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Gujarat High Court · body

2017 DIGILAW 1416 (GUJ)

Sanjaybhai Nathabhai Nai v. State of Gujarat

2017-08-21

B.N.KARIA

body2017
JUDGMENT : B.N. KARIA, J. 1. This application has been filed by the applicants/original accused under Section 482 of the Code of Criminal Procedure (for brevity “Cr.P.C.”) praying to quash and set aside the complaint, being C.R. No. II-3241 of 2013 registered with Gambhoi Police Station, District: Sabarkantha for the offence punishable under Section 498(A), 294(B), 506(2) and 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act. 2. Brief facts of the impugned complaint are that the respondent no.2-complainant had married with the applicant no.1 ten years back and during their wedlock, they have begotten one son, namely, Mit who is by now aged about 9 years. In the beginning, their marriage life was going smoothly and happily. Subsequently, it is alleged that the complainant-wife was being harassed and demand of money and other articles made to her, and therefore, since last four years, she has been residing at the place of her father. That, the complainant was driven out of her matrimonial home in the year 2009, and since then, she is residing at the place of her father. That, at that time, she informed her father regarding harassments, however, with a hope that the dispute will be resolved, no complaint was filed. That, since then, there has been no settlement talks in relation to the dispute and that is how, the impugned complaint has been lodged. 3. Heard learned advocate Mr. Jigar G. Gadhvi appearing on behalf of the applicants, learned advocate Kartik V. Pandya appearing on behalf of the respondent no.2-complainant and learned APP Mr. KL Pandya appearing on behalf of the respondent no.1-State. 4. Learned advocate Mr. Jigar G. Gadhvi appearing on behalf of the applicants has submitted that impugned complaint is being opposed by the present applicants, who are innocent persons, and intend to bring the complainant back to her matrimonial home and efforts were also made by them to resolve disputes through social meetings. That, effort of the applicants did not work out because of non-cooperation of the complainant and her parents as they chose not to take part in the settlement process earlier undertaken. That, the impugned FIR is nothing, but sheer misuse of process of the Court and police machinery and the same is filed with a malafide intention, being frivolous and vexatious in nature. That, the impugned FIR is nothing, but sheer misuse of process of the Court and police machinery and the same is filed with a malafide intention, being frivolous and vexatious in nature. That, as stated in the FIR, the complainant had been residing at her parental home since last four years and therefore, there are no chances of unleashing any cruelty or harassment over the complainant. Moreover, as stated in the FIR, the complainant was driven out of her matrimonial home in the year 2009, whereas the impugned complaint is lodged in the year 2013, and therefore, the aforesaid delay clearly goes to show that the impugned complaint is absolutely false and frivolous. That, efforts were made, but the complainant and her parents are not interested to continue with relationship and they did not even take part in the social meetings. That, the applicants no.4 and 5 are the brother-in-law and his wife and they had never been residing with complainant at her matrimonial home and therefore, allegations made against them are not believable. There is no direct allegations made in the FIR against the applicants no. 2, 3, 4 and 5 regarding abetment in commission of offence punishable under Section 498(A) of the Indian Penal Code. That, the impugned FIR involving all the relatives of husband shows tendency of over-implication on the part of complainant with a view to harass whole family. That, whatever allegations have been made against the applicants are vague and general in nature and that there is no specific role of the applicants that comes out from the complaint which constitutes the alleged offence. In support of his arguments, learned advocate Mr. Jigar G. Gadhavi has placed reliance upon the below mentioned judgments: (1). Chandralekha & Ors. v. State of Rajasthan & Anr., reported in 2013 AIR SCW 3651; (2). Shakson Belthissor v. State of Kerala & Anr., reported in (2009) 14 SCC 466 ; (3). Neelu Chopra & Anr. v. Bharti, reported in (2009)10 SCC 184 ; (4). Arneshkumar v. State of Bihar, reported in (2014) 8 SCC 273 ; (5). Dipakbhai Ratilal Patel v. State of Gujarat, reported in 2014 GLH(3) 788; (6). Preeti Gupta & Anr. v. State of Jharkhand & Anr, reported in AIR 2010 SC 3363 ; Ultimately, it was requested by him to allow this application and quash and set aside the impugned complaint. 5. Dipakbhai Ratilal Patel v. State of Gujarat, reported in 2014 GLH(3) 788; (6). Preeti Gupta & Anr. v. State of Jharkhand & Anr, reported in AIR 2010 SC 3363 ; Ultimately, it was requested by him to allow this application and quash and set aside the impugned complaint. 5. Per contra, learned advocate Mr. Kartik V. Pandya appearing on behalf of the respondent no.2 submitted that complainant has tried to settle the issues through social meetings wherein statements from both the sides have been recorded, but ultimately applicants have not settled the issues before social leaders. The marriage of the complainant was solemnized ten years back and out of their wedlock, they have begotten a son named Mit, who is boy now aged about 9 years and the respondent no.2-complainant was forced to leave the matrimonial home due to cruelty meted out to her in the matrimonial home. That, the applicants started taunting and scolding the respondent no.2 on trival issues. That, applicants demanded all the money which the respondent no.2 had with her and then told her that her father had not given dowry properly, therefore, should get Rs. 5 lacs from her father. When the respondent no.2 clearly declined and stated that she will not ask her parents for money, the applicant no.1, on instigation of other accused-family members, started beating her occasionally. To escape every day torture and financial status of the family, applicant no.1 often provoked other three family members to torture her and often they use to make the complainant feel sad by making inappropriate statements about her and her parents and ultimately, the father of the complainant purchased a bike in the name of the complainant and custody thereof was handed over to the applicant no.1 and till the date, possession of said bike is with the applicant no.1. That, the investigation of the complaint is going on, and therefore, it may not be quashed. 6. It is further submitted by Mr. Kartik V. Pandya, learned advocate for the complainant that during the pendency of this application, husband and father-in-law of the complainant had issued a notice to the complainant on 15th September 2013. That, since prima facie all the applicants are involved in the offence, and therefore, no prayer can be accepted by this Court at this stage. In support of his arguments, learned advocate Mr. That, since prima facie all the applicants are involved in the offence, and therefore, no prayer can be accepted by this Court at this stage. In support of his arguments, learned advocate Mr. Pandya has relied upon Sunita Jain v. Pawan Kumar Jain (2008(0) GLHEL SC 40416) : [ 2008 (2) SCC 705 ] and Taramani Parakh v. State of Madhya Pradesh (2015(0) AIJEL SC 56330) : [ 2015 (11) SCC 260 ] and ultimately, requested to dismiss this application. 7. Learned APP Mr. KL Pandya appearing on behalf of the respondent no.1 has supported the arguments advanced by the learned advocate appearing on behalf of the complainant and submitted that the investigation cannot be hampered in such background of alleged offence and submitted that the complaint is at initial stage and therefore, its investigation should not be intercepted in exercise of inherent jurisdiction. That, the applicants have appropriate remedy at an appropriate stage, if aggrieved after investigation and therefore, since the applicants are left with other remedy at appropriate stage, this is not the stage where the Court may hamper process of investigation, and therefore, ultimately urged not to interfere with the present proceedings and to dismiss the same by vacating interim relief forthwith. 8. Heard learned advocate for the respective parties at length as well as learned APP. 9. Having considered contents of the complaint made by the respondent no.2-complainant before the police, it is an undisputed facts that complainant was married with applicant no.1 ten years back and one son is born, named Mit, who was aged about 9 years at the time of lodging the complaint. As per the averments made in the complaint, initially her marriage life was happy. It appears that prior to filing the impugned complaint, she was staying with her parents since last four years and all the in-laws were staying at her matrimonial home at village Nikoda. As per allegations made in the complaint, after passing of seven months of her marriage life, her husband-applicant no.1 had started causing physical and mental cruelty, and by demanding money from her father, all the family members tried to kill her by pouring kerosene, but she did not inform her parents about the said incident. Thereafter, frequently, she was tortured by her husband. Thereafter, frequently, she was tortured by her husband. A demand of motor-cycle was made by her husband, which was fulfilled by her father by purchasing the motor cycle in the name of his daughter/complainant and handing over vehicle to the applicant no.1, which still is in possession of her husband. Despite that, she was physically and mentally tortured by her husband. After festival of Diwali in 2009, her husband alongwith other relatives viz., Jeth-Jethani driven her out from her matrimonial home. The family members of her side tried their best efforts to settle the issue by arranging association meeting of leaders of the society, but she was not called back by family members of her husband. She was on the contrary threatened by them and a demand of Rs. 5 lacs was made by them and as she was tortured, this complaint came to be lodged. Undisputedly, from the allegations made by the respondent no.2- complainant, she was staying at her parental home since last four years before lodgment of the complaint. She has made allegation mainly against her husband of giving her physical and mental torture. Of course, other members are also alleged of abetting her husband and denying to keep her back by giving threats. It also appears from the record that in a social meeting held on 2nd October 2012 to settle the issue, statement of the father-inlaw viz., Nathabhai, husband of the complainant-applicant no.1 and the complainant were recorded. From these statements, it appears that the applicant no.1 and her family members were ready and happy to call her back and whereas conditions appears to have been imposed by the complainant saying that she would not be given any cruelty by any member and the residential house as well as shop should be transferred in her name otherwise, she will file a case for maintenance. As and when she would pay visit to her parental home, she would not be prevented by any of the members or they would not raise any dispute otherwise, she would cut-off relationship with all of them. It is later on stated that she did not want to settle the issue or compromise the dispute, as she would like to file a complaint/case. However, the leaders in the meeting tried to settle the issues, which could not be settled either way. It is later on stated that she did not want to settle the issue or compromise the dispute, as she would like to file a complaint/case. However, the leaders in the meeting tried to settle the issues, which could not be settled either way. In another meeting, which was fixed on 30th October 2012, all the members of applicants side were present, but not a single member from the complainant’s side was present. Thus, it appears from the record that the applicant no.1 and applicant no.2 i.e., husband and father-in-law of the complainant requested the complainant by writing a letter dated 15th September 2013 to return back to her matrimonial home. It is not in the form of a legal notice issued through an advocate, but they themselves have written a letter to their wife/daughter-in-law stating the facts to continue her relationship with applicant no.1. Therefore, it can be said that they were happy to bring the complainant back and for their reunion. It is pertinent to note that after leaving her matrimonial home, the respondent no.2 waited for five years to lodge a complaint and for which no satisfactory explanation comes forth. It is stated that applicant no.1 and complainant are residing separately, and therefore, there would not be a question of inspiring from the other applicants, who are parents or relatives of the applicant no.1. The presumption of inspiring made by the applicant nos. 2 to 5 to applicant no.1 that torture or cruelty meted out to her, the complaint appears to be afterthought. It appears that after failing in settlement of issues before Mediation Centre also, the respondent no.2 filed another complaint under the provisions of Dowry Prohibition Act on 25th September 2013 i.e., Criminal Misc. Application No.1191 of 2013, which itself reflects that she is not ready to join her husband and intend to harass the applicants by filing complaints. The aforesaid complaint was challenged by the applicants by filing Special Criminal Application (Quashing) No. 3246 of 2013, in which, notice was issued and interim-relief in terms of exemption to applicant nos. 2 to 5 was granted. Delay in lodgment of complaint by the respondent no.2 itself shows that the impugned FIR against all applicants is false and frivolous. The aforesaid complaint was challenged by the applicants by filing Special Criminal Application (Quashing) No. 3246 of 2013, in which, notice was issued and interim-relief in terms of exemption to applicant nos. 2 to 5 was granted. Delay in lodgment of complaint by the respondent no.2 itself shows that the impugned FIR against all applicants is false and frivolous. Except applicant no.1, as others were staying separate from the respondent no.2 at different places, and therefore, there is no evidence available against them of either cruelty or harassment; as alleged. Dealing with similar set of facts, this Court has observed in para 30 of Misc.Criminal Application No. 5819 of 2009 as under: “Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatredness towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why I am saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatredness for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilized for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases where wife complains of harassment or ill-treatment, Section 498-A of the I.P.C. cannot be applied mechanically. No F.I.R is complete without Sections 506(2) and 323 of the I.P.C.. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day today married life, may also not amount to cruelty.” Reverting to the facts of the instant case, if the Court is convinced by the fact that involvement by the complainant of all close relatives of the husband is with an oblique motive, then even if the FIR and the charge-sheet disclose commission of a cognizable offence on plain reading of the both, the Court, with a view to doing substantial justice, should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. 10. Moreover, the respondent no.2 has not explained as to why she took more than 5 years to register an FIR. It is the case of the husband that proceedings of settlement of issue to get respondent-wife back to her matrimonial home clearly transpires from the social meeting which took place between the parties. On the second occasion, none of the members from complainant side remained present. It is the case of the husband that proceedings of settlement of issue to get respondent-wife back to her matrimonial home clearly transpires from the social meeting which took place between the parties. On the second occasion, none of the members from complainant side remained present. On the contrary, applicants no.1 and 2 wrote a letter to the complainant requesting her to return back and continue her marriage life with her husband. 10A. In case of Preeti Gupta & Anr. v. State of Jharkhand & Anr., reported in AIR 2010 SC 3363 , a complaint under Section 498(A), 406, 341, 323 and 120B I.P.C. was lodged for demand of dowry against the appellant and quashing petition was preferred before the High Court, which was dismissed. As per the facts, appellant no.1 was permanent resident of Gujarat and No.2 was of Maharashtra and never visited Ranchi, wherein the alleged incident took place. Appellant had never lived with the respondent and her husband. Complaint was filed to harass and humiliate the relatives of her husband. Hon’ble Apex Court observed that courts have to be extremely careful and cautious in dealing with complaints relating to matrimonial cases and must take pragmatic realities into consideration while dealing with the same. Allegations of harassment of husband’s close relatives, who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion and required to be scrutinized with great care and circumspection. The complaint against the appellants was quashed by the Apex Court. Here also applicants no. 2 to 5 are staying separately at different homes from the respondent no.2 and those facts were never denied by her. 11. In case of Chandralekha & Ors. v. State of Rajasthan & Anr., reported in 2013 AIR SCW 3651, a complaint under Section 498(A) and 406 I.P.C. was lodged making allegation against the appellants in-laws which were extremely general in nature and no specific role was attributed to them. The respondent no.2/complainant, after marriage, resided with her husband and not with appellants in-laws. The Apex Court was of a view that proceedings against the in-laws was an abuse of process of law and FIR was quashed to extent it relates to appellants in-laws. 12. The respondent no.2/complainant, after marriage, resided with her husband and not with appellants in-laws. The Apex Court was of a view that proceedings against the in-laws was an abuse of process of law and FIR was quashed to extent it relates to appellants in-laws. 12. In case of Shakson Belthissor v. State of Kerala & Anr., reported in (2009) 14 SCC 466 , similar complaint under the same provisions was lodged, no ingredients of offence allegedly made out on face of the record. Hon’ble Apex Court quashed the FIR as well as charge-sheet filed against the appellants. 13. In case of Neelu Chopra & Anr. v. Bharti, reported in (2009)10 SCC 184 , in a criminal proceedings under Section 482 Cr.P.C., it is held that: “In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.” 14. In case of Arneshkumar v. State of Bihar, reported in (2014) 8 SCC 273 , guidelines are provided to the police officers to arrest without warrant and record reasons in writing, which led him to conclude that the accused is liable to be arrested without warrant and certain directions were issued to ensure that Police Officer do not arrest the accused unnecessarily and Magistrate do not authorize detention of citizen, casually and mechanically. 15. Learned advocate Mr. 15. Learned advocate Mr. Kartik V. Pandya appearing on behalf of the respondent no.2 has relied upon a decision in the case of Sunita Jain v. Pawan Kumar Jain (2008 (0) GLHEL-SC 40416: [ 2008 (2) SCC 705 ], wherein similar complaint was lodged and a petition for quashing was filed before the High Court. In this case, there was a talk of settlement between the parties, which could not be materialized. The Apex Court held that this would not confer jurisdiction on the High Court to quash criminal proceedings when the action of framing of charge against respondents had been upheld by the Apex Court. The inherent power under section 482 Cr.P.C. must be exercised in rarest of rare cases. Further the order of High Court was quashed and set aside. Here on the ground that settlement between the parties was not materialized, the FIR would be required to be quashed, in light of other sufficient material available, qua applicants no. 2 to 5. 16. Learned advocate for respondent no.2 also relied upon decision on the case of Taramani Parakh v. State of Madhya Pradesh (2015(0) AIJEL-SC 56330 : [ 2015 (11) SCC 260 ], wherein against the complaint filed by the wife for an offence punishable under Section 498(A) and 34 I.P.C., the husband approached the High Court for quashing the same on the ground that wife had filed a complaint after mediation proceedings failed and thereafter, husband has filed a petition for divorce, wherein the High Court was pleased to quash the complaint on the ground that there were no specific averments against the husband. The Apex Court held that High Court in proceedings under Section 482 Cr.P.C. could not quash proceedings with observation that allegations were omnibus. Considering averments in complaint, there were triable issues, wife had made allegations of harassment by husband and therefore, wife had to leave matrimonial home. There were allegations against the respondent no.2 and his parents for harassing the complainant, which forced her to leave her matrimonial home. Under these circumstances, the Apex Court quashed and set aside order of the High Court. 17. There were allegations against the respondent no.2 and his parents for harassing the complainant, which forced her to leave her matrimonial home. Under these circumstances, the Apex Court quashed and set aside order of the High Court. 17. Here, after leaving her matrimonial home in the year 2009, the respondent no.2 filed complaint against her husband and in-laws after five years and during which period, the complainant’s side tried to settle the issue with the help of mediators in the village and meeting was held for settlement, wherein statements of concerned; including the respondent no.2, were recorded. The respondent no.2 has clearly denied to settle the issue or arrive at a compromise. On the contrary, she demanded a residential house as well as a shop which would be transferred in her name and thus, she did not want any compromise. She further put a strict condition that as and when she would pay visit to her parental home, she would not be prevented by any of the members or even her husband, and if she is prevented, she would cut-off all relations with them. The husband-applicant no.1 and the father-in-law i.e., applicant no.2 wrote a request letter to the respondent no.2 to return back to her matrimonial home and despite that she did not return back to continue her marriage life with the applicant no.1. All these circumstances shows that she is not interested in setting the disputes, which appears to be matrimonial in nature. 18. Apparently, it appears that unnecessarily, she has dragged applicants no. 2 to 5 in criminal proceedings without any fault on their parts, as they were staying separately. Many allegations are made by the complainant against her husband, which requires consideration by the investigating agency. But, so far as applicants no.2 to 5 are concerned, they are unnecessarily joined or arraigned as an accused in the impugned complaint. 19. For the foregoing reasons, I hold that if the criminal proceedings is allowed to continue so far as applicants Nos. 2 to 5 are concerned, then it will be nothing but a sort of abuse of process of law and travesty of justice. This is a fit case wherein inherent power under Section 482 of the Code needs to be exercised for the purpose of quashing FIR and consequential proceedings, qua applicants no. 2 to 5 above. 20. Resultantly, Criminal Misc. Application partly succeeds. This is a fit case wherein inherent power under Section 482 of the Code needs to be exercised for the purpose of quashing FIR and consequential proceedings, qua applicants no. 2 to 5 above. 20. Resultantly, Criminal Misc. Application partly succeeds. Complaint, being C.R. No. II-3241 of 2013 registered with Gambhoi Police Station, District: Sabarkantha is hereby ordered to be quashed so far as Applicants No. 2 to 5 are concerned. 21. Rule nisi made absolute, qua applicants no. 2 to 5. Rule discharged, qua applicant no.1. Interim relief, if any, stands vacated. Application partly allowed.