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2019 DIGILAW 364 (GUJ)

BHAGWANSHARAN MANIRAM SHARMA v. STATE OF GUJARAT

2019-04-10

A.P.THAKER

body2019
ORDER : 1. The present application has been filed under Section 482 of the Code of Criminal Procedure ('the Code' for short) for quashing the FIR, being C.R. No.II-534 of 1994 registered with A- Division Police Station, Bhavnagar for the offences punishable under Sections 498-A, 506(2) read with Section 114 of the Indian Penal Code. 2. The brief facts of the prosecution case are that on 7.11.1994, the alleged incident took place at 23.30 p.m. and the respondent No.2, i.e. daughter-in-law of the applicant Nos.1 and 2, registered the aforesaid FIR on 8.11.1994 at about 14.00 p.m. 2.1. It is alleged that after the marriage, the respondent No.2 was staying with her in-laws, sister-in-law and husband at Bhavnagar and the husband was working in a private Ball Point Factory. It is contended that the marriage was solemnized on 20.5.1994 and after marriage, on 24.5.1994, she went to her parents' home at Gandhidham and on 5.9.1994, she came back from Gandhidham to her matrimonial home. It is alleged that her in-laws were harassing her physically and mentally since 5.9.1994 on trivial issues and once her husband had beaten her and her-in-laws had threatened her to leave the matrimonial home. It is further alleged that on 7.11.1994, around 7.30 p.m., her father Shri Omprakash and brother Shri Jitendra came to meet her and she told them about the physical and mental harassment and torture to her by in-laws. At that time, her husband and brother-in-law got provoked and ran after her father and brother to beat them. It is also alleged that to save herself, her brother and father, they rushed to the police station to safeguard themselves and accordingly, she filed the complaint for the offences before the concerned police station. 3. It is contended by the applicants that the charge-sheet has been filed against them on 17.1.1995 and still the trial has not commenced. It is also contended that from 8.11.1994 to 5.7.1997, respondent No.2 stayed separately at Gandhidham for about 3 years. It is also contended that on 11.6.1997, a settlement agreement has been made between the applicant No.1 and the father of the respondent No.2 for withdrawal of the cases between the parties and after the agreement, the respondent No.2 started staying with her husband at Gandhidham since 1998. 3.1. It is also contended that on 11.6.1997, a settlement agreement has been made between the applicant No.1 and the father of the respondent No.2 for withdrawal of the cases between the parties and after the agreement, the respondent No.2 started staying with her husband at Gandhidham since 1998. 3.1. It is also contended that all her belongings were returned at the relevant time and she had left the matrimonial home and since then the applicants do not know whereabouts of the respondent No.2's husband. It is also contended that since last 20 years, they are not having contact with the respondent No.2 and her husband as they have already shifted to Gandhidham in the year 1998. 3.2. It is also contended that on 3.9.2014, respondent No.2 filed one more FIR, which came to be lodged in Mahila Police Station, East Kutch, Gandhidham under Section 498-A, 323, 504, 506(2) read with Section 114 of the Indian Penal Code, being C.R. No.I-59 of 2014. The said FIR has been quashed by this Court by passing the order dated 28.3.2017 in Criminal Misc. Application No.21365 of 2014. 3.3. It is also contended that the present applicants received arrest warrant from A-Division Police Station, Bhavnagar after about 24 years with regard to the alleged FIR before A-Division Police Station, Bhavnagar and they came to know about the said pending case. It is contended that the allegations made in the complaint are false and frivolous and the applicants are innocent and at the relevant time, the respondent No.2 had stayed just for 2 months in the matrimonial home. It is also contended that in view of the settlement dated 11.6.1997, all the cases were required to be withdrawn and yet the present case seems to have not been withdrawn by the complainant. It is further contended that considering the entire facts and circumstances of the case, the applicants have good prima facie case for quashing the impugned FIR. It is also contended that the impugned FIR may be quashed. 4. The respondent No.2- original complainant filed affidavit-inreply, wherein she has stated that after the FIR was filed and after due investigation, the charge-sheet was filed long back on 17.1.1995 and it was registered as Criminal Case No.357 of 1995 and summons were issued and the first date of hearing was 19.10.2013. 4. The respondent No.2- original complainant filed affidavit-inreply, wherein she has stated that after the FIR was filed and after due investigation, the charge-sheet was filed long back on 17.1.1995 and it was registered as Criminal Case No.357 of 1995 and summons were issued and the first date of hearing was 19.10.2013. It is also contended that almost 28 dates passed and the applicants were trying to avoid the summons and they filed the present application before this Court. She has admitted that the marriage was solemnized on 20.5.1994. She has also contended that physical and mental torture was started by her mother-in-law, father-in-law and on 7.11.1994, when her brother and father came to matrimonial home to meet her, at that time she informed about the cruelty being meted out by her in-laws and her husband and due to that, her husband got excited and he ran to beat her brother and father and somehow, they ran away and she also ran away along with them to the police station as the applicants have given threat to kill her father and brother. She therefore, filed the complaint. It is also contended that she was driven out of the matrimonial home and according to her, thereafter, nobody had turned up to bring her back to the matrimonial home because the FIR was filed. She has contended that however her husband came to Gandhidham and thereafter, for sometime, she and her husband with the help of some relatives agreed to reside at Gandhidhan and at that point of time, she denied that her husband was not in contact of the present applicants. She has also contended that her husband got her signature on one document stating that she has received her Stridhan and that document was signed under coercion but Stridhan was never delivered to her. She has also contended that so far as the compromise agreement is concerned, there are signatures of only mediators and her father but there is no her signature and the said compromise is not binding to her. It is also contended that the as per the compromise, nothing has been done by the applicants. She has also contended that the allegations made by her in the FIR are genuine and are not false and frivolous as alleged by the applicants. It is also contended that the as per the compromise, nothing has been done by the applicants. She has also contended that the allegations made by her in the FIR are genuine and are not false and frivolous as alleged by the applicants. It is contended that the charge-sheet has already been filed and there is alternative remedy of filing discharge application and this application is required to be dismissed. 5. Heard learned advocate Ms. Prerna A. Pandey for the applicants, learned Additional Public Prosecutor Ms. Monali Bhatt for the respondent No.1- State and learned advocate Mr. Ramnandan Singh for respondent No.2- original complainant. Perused the material placed with the present matter. 6. Learned advocate Ms. Prerna Pandey for the applicants has submitted the same facts which are narrated in the application and has stated that after the marriage, the complainant left the matrimonial home within 4 days and thereafter, she came back and stayed just for two months in the matrimonial home and thereafter, she left the matrimonial home. Ms. Pandey has also stated that the second FIR was lodged on 3.9.2014 i.e. after 20 years of the marriage, and the same has been quashed by this Court. She has also contended that the settlement agreement came to be arrived at between the parties in the year 1997 and according to the same, whatever cases were pending were required to be withdrawn and the present case has not been withdrawn by the complainant. She has also contended that the present FIR is based on vague allegations and there is no specific averment regarding the physical and mental torture. While referring to the order of this Court dated 28.3.2017 quashing the FIR, Ms. Pandey has submitted that as per the agreement, the applicants' side has acted upon, whereas the impugned complaint is still pending and the case is of the year 1994 and it is nothing but abuse of the process of law. Ms. Pandey has relied on the following judgments of the Supreme Court and has prayed to allow the present application:- (1) In the case of Neelu Chopra & Another Vs. Bharti passed in Criminal Appeal No.949 of 2003. (2) In the case of Geeta Mehrotra & Another Vs. State of U.P. And Another passed in Criminal Appeal No.1674 of 2012; 7. Per contra, learned Additional Public Prosecutor Ms. Bharti passed in Criminal Appeal No.949 of 2003. (2) In the case of Geeta Mehrotra & Another Vs. State of U.P. And Another passed in Criminal Appeal No.1674 of 2012; 7. Per contra, learned Additional Public Prosecutor Ms. Monali Bhatt for the State has submitted that the FIR has been lodged in the year 1994 and after due investigation, the charge-sheet has been filed in the year 1995 and the criminal case was registered in the same year. She has also submitted that the summons were issued by the Trial Court from very beginning but, no summons could be served to the present applicants. While referring to the agreement of settlement, she has submitted that there is no signature of the husband and wife on the said agreement and it was only signed by the witnesses and the father of the complainant. She has submitted that since the charge-sheet is filed and prima facie evidence against the present applicant is found, let the Trial Court decide the matter on facts and circumstances of the case and the present application, therefore, be rejected. 8. Learned advocate Mr. Ramnandan Singh for the respondent No.2- original complainant has submitted that having found the prima facie material, the police has filed the charge-sheet and the case is pending since 1995 and warrant has been issued against the present applicants as they are not remaining present before the Trial Court. He has also contended that so far as the signature of the complainant regarding receipt of the Stridhan is concerned, her signature has been fraudulently taken on the piece of paper. He has also contended that at the relevant time, all were residing jointly and there is prima facie material available to substantiate the allegations made in the FIR. He has also contended that two judgments which have been relied by learned advocate Ms. Pandey for the applicants are not applicable to the facts of the present case. He has prayed to dismiss the present application. 9. In re-submission, learned advocate Ms. Pandey for the applicants has submitted that the complainant has not given proper address in the impugned FIR and therefore, the summons could not be served to the applicants and this shows mens rea on the part of the complainant. According to her submission, this conduct of the complainant should be taken into consideration. She has prayed to allow the petition. 10. According to her submission, this conduct of the complainant should be taken into consideration. She has prayed to allow the petition. 10. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinies the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 11. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 12. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 13. 12. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 13. On perusal of the facts and circumstances of the case, especially, from the material placed on record, it transpires that there is no dispute as to the marriage of the complainant with Dineshbhai in the year 1994 and the fact that the complainant initially resided for four days in the matrimonial home and thereafter, she had gone to her parents' home at Gandhidham and thereafter, in September 1994, she came back to her matrimonial home. The fact emerges from the record that till filing of the FIR, the complainant was residing jointly with her in-laws in the matrimonial home and on the date of filing of the complaint, she had left the matrimonial home. It also emerges that thereafter, the dispute arose between the parties in the year 1997 and there was settlement agreement which was signed by the members of both the sides. However, it appears that there is no signature of the husband and wife on the said agreement. It also appears that due to that settlement, the husband and wife were residing separately at Gandhidham and the applicants have not stayed with them since 1997. It also appears that in the year 2014, another FIR came to be lodged against the applicant Nos.1 to 3, which has been quashed by this Court by order dated 28.3.2017 in Criminal Misc. Application No.21365 of 2014. 14. It also emerges from the record that the impugned FIR was filed in 1994 and after due investigation, the charge-sheet has been filed in the year 1995 and the criminal case has also been registered in the year 1995. Since then, that criminal case is pending for process to be issued to the accused. The fact is found from the material placed in the arguments by learned advocate Mr. Ramnandan Singh regarding the case status obtained from the website of the concerned Court which shows that since 19.10.2013, process to the accused is not served and the date of filing of the charge-sheet is 17.1.1995 and on the same date, it was registered. Thus, it is prima facie found that this case was filed in 1995 and process issued to the accused could not be served for long time. Thus, it is prima facie found that this case was filed in 1995 and process issued to the accused could not be served for long time. On perusal of the FIR, it is found that the allegations against all the accused have been made by the complainant, of-course the same are required to be proved by the complainant by leading evidence. But, one fact is certain that after due investigation, the charge-sheet has been filed and at the relevant time, considering the factual matrix of the case, it is found that the accused can defend themselves in a trial pending before the concerned Court. 15. So far as the decisions relied on by learned advocate Ms. Pandey for the applicants are concerned, the facts of that case different than the facts of the present case. Therefore, on factual aspects, they are not applicable to the facts of the present case. 16. In view of the foregoing reasons, the discretionary power under Section 482 of the Code is not required to be exercised in this case. 17. Resultantly, the present application stands dismissed. Notice discharged.