Gujarat High Court
Babuben W/O. Ramjibhai Satani & 6 vs State Of Gujarat & on 20 April, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/17731/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 17731 of 2014
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BABUBEN W/O. RAMJIBHAI SATANI & 6....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR BHUNESH C RUPERA, ADVOCATE for the Applicant(s) No. 1 - 7
MR BHARGAV HASURKAR, ADVOCATE for the Respondent(s) No. 2
MR NJ SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/04/2015
ORAL ORDER
Rule returnable forthwith. Mr.Shah, the learned APP waives service of notice of Rule for and on behalf of the respondents Nos.1. Mr. Hasurkar, the learned advocate waives service of notice of Rule on behalf of the respondent No.2.
By this application, the applicants seek to invoke the inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973, praying for quashing of the First Information Report registered with the Odhav Police Station, Ahmedabad, being C.R. No.I 283 of 2014, for the offence punishable under Sections 498(A) 323, read with Section 114 of the Indian Penal Code and under Section 3 and 7 of the Dowry Prohibition Act.
As usual the case appears to be one of a matrimonial dispute Page 1 of 7 R/CR.MA/17731/2014 ORDER wherein the wife i.e. the first informant has roped in as many as seven persons of the family of the accused including the husband. However, the husband has not filed any application for quashing. The applicant No.1 is the motherinlaw, aged 70 years, applicant No.2 is the fatherin law, aged 75 years, applicant No.3 is the married sisterinlaw, aged 42 years, applicant No.4 is the husband of married sisterinlaw, applicant No.5 is the sisterinlaw, applicant No.6 is the husband of the applicant No.5 and applicant No.7 is the sister in law.
This application is squarely covered by a judgment of this Court in the case of Dipak Patel vs. State of Gujarat in Criminal Misc. Application No.5819 of 2009, decided on 26th September 2014:
"16. It is now well settled that the power under Section 482 of the Code has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
17. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. While exercising powers under Section 482 of the Code, the Court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or Page 2 of 7 R/CR.MA/17731/2014 ORDER quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
18. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
19. The Supreme Court, in the case of State of A.P. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus:
"6. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to shortcircuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335].A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:Page 3 of 7
R/CR.MA/17731/2014 ORDER "(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 F.I.R. 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 F.I.R. do not constitute a cognizable offence but constitute only a noncognizable 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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide 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."
20. Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.
21. A plain reading of the FIR and the chargesheet papers reveal that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the Page 4 of 7 R/CR.MA/17731/2014 ORDER respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereotype statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a chargesheet. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out primafacie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold.
22. In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following: "28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society."
29. The courts are receiving a large number of cases emanating from section 498A of the Indian Penal Code which reads as under :
"498A. Husband or relative of husband of a woman subjecting her to cruelty.Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. For the purposes of this section, 'cruelty' means :
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
30. It is a matter of common experience that most of these complaints Page 5 of 7 R/CR.MA/17731/2014 ORDER under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
31.The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.
32. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with 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 the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.
Having heard the learned counsel appearing for the parties and having gone through the material on records, I am of the view that the Page 6 of 7 R/CR.MA/17731/2014 ORDER allegations against the applicants herein are quite vague and general. As usual the wife has adopted the tendency of roping as many persons of the family of the husband as possible. In my view the continuation of investigation is nothing but in the abuse of process of law.
In the result, this application is allowed. The First Information Report being C.R. No.I283 of 2014 registered with the Odhav Police Station, Ahmedabad, is hereby ordered to be quashed so far as the applicants herein are concerned. Rule is made absolute. Direct service is permitted. It is made clear that so far as the husband is concerned, the investigation may proceed further in accordance with law.
(J.B.PARDIWALA, J.) ali Page 7 of 7