Section 319 Cr.P.C. To invoke Section 319 Cr.P.C., there must be concrete evidence on record justifying the involvement or role of the proposed accused in the alleged offence so that such person may be tried together with the other accused. In the present case, this requirement is not satisfied.

8. Considering the facts and circumstances of the case, the present application stands dismissed. Rule discharged.

(HASMUKH D. SUTHAR,J) ALI