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Gujarat High Court · body

2019 DIGILAW 739 (GUJ)

Sameer Muneer Dias v. State of Gujarat

2019-07-12

A.P.THAKER

body2019
JUDGMENT : A.P. Thaker, J. 1. By way of present petitions under Section 482 of the Criminal Procedure Code, the respective petitioners have prayed to quash and set aside the First Information Report (FIR) being C.R. No. I-52/2016 registered with Mahila Police Station, Ahmedabad dated 21.10.2016 for the offences punishable under Sections 498(A), 323, 506(2), 114 of the Indian Penal Code. 2. The petitioners of Criminal Misc. Application No. 34919 of 2016 are the husband- petitioner No. 1 and mother-petitioner No. 2 (mother-in-law) of the complainant, whereas, the petitioner of Criminal Misc. Application No. 30624 of 2016 is said to have a person with whom the husband of the complainant has some relation. 3. As the alleged FIR is common, both the petitions are heard together and are being disposed of by this common judgment. 4. Brief facts of Criminal Misc. Application No. 34919 of 2016 are that respondent No. 2- Sharon Samir Dias Munir Ahmed has lodged the said FIR before the police on the allegations that she is working as teacher in Ahmedabad and married with petitioner No. 1 who used to work in a radio company and their marriage has been solemnized on 12.11.2005 at Ahmedabad and out of the their wedlock, they have two daughters. It is alleged in the complaint that soon after the marriage, the petitioner No. 1 was working with a company in Pune, Maharashtra and, therefore, she along with petitioner No. 1 stayed together at Pune along with the mother-in-law. 4.1. It is alleged that after a year, she came to learn that her husband was having an affair with another woman and there were certain communications between that woman and her husband were caught by her, which she revealed to her mother-in-law. It is alleged that since, it was initial year of marriage, petitioner No. 1 would have leave such habit and would resume a normal marital life with her, she made peace with petitioner No. 1. 4.2. It is alleged that thereafter, her husband left the job at Pune and they have shifted to Ahmedabad city where they started a new life. It is alleged that thereafter, petitioner No. 1 was having affair with another lady named Tasneem and having come to knowledge of this fact, she i.e. complainant informed her mother-in-law regarding that facts. 4.2. It is alleged that thereafter, her husband left the job at Pune and they have shifted to Ahmedabad city where they started a new life. It is alleged that thereafter, petitioner No. 1 was having affair with another lady named Tasneem and having come to knowledge of this fact, she i.e. complainant informed her mother-in-law regarding that facts. It is alleged that thereafter, the husband used to quarrel with her and in the year 2010, because of such similar instances, she along with her elder daughter left the house and started residing separately with her daughter. It is alleged that at that point of time, petitioner No. 1 used to approach the house of respondent No. 2 and when she refused to open the door the petitioner No. 1 used abusive language against her and, thereafter, she informed the same to petitioner No. 2, who replied that since, respondent No. 2 was not staying along with petitioner No. 1, she is not willing to take any responsibility for the same. 4.3. It is alleged that due to such behaviour of her husband, she resorted to approach Thaltej Police Station due to which her husband stopped performing such acts and, thereafter, the matter was settled between the husband and wife. 4.4. It is alleged that her husband having no job, he mortgaged the marital jewellery of respondent No. 2 for a loan to buy car and the installments for the same are also being paid by her. It is alleged that she has found that her husband was having another affair with a lady. That in the year 2015, the petitioner No. 1 - husband started working in a radio company and complainant was pregnant with another child and during this period, the husband did not provide any household expenses to the complainant. It is alleged that in the year 2016, she came to know that her husband was having affair with another lady, who is accused No. 3 in the alleged FIR and upon asking about the same to her husband, he did not answer. 4.5. That on 21.10.2016, she reached the house of her husband and found that her husband was sleeping with another lady (who is petitioner in Criminal Misc. Application No. 30624 of 2016). 4.5. That on 21.10.2016, she reached the house of her husband and found that her husband was sleeping with another lady (who is petitioner in Criminal Misc. Application No. 30624 of 2016). It is alleged that at that time, she confronted her husband for the same and at that time, her husband twisted her arm and faced threats and lady accused has also threatened her and accordingly, she called the police after which all the accused along with the complainant were brought to the concerned police station. On this basis, the complainant has lodged the complaint. 5. It is contended by the petitioners that since very inception of her marriage with petitioner No. 1, she used to display suspicion towards her husband on every minor event and even the petitioner No. 1 used to make normal communication with another women she doubted the character of petitioner No. 1 and used to quarrel with him. It is contended that the complainant has omitted the clear facts that she and her husband went on a vacation where the petitioner No. 1 treated her well but even then during the vacation the complainant used to quarrel with him over pity issues and upon returning back to Ahmedabad, she left for her parental home without any specific reasons. 5.1. It is contended by the petitioners that when respondent No. 2 was staying separately with her daughter, at that particular time, she denied the petitioner No. 1 to meet her daughter and, thereafter, husband and mother convinced the complainant to return back to her matrimonial home for daughter's future and thereupon, she returned back. It is contended that respondent No. 2 had also several times physically assaulted her mother-in-law and forced petitioner No. 1 to leave the house and live in a rented property separately from petitioner No. 2 which was not acceptable to petitioner No. 1. It is contended that the complainant has always using abusive language against petitioner No. 1. It is contended that even, thereafter, she started demanding to stay separately from petitioner No. 2 and started quarrel with petitioner No. 2 and due to this demand, he surrendered and rented a flat at Suryavanshi Tower, Vastrapur, Ahmedabad and they shifted to the said address and there was no change in attitude of respondent No. 2. It is contended that even, thereafter, she started demanding to stay separately from petitioner No. 2 and started quarrel with petitioner No. 2 and due to this demand, he surrendered and rented a flat at Suryavanshi Tower, Vastrapur, Ahmedabad and they shifted to the said address and there was no change in attitude of respondent No. 2. It is contended that petitioner No. 2 was never residing with petitioner No. 1 and respondent No. 2 and, therefore, the statement of respondent No. 2 in the complaint regarding petitioners No. 1 and 2 threatening her is totally false. 5.2. It is contended that in the entire complaint no specific role has been attributed to petitioner No. 2 and there are allegations made only with a view to harass the petitioners. 5.3. While referring to the statement given by the complainant before the Vejalpur Police Station, it is submitted that she has given contradictory statement to the effect that upon knocking the door of the accused No. 3, respondent No. 2 found out that petitioner No. 1 was present in the house of accused No. 3, whereas, in the FIR, respondent No. 2 has stated that when she reached at the house of accused No. 3 she had caught petitioner No. 1 sleeping with accused No. 3. According to the accused, the bare reading of the FIR suggests that the name of accused No. 3 was inserted in the complaint, at later stage, and her name is added after the entire complaint was lodged which can be reflected from the certified copy of the complaint. 5.4. It is contended by the petitioners that no specific role has been assigned to the petitioner No. 1 and the entire complaint is vexatious and is with a view to harass the petitioners in front of the society merely because of the suspicion of respondent No. 2. It is contended that the entire complaint has been preferred by respondent No. 2 misusing her rights as woman. It is contended that no ingredients of Section 323 and 506(1) of the Indian Penal Code are made out. On all these grounds, all the petitioners have prayed to quash and set aside the FIR lodged against them. 6. Brief facts of Criminal Misc. It is contended that no ingredients of Section 323 and 506(1) of the Indian Penal Code are made out. On all these grounds, all the petitioners have prayed to quash and set aside the FIR lodged against them. 6. Brief facts of Criminal Misc. Application No. 30624 of 2016 are that the applicant is neither a relative/member of the original accused No. 1 and 2 nor she is any way related to them. It is contended that the provisions of Section 498A of the Indian Penal Code would not be applicable against her. She has contended that her name was inserted by the complainant at a later stage. It is further contended that the applicant has not taken any part in the offence under Sections 498A and 506(1) of the Indian Penal Code and neither she has given any threat nor beaten the complainant at any point of time. She has contended that the contents of the complaint are only against the husband and mother-in-law and she is falsely implicated in the entire case. It is contended that there is no direct or indirect allegations against her. It is contended that respondent No. 2 has lodged the present complaint just to settle her personal score with the present petitioner merely on the basis of suspicion which arose due to the habits of accused No. 1 in past. On all this grounds, she has prayed to quash and set aside the impugned FIR against her. 7. The original complainant has filed affidavit-in-reply in Criminal Misc. Application No. 34919 of 2016 which deals with both the matters. She has vehemently opposed both the petitions and has stated that the contents of the FIR are true. She has also narrated the further facts and stated that accused No. 1 and 2 constantly taunting her and they have harassed and torture her. She has stated that her husband having love affairs with other lady and she has also some love letters of the previous incident. She has stated that on 21.10.2016, in the morning, she knocked the door of accused No. 3 and she found that her husband and accused No. 3 in necked condition and at that time, her husband threatening her and directed her to leave the house of accused No. 3. She has stated that on 21.10.2016, in the morning, she knocked the door of accused No. 3 and she found that her husband and accused No. 3 in necked condition and at that time, her husband threatening her and directed her to leave the house of accused No. 3. It is stated that when she did not leave the house, accused No. 1 and 3 started beating and abusing her and she received fracture injury to her right hand. She has reiterated the facts which have been narrated in the FIR and has stated that the allegations made by her in the complaint are true and correct and this is not such a way, the complaint could be quashed. She has stated that there is cogent evidence on record to substantiate the allegations as to harassment as well as other offences. Along with the affidavit, she has produced documentary evidence including the whatsapp messages, love letters, photographs etc. and has prayed to dismiss the petitions. 8. The accused No. 1 has also filed affidavit-in-rejoinder wherein he has reiterated the facts of the present petition and narrated the other facts and stated that whatever allegations made by his wife are false. He has stated that there are instances where the complainant herself has verbally and physically abused his father and assaulted petitioner No. 2 with knife. He has produced certain messages to substantiate his submissions that he has not committed any such offence and the entire complaint may be quashed and set aside. 9. Heard learned advocates for the parties and perused the material placed on record with the matter. 10. Mr. Bomi Sethna, learned advocate for the petitioners has vehemently narrated the same facts which are narrated in the memo of petitions as well as rejoinder affidavit. The first argument of learned advocate for the petitioners is that the present complaint has been filed without any basis and the allegations made therein are false and frivolous. He has submitted that the name of the petitioner No. 2 has never resided with respondent No. 2 and to pressurize the husband the name of petitioner No. 2 has been inserted in such a complaint. While referring to the petition filed by one lady, he has submitted that her name has been inserted in the FIR afterwards which is clearly found from copy of the FIR. While referring to the petition filed by one lady, he has submitted that her name has been inserted in the FIR afterwards which is clearly found from copy of the FIR. He has submitted that the entire fact reveals that the complainant has lodged the complaint implicating the name of the mother-in-law and the private party who is nothing to do with the marriage life of petitioner No. 1 and respondent No. 2. According to him, this is a fit case wherein inherent powers under Section 482 of the Criminal Procedure Code could be exercised. He has prayed to allow both these petitions. 11. Per contra, Ms. Monali Bhatt, learned Additional Public Prosecutor for respondent No. 1-State has vehemently submitted that there is prima facie material against all the accused and considering the averments made in the complaint and the affidavit-in-reply and the documents produced therewith, this is not a fit case wherein the inherent powers under Section 482 of the Criminal Procedure Code could be exercised. She has prayed to dismiss the present petitions. 12. Mr. Rahil Jain, learned advocate for respondent No. 2-original complainant has vehemently submitted that the allegations made in the complaint are substantiated by the documentary evidence and the wife has been physically and mentally torture by her husband and mother-in-law. She has fairly submitted that so far as petitioner of Criminal Misc. Application No. 30624 of 2016 is concerned, she is neither a family member of the husband nor near relatives of the husband and, therefore, in her case, the provisions of Section 498A of the Indian Penal Code may not be applicable, but considering the averments that she has also beaten the complainant and committed the offence under Section 506(1) read with Section 114 of the Indian Penal Code could be triable against that private party. 12.1. While referring to the various messages sent by the husband to the complainant, Mr. Jain, learned advocate has submitted that considering these messages, it reveals that there is mental torture being given to the complainant even at midnight. While referring to the photographs, he has submitted that the complainant has got serious injury at the instance of the husband and private party. It is submitted that the allegations made in the complaint are prima facie correct and the trial is required to be conducted. While referring to the photographs, he has submitted that the complainant has got serious injury at the instance of the husband and private party. It is submitted that the allegations made in the complaint are prima facie correct and the trial is required to be conducted. According to him, this is not a proper stage or proper case wherein the inherent powers could be exercised. He has prayed to dismiss the present petitions. 13. In rejoinder, Mr. Sethna, learned advocate, while referring to the medical history given by the complainant before the doctor of the alleged beating by her husband and private party, has submitted that the history was given to the fact that her husband has beaten her, of course, in that history, the address has been shown as of house of the private party. According to him, this fact does not reveal that the private party has beaten her. While referring to the history given by the complainant regarding beating by her husband only, he has submitted that even on that aspect the offence under Section 323 r/w. Section 506(1) of the Indian Penal Code cannot be believed against the private party. He has submitted that the mother-in-law has never resided with the couple as they were residing in other part and, therefore, the allegations made against the husband and mother-in-law are baseless. He has submitted that the entire story put up by the complainant is concocted story and it may not be believed. He has prayed to allow both the petitions and quash and set aside the FIR. 14. 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 scrutinize 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 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. 15. 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. 16. 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. 17. Having considered the submissions made by both the sides, it appears from the record that there is no dispute as to the marriage between the petitioner No. 1 and respondent No. 2 and they have two daughters from such wedlock. It is not in dispute that since 2016, the wife is residing separately. It is an admitted fact that the petitioner of Criminal Misc. Application No. 30624 of 2016 is neither a member of the family of the husband nor she is near relative of petitioners No. 1 and 2. It also reveals from the facts that even after separation, there were some communications between the husband and wife. However, on perusal of the whatsapp messages sent by the husband to the wife in the midnight and at early morning, it appears that he has made allegation affecting the character of the complainant. Those facts prima facie appear to fall under the category of mental cruelty. 18. However, on perusal of the whatsapp messages sent by the husband to the wife in the midnight and at early morning, it appears that he has made allegation affecting the character of the complainant. Those facts prima facie appear to fall under the category of mental cruelty. 18. It also reveals from the material placed on record that there were some quarrel at the house of the private party and the complainant has alleged that she was beaten by petitioner No. 1 - her husband and he has given threat to her. For this fact, she has produced the medical certificate wherein she has given history before the doctor that at the house of the Samina, her husband has beaten her. On perusal of the material placed on record, it appears that there is prima facie material to substantiate the charge against the husband-petitioner No. 1. So far as petitioner No. 1 is concerned, the petition is liable to be dismissed. 19. However, so far as the petitioner No. 2-mother-in-law is concerned, on perusal of the material placed on record, it transpires that the general allegation has been made against mother-in-law with some intention. There is no, prima facie, facts or materials to substantiate the allegation of cruelty against the mother-in-law is available on record. Therefore, the complaint against the mother-in-law and private party is required to be quashed and set aside. 20. It also reveals from the medical certificate of injury of the day of the incident of the complainant, that at the first instance, she has given the history before the doctor to the effect that in the house of Samina, her husband has beaten her and if she was really beaten by Samina also, then considering the bitterness between the husband and wife and husband was found in the house of third party, she would have definitely narrated the same fact about beating by Samina before the doctor also. But, the complainant has not uttered any words regarding beating by Samina before the doctor. It appears that the factum of beating by Samina is only alleged with a view to some intention. Therefore, the petition made by Samina being Criminal Misc. Application No. 30624 of 2016 is required to be allowed. 21. In view of the foregoing reasons, the petition being Criminal Misc. It appears that the factum of beating by Samina is only alleged with a view to some intention. Therefore, the petition made by Samina being Criminal Misc. Application No. 30624 of 2016 is required to be allowed. 21. In view of the foregoing reasons, the petition being Criminal Misc. Application No. 34919 of 2016 is required to be partly allowed qua petitioner No. 2, whereas, the petition being Criminal Misc. Application No. 30624 of 2016 is also required to be allowed. 22. Resultantly, the petition being Criminal Misc. Application No. 34919 of 2016 is partly allowed qua petitioner No. 2, whereas, the petition being Criminal Misc. Application No. 30624 of 2016 is allowed and the petition being Criminal Misc. Application No. 34919 of 2016 qua petitioner No. 1 is dismissed. The FIR being C.R. No. I-52/2016 registered with Mahila Police Station, Ahmedabad dated 21.10.2016 is hereby quashed and set aside qua petitioner No. 2-mother-in-law of Criminal Misc. Application No. 34919 of 2016 and petitioner-private party of Criminal Misc. Application No. 30624 of 2016. The criminal proceedings qua petitioner No. 1-husband to be continued in accordance with law. Interim relief, if any, stands vacated forthwith qua petitioner No. 1-husband. Rule is made absolute to the aforesaid extent. Direct service is permitted.