Gujarat High Court
Shahroj Janha Niyazkhan Pathan vs State Of Gujarat on 12 January, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/10754/2016 ORDER DATED: 12/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10754 of 2016
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SHAHROJ JANHA NIYAZKHAN PATHAN & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MM SAIYED(1806) for the Applicant(s) No. 1,2,3
MR UTKARSH J DAVE(10620) for the Respondent(s) No. 2
MR HARDIK MEHTA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
MR RAHUL SHARMA(8276) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/01/2023
ORAL ORDER
1. RULE. Learned Additional Public Prosecutor and learned Advocate Mr. Rahul Sharma waive service of notice of Rule on behalf of respondents No.1 & 2 respectively.
2. This application has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the First Information Report (FIR) bearing I-C.R. No.88 of 2016 registered with Bapunagar Police Station, Ahmedabad for the offences punishable under Sections 498A, 323, 294(B), 506(1) and 114 of the Indian Penal Code and under Sections Page 1 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023 R/CR.MA/10754/2016 ORDER DATED: 12/01/2023 3 and 7 of the Prohibition of Dowry Act and the proceedings initiated in pursuant thereto. The applicant No.1 is the widow mother, the applicant No.2 is the brother-in-law of the complainant and the applicant No.3 is the sister-in-law (who is living at Uttar Pradesh) of the complainant.
3. Learned Advocate for the applicant Mr. M.M. Saiyed submits that it is an unfortunate case where the son of the applicant No.1 staying alongwith the complainant having left the house in the year 2014 thereafter, on 30.04.2016 the First Information Report gets lodged under the instigation of the son through the daughter-in-law. It is further submitted that the respondent No.2 (the complainant) had married the son of the applicant on 10.02.2009 at Ahmedabad according to the Muslim Shariyat. Both of them had resided together in the joint family for about two years of their initial married life. Learned Advocate Mr. M.M. Saiyed for the applicants submitted that the First Information Report is with the allegation that the applicants No.1 and 2 had harassed the respondent No.2 and had started demanding dowry Page 2 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023 R/CR.MA/10754/2016 ORDER DATED: 12/01/2023 and therefore, the complainant had started living separately with her husband. It is alleged by the complainant that on 26.04.2016, the respondent No.2 had gone to the matrimonial house of the applicant No.1 where the the applicant No.1 started quarreling with her and the applicants No.2 and 3 had beaten her and had given threats to her and hence, the complaint was lodged. It is further submitted that out of the matrimonial life, the complainant gave birth to two sons - Mubassir and Muzammil. In the year 2014 the complainant left the matrimonial home with her husband and children and started living separately at House No.1, Asarnagar, Near Sundaramnagar Ground, Bapungar, Ahmedabad. It is further submitted that the husband of the applicant No.1 - Niyazkhan Idrishkhan Pathan was suffering from diabetes and was paralysed for more than 15 years. The applicant No.1 alongwith her husband were residing with applicant No.2 from the beginning till the husband's death on 26.02.2016. It is also submitted that the applicant No.1 is at present residing with applicant No.2. As the applicant No.2 had continuously taken care of the parents (the Page 3 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023 R/CR.MA/10754/2016 ORDER DATED: 12/01/2023 applicant No.1 and the husband of the applicant No.1), the husband of the applicant No.1 had sold the house bearing No.96/1621, Sundaramnagar, Rakhial, Ahmedabad to the applicant No.2 by a registered Sale Deed and thereafter, when the husband of the applicant No.1 expired, all the other sons had started pressurizing the applicant No.1 for partition of the house which was sold by the husband of the applicant No.1 to the applicant No.2. It is therefore, submitted that a false complaint has been filed to harass the applicants.
4. Learned Advocate for the applicants Mr. M.M. Saiyed submits that the husband of the complainant gave a notice to the applicant No.2 to cancel the registered Sale Deed of the house while filing false cases. The husband of the applicant No.1 expired 26.02.2016 and the applicant No.1 was not even permitted to maintain the 'Iddat' period. The complaint was lodged on 30.04.2016. It is also submitted that surprisingly, the son of the applicant No.1 had made the daughter-in-law the instrument to lodge the FIR against the mother-in-law and the other brother even after the complainant and her husband separated in Page 4 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023 R/CR.MA/10754/2016 ORDER DATED: 12/01/2023 the year 2014.
5. Learned Advocate for the applicants Mr. M.M. Saiyed while relying on the following two decisions has urged for quashing of the First Information Report :-
(a) The order of this Court in the case of Chetnaben wife of Sureshbhai Rajyaguru and Others v. State of Gujarat in Criminal Miscellaneous Application No.13623 of 2014 and;
(b) Preeti Gupta v. State of Jharkhand reported in 2010 Criminal Law Journal 4303(1).
6. On the other hand, learned Advocate Mr. Rahul Sharma for the respondent No.2 submits that the complaint has been filed since the respondent No.2 was harassed by mother-in-law during her matrimonial life in the joint family. It is alleged that the respondent No.2 was harassed for minor issues, that she does not know cooking and also that the applicants had demanded dowry from her and in such an manner, had caused physical and mental harassment and therefore, the complainant had started living separately with her husband and Page 5 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023 R/CR.MA/10754/2016 ORDER DATED: 12/01/2023 children.
7. It is further submitted that on 22.04.2016, at about 2.00 pm in the afternoon, the complainant had gone to her matrimonial home for cleaning the room where the household items were kept and there was a quarrel and her sister-in-law and mother-in-law had beaten the complainant with chappals and the brother-in-law had asked her to go out of the room. It is further alleged that the complainant was abused and threatened and she was informed that she can enter the house only when she brings money from her parents. Thus, it is submitted that the ingredients of Section 498A and other sections of the Indian Penal Code get invoked in the First Information Report and the trial should be proceeded so that the complainant can get an opportunity to provide evidence.
8. Learned Additional Public Prosecutor Mr. Hardik Mehta submitted that any First Information Report should be quashed in accordance with the guidelines of the Apex Court and the parameters laid down therein.
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9. Heard learned Advocates appearing for the respective parties and perused the records of the case. On perusing the contents of the FIR, it is apparent that the FIR is a misuse of the criminal machinery. The facts as stated by the complainant in the FIR itself suggest that the complainant alongwith her husband was staying in the joint family alongwith the mother- in-law and other brothers - Jamshed, Khurshid and Pervez. The applicant No.1 has four sons and one daughter and the husband of the applicant No.1 had sold the house to the applicant No.2 during his lifetime. The applicant No.1 is staying alongwith the applicant No.2. The complainant alongwith her husband and their children had left the joint family in the year 2014 and had been staying separate. Hence, there was no reason for the complainant to have entered the matrimonial home on 22.04.2016 and if at all, any act as alleged has been committed, then the applicants were entitled to do so to restrain the complainant from the entering the house because of the dispute which had arisen because of the sale of the property. Further, the allegations which have been made with regard to the harassment, cruelty Page 7 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023 R/CR.MA/10754/2016 ORDER DATED: 12/01/2023 and demand of dowry during the matrimonial life, those allegations qua the applicants are not specific and the complainant has not given any specific details while the facts suggest that the complainant had left the matrimonial home with her husband and children.
10. In the case of Chetnaben (supra), this Court had observed as under :-
"26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing."
11. In the case of Preeti Gupta (supra), it has been Page 8 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023 R/CR.MA/10754/2016 ORDER DATED: 12/01/2023 observed as under :-
"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 498-A of the Indian Penal Code which reads as under :-
"498-A. 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."
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30. It is a matter of common experience that most of these complaints under section 498-A 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 498-A 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 tranquility 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 Page 10 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023 R/CR.MA/10754/2016 ORDER DATED: 12/01/2023 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."
12. In view of the above and considering the ratio laid down in the above decisions, this Court is of the view that this is classic case of harassment and misusing the provisions of Section 498A of the Indian Penal Code where the complainant (daughter-in-law) who is staying with her husband in her own matrimonial home, thereafter has used the First Information Report as an instrument against the widowed mother-in-law, brother-in-law, and the Page 11 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023 R/CR.MA/10754/2016 ORDER DATED: 12/01/2023 sister-in-law, who is staying at Uttar Pradesh. The FIR itself is an abuse of process of law. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under Section 482 of the Cr.P.C. could be exercised for securing the ends of justice.
13. In the result, the application is allowed. The impugned First Information Report bearing I-C.R. No.88 of 2016 registered with Bapunagar Police Station, Ahmedabad and the proceedings initiated in pursuance thereof qua the applicants are quashed and set aside. Rule is made absolute.
Direct Service is permitted.
Sd/-
(GITA GOPI, J) CAROLINE Page 12 of 12 Downloaded on : Mon Jan 16 20:41:53 IST 2023