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2024 DIGILAW 422 (GUJ)

Payalben Hemantkumar Gajjar v. State Of Gujarat

2024-03-04

CHEEKATI MANAVENDRANATH ROY

body2024
JUDGMENT : 1. This application under Section 482 of the Criminal Procedure Code is filed for quash of the FIR No.11191030200033 of 2020 registered for the offences punishable under Section 498-A, 406, 323, 294(b), 506 (2) and 114 of Indian Penal Code and under Section 4 of the Dowry Prohibition Act with Mahila Police Station, West, Ahmedabad, against the petitioners. 2. Heard learned counsel for the petitioners, Ms.Jyoti Bhatt, learned APP for the respondent-State and Mr.Hriday Buch, learned counsel for the second respondent-defacto complainant. 3. The facts of the prosecution case may briefly be stated as follows:- 3.1 The petitioners herein are sister-in-law and parents in-law of the defacto complainant respectively. They are accused nos.2 to 4 in the crime. Accused no.1 is the husband of the defacto complainant. Their marriage was solemnized in the year 2002. It is stated in the FIR lodged by the defacto complainant alleging that she brought 50 tolas of gold to the house of her parents in-law after the marriage and, thereafter, her husband and the parents in-law started harassing her demanding additional dowry of Rs.50 Lacs and used to abuse her and beat her. It is further stated that accused no.2, sisterin- law, who has been residing in US has been insisting accused no.1, who is her brother to give divorce to the defacto complainant and to come to US and marry another woman in US. It is also stated that gold that was brought by the defacto complainant was kept in the joint locker of the defacto complainant and her mother-in-law and she found the said gold in the locker missing and the same was misappropriated by the accused, which is her “stree dhan”. The said report that was lodged by the defacto complainant was registered as FIR for the aforesaid offences. 3.2 Accused no.1, who is the husband did not file any application for quash of the FIR registered against him. It is only accused nos.2 to 4, who are sister-in-law and parents inlaw of the defacto complainant filed this petition. The said report that was lodged by the defacto complainant was registered as FIR for the aforesaid offences. 3.2 Accused no.1, who is the husband did not file any application for quash of the FIR registered against him. It is only accused nos.2 to 4, who are sister-in-law and parents inlaw of the defacto complainant filed this petition. 3.3 The accused no.2, who is the sister-in-law, sought quash of the FIR on the ground that she has been residing in US with her husband and her marriage was solemnized long back, even before the marriage of the defacto complainant and accused no.1, and since then she has been residing in US and she has been falsely roped into this case and has been falsely implicated in this case to harass her. The quashment of the FIR against her was also sought on the ground that there are no allegations made against her in the FIR regarding any demand of dowry or consequential harassment and as such the allegations in the FIR do not constitute any offence against her. 3.4 As regards accused nos.3 and 4, who are the parents inlaw are concerned, it is contended that vague allegations are made against them and they are old parents of accused no.1 and they are falsely implicated in this case and they are being harassed. The quashment of the FIR against them was also sought on the ground that as per the settlement arrived at by accused no.1 and his father in writing on 14.7.2020, that they are living separately from her parents in-law and yet they are falsely implicated in this case. Therefore, on the said grounds, the petitioners sought quash of the FIR. 4. Learned counsel for the petitioner, while reiterating the above submissions would also contend that the husband has filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights against the defacto complainant on 24.7.2020 and, thereafter, on 31.7.2020, present FIR was registered as a counter-blast to the petition filed for restitution of conjugal rights, which clearly indicates that a false case was foisted against them. Therefore, she has prayed for quash of the FIR. In support of her submissions, she has relied upon judgment of the Apex Court rendered in the case of Abhishek v. State of Madhya Pradesh reported in 2023 SCC Online SC 1083. 5. Therefore, she has prayed for quash of the FIR. In support of her submissions, she has relied upon judgment of the Apex Court rendered in the case of Abhishek v. State of Madhya Pradesh reported in 2023 SCC Online SC 1083. 5. Per contra, learned APP submits that prima facie case is made out from the allegations made in the FIR registered against the petitioners and prayed for dismissal of the application. 6. Learned counsel for the second respondent-defacto complainant has vehemently and strenuously argued that the allegations in the FIR, prima facie constitute offences against all the three accused for which the FIR was registered and that no case is made out by the petitioners for quashing of the said FIR. He contends that a clear allegation is made in the FIR against the sister-in-law that she has insisted her brother to come to US and marry another lady, who is the citizen of US and stay in US and it amounts to harassing the defacto complainant which constitutes an offence under Section 498-A of IPC. He also contends that after accused no.1 entered into the settlement with his father to live separately in a flat that it is the sister in law, who is accused no.2, provided her flat to accused No.1 in India to reside separately and all these facts constitute an offence punishable under Section 498-A against her. So he contends that the FIR is not liable to be quashed against her. 7. As regards the parents in-law, who are accused nos.3 and 4, he contends that a clear allegation is made in the FIR that they also demanded for additional dowry of Rs.50 Lacs and also abused and beat the defacto complainant and it clearly amounts to subjecting the defacto complainant to both physical and mental cruelty and an offence under Section 498- A is clearly made out from the facts of the case. He contends that as the gold was kept in a joint locker of both the defacto complainant and the mother-in-law, as the said gold is now found missing, it constitutes an offence punishable under Section 406 of IPC. Therefore, he contends that when a prima facie case is made out from the facts of the case against them for the aforesaid offences that they are not entitled for quash of the FIR. So he prayed for dismissal of the application. 8. Therefore, he contends that when a prima facie case is made out from the facts of the case against them for the aforesaid offences that they are not entitled for quash of the FIR. So he prayed for dismissal of the application. 8. As noticed supra, this application is filled by the sister-inlaw and the parents in-law of the defacto complainant. Her husband that is accused no.1 is not a party to this application. As regards the case against sister-in-law, who is accused no.2, is concerned, admittedly her marriage took place prior to the marriage of the defacto complainant and she has been residing in US along with her husband. The said fact is absolutely not controverted and the same is not disputed before the Court at the time of hearing of this application. As per the allegations made against her, it is only stated that she insisted accused no.1 to give divorce to the defacto complainant and come to US and marry a US citizen and stay there. Except these allegations, no other serious allegation is made against her. There is no allegation that she demanded for additional dowry from the defacto complainant. Therefore, even if the said allegation that she asked her brother to give divorce to his wife and come to US and marry a US citizen and stay there his true, the question is whether it constitutes any offence under Section 498-A of IPC. It is only when a woman was subjected to any cruelty then only it constitutes an offence under Section 498-A of IPC. 9. Cruelty is defined in Explanation appended to Section 498-A of IPC. It is in two limbs that is (a) and (b). Clause (b) has no application to the facts of the case. As per the allegations ascribed against the accused no.2, who is the sister-in-law, no allegations were made against her that she has made any illegal demand for dowry or for any property or any valuable security from the defacto complainant and thereby harassed her. Therefore, clause (a) is to be examined. It pertains to any willful conduct that is exhibited by a person, which is of such a nature as is likely to drive the woman to commit suicide or causing any grave injury to her body or limb. Therefore, clause (a) is to be examined. It pertains to any willful conduct that is exhibited by a person, which is of such a nature as is likely to drive the woman to commit suicide or causing any grave injury to her body or limb. As can be seen from the contents of the FIR, there is absolutely nothing to indicate in that the sister-in-law has uttered any word against the defacto complainant or had any direct dialogue with her. She has never exhibited any willful conduct which may have effect of driving the defacto complainant to commit suicide or to cause grave injury to her life or limb. There is nothing to indicate in the FIR that accused no.2 visited India and made any such illegal demands or harassed the defacto complainant physically or mentally and thereby subjected her to cruelty as defined under Section 498-A of IPC. The fact that she has provided a flat to her brother to leave separately along with her wife that by itself cannot be a ground to hold that she has exhibited any such conduct, which is willful, which constitutes any offence of cruelty as defined under Section 498-A of IPC. Therefore, from the facts of the case, no case is prima facie made out against her for any of the offences for which FIR was registered. No such offences are constituted against her in the given facts and circumstances of the case. Even though she has been residing in US with her husband far away from this country, she has been deliberately roped in and has been falsely implicated in this case. 10. The supreme court has time and again cautioned that in a case of like nature filed under Section 498-A of IPC, the Court should be on guard while examining the case against such individuals, who are residing far away and that too in another country as they are being implicated in such cases to bring their family members to terms. This case appears to be one of such cases where a person residing far away in another country has been implicated in the case with vague allegations. Therefore, the FIR and the criminal proceedings launched against her, who is accused no.2 are liable to be quashed. 11. This case appears to be one of such cases where a person residing far away in another country has been implicated in the case with vague allegations. Therefore, the FIR and the criminal proceedings launched against her, who is accused no.2 are liable to be quashed. 11. As regards the case against accused nos.3 and 4 is concerned, who are parents in-law, the allegations ascribed against them in the FIR, prima facie, constitute offences punishable under Section 498-A and 406 of IPC etc. There is clear allegation made in the FIR against them that they demanded additional dowry from the defacto complainant along with accused no.1 and used to abuse her and beat her. These allegations prima facie amount to subjecting the defacto complainant to both physical and mental cruelty as defined in Clause-(b) of Explanation appended to Section 498-A of IPC. Truth or otherwise of the said allegations is altogether a different aspect, which has to be ascertained during the course of investigation and, if ultimately charge-sheet is filed, then the same has to be ascertained by the trial Court, and the same cannot be gone into in this application filed under Section 482 of CrPC. 12. Further, there is an allegation that she has brought 50 tolas of gold at the time of marriage and she has deposited the said gold in the joint locker along with her mother-in-law and the said gold is found missing from the locker. Therefore, this allegation prima facie constitutes an offence punishable under Section 406 of IPC. Again truth of the matter is altogether a different aspect to be decided during the course of investigation or trial. When the said allegation prima facie constitutes the said offence, it is not a fit case to quash the FIR and the criminal prosecution launched against them at this stage in an application under Section 482 of Criminal Procedure Code. 13. Learned counsel for the petitioner vehemently contended that accused no.1 has filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights against the defacto complainant on 24.7.2020 and, thereafter, the present FIR was registered on 31.7.2020, i.e. after one week, as a counter-blast to the said petition and it clearly indicates that it is a false case foisted against the petitioners and accused no.1. But as per the submissions made by the learned counsel second respondent, after the complainant was driven out from the house, when accused nos.2 and 3 did not allow her to enter the house on 15.7.2023, in fact, she has lodged a report with the police on 22.7.2020 and the police, after conducting a preliminary inquiry, has registered said FIR on 31.7.2020 and as such said FIR is not a counter-blast to the petition filed for restitution of conjugal rights by the husband. He would contend that in fact the petition filed by the accused no.1 is a counter-blast to the report lodged by the defacto complainant with police on 22.7.2020. So, when the wife has lodged report with the police on 22.7.2020, and when Section 9 petition was filed on 24.7.2020, it cannot be said that the present FIR was lodged as a counter-blast to the petition filed by the husband. So on that ground the present FIR cannot be quashed. Therefore, in the said facts and circumstances of the case, aforesaid judgment relied on by the learned counsel for the petitioner rendered in the case of Abhishek v. State of Madhya Pradesh reported in 2023 SCC Online SC 1083 has no application to the facts of the case. That was the case, wherein the husband has field divorce petition and, thereafter, the wife has lodged report with the police. So, the facts are very much distinguishable, when compared to the present facts of the case. Therefore, the judgment is of no avail to the case of petitioner nos.2 and 3. 14. It is well settled law that when the facts of the case prima facie constitutes an offence, the Court should not interfere in exercise of its inherent power under Section 482 of the Criminal Procedure Code to quash the FIR. The investigation shall be allowed to go on and the law has to take its own course. 15. Resultantly, the application is partly allowed quashing FIR being Crime Register No.11191030200033 of 2020 registered with Mahila Police Station, West, Ahmedabad, and the criminal proceedings initiated thereon against accused no.2, who is the sister-in-law of the defacto complainant. The application in respect of accused nos.3 and 4 is hereby dismissed. Rule is made absolute to the aforesaid extent. SPECIAL CRIMINAL APPLICATION NO. 7396 of 2020 16. The application in respect of accused nos.3 and 4 is hereby dismissed. Rule is made absolute to the aforesaid extent. SPECIAL CRIMINAL APPLICATION NO. 7396 of 2020 16. This application has been filed seeking direction to the police not to frequently call the petitioners to the police station. 17. Learned counsel for the petitioners would submit that in view of the order passed by this Court today in Criminal Misc. Application No.17702 of 2020, in a petition filed for quash of the FIR, that nothing survives in this application for adjudication. 18. Therefore, recording aforesaid submission of learned counsel for the petitioner, this application is dismissed.