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2024 DIGILAW 985 (GUJ)

Samirsha Gulamsha Diwan v. State Of Gujarat

2024-04-23

ILESH J.VORA

body2024
ORDER : 1. By this application, under Section 482 of the Cr.P.C., the applicants - original accused, are seeking quashing of the FIR, being I-C.R.No. 11215006220541 of 2022, registered with Borsad City Police Station, Anand for the offence punishable under Sections 498 and 114 of the Indian Penal Code. 2. This Court has heard learned counsel Mr. Dipen Desai, Mr. Sabir Saiyyad and Ms. C.M. Shah, learned APP for the respective parties. 3. Brief facts giving rise to file present application are that, the second respondent Aarzoo Diwan has lodged aforesaid FIR against her husband and his relatives for the act of cruelty and demand of dowry. The marriage of the parties took place on 28.01.2017. Admittedly, after the marriage, the husband and wife went to Germany and stayed together till 01.10.2018. After completion the study, the husband got job at the Germany, however, due to workload, he was thinking to return back to India but for better future, the second respondent wife insisted to live in Germany. On this issue, the dispute arose between the husband and wife. As a part of understanding, the husband returned back to India, whereas, wife stayed at Germany for a considerably time. When wife returned back to India in the month of August, 2019, the dispute again arose. It is alleged that, during the stay in India, at her matrimonial home, she was subjected to cruelty and harassment and on the petty issue of household works, she was abused and harassed. After leaving India for the second respondent for Germany, there was a pressure to come back to India and when she decided to come back, and arrived in India on 01.07.2021, she was not happily received by the in-laws and husband and with all surprise, when she was at parental home, the written intimation of divorce for thrice by registered AD had been served. In such circumstances, she lodged an FIR against the husband, father-in-law, mother-in-law, 2 sister in laws, and husband of the sister in laws, inter-alia, alleging that, without any reason, she had been given a divorce, which amount to cruelty and by retaining all the necessary original educational certificates and ornaments, she was neglected and harassed mentally and physically by the accused. 4. Mr. 4. Mr. Dipen Desai, learned counsel for the applicants submitted that, the second respondent has misused the criminal machinery only with a view to harass the innocent family members and considering the allegations made in the FIR, the ingredients of offence cruelty are not made out and therefore the contents of the FIR accepted to be true, do not disclose or make out a case against the applicants. 5. Mr. Dipen Desai, learned counsel upon instructions, placed on record the list of items, which had been given at the time of marriage, to submit that, the applicants are ready to hand over the ornaments and other things to the respondent wife. The learned counsel appearing for the second respondent by acknowledging the same, has submitted that, the items mentioned in the list being received from the applicants and same handed over to the second respondent wife. Before this Court, the second respondent without prejudice to the rights and contentions, has voluntarily accepted the ornaments and other items mentioned in the list. In such circumstances, Mr. Desai has submitted that, the applicants are innocent and by making general and vague allegations, the applicants have been impleaded as accused and same is nothing but it would be a sheer abuse of process of law and court. 6. In such circumstances, relying on the parameters for quashing laid down by the Apex Court in the case of Bhajanlal (1992 SC Suple.1 335), 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 applicants and therefore, this is a fit case to exercise the powers of this Court. 7. On the other hand Mr. Sabir Saiyyad, learned counsel opposing the application, has submitted that, there is specific instances of harassment being disclosed in the FIR and therefore, at this stage, disputed question of facts, as raised herein, cannot be examined. He would further urge that merely handing over the ornaments and other things would not absolve the applicants from the criminal liability. 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. 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 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. (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 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 & 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.”. 11. Having heard learned counsels for the respective parties, the issue falls for consideration is whether the applicants have made a case of quashing the FIR?. 12. Having considered the submissions advanced by learned counsel for the respective parties and perused the material placed on record. On perusal of the allegations made in the FIR, it reveals that, the root cause of the matrimonial dispute was the decision of the husband to come back to India from Germany. The wife was interested to live at Germany. Thus, therefore, prima-facie, it appears that, the incident of harassment as disclosed would not fall under the definition of ‘cruelty’. The implication of the entire family members as accused would indicative of the fact that, the FIR has been filed against the applicants for the reason that the husband had given a divorce by letter through registered AD. In such circumstances, the instances of allegations are seems to be general in nature and without any specific instances being made against each of the accused in committing the alleged cruelty, the questioned FIR has been filed, which is evident of the fact that the proceedings is manifestly attended with ulterior motive for wreaking vengeance and with a view to spite the accused due to personal grudge as she had been given a divorce by letters. 13. 13. 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. 10. Resultantly, the application succeeds. Rule is made absolute to aforesaid extent. The FIR, being I- C.R.No.11215006220541 of 2022, registered with Borsad City Police Station, Anand and other consequential proceedings thereto are quashed and set aside. 11. The views expressed hereinabove are confined to the case of present applicants herein. The Court before whom the proceedings of Domestic Violence Act is pending, shall not get influence by the observations made herein above and decide the said application on its own merits.