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2024 DIGILAW 855 (GUJ)

Ashish Jaykantbhai Jani v. State Of Gujarat

2024-04-15

ILESH J.VORA

body2024
ORDER : 1. This quashing petition under Section 482 of the Cr.P.C., filed by the original accused, who are facing the charges under Sections 498A, 323, 523, 506(2) and 114 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961, whereby, they are seeking quashment of the FIR being CR No. 1121600222031 of 2022 registered with Mahila Police Station, Gandhinagar. 2. This Court has heard learned counsel Mr. P.J. Kanabar, Mr. Rahil Jain and Ms. C.M. Shah, learned Additional Public Prosecutor for the respective parties. 3. Mr. Kanabar, learned counsel, upon instructions, does not press this petition qua husband – applicant no. 1 Ashish Jani. This petition qua husband Ashish Jani stands dismissed as not pressed. 4. Brief facts giving rise to file present application are that, the marriage of the second respondent Ms. Ruchi Ashish Jani was solemnized with Mr. Ashish Jani on 08.12.2008. Admittedly, at relevant time, the wife second respondent was serving with Government Undertaking – GSECL, previously known as Gujarat Electricity Board and her posting at the time of marriage was at Vanakbori. The husband being Civil Engineer, was serving with private firm at Jamnagar. Since 2008 to 2015, the wife had served with the Government Undertaking at Vanakbori. The in-laws i.e. mother-in-law and father-in-law, belong to city Junagadh and since long they are residing there and both were doing job, whereas, the brother in law, Vishal Jani joined his service with Ultra Tech Cement, Mahuva, Amreli and thereafter, due to transfer at Rajasthan, he is serving there. In the aforesaid background facts, the second respondent wife lodged an FIR against the husband and his relatives, inter-alia, alleging that, she was subjected to mental and physical harassment, on the issue of household works and dowry. It is alleged in the FIR that from the day one of the marriage, she was abused and tortured with respect to insufficient dowry given at the time of marriage and there was mis-management in the marriage function, took place at Ahmedabad. It is alleged against the husband that, he do not like the work which she did to maintain the home and asked her to leave the house and also alleged that, at the time of marriage, the father has not given sufficient dowry. It is alleged against the husband that, he do not like the work which she did to maintain the home and asked her to leave the house and also alleged that, at the time of marriage, the father has not given sufficient dowry. It is further alleged that, the debit card attached with the salary account was taken and retained by the husband and without her knowledge her salary and other savings had been withdrawn for daily expenses. It is further alleged that when she raised the opposition about the withdrawal of the amount, she had been beaten by the husband. The second allegation alleged to the effect that, she was verbally harassed for not having a male child, as after the delivery of first child, who is daughter, the expectation of the in-laws was of the male child. The second phase of the dispute arose at Vanakbori, when the husband joined a private company at Vadodara. The husband was doing up and down from Vanakbori to Vadodara and despite of sufficient care taken by the wife, for food etc., she was harassed and neglected by the husband and he was depended on her income and asked her to bring a cash amount for doing a construction business. In the year 2013, she got pregnant and at relevant time, the mother in law asked her to undergo sex determination test, as they do not want a female child and specifically, instructed her that, if child is female, then, abort it prematurely and on refusing to undergo the test, she was mentally and physically harassed by the family members and on that count, dispute arose and she was compelled to leave the home and since 26.02.2013, she had left the home and initially lived with parents at Ahmedabad and after the second delivery of the daughter, the husband and in-laws did not come to see the face of the daughter and since her birth, they have been neglected and failed to maintain properly. Despite of so many attempts to reconcile the marriage, the husband was adamant as he was in relationship with another woman and his intention was to get divorce from her. In order to get a decree of divorce, the husband filed a family suit in the year 2015. Despite of so many attempts to reconcile the marriage, the husband was adamant as he was in relationship with another woman and his intention was to get divorce from her. In order to get a decree of divorce, the husband filed a family suit in the year 2015. In the aforesaid background facts, it is alleged in the FIR that, the brother-in-law and maternal uncle in law and his wife, who having dominant over the in- laws, have abetted and aided the husband and in- laws in commission of offence of curtly and demand of dowry. So far maternal uncle in law is concerned, it is alleged that, he belongs to law field, always threatened for dire consequences, if she raised any issue of the harassment and accordingly, in the month September, 2022, she submitted a private complaint to the Gandhinagar Police Station in relation to offence of cruelty and demand of dowry meted out to her by the husband and in-laws and pursuant to said complaint, the FIR dated 21.10.2022 came to be registered with the Mahila Police Station, Gandhinagar for the aforesaid offences. 5. The applicants, who are mother-in-law, brother-in-law and relatives of the husband have preferred this quashing petition, inter-alia, alleging that, there is inordinate delay of 9 years in lodging the FIR and this is nothing but a counter blast to the decree of divorce passed in favour of the husband and therefore, with a view to harass and defame in the society, the questioned FIR being instituted by the wife, which would amount to an abuse of process of law and court. 6. Mr. Prakash Kanabar, learned counsel appearing for the applicants has submitted that, this is a classic case wherein after delay of 9 years that too without any explanation, the criminal machinery put into motion and same is nothing but gross misuse of process of law and court. It is his contention that, in February, 2013, the second respondent wife without any justifiable reason, deserted the company of the husband and despite of so many attempts, she disagree to live with the husband and therefore, in the year 2015, the husband filed a suit for dissolution of the marriage and on appreciation of oral as well as documentary evidence and hearing the parties, the Family Court, Ahmedabad vide its judgment and decree dated 21.10.2022, dissolved the marriage. The criminal complaint thereafter being filed before the Gandhinagar Police, alleging false and fabricated allegation of cruelty and demand of dowry and on 21.10.2022, the FIR in question being registered against the applicants. The wife has also filed an application claiming various reliefs under the provisions of the Domestic Violence Act. In such circumstances, the questioned FIR after delay of 9 years is nothing but a counterblast of a decree of the family Court. 7. In the aforesaid background facts, learned counsel Mr. Kanabar seeks quashing of questioned FIR mainly on the ground that, the proceedings is manifestly attended with malafide for wrecking vengeance on the accused and allegations of cruelty and demand of dowry after delay of 9 years, that too without any satisfactory explanation would create a doubt on the bonafide of the second respondent and therefore, after the decree of divorce in favour of the husband, the attempt is made to harass the applicants by invoking criminal machinery and it cannot be permitted. 8. Mr. Rahil Jain, learned counsel appearing for and on behalf of the second respondent has submitted that the powers possessed by the High Court under Section 482 are very vide and plenitude of the powers requires great caution in its exercise and same though unrestricted and undefined, should not be capriciously or arbitrarily exercised where the allegations made in the FIR disclosed the commission of an offence. He would further urge that, the contentions about the delay and others raised herein cannot be examined at this stage, as the disputed facts to be tried by the trial Court and at this stage court shall not examine the reliability or otherwise of the allegations and therefore, let the investigation be continued so as to find out the truth about the allegations made in the FIR and thus, no case is made out to exercise the powers. 9. The learned Additional Public Prosecutor Ms. Shah for the respondent State adopting the contentions raised by Mr. Jain also reiterate that, disputed question of fact may not be examined at this stage and the application deserves to be dismissed with cost. 10. The scope and power of the High Court to quash the first information report is well settled. 9. The learned Additional Public Prosecutor Ms. Shah for the respondent State adopting the contentions raised by Mr. Jain also reiterate that, disputed question of fact may not be examined at this stage and the application deserves to be dismissed with cost. 10. 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. 11. The Apex Court in case of State of Haryana vs. Bhajan Lal reported in (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. (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 malafides 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.” 12. Since the FIR in question emanates from matrimonial disputes. Recently, the Apex Court in case of Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar & Ors. reported in (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. ….. reported in (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.”. 13. Having heard the learned counsel for the respective parties, the issue falls for my consideration is whether the FIR and consequential proceedings are liable to be quashed in exercise of inherent powers of this Court. 14. Heard at length the learned counsels for the respective parties and perused the material placed on record. On perusal of the allegations made in the FIR, it prima-facie appears that, after the marriage, it was the husband who had disputed the arrangements of the marriage and abused her on the patty issue of the household works and also demanded a dowry as he was not satisfied with the dowry given at the time of marriage. The second allegations with regard to withdrawal of the salary from the bank is also directly related to the husband, as the mother in law and father in law lived at Junagadh and they were government servants. The other allegations to the effect that, after birth of female child, the expectation was of male child. It needs to be noted that, 2013 to 2015, the wife had lived at Vanakbori, where, she was posted and when she was pregnant second time, the dispute arose with the husband. The other allegations to the effect that, after birth of female child, the expectation was of male child. It needs to be noted that, 2013 to 2015, the wife had lived at Vanakbori, where, she was posted and when she was pregnant second time, the dispute arose with the husband. In such circumstances, from the date of marriage i.e. 08.05.2008 to 26.02.2013, the second respondent wife sat silent on the aspect of cruelty meted out to her by the applicants and thereafter, till 2022, despite having knowledge with regard to legal proceedings, which she has initiated to recovery the maintenance etc., she failed to initiate any proceedings for the alleged cruelty and demand of dowry. On close scrutiny of the contents of the FIR, there is no satisfactory explanation about the delay in lodging the FIR. In such circumstances, it is settled position of law that unexplained inordinate delay can be taken into consideration as a crucial factor and ground for quashing the criminal complaint. Thus, therefore, this Court finds substance in the submissions made by counsel for the applicants that, in absence of any plausible explanation for such delay, it would be fatal to the case of the second respondent, as after decree of divorce, she has resorted to the criminal proceedings, which itself suggest the intention of the second respondent. 15. Considering the facts and circumstances of the present case, it would be beneficial to refer and to rely on the judgment of the Apex Court delivered in the case of Kishan Singh (deal) through LRs Vs. Gurupal Singh 2010 (8) SCC 775 . The Apex Court, on the aspect of delay, has categorically observed and held that prompt and early reporting of the occurrence by the informant with all its vivid details, gives an assurance regarding truth of its version. In case, there is some delay in filing FIR, the complainant, must give explanation for the same. Undoubtedly delay in lodging the FIR, does not make the complainant’s case improbable when such delay is properly explained, however, deliberate delay in lodging the complaint is always fatal. In para-22 of the said judgment, it has been observed by the Supreme Court that, when there is a delay in lodging the FIR, the court has to look for plausible explanation for such delay. In the absence of such explanation, the delay may be fatal. In para-22 of the said judgment, it has been observed by the Supreme Court that, when there is a delay in lodging the FIR, the court has to look for plausible explanation for such delay. In the absence of such explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that, the allegations were an afterthought or had given a coloured version of the facts. In such cases, the court should carefully examined the facts before it, for the reason that the frustrated litigant, who failed to succed before the civil court, may initiate criminal proceedings just to harass the otherside with malafide intention or the ulterior motive of wreaking vegeanance on the other party and in that, case, chagrined and frustrated litigants should not permitted to give vent to their frustrations by cheaply invoking jurisdiction of criminal court and court proceedings ought not to be permitted to de- generate into weapon of harassment and harassment and in that circumstances, the court may take a view that it amounts to abuse of process of law. 16. In the facts of the present case, as observed and discussed, the second respondent admittedly living seperately since February, 2013 and upto 2022, she sat silent and waited the outcome of the divorce proceedings and thereafter, she lodged the questioned FIR impleading therein the old aged mother-in-law, brother-in-law and two relatives. The brother-in-law, living separately at Rajasthan, whereas, the maternal uncle and his wife, never shared the house with the second respondent and living separately at Ahmedabad. The allegations made against the them seems to be vague and general and prima-facie, it appear that after decree of divorce, to build the pressure on the husband and his family, the persons who had occasionally met the second respondent, or they might have intervened to resolve the dispute have been impleaded in the offence. 17. For the reasons recorded and considering the peculiar facts and circumstances of the present case, the criminal proceedings after delay of 9 years, that too without any satisfactory explanation and considering the other attending circumstances, as discussed above, prima-facie, it appears that, the initiation of the criminal proceedings after decree of divorce and that too after inordinate delay, would amount to misuse of process of law and court. This Court restricts itself to assign further findings on this aspect as the proceedings of Domestic Violence Act, initiated by the respondent wife is pending before the court concerned. 18. For the aforementioned reasons and considering the other attending circumstances, as referred above, this court is convinced that, the continuation of the criminal proceedings qua the applicants would amount to abuse of the process of the law and court. The case is fully covered by the categories (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. 19. Resultantly, the application succeeds. Rule is made absolute to aforesaid extend. FIR being CR No. 1121600222031 of 2022 registered with Mahila Police Station, Gandhinagar, and other consequential proceedings thereto against present applicants are hereby quashed and set aside. 20. The observations made hereinabove are prima-facie in nature and confined to the adjudication of the present application. The investigating agency is at liberty to proceed qua the husband in accordance with law and the investigation agency as well as the trial Court shall not get influence by the said observation during the court of trial. Direct service permitted.