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2022 DIGILAW 1519 (GUJ)

VINABEN JAGDISHBHAI DESAI v. STATE OF GUJARAT

2022-11-07

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. By way of the present application, the applicants herein are invoking Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 and the applicants herein have prayed for quashing of FIR being C.R. No. I-52 of 2016 registered with Navsari Town Police Station, Navsari along with all the prior and subsequent proceedings thereto qua the present applicants. 2. The brief facts giving rise to the filing of the present application as stated by the applicants herein reads thus: It is stated by the applicants herein that it is the case of the prosecution that the respondent No. 2 (First Informant) got married on 11.12.1998 with original accused No. 1 viz. Bhavinbhai Desai (Husband). It is further alleged that the applicant No. 1 and 2 who are original accused No. 2 and 3, both directly and indirectly used to ear poison the accused No. 1 i.e. husband of the respondent No. 2 and the husband used to torture and beat the respondent No. 2 which resulted into FIR being I.C.R. No. 52 of 2016 filed by respondent No. 2 before the concerned Police Station. 3. Heard Mr. Hardik A. Dave, the learned advocate appearing for the applicants, Ms. Vrunda Shah, the learned Additional Public Prosecutor appearing for the respondent No. 1-State and Ms. Tanuja N. Kachchhi, the learned advocate appearing for the respondent No. 2-original complainant. 4. Mr. Hardik A. Dave, the learned advocate appearing for the applicants herein submitted that the marriage between original accused No. 1 and respondent No. 2 came to be solemnized in the year 1998. Initially, applicant-accused No. 1 and respondent No. 2 were residing in a joint family, however, the applicant-accused No. 1 and respondent No. 2 herein shifted from the joint family and started residing separately in a Flat in the year 2000. Mr. Hardik A. Dave, the learned advocate appearing for the applicants submitted that subsequently in the year 2001, the applicant shifted in their new residential premises. In the meantime, the respondent No. 2 gave birth to a baby boy at Navsari. Mr. Hardik A. Dave, the learned advocate appearing for the applicants submitted the allegations levelled against the applicants herein in the FIR are exaggerated and not trustworthy. 5. Ms. In the meantime, the respondent No. 2 gave birth to a baby boy at Navsari. Mr. Hardik A. Dave, the learned advocate appearing for the applicants submitted the allegations levelled against the applicants herein in the FIR are exaggerated and not trustworthy. 5. Ms. Tanuja N. Kachchhi, the learned advocate appearing for the respondent No. 2-original complainant was not in a position to controvert the fact however submitted that the accused No. 1 and respondent No. 2-original complainant were residing in joint family till March-2003 and reiterated contentions taken in the affidavit-in-reply. 6. Having heard the learned advocates appearing for the respective parties, in view of this Court, undisputedly the applicant-accused No. 1 and respondent No. 2-complainant entered into wedlock in the year 1998 and they have been residing separately since 2003. The impugned FIR came to be filed in the year 2016 and having gone through the contention of the FIR, the allegations that the applicant herein used to ear poison the accused No. 1 i.e. husband is devoid of any proof/evidence and the said allegations can be said to be vague qua the present applicants. Further, the aforesaid FIR culminated in to charge-sheet on 01.11.2016. The said charge-sheet is also silent qua the role of the present applicants with respect to the alleged complaint. 7. At this stage, it is apposite to refer to the following position of law: (a) In the case of Neelu Chopra and Another vs. Bharti, (2009) 10 SCC 184 , paragraphs 9 to 12 read thus: “(9) In order to lodge a proper complaint, 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. (10) 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. 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. (11) The High Court has merely mentioned that the allegation in the complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the appellants. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A, IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh. (12) This is apart from the fact that despite service of notice, the complainant neither appeared before this Court nor engaged any counsel to represent her. Under the circumstances we are of the opinion that the judgment of the High Court deserves to be set aside. It is, accordingly, set aside and the order of the learned Magistrate taking cognizance is quashed. The complaint is quashed under Section 482, Cr.P.C.” (b) In the case of Anand Kumar Mohatta and Another vs. State (NCT of Delhi) Department of Home and Another, (2019) 11 SCC 706, paragraphs 29 and 30 read thus: “(27) We are of the opinion that the present case falls under the 1st, 3rd and 5th category set out in the Para-102 of the judgment in the case of Bhajan Lal (supra). In such a situation, the High Court erred in dismissing the petition of the Appellants filed under Section 482 of Cr.P.C. This was a fit case for the High Court to exercise its inherent power under Section 482 of Cr.P.C. to quash the FIR. (28) It is necessary here to remember the words of this Court in State of Karnataka vs. L. Muniswamy and Others, (1977) 2 SCC 699 which read as follows: 7........In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.” (c) In the case of Natubhai Somabhai Rohit and Others vs. State of Gujarat, Criminal Misc. Application No. 20679 of 2013, paragraphs No. 6 to 9 read thus: “6. Besides to the generality and vagueness of the allegations, if the ingredients necessary to make out the offence under 498A, IPC are looked into, as observed by the Supreme Court in Bhaskar Lal Sharma vs. Monika, (2009) 10 SCC 604 , the allegations of harassment should be of such nature and extent so as to coerce the wife to meet any unlawful demand of dowry or any other unlawful conduct on part of the accused of a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. Closely examining the allegations in the instant FIR, these elements as well as the degree of seriousness in the allegations could be said to be in wanting. 7. Closely examining the allegations in the instant FIR, these elements as well as the degree of seriousness in the allegations could be said to be in wanting. 7. The tendency to rope in all the family members in the FIR speaks for themselves and in such circumstances, the requirements of alleging specific role for each of the members becomes necessary, for which the indispensable aspects that all should stay together. The Supreme Court has viewed with suspicion the conduct of disgruntled complainant in bringing into picture the entire family and the family members to level allegations under section 498A against all of them. 8. In G.V. Rao vs. L.H.V. Prasad, (2003) SCC 693, the Supreme Court held that a complaint relating to matrimonial dispute where all the members are roped into irrespective of role, becomes liable to be quashed. The court observed as under, “There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the 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 commission of 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 other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their 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.” (Para 12) 9. Having regard to above position and the facts cumulatively operating, when the allegations are shown to be non-specific and not of the degree of seriousness contemplated in law, and when the applicants accused are shown to be living separately coupled with attendant facts and aspects noticed and noted above, the allegations become too bald to be sustained in law. Applicant Nos. 5 and 6 are aged about 70 years and 90 years respectively. Applicant Nos. 5 and 6 are aged about 70 years and 90 years respectively. In light of the above facts and circumstances, the FIR and the allegations therein turned out to be abuse of process of law and could be said to be only for wrecking vengeance.” 8. In light of above facts and circumstances and in view of the aforesaid position of law as discussed above and in view of aforesaid findings as stated above, the application is allowed. The FIR being C.R. No. I-52 of 2016 registered with Navsari Town Police Station, Navsari along with all the prior and subsequent proceedings thereto qua the present applicants are quashed and set aside. Any other proceedings if pending between the parties, the same would continue in accordance with law. 9. Rule made absolute.