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2024 DIGILAW 79 (GUJ)

SWAPNIL HASMUKHBHAI PARMAR v. STATE OF GUJARAT

2024-01-10

ILESH J.VORA

body2024
ORDER : 1. By this application, under Section 482 of the Cr.P.C. original accused no. 2-Swapnil Macwan seeks to invoke inherent powers of this Court praying quashing of the FIR, being I - C.R. No. 11215018210040 of 2021, registered with Mahila Police Station, Anand for the offence punishable under Sections 498(A), 323, 504, 506(2) and 114 of the Indian Penal Code. 2. Facts and circumstances giving rise to file quashing petition are that the private respondent-wife married with one Vinod Macwan accused no. 1 and after the marriage, she went to matrimonial home. This was the second marriage of the respondent. The accused no. 1-husband being a government servant was staying at Porbandar and every fortnight, he was used to come at Anand. The respondent wife was not happy with the conduct and attitude of the husband as she doubted on his character as a result, the matrimonial dispute arose between the parties. In these background facts, the respondent wife lodged an FIR against five persons including the husband and his relatives inter-alia alleging that she was subjected to mental and physical cruelty. The applicant herein is the nephew of accused husband. So far role attributed to the applicant is concerned, it is alleged that he along with his brother, by using filthy language, threatened her and pressurized her to leave the house. 3. This Court has heard learned counsels Mr. Shashikant Parmar, Mr. Romesh Niven and Ms. C.M. Shah, learned APP for the respondent-State. 4. Mr. Parmar, learned counsel for the applicant, has submitted that the FIR is absolutely false and frivolous and on reading of it, the offence of cruelty and causing voluntary hurt is not made out. That on 25.10.2021, the applicant had left Anand for London (U.K.) as for further study at London, he got student Visa and thus, therefore, on the day of alleged offence, the applicant was not present in Anand Town and in support of these contentions, he relied on the Visa and passport to establish the plea of alibi at the time of commission of the offence. 5. In the aforesaid contentions, learned counsel Mr. Parmar has submitted that the FIR lacks the ingredients of the offence and considering the nature of allegations, the facts mentioned in the FIR qua the applicant are absurd and inherently improbable. 6. 5. In the aforesaid contentions, learned counsel Mr. Parmar has submitted that the FIR lacks the ingredients of the offence and considering the nature of allegations, the facts mentioned in the FIR qua the applicant are absurd and inherently improbable. 6. In such circumstances, relying on the parameters for quashing laid down by the Apex Court in the case of Bhajanlal, (1992) Supp. 1 SCC 335, it is submitted that the allegations made in the FIR, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence against the applicant and therefore, this is a fit case to exercise the powers of this Court. 7. On the other hand, Mr. Romesh Niven, learned counsel and Ms. C.M. Shah, learned APP have jointly submitted that the contention with regard to the presence of the applicant at the place of offence and supporting evidence like passport, etc. produced cannot be examined at this stage as the Court should not enter into disputed questions of facts and examine the genuineness or otherwise of the allegations made in the FIR and thus, therefore, they submitted that the powers should not be exercised. 8. The scope and power of the High Court to quash the first information report is well settled. The power under Section 482 of the Code has to be exercised sparingly and cautiously to prevent the abuse of process of Court and to secure the ends of justice. The High Court should refrain from giving a prima-facie decision, unless there are compelling circumstances to do so. Taking the allegations, as they are, without adding or subtracting anything, if no offence is made out, only then, the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 of the Cr.P.C. 9. The Apex Court in case of State of Haryana vs. Bhajan Lal, (1992) Supp. 1 SCC 335 has laid down the guidelines that must be adhered to while exercising inherent powers under Sections 482 of the Code to quash the criminal proceedings. The relevant paragraph reads thus: “102. The Apex Court in case of State of Haryana vs. Bhajan Lal, (1992) Supp. 1 SCC 335 has laid down the guidelines that must be adhered to while exercising inherent powers under Sections 482 of the Code to quash the criminal proceedings. The relevant paragraph reads thus: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala-fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 10. Since the FIR in question emanates from matrimonial disputes. Recently, the Apex Court in case of Kahkashan Kausar @ Sonam and Others vs. State of Bihar and Others, (2022) 6 SCC 599 held and observed that, in recent times, matrimonial litigation in the country has increased significantly which led in an increased tendency to employ provision such as 498A Indian Penal Code as instruments to settled personal scores against the husband and his relatives. In Para-17 of the judgment, it is observed that: “17..........this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analyzing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.” 11. In matrimonial case, the Apex Court in the case of Preeti Gupta and Another vs. State of Jharkhand and Another, (2010) 7 SCC 667 observed that, a serious re-look of the entire provision is warranted by the legislation. It is also a matter of common knowledge that, exaggerated version of the incident are reflected in a large number of complaints. In matrimonial case, the Apex Court in the case of Preeti Gupta and Another vs. State of Jharkhand and Another, (2010) 7 SCC 667 observed that, a serious re-look of the entire provision is warranted by the legislation. It is also a matter of common knowledge that, exaggerated version of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in very large number of cases. 12. In the case of Geeta Mehrotra and Another vs. State of Uttar Pradesh and Another, (2012) 10 SCC 741 , it is observed that, family members of the husband are being implicated without allegations of active involvement and they are being implicated casually. 13. Having heard learned counsels for the respective parties, the issue falls for consideration is whether the case is made out for quashing the criminal proceedings by invoking the extraordinary jurisdiction of this Court. 14. The applicant is the nephew of husband-accused Vinodbhai. On bare reading of the FIR, it prima-facie appears that the respondent wife was having serious matrimonial dispute with the husband Vinodbhai. The allegations made against the applicant seem to be general in nature and no specific role being assigned to the applicant. Since 25.10.2021, the applicant is not staying in Anand Town as on the very same day, he left Anand for London. The undisputed passport shows that on 26.10.2021, he was at Heathrow Airport, London (U.K.). In such circumstances, this Court is of the considered view that the applicant being a relative of the husband has been falsely implicated in the alleged offence. Thus, therefore, so far role of the applicant is concerned, the FIR lacks the ingredients of the offence alleged. 15. For the aforementioned reasons, the case is fully covered by the categories (i) and (vii) as enumerated by the Apex Court in the case of State of Haryana vs. Bhajanlal and therefore, this Court is convinced that the continuation of the criminal proceedings would be an abuse of process of the Court and law. 16. Resultently, the application succeeds and is allowed. The FIR being I - C.R. No. 11215018210040 of 2021, registered with Mahila Police Station, Anand and other consequential proceedings thereto are quashed and set aside. 17. The views expressed hereinabove are confined to the case of present applicants herein. 16. Resultently, the application succeeds and is allowed. The FIR being I - C.R. No. 11215018210040 of 2021, registered with Mahila Police Station, Anand and other consequential proceedings thereto are quashed and set aside. 17. The views expressed hereinabove are confined to the case of present applicants herein. The trial Court shall decide the case of the husband in accordance with law without being influenced by the observations made hereinabove.