Gujarat High Court
Yogeshkumar Purshottamdas Parmar vs State Of Gujarat on 26 June, 2024
NEUTRAL CITATION
R/CR.MA/9371/2019 ORDER DATED: 26/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 9371 of 2019
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YOGESHKUMAR PURSHOTTAMDAS PARMAR & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
KATHAN P GANDHI(9557) for the Applicant(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1,2,3
MR NILESH I JANI(3558) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 26/06/2024
ORAL ORDER
1. RULE. Learned APP waives Rule for the respondent State.
2. Considering the facts and circumstances of the case, the matter is taken up for final disposal forthwith.
3. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the applicants have prayed to quash and set aside the complaint being FIR No.I-17 of 2019 registered with Ahmedabad City Mahila Police Station, Ahmedabad, for the offences under Sections 498-A, 323, 294(b) and 114 of Indian Penal Code, 1860, Sections 3 and 7 of the Dowry Prohibition Act and all the consequential proceedings arising therefrom.
4. At the instance of respondent No.2, FIR came to be filed against the husband and family members, wherein, it is alleged that, marriage between the accused No.1 - husband and Page 1 of 8 Downloaded on : Fri Jun 28 22:24:09 IST 2024 NEUTRAL CITATION R/CR.MA/9371/2019 ORDER DATED: 26/06/2024 undefined complainant wife was solemnized in the year 2009 and from the wedlock, they blessed with three children. It is alleged that, in- laws caused mental and physical harassment to the complainant with regard to birth of daughters and also demanded dowry and hurled abusive language. It is further alleged that, the applicants herein used to come at matrimonial home and instigated the husband and in-laws for harassment and thereby, the accused deserted the complainant from matrimonial home. In this regard, FIR came to be filed against the accused persons.
5. Learned counsel for the applicants has submitted that, the allegations levelled against the applicants are nothing, but an abuse of process of law and without any specific instance, they have been arraigned as accused; that the marriage span is of 10 years; that, present applicant No.1 is brother-in-law, applicant No.2 is sister-in-law (derani) and applicant No.3 is sister-in-law (nanand) of the complainant. Whatever the allegations made are against the husband and in-laws and the applicants have not committed any offence as alleged against them. He further submitted that, the dispute arose with regard to delivery of daughters and other house hold things, however, all the family members are implicated in the FIR. Even the allegations levelled against the applicants do not prima facie disclose the involvement of the applicants in the alleged offence because the applicants Nos.1 and 2 are residing separately and applicant No.3 is residing at her matrimonial home. The allegations are only to cause mental and physical harassment, except this, no any specific averment is made against the applicants. Further, the allegations made by the complainant are vague and general in nature. Even no any allegation of injury, insult or abetment being made. He further submitted that, the applicants have no any past Page 2 of 8 Downloaded on : Fri Jun 28 22:24:09 IST 2024 NEUTRAL CITATION R/CR.MA/9371/2019 ORDER DATED: 26/06/2024 undefined antecedent. Therefore, without disclosing their active involvement in the alleged offence, the applicants have been arraigned as accused in FIR.
Considering the above contentions, Mr.Anandjiwala prays to allow present application and quash the FIR against the applicants, as prayed for, in this application.
6. Learned APP appearing for the respondent-State has opposed the present application and contended that, the applicants have committed an offence by causing mental and physical harassment and also induced accused No.1 husband and in-laws to beat the complainant. It is alleged that, the applicants herein used to come at matrimonial home of the complainant and instigated the in-laws to cause mental and physical harassment upon the complainant and demand dowry. Therefore, prima facie involvement of the applicants is established and therefore, present application may not be entertained.
7. Having heard learned counsel for both the sides and going through the allegations levelled against the applicants, it prima facie appears that, marriage between the accused No.1 and complainant took place in the year 2009 and thereafter, the complainant was residing with accused No.1 in joint family at Bikaner, Rajasthan. Further, the applicant No.1 who is brother of accused No.1 joined the service at Ahmedabad prior to marriage and applicant No.2 being wife of applicant No.1 resides with applicant No. 1, while applicant No.3 is residing separately at Anand since 2008 at her matrimonial home. Further, the dispute arose between the husband - wife due to marital discord, which is private in nature. However, the complainant by keeping grudge, Page 3 of 8 Downloaded on : Fri Jun 28 22:24:09 IST 2024 NEUTRAL CITATION R/CR.MA/9371/2019 ORDER DATED: 26/06/2024 undefined arraigned other family members in the offence. It prima facie appears that in absence of any legal evidence in support of the accusation as well as demand of dowry, there is no bar to exercise power under Section 482 of the Code of Criminal Procedure relying on the decisions of the Hon'ble Supreme Court in cases of State of Haryana & Ors. Vs. Bhajanlal & Ors., [1992 Suppl. 1 SCC 2020] and State of Andhra Pradesh Vs. Vangaveeti Nagaih, reported in 2009 (12) SCC 466.
Considering the allegations levelled in a complaint, case on hand squarely falls in the category of Bhajan Lal (supra), wherein, Hon'ble Supreme Court in para held as under:-
"(7) where as criminal proceedings 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."
8. In Geeta Mehrotra & Anr. Vs. State of U.P, reported in (2012) 10 SCC 741, the Hon'ble Supreme Court observed as under:-
"19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein Page 4 of 8 Downloaded on : Fri Jun 28 22:24:09 IST 2024 NEUTRAL CITATION R/CR.MA/9371/2019 ORDER DATED: 26/06/2024 undefined also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
"there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts." The view taken by the judges in this matter was that the courts would not encourage such disputes.
21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter Page 5 of 8 Downloaded on : Fri Jun 28 22:24:09 IST 2024 NEUTRAL CITATION R/CR.MA/9371/2019 ORDER DATED: 26/06/2024 undefined depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power."
9. The applicants are facing charge of Section 498-A of IPC. Therefore, as per the allegations made in the complaint, ingredient of Section 498A is made out. In this regard, it would be apposite to refer the decisions of the Apex Court in cases of Achin Gupta Vs. State of Haryana & Anr. Reported in 2024 INSC 369, Abhishek Vs. State of Madhya Pradesh reported in 2023INSC779 / (Criminal Appeal No. 1457 of 2015), Geeta Mehrotra & Anr. Vs. State of UP, reported in (2012) 10 SCC 741 and Preeti Gupta and another Vs. State of Jharkhand and another [(2010) 7 SCC 667], wherein, it is observed that "......the tendency to implicate the husband and all his immediate relations is also not uncommon in complaints filed under Section 498A IPC. It was observed that 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, as allegations of harassment by husband's close relations, who were living in different cities and never visited or rarely visited the place where the complainant resided, would add an entirely different complexion and such allegations would have to be scrutinized with great care and circumspection".
Considering the above principles, it appears that the applicants being brother, brother's wife and sister of the husband, arraigned as accused with an ulterior motive, which would cause unnecessary harassment to the applicants.
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10. Bare perusal of the complaint, it appears that present applicant No.1 is brother-in-law and applicant No.2 is his wife and applicant No.3 is sister-in-law of the complainant and admittedly, they are residing separately. It further reveals that the allegations levelled against the applicants do not constitute any cognizable offence as the applicants are residing separately. Whatever the allegations are that, they have instigated the in- laws and they spoke about the parents of the complainant. Further, it is to be noted that, applicant No.1 is serving as Assistant Audit Officer at CAG, Ahmedabad prior to marriage of accused No.1 as he had joined the service in 2006, whereas applicant No.3 is also married prior to the marriage of informant and she resides at Anand as he is working in Railway Department and therefore, all the applicants are residing separately. After six months of filing of the Domestic Violence proceedings, impugned complaint is filed and there is contradictory allegations levelled in the complaint. Therefore, prima facie it appears that the allegations are vague and general in nature and as discussed above, the applicants have not committed the offence as alleged nor asked for any dowry.
So far allegations under Section 323 of Indian Penal Code, 1860 is concerned, no any assault made by the applicants and therefore, the offence under Section 323 of IPC is not made out.
So far allegations under Section 294(b) of Indian Penal Code, 1860 is concerned, the entire incident has occurred in the private residential house, whereas, under the law, more particularly, as per the provision of said Act, the incident should have occurred in a public place.
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11. In view of the law laid down by the Hon'ble Apex Court in the case of N.S.Madhangopal & Anr. Vs. K. Lalitha, reported in 2022 Live Law (SC) 844, Hon'ble Supreme Court held that, to prove the offence under section 294(b) of Indian Penal Code, 1860, mere utterance or obscene words are not sufficient but there must be a further proof to establish that it was to the annoyance of others.
12. In view of the above, this Court is of considered view that without any specific instance or evidence, the applicants have been arraigned as accused only with an oblique motive. This Court is of further view that if the proceedings are allowed to continue against the applicants, the same will be nothing short of abuse of process of law and travesty of justice and therefore, this is a fit case to exercise inherent power under Section 482 of the Cr.P.C for quashing of criminal proceedings.
13. For the foregoing reasons and observations, present application is allowed. The impugned complaint being FIR No.I- 17 of 2019 registered with Ahmedabad City Mahila Police Station, Ahmedabad as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicants herein. Rule is made absolute. Direct service is permitted.
(HASMUKH D. SUTHAR,J) SUCHIT Page 8 of 8 Downloaded on : Fri Jun 28 22:24:09 IST 2024