Gujarat High Court
Hasmukhbhai Chunilal Solanki & 6 vs State Of Gujarat & on 12 July, 2017
Author: B. N. Karia
Bench: B.N. Karia
R/CR.MA/383/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 383 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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HASMUKHBHAI CHUNILAL SOLANKI & 6....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HEMANT K MAKWANA, ADVOCATE for the Applicant(s) No. 1 - 7
MS KIRAN D PANDEY, ADVOCATE for the Respondent(s) No. 2
MR RUTVIJ OZA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 12/07/2017
ORAL JUDGMENT
1. This application has been filed by the Page 1 of 18 HC-NIC Page 1 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT applicants/original accused under Section 482 of the Code of Criminal Procedure (for brevity "CrPC") praying to quash and set aside the complaint, being C.R. No. II-2 of 2012 registered with Visnagar Police Station, District: Mehsana for the offence punishable under Sections 498(A), 114 of the Indian Penal Code and Sections 3, 7 of the Dowry Prohibition Act, 1961 (for brevity "Act")
2. Brief facts of the case are that the marriage of applicant no.1 was solemnized with the respondent no.2 on 11.12.2000 as per Hindu rites and rituals and out of their wedlock, the respondent no.2 had given birth to two children; namely Akilesh and Anirudh. However, marriage life of the applicant no.1 could not continue for a long time, as frequent quarrels were continued, and therefore, the respondent no.2 stared living separate from the applicant no.1 since 2009. The respondent no.2 filed an application under Section 97 CrPC in the court of Page 2 of 18 HC-NIC Page 2 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT learned JMFC Mehsana, wherein parties mutually agreed to retain custody of children with the applicant no.1. Thereafter, the respondent no.2 approached the court of Senior Civil Judge Mehsana, by preferring an application under section 10 of the Hindu Marriage Act interalia seeking judicial separation on various grounds as set-out therein, and along with the said application, the respondent no.2 filed an application under Section 24 of the Hindu Marriage Act, 1955 interalia seeking maintenance allowance Rs. 1500/- per month, till disposal of matrimonial disputes pending in the court of Civil Judge (S.D.) Mehsana. The respondent no.2 also approached Women Safety Cell, Mehsana, by way of an application, being M. Su.Cell/Javak 42/2009, and also lodged the impugned complaint against the present applicants.
3. Heard learned advocate Mr. Hemant K. Makwana appearing on behalf of the applicants, Page 3 of 18 HC-NIC Page 3 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT learned advocate Ms. Kiran D. Pandey appearing on behalf of the respondent no.2 and learned APP Mr. Rutvij Oza appearing on behalf of the respondent no.1-State.
4. Learned advocate Mr. Hemant K. Makwana appearing on behalf of the applicants submitted that the allegations levelled against the present applicants in the impugned complaint are totally baseless and vexatious. That, the accused no.7 in the impugned complaint is the uncle of applicant no.1. He is aged about 75 years and staying apart from the applicant no. 1. Accused no.2 is father of the applicant no.1. He is aged about 80 years and suffering from paralysis. Accused no.3 is mother of two sons, namely Hardik and Kuldip aged about 15 years and 13 years as well as daughter named Jagruti aged about 16 years and she got married in the year 1993 and since then settled at her matrimonial home at Chanasma, District: Mehsana.
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Accused nos.4,5 and 6 are cousin brothers, who are already settled at Dantiwada, Chekhla and Amraivadi in Ahmedabad, respectively.
5. Learned advocate Mr. Hemant K. Makwana appearing on behalf of the applicants further stated at the bar that the parties have amicably settled their disputes and divorce has been taken place by a deed of divorce dated 13th July, 2014. He has drawn attention of this Court to the settlement arrived at by and between the parties, whereby the husband has been acquitted by the learned JMFC, Visnagar in Criminal Case No. 898/2012 vide order dated 30th August, 2014, and therefore, considering the said settlement as well as on merits, the impugned complaint lodged against the applicants is required to be quashed and set aside.
6. Learned advocate Ms. Kiran D. Pandey appearing on behalf of the respondent no.2 also supported the contents of the deed of divorce and Page 5 of 18 HC-NIC Page 5 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT signature put by the respondent no.2 below the said deed. She submitted that two children begotten out of their wedlock are staying with the applicant no.1. Learned advocate for the respondent no.2 stated at the bar that fresh notice issued by this Court has been duly served upon the respondent no.2. Considering the facts, it is requested to pass necessary orders in the interest of justice.
7. Mr. Rutvij Oza, learned APP for the respondent no.1 State fairly conceded that considering the matrimonial dispute and resolution thereof, and as the applicant no.1 has been acquitted by the competent court of law at Visnagar in Criminal Case No. 898/2012, this Court may exercise discretionary powers under Section 482 CrPC in favour of the applicants.
8. Heard learned advocates/APP of the respective parties at length. From the document produced on record as well as contents of the application and Page 6 of 18 HC-NIC Page 6 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT facts placed before this Court, it appears that marriage of the applicant no.1 was solemnized with the respondent no.2 on 11th December, 2000 and out of the said wedlock, two children were born namely Akilesh and Aniruddh. The marriage life of the applicant no.1 and respondent no.2 was not happy, and therefore, the respondent no.2/complainant started living separate since the year 2009. It appears from the record that she approached various forums by way of different litigations on one pretext or the other. One such application under Section 97 CrPC was preferred by the respondent no.2 before the Court of learned JMFC at Mehsana, in which, the parties have mutually agreed to retain custody of the children with the husband/applicant no.1. It also appears that thereafter, she approached the court of learned Senior Civil Judge Mehsana by preferring an application under Section 10 of the Hindu Marriage Page 7 of 18 HC-NIC Page 7 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT Act seeking judicial separation on various grounds, as set-out therein. She also filed an application under Section 24 of the Hindu Marriage Act, 1955 seeking maintenance allowance of Rs. 1500/- per month, till disposal of the matrimonial dispute. She also approached Women Safety Cell, Mehsana by filing an application, being M. Su. Cell/Javak 42/2009 and attended the proceedings from time to time, and thereafter, it appears that she filed impugned FIR on 6th January, 2012 alleging that she was being ill-treated by her husband and his family members, who allegedly demanded dowry amount of Rs. 1 lac for the purpose of car. The said FIR came to be registered by the respondent no.2, as C.R. No. II-2 of 2012 at Visnagar Police Station, District: Mehsana against the present applicants. If we analyse merits of this case, it appears that since 2009, respondent no.2 was staying separately from the applicants; including her husband-applicant no.1. She had Page 8 of 18 HC-NIC Page 8 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT initiated various litigations before different forums; including filing a petition for judicial separation under Section 10 of the Hindu Marriage Act, 1955. She has also made an application under Section 24 of the Hindu Marriage Act, praying for interim maintenance in sum of Rs. 1500/- per month. This complaint was lodged by the respondent no.2 on 6th January 2012 after three years after separation from the applicant no.1. It appears from the application that applicant no.2 is father-in-law of the respondent no.2 aged about 80 years. The applicant no.3 is the sister-in-law, who was married in the year 1993 and mother of two sons and one daughter. Applicants no. 4, 5 and 6 are the cousin brothers of the complainant and applicant no.4 is working with Agricultural University at Dantiwada since 1991 and he is father of two children, applicant no.5 is married in Sidhdhpur and staying at Chekhla, Ta: Kankrej, while applicant no.6 is Page 9 of 18 HC-NIC Page 9 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT married since 1995 and staying at Amraivadi at Ahmedabad. Applicant no.7 Ramabhai is uncle-in- law, aged about 75 years and residing at village Umbari, Taluka: Shihori. As all the applicants are staying separately from the applicant no.1 and respondent no.2, perpetrating cruelty to the respondent no.2, or causing harassment to her, or demanding any amount by way of dowry cannot be believed at all by this Court. Further, it is submitted by learned advocates and learned APP for the respective parties that dispute between the applicant no.1 and his wife-respondent no.2 has been resolved amicably by mutual understanding and divorce has taken place between them and a deed of divorce is also produced on the record. It is also agreed by both the parties that Criminal Case No. 898 of 2012 pending before the court of JMFC at Visnagar as well as HMP No. 9 of 2010 pending before the court of learned Senior Civil Judge Page 10 of 18 HC-NIC Page 10 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT Mehsana , Criminal Case No. 54/2013 pending before the court of learned JMFC, Mehsana were to be withdrawn by the respondent no.2 at her own costs. The custody of children would be continued with the applicant no.1 and respondent no.2, being their mother, is free to meet her children at any point of time. It appears that this deed of divorce has been executed before Notary on 31st July, 2014 under the signatures and in presence of two witnesses. It also appears from the copy of the judgment passed in Criminal Case No. 898 of 2012 that the respondent no.2 was examined before the same Court vide ex. 15 and she has clearly stated that there was normal disputes with the in-laws in matrimonial home and none of the accused have given any physical or mental cruelty to her or no demand of dowry was made. It is further stated that the complaint was filed by the complainant in hot haste manner and she had put only her signature.
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As she did not support the contents of the complaint, she was declared hostile. The learned Judge, after considering the facts and evidence, was pleased to acquit the present applicant no.1 by order dated 30th August, 2014. From the documents produced on record, prima facie, it appears that dispute is settled between the parties amicably and divorce deed was executed on 31st July, 2014 as well as in the Criminal Case No. 898 of 2012 pending before the court of learned Additional Judicial Magistrate, First Class, Visnagar, wherein the applicant no.1, being an accused, was acquitted on 30th August, 2014. Considering this aspect as well as on merits, this Court is of the view that powers under Section 482 CrPC needs to be exercised in favour of the applicants no.2 to 7, as this application is not pressed so far as the applicant no.1 is concerned.
9. Considering the above stated facts, as the Page 12 of 18 HC-NIC Page 12 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT complainant deposed before the learned Trial Court in her criminal complaint, she had no dispute with her in-laws nor any torture was given, physically or mentally, by them nor any demand of dowry was made by them and this complaint was lodged by the family members in hasty manner. She has put her signature only. Here this court would like to refer to a decision of Hon'ble Supreme Court in the case of Gian Singh v. State of Punjab & Anr., reported in (2012) 10 SCC 303 wherein three-Judge Bench while dealing with number of decisions has held that quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. The Court held that in different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises Page 13 of 18 HC-NIC Page 13 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT inherent power under Section 482 CrPC on either of the twin objectives viz., (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice is a sine qua non. In paragraph 55, the Apex Court further went on to add that in the very nature of its constitution it is the judicial obligation of the High Court to undo a wrong in course of administration of justice, or to prevent continuation of unnecessary judicial process, which is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The Apex court in the said decision also placed reliance upon a five Judge Bench decision of Punjab & Haryana High Court in the case of Kulvinder Singh v. State of Punjab, reported in (2007)4 CTC 769, wherein the Bench referred to quite a few decisions of the Apex court; including the decisions in Madhu Limaye v. State of Maharashtra, reported in (1977) 4 SCC 551, State of Haryana v. Bhajan lal, reported Page 14 of 18 HC-NIC Page 14 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT in 1992 Supp (1) SCC 335, State of Karnataka v. L. Muniswamy, reported in (1977) 2 SCC 699, Simrikhia v. Dolley Mukherjee, reported in (1990) 2 SCC 437, B. S. Joshi v. State of Haryana, reported in (2003) 4 SCC 675 and Ramlal, reported in (2005) 1 SCC 347 and framed the following guidelines:
(Kulwinder Singh case reported in (2007) 4 CTC 769 in para 21;
"21.....(a) Cases arising from matrimonial discord, even if other offences are introduced for aggravation of the case.
(b) Cases pertaining to property disputes
between close relations, which are
predominantly civil in nature and they have
a genuine or belaboured dimension of
criminal liability. Notwithstanding a touch of
criminal liability, the settlement would bring lasting peace and harmony to larger number of people.
(c) to (f) xxxxx While parting with this part, it appears necessary to add that the settlement or Page 15 of 18 HC-NIC Page 15 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT compromise must satisfy the conscience of the court. The settlement must be just and fair besides being free from the undue pressure, the court must examine the cases of weaker and vulnerable victims with necessary caution."
To conclude, it can safely be said that there can never be any hard and fast category which can be prescribed to enable the Court to exercise its power under Section 482 CrPC.. The only principle that can be laid down is the one which has been incorporated in the Section itself, i.e., "to prevent abuse of the process of any Court" or "to secure the ends of justice."
10. Here appears to be a case which has its origin in the domestic dispute between the parties, which dispute has, it appears, been resolved by them. That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some hasty manner and Page 16 of 18 HC-NIC Page 16 of 18 Created On Mon Aug 14 04:42:31 IST 2017 R/CR.MA/383/2012 JUDGMENT misconception will be a futile exercise that will serve no purpose. The continuance of the proceedings is thus nothing but an empty formality. Section 482 CrPC could, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the courts below.
11. Resultantly, this Application is hereby partly allowed. Complaint, being C.R. No. II-2 of 2012 registered with Visnagar Police Station, District:
Mehsana for the offence punishable under Sections 498(A), 114 of the Indian Penal Code and Sections 3, 7 of the Dowry Prohibition Act, 1961 is hereby quashed and set aside, so far as the applicants no. 2 to 7 are concerned. Applicant no.1 to stand trial.
12. Rule nisi made absolute qua applicant nos. 2 to 7. Rule discharged qua applicant no.1. No costs.
(B. N. KARIA, J )
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ksdarji
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