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2024 DIGILAW 964 (GUJ)

Govindbhai Ishwarbhai Patel v. State Of Gujarat

2024-04-22

ILESH J.VORA

body2024
ORDER : Rule returnable forthwith. Learned advocates appearing for the respective respondents waive service of rule for the respective respondents. 1. By invoking inherent powers of this Court, the applicants-original accused have preferred this quashing petition in relation to the FIR being C.R. No.11191030200071 of 2020, registered with Mahila Police Station (West), Ahmedabad City for the offence punishable under Sections 498A, 323, 294(b) and 114 of the Indian Penal Code and Section 4 of Dowry Prohibition Act. 2. This Court has heard learned counsel Mr. Pratik Barot, Mr. Shubham Jhajharia and State counsel Ms. C.M. Shah. 3. Brief facts giving rise to file present application are that, marriage of second respondent namely Ranita Amit Patel with the accused-husband Amit Patel was solemnized on 24.12.2018. Admittedly, the husband and his parents are permanent residents of U.S.A. After marriage, the husband left India on 05.02.2019. The husband-wife stayed together for about two and half months. During the said period, the applicant nos.2 and 3 being parents were also lived with the husband wife at Ahmedabad. The matrimonial dispute arose when the husband after 15 days of marriage, arranged a social party. In the said party, he had consumed liquor for which the wife raised the objection. In the said party, the husband made a remark towards the wife-second respondent that he did not like Indian traditional attire, but, she should have wear the shorts etc. as per western culture. On that occasion, the wife called her brother for intervention. This is the root cause of the matrimonial dispute. Subsequently the husband left India on 05.02.2019. In these background facts, the second respondent lodged the aforesaid FIR, inter alia, alleging that, she had been subjected to cruelty by the husband and in-laws. It is alleged that, considering the earlier incident, the husband is not interested to live with her and asked her to give divorce. It is further alleged that, the parents of husband have demanded a dowry as they are not satisfied with the dowry given at the time of marriage. It is alleged that, considering the earlier incident, the husband is not interested to live with her and asked her to give divorce. It is further alleged that, the parents of husband have demanded a dowry as they are not satisfied with the dowry given at the time of marriage. It is further alleged that, in September-2019, despite she having suffered a fracture over her left leg, she was forced to do a cleaning work of the temple and when she refused to do the cleaning work, the father-in-law abused her physically and thereafter, they left India and the third issue raised is that, without giving notice to her and behind her back, the husband obtained divorce from Texas Court. In these background facts, the FIR alleging the act of cruelty and demand of dowry being lodged against the husband and his parents. After registration of FIR, the second respondent has also filed an application under Section 12 of the D.V. Act, 2005 claiming various reliefs against the husband, his parents and married sister. 4. In the aforesaid background facts, by filing this quashing application, the applicants have stated that, this is a counter blast to the divorce order passed by the Texas Court and to built pressure on them, the FIR is being lodged without there being any specific instances of harassment and same is nothing but a sheer abuse of process of law and court. 5. Mr. Pratik Barot, learned counsel appearing for the applicants has submitted that, the allegations of consuming liquor would not fall under the definition of cruelty and therefore, by frivolous and false allegations, the questioned FIR is filed. He would further urge that, during the marriage span of two and half months, nothing being happened as projected by the second respondent- wife herein. After the FIR, she has also initiated proceedings under the provisions of Domestic Violence Act. The notice of divorce proceedings already been issued to her and intentionally, she did not remain present and therefore, the present proceedings is nothing but a counterblast to the order of divorce passed by the US Court and therefore, the criminal proceedings has been initiated with malafides and ulterior motive for wrecking vengeance on the applicants and with a view to spite them due to divorce granted by the US Court. Thus, therefore, he would urge that, the allegations are inherently improbable on the basis of which no prudent person can ever reach a just conclusion that, there is sufficient ground for proceedings against the applicants. 6. In view of aforesaid contentions, learned counsel Mr. Barot has submitted that, case is made out to exercise inherent powers of this Court and thus, therefore, in order to prevent misuse of the process of law and court, by exercising inherent powers, the questioned FIR deserves to be quashed. 7. Mr. Shubham Jhajharia, learned counsel assailing the allegations made against the applicants has submitted that, there is a specific allegation made against each of the accused with regard to act of cruelty and demand of dowry, the proceedings should not be quashed. The contention in relation to the false allegations or genuineness of it cannot be examined at this stage and Court should not convert itself to that of trial court and dwell into the disputed question of facts. Thus, therefore, he would urge that, let the investigation be completed in the matter. 8. The Apex Court in number of cases, has laid down the scope and ambit of Courts powers under Section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice for the administration of which alone exists or to prevent the abuse of process of court. 9. In State of Haryana Vs. Bhajan Lal, the Apex Court, after referring its various earlier judgments relating to the exercise of extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C., laid down the categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of process of court or otherwise to secure the ends of justice. The said illustrations reads thus: “102. The said illustrations 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. The present case arising out of matrimonial dispute. Recently, the Apex Court in Kahkashan Kausar @ Sonam Vs. State of Bihar (2022 Livelaw (SC) 141), after referring its earlier judgments namely Rajesh Sharma vs. State of Uttar Pradesh ( 2018 (10) SCC 472 ), Geeta Mehrotra vs. State of U.P. ( 2012 (10) SCC 741 ), K. Subbarao vs. State of Telangana ( (2018) 14 SCC 452 ), held and observe that, the tendency of implicating husband and all his immediate relations is also not uncommon. The Courts have to extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with the matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of complaint are required to be scrutinized with great care and circumspection. The relative of the husband should not be dropped in on the basis of omnibus allegations unless specific instances of the involvement in the crime is made out. For lodging proper complaint, mere mentioning of relevant sections and language of sections are not sufficient. Particulars of offence committed by each accused and role played by them in committing that offence need to be stated. 11. Whether the applicants have made out a case for quashing of FIR and consequential proceedings thereto? 12. For lodging proper complaint, mere mentioning of relevant sections and language of sections are not sufficient. Particulars of offence committed by each accused and role played by them in committing that offence need to be stated. 11. Whether the applicants have made out a case for quashing of FIR and consequential proceedings thereto? 12. Having regard to the facts and circumstances of present case and on perusal of the allegations made against the applicants, it reveals that, the husband wife after their marriage stayed together for about two and half months. The applicants are permanent residents of USA. In the month of July-2020, the Court of Texas at USA dissolved the marriage and passed a decree of divorce. The questioned FIR is being lodged on 16.12.2020 and thereafter, the application under Section 12 of the D.V. Act filed on 19.02.2021. The dates are relevant because, after the decree of divorce, the questioned FIR being lodged by the wife. Thus, the contention that this is a counterblast to the order of decree of divorce has some merits. The person who is settled outside India, it is common for the people who settled abroad to consume the liquor either on particular occasion or on any other occasion. It is subjective matter as for the husband it is not so serious, whereas, for the wife, it is not tolerable. Thus, considering the permanent residence of the husband at USA and other attending circumstances of the family, the allegations qua the husband for consuming liquor may not fall under the definition of cruelty. On the same footing, the remarks of wearing western outfit would also common for the person who settled outside India. Thus, therefore, prima-facie, reason for filing the FIR by alleging general allegations would be the decree of divorce. So far as allegation of demand of dowry is concerned, no any specific date and time as well as which items they had demanded, having not been disclosed in the FIR. So there is a general allegation being made that the parents are demanding the dowry. It is to be noted that, the parties have been granted status of permanent residents of USA. Thus, allegations of demanding cash amount and dowry seems to be inherently improbable. 13. So there is a general allegation being made that the parents are demanding the dowry. It is to be noted that, the parties have been granted status of permanent residents of USA. Thus, allegations of demanding cash amount and dowry seems to be inherently improbable. 13. For the reasons recorded, the case of the applicants would fall under the parameters laid down by the Apex Court in the case of Bhajan Lal (supra) and therefore, this Court is convinced that, in order to prevent the abuse of process of law, the questioned FIR would require to be quashed. 14. Resultantly, the application succeeds. The FIR being C.R. No.11191030200071 of 2020, registered with Mahila Police Station (West), Ahmedabad City and other consequential proceedings thereto are quashed and set aside qua the applicants herein. Accordingly, Rule is made absolute. Direct service is permitted. 15. It is made clear that the observations made hereinabove are prima-facie in nature and confined to the adjudication of the present application. The Court before whom the application filed under Section 12 of the D.V. Act is pending, shall not get influenced by the said observations during the course of trial.