Gujarat High Court
Jaydevbhai Babubhai Raval vs State Of Gujarat on 3 September, 2024
NEUTRAL CITATION
R/SCR.A/12046/2021 ORDER DATED: 03/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12046 of 2021
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JAYDEVBHAI BABUBHAI RAVAL & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. NISHIT P GANDHI(6946) for the Applicant(s) No. 1,2,3
MR PATHIK M ACHARYA(3520) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 03/09/2024
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, who are accused Nos.3 to 5, have prayed to quash and set aside the complaint being FIR No.11217001210019 of 2021 registered with Mahila Police Station, Patan, for the offences under Sections 498-A, 323, 504, 506(2), 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 applicants and other accused, wherein, it is alleged that, marriage between the accused No.1 - husband and complainant wife was solemnized in the year 2018 and accused Page 1 of 7 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Sep 04 2024 Downloaded on : Wed Sep 04 21:03:56 IST 2024 NEUTRAL CITATION R/SCR.A/12046/2021 ORDER DATED: 03/09/2024 undefined No.1 was in business of Orchestra and he came in contact with accused No.1 and developed intimacy and used to come at the house of the accused No.1 and upon asking the reason by complainant, accused No.1 husband abused the complainant by giving mental torture. It is further alleged that, in such act, the applicants supported the accused No.1 and allegedly abused the complainant and threatened her. In this regard, FIR came to be filed.
5. Learned counsel for the petitioner has submitted that, the complaint is nothing, but an abuse of process of law. The applicants were not present at the time of alleged incident and therefore, the allegations made against the applicants are false and vague. He has submitted that, marriage between the accused No.1 and complainant was solemnized in the year 2018 and after the marriage, both have shifted to Vadodara for business purpose and when they returned, they started residing at Rajkamal Society and not with the in-laws of the complainant. The applicants have submitted representation to police authority correcting the correct facts. There is delay of 3 months in registration of FIR. Even no any allegation of injury, insult or abetment being made. He further submitted that, the applicants have no any past 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.Gandhi prays to allow present application and quash the FIR against the applicants, as prayed for, in this application.
6. Learned counsel for respondent No.2 Mr. Pathik Acharya Page 2 of 7 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Sep 04 2024 Downloaded on : Wed Sep 04 21:03:56 IST 2024 NEUTRAL CITATION R/SCR.A/12046/2021 ORDER DATED: 03/09/2024 undefined has opposed the application and submitted that, after the marriage of accused No.1 with the complainant, the accused No.1 came in contact with accused No.2 and developed illicit relationship, due to which, accused No.2 used to come to the house of accused No.1. However, the applicants used to take favour of accused No.1 and incited him to cause mental and physical harassment upon the complainant. Therefore, prima facie offence are made out against the applicants. In view of the same, present application may be dismissed.
7. Learned APP for respondent State has opposed present application and by adopting the arguments made by learned counsel for respondent No.2 contended that, the applicants have caused mental and physical harassment to the complainant by demanding dowry and thereby, the applicants have committed an offence as alleged against them. In view of the same, this is not a fit case to exercise jurisdiction under Section 482 of Cr.P.C.
8. Having heard learned counsel for the respective parties and going through the record, it appears that, marriage between the accused No.1 and complainant was solemnized in the year 2018 and after the marriage, both were shifted to Vadodara for business purpose and when they returned, they started residing at Rajkamal Society and not with the in-laws (applicants herein) of the complainant. It further appears that, the applicants were residing separately and prima facie, the allegations made against the applicants are general in nature. In view of the same, question does not arise to cause cruelty or harassment to the complainant. Further, the dispute arose between the husband - wife due to marital discord, which is private in nature. However, the complainant by keeping grudge, arraigned other family Page 3 of 7 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Sep 04 2024 Downloaded on : Wed Sep 04 21:03:56 IST 2024 NEUTRAL CITATION R/SCR.A/12046/2021 ORDER DATED: 03/09/2024 undefined 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."
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 Page 4 of 7 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Sep 04 2024 Downloaded on : Wed Sep 04 21:03:56 IST 2024 NEUTRAL CITATION R/SCR.A/12046/2021 ORDER DATED: 03/09/2024 undefined 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 in-laws arraigned as accused with an ulterior motive, which would cause unnecessary harassment to the applicants.
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.
10. So far as offence under Sections 504 and 506(2) of IPC are concerned, the Hon'ble Apex Court in case of Mohammad Wajid and Anr. v. State of U.P. and Ors., reported in 2023 LiveLaw (SC) 624: 2023 INSC 683, has held that:-
"Indian Penal Code, 1860; Section 504 - Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of Page 5 of 7 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Sep 04 2024 Downloaded on : Wed Sep 04 21:03:56 IST 2024 NEUTRAL CITATION R/SCR.A/12046/2021 ORDER DATED: 03/09/2024 undefined the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant - In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant. (Para 25-
26) Indian Penal Code, 1860; Section 504 - One of the essential elements for constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present.
(Para 28) Indian Penal Code, 1860; Section 506 - Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. (Para 27) 3 Interpretation of Statutes- All penal statutes are to be construed strictly - Court must see that the thing charged is an offence within the plain meaning of the words used and must not strain the words. (Para 19-21)."
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, Page 6 of 7 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Sep 04 2024 Downloaded on : Wed Sep 04 21:03:56 IST 2024 NEUTRAL CITATION R/SCR.A/12046/2021 ORDER DATED: 03/09/2024 undefined 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.11217001210019 of 2021 registered with Mahila Police Station, Patan 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 7 of 7 Uploaded by SUCHITKUMAR PATEL(HC01083) on Wed Sep 04 2024 Downloaded on : Wed Sep 04 21:03:56 IST 2024