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2023 DIGILAW 858 (GUJ)

Manhar Kanjibhai Pujara v. State Of Gujarat

2023-07-14

M.K.THAKKER

body2023
JUDGMENT : 1. This is an application filed by the applicants under Section 482 of the Code of Criminal Procedure, 1973 for quashing the FIR being I-C.R.No.32 of 2014 registered with Dhangadhra City Police Station, District Surendranagar for the offences punishable under Sections 498-A and 114 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Applicants before this Court are the father-in-law, husband, brother-in-law, aunt’s son and aunt’s daughter. 2. It is the case of the prosecution that the love marriage of the complainant, namely, Khusbooben Pujara solemnized with applicant No.2 on 06.09.2012. Due to the love marriage, with the help of the applicant Nos.4 and 5, initially they stayed in rented premises where as per the version of the FIR she was treated well for some time. Thereafter, harassment and torturing was started by the applicant No.2 on the domestic work. It is further alleged that the applicant No.2 was suspecting on chastity of his wife. Younger brother of the accused, who is applicant No.3 had started staying with the applicant No.2 and the complainant where it is alleged that he was having evil- sight and not properly behaving with the complainant. On making complaint to the husband i.e. applicant No.2, the husband disclosed the said things to the applicant Nos.4 and 5, who are the cousin brother and sister and thereafter all the four persons had started abusing to the complainant, beating and confining in the room and not allowing to move outside the room. When the father-in- law-applicant No.1 was informed by the complainant with regard to the harassment meted out at the end of the applicant No.2, he also favoured to the husband and all five persons were asking to have the dowry from the father of the complainant and demanding Rs.2 Lakh and 10 tola gold. At the end, she was threatened that if, she would not surrender as per their say, she would set a fire by pouring kerosene. This harassment and torturing were continued for six months and thereafter when the complainant called the parents and informed with regard to the behavior of the applicants, the father of the complainant informed to come back to the parental house. This harassment and torturing were continued for six months and thereafter when the complainant called the parents and informed with regard to the behavior of the applicants, the father of the complainant informed to come back to the parental house. It is further alleged that when she reached to the parental house, she was further threatened by the husband that if she will come out from the house then acid would be thrown on her face and they would ruin the life of the complainant. With the above mentioned allegations, the FIR came to be lodged with Dhangadhra City Police Station for allege section. 3. This Court on 26.11.2019 while issuing the Rule had passed the following order: “1. Heard the learned advocates appearing for the parties. 2. Considering the averments made in the FIR, it appears that vital allegations levelled in it, not finding place in the proceedings initiated by the wife vide Family Suit No.490 of 2015 seeking divorce on the ground of cruelty. The said Suit has come to be filed within less than 6 months of the marriage and they started residing together. At the same time, except husband, rest of the applicants, who are staying separately from her even from the first date of their marriage, they have been dragged into it. Not only that, after she started residing separately from her husband, after about 5 months thereof, she has filed the impugned FIR. Not only that, the wife has preferred a Suit for decree of divorce nearly after 6 months from the date of filing of the impugned FIR. As such, decree of divorce has come to be granted by the Competent Court by dissolving the marriage. 3. Mr. Mahesh Poojara, learned advocate for the applicants, submits that according to his information, pursuant to the decree of divorce, she has already remarried. At the same time, the husband has also challenged the decree of divorce by filing First Appeal No.2081 of 2017. 4. Hence, matter requires consideration. 5. RULE. Learned APP waives service of notice of rule for and on behalf of the respondent – State. Mr.Kshitij Amin, learned advocate, waives service of notice of rule for and on behalf of respondent No.2. 6. By way of interim relief, the further investigation into an offence registered at C.R.No.I-32 of 2014 with Dhagandhra City Police Station, Surendranagar, is hereby stayed till further orders.” 4. Mr.Kshitij Amin, learned advocate, waives service of notice of rule for and on behalf of respondent No.2. 6. By way of interim relief, the further investigation into an offence registered at C.R.No.I-32 of 2014 with Dhagandhra City Police Station, Surendranagar, is hereby stayed till further orders.” 4. Heard the learned advocate Mr.Jigar Patel on behalf of Mr.Ashish Dagli learned advocate for the applicants, learned advocate Mr.Kshitij Amin for the respondent No.2-original complainant and learned Additional Public Prosecutor Ms.M.D.Mehta for respondent-State. 5. Learned advocate Mr.Jigar Patel has submitted before this Court that all the family members were falsely implicated though they are residing separately from the beginning from applicant No.2 and complainant- wife. 5.1. It is contended that applicant No.1, who is father-in- law, aged about 69 years, and is serving at Porbandar and on attending the age of superannuation retired from the services and thereafter stayed at his native place Dhangadhra. Applicant No.3 was a student and after completion of education staying at Rajkot for the purpose of job. It is contended that at no point of time any demand of dowry was ever made. However, with a view to implicate the entire family absurd allegations were made in the FIR. 5.2. Learned advocate Mr.Jigar Patel further submitted that so far as the husband, who is applicant No.2 is concerned, he is having the shop of gift articles at Dr.Yagnik Road in Kuber Classic Complex and after the marriage with the respondent No.2, they were staying alone. Learned advocate Mr.Patel has further submitted that as far as applicant No.4 is concerned, he is staying at Karanpura, Rajkot and copy of the identity card is the part of the record of the application. Mr.Patel learned advocate further submitted that the applicant No.5 is married and having two children out of the wedlock with one Jitendrabhai and staying separately from the beginning of the marriage of the complainant and the applicant No.2. 5.3. Learned advocate Mr.Patel further submitted that wife had filed Family Suit No.490 of 2015 seeking divorce on the ground of cruelty as the suit came to be filed before the completion of six months of marriage life, they started residing together. Learned advocate Mr.Patel further submitted that at that point of time except husband rest of the applicants were staying separately. 5.4. Learned advocate Mr.Patel further submitted that at that point of time except husband rest of the applicants were staying separately. 5.4. Mr.Patel learned advocate has submitted that therafter five months only, the FIR was filed which is impugned before this Court. Learned advocate Mr.Patel has further submitted that the Family Suit for the divorce was decreed in favour of the wife immediately after the completion of six months. By decreeing the divorce, their marriage was already dissolved. Learned advocate Mr.Patel further submitted that there is no any ingredients under Section 498A of the Code of Criminal Procedure, 1973 was made out in the FIR, all the applicants were dragged only with a view to pressurize and to harass. Learned advocate Mr.Patel learned advocate has submitted that in view of the above facts, the impugned FIR would be abuse of process of law and therefore, prays to quash and set aside the same. 6. On the other hand, learned advocate Mr.Kshitij Amin for the respondent No.2 submitted that the complainant was remarried and settled at Bombay, he is not having instructions with regard to the FIR. Therefore, he submitted to pass appropriate order in accordance with law. 7. Learned Additional Public Prosecutor Ms.Maithily Mehta relying upon the report submits that as within a short span of the marriage, the applicants had started harassing to the respondent No.2 original complainant. Therefore, ingredients of Section 498A and 114 of the Indian Penal Code as well as Sections 3 and 4 of the Dowry Prohibit Act, 1961 is made out and therefore, she prays to dismiss the present application. 8. Having heard the learned advocates for the respective parties, it is required to be noted that at the first instance, when the Rule was issued by this Court, this Court had observed that the divorce suit has been decreed in favour of the complainant-wife and their marriage has already been dissolved. It is further observed in the aforesaid order that after divorce, she has already remarried. However, the husband had challenged the decree of divorce by filing first appeal which is numbered as First Appeal No.2081 of 2017. 9. It transpires from the allegations that though all the applicants except applicant No.2-husband were staying separately from the complainant and the applicant No.2 and they were implicated on the basis of general allegation. However, the husband had challenged the decree of divorce by filing first appeal which is numbered as First Appeal No.2081 of 2017. 9. It transpires from the allegations that though all the applicants except applicant No.2-husband were staying separately from the complainant and the applicant No.2 and they were implicated on the basis of general allegation. It further transpires that applicant Nos.4 and 5, who are aunt’s son aunt’s daughter, who are distant relatives of the husband were also implicated, it is required to be noted that with their help only they could get rental premises initially, however, with a view to pressurize on the husband, allegations appears to have been made. There is no specific time, date and place mentioned in the allegation against any of the applicants, all the allegations are general in nature. 10. This Court has also considered the decision of the Apex Court in the case of Kahkashan Kausar alias Sonam vs. State of Bihar, reported in (2022) 6 SCC 599 wherein after considering the various precedents, held that rejection of the prayer for quashing the criminal case against the in-laws of the complainant-wife was unjustified. Observation made in paragraph No.21 is reproduced as under: “21.Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the appellant accused, it would be unjust if the appellants are forced to go through the tribulations of a trial i.e. general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. It has been highlighted by this Court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must, therefore, be discouraged.” 11. In view of above, this Court comes to the conclusion that ingredient relates to Section 498A of the Code of Criminal Procedure are not satisfied with. 12. So far as the allegation with regard to the dowry is concerned, Section 2 of the Dowry Prohibition Act, 1961 clarifies as under: “In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly. 12. So far as the allegation with regard to the dowry is concerned, Section 2 of the Dowry Prohibition Act, 1961 clarifies as under: “In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly. a. By one party to a marriage to the other party to the marriage, or b. By the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, At or before [(Note: Subs. by Act 43 of 1986, sec.2) or any time after the marriage] [(Note: Subs. by Act 63 of 1984, sec.2) in connection with the marriage of the said parties, but does not include] dower or mahr in the case or persons to whom the Muslim Personal Law (Shariat) applied.” 13. It transpires from the FIR that there was a love marriage performed before the Marriage Registrar. The complainant had left the parental house as stated in the FIR. Therefore, naturally there would not be any agreement between the parties to have the dowry at the time of marriage and requirement under the definition of dowry is any property or valuable security should be given or agreed to be given either directly or indirectly. At or before or any time after the marriage and in connection with the marriage of the said party. Therefore, giving or taking of the property or valuable security must have some connection with the marriage of the said parties and a correlation between the giving or taking of the property or valuable security with the marriage of the parties is essential. 13.1. In this regard, this Court had considered the decision rendered by the Apex Court in the case of Appasaheb And Anr vs State Of Maharashtra, reported in (2007) 9 SCC 721 , wherein the Apex Court in paragraph No.11 has observed as under: “11. In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody coversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.” 14. In view of the above, this Court comes to the conclusion that no any ingredients with regard to attract the provisions of Section 498-A of the Indian Penal Code as well as Sections 3 and 4 of the Dowry Prohibition Act, 1961 is meted out mentioned above as the complainant has already settled in her second marriage, therefore continuation of trial would be harassment to parties, therefore, this Court deems it fit to exercise inherent power under Section 482 of the Code of Criminal Procedure. 15. Resultantly, this application is allowed. 15. Resultantly, this application is allowed. The impugned FIR being I-C.R.No.32 of 2014 registered with Dhangadhra City Police Station, District Surendranagar is quashed and set aside. Any consequential proceedings thereto pertaining to the applicants shall melt into oblivion in the eyes of law. Rule is made absolute accordingly.