Gujarat High Court
Hemlataben Harkishanbhai Kukadiya ... vs State Of Gujarat on 20 June, 2024
NEUTRAL CITATION
R/CR.MA/13938/2022 ORDER DATED: 20/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 13938 of 2022
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HEMLATABEN HARKISHANBHAI KUKADIYA (SONI) & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
BHAVIN B THAKAR(9371) for the Applicant(s) No. 1,3,4,5,6,7
DELETED for the Applicant(s) No. 2
MR YOGESHKUMAR A RATANPARA(7260) for the Respondent(s) No. 3
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 20/06/2024
ORAL ORDER
1. Pursuant to the order dated 08.08.2022 passed by the Co- ordinate Bench of this Court, the present application was dismissed as not pressed qua applicant No.2. Considering the facts and circumstances of the case, the matter is taken up for final disposal forthwith only qua applicant Nos.1, 3, 4, 5, 6 and 7.
2. Heard learned advocate for the respective parties.
3. By way of the present 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 C.R. No.I-68 of 2021 registered with Mahila Police Station, Junagadh for the offences under Sections 498A, 323, 504, 506(2) and 114 of Indian Penal Code, 1860 as well as all the consequential proceedings arising therefrom.
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4. Learned advocate for the applicants submits that the applicants herein have nothing to do with the offence and have been falsely implicated in the present case. The impugned complaint was filed after an inordinate delay and contains vague allegations. A bare perusal of the FIR reveals that all the facts narrated are either false or twisted with the intent to mislead the court and the investigating authority. The applicant No.1 is the mother-in-law of the complainant, she has been falsely arraigned as an accused. The applicant Nos. 3 and 4 are the brother-in-law (Jeth) and sister-in-law (Jethani) of the complainant, and the allegations against them are false and frivolous. The rest of the applicants are distant relatives. They have been roped into the present criminal proceedings to pressure the other applicants into a quick and beneficial monetary settlement for the complainant. The allegations made against the rest of the accused have no basis, as they do not live under the same roof with the complainant.
4.1 It is further submitted that the complaint was filed with an intention to tarnish the social and economic prestige of the applicants and to harass them and to extort money. All allegations of physical, verbal, and emotional torture are false and baseless. None of the incidents alleged in the complaint ever took place. Even if the allegations made in the complaint are taken at face value, they do not attract the provisions of the Page 2 of 10 Downloaded on : Mon Jun 24 21:22:41 IST 2024 NEUTRAL CITATION R/CR.MA/13938/2022 ORDER DATED: 20/06/2024 undefined Indian Penal Code or the Dowry Prohibition Act. Even if the entire complaint is read in its entirety, the allegations made against the applicants are of such a general and ambiguous nature that they are not supported by any evidence. Therefore, the learned advocate for the applicants requests that the present application be allowed.
5. The learned APP appearing for the respondent-State has opposed the application and submitted that the complainant was subjected to mental and physical harassment by the accused and also received life threats. The accused made her life hard to live, compelling her to leave her matrimonial home. In view of the above, the learned APP requested that the application be dismissed.
6. Learned advocate appearing for the respondent No.2 has adopted the submissions of the learned APP and submits that the applicants are directly involved in the offence of mentally and physically harassing the complainant and therefore, he requests that the present application be dismissed.
7. Having heard the learned advocates for the respective parties and considering the facts and circumstances of the case, It appears that the applicant No.1 is the mother-in-law of the complainant, she has been falsely arraigned as an accused just to harass her. The applicant Nos. 3 and 4 are the brother-in-law (Jeth) and sister-in-law (Jethani) of the complainant, and the Page 3 of 10 Downloaded on : Mon Jun 24 21:22:41 IST 2024 NEUTRAL CITATION R/CR.MA/13938/2022 ORDER DATED: 20/06/2024 undefined allegations against them are false and frivolous. The rest of the applicants are distant relatives. They have been roped into the present criminal proceedings to pressurize the other applicants into a quick and beneficial monetary settlement for the complainant. The allegations made against the rest of the accused have no basis, as they do not live under the same roof. It appears that the marriage was solemnized in the year 2001 and then, present litigation is filed after an inordinate delay, alleging that there was some family disputes between the family members. It appears that brother-in-law and father-in-law were not giving the share of her husband. It is alleged that her husband was evicted from the shop by the accused persons. Perusing the complaint, prima facie, it appears that there exists some disputes between family members. Even other allegations are also levelled, whatever allegations levelled against the family members are that they are involved in the offence. It appears that due to continuous mental and physical harassment by her in- laws, the complainant has filed the present complaint. The allegations are general in nature. Applicant No.2-the husband does not press this application, and the other accused are distant relatives of the complainant, most of whom live separately from her. The allegations against them are general, such as instigating and verbally harassing the complainant. In view of above the present application deserves consideration.
8. Going through the compilation, it appears that applicant No.1 is mother-in-law, applicant No.3 is brother-in-law and Page 4 of 10 Downloaded on : Mon Jun 24 21:22:41 IST 2024 NEUTRAL CITATION R/CR.MA/13938/2022 ORDER DATED: 20/06/2024 undefined applicant No.4 is sister-in-law (Jeth-Jethani of the original Complainant), applicant Nos.6 and 7 are distant relatives. It appears that applicant Nos.3 to 7 are residing separately with other family members at Mumbai. It appears that applicant Nos. 5 and 6 are residing separately with other family members and they are implicated in the offence due to entrustment and instigation. The father-in-law and mother-in-law are not going to enter into compromise and settled the dispute. It is alleged that applicant Husband along with his family members have mentally and physically harassed the complainant. It appears that the marriage was solemnized in the year 2001 and then, present litigation is filed after an inordinate delay, alleging that there was some family disputes between the family members. It appears that brother-in-law and father-in-law were not giving the share of her husband. It is alleged that her husband was evicted from the shop by the accused persons. Perusing the complaint, prima facie, it appears that there exists some disputes between family members. It is pertinent to note that husband himself filed the application before the Mumbai Police on 13.01.2021 that his wife left her matrimonial home with belongings i.e. passport, Aadhar Card, ID Proof and other documents with four wheeler. Even other allegations are also levelled, whatever allegations levelled against the family members are that they have involved in the offence. Pursuant to the discord with her husband, husband himself disowned the said fact and allegations are levelled only qua cruelty and harassment against the husband is initiated and the present application is not pressed only qua husband vide Page 5 of 10 Downloaded on : Mon Jun 24 21:22:41 IST 2024 NEUTRAL CITATION R/CR.MA/13938/2022 ORDER DATED: 20/06/2024 undefined order dated 08.08.2022. Considering the aforesaid fact, it appears that with a view to extort the pressure, the complaint is filed by over-implication of the family members. Even the applicants are not in domestic relationship with the complainant .
9. It appears that applicants are facing charge of Section 498A 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 (i) Abhishek vs. State of Madhya Pradesh reported in 2023INSC779 / (Criminal Appeal No. 1457 of 2015), (ii) Achin Gupta V. State of Haryana, 2024 INSC 369 and (iii) Preeti Gupta and another vs. State of Jharkhand, another [(2010) 7 SCC 667], it is observed that "this Court noted 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 scrutinised with great care and circumspection."
9.1. So far as offence under Sections 498A and 323 of IPC are also concerned, in this regard, it would be apposite the refer the Page 6 of 10 Downloaded on : Mon Jun 24 21:22:41 IST 2024 NEUTRAL CITATION R/CR.MA/13938/2022 ORDER DATED: 20/06/2024 undefined judgment of the Hon'ble Apex Court in case of Kahkasan Kausar alias Sonam and Ors. vs. State of Bihar and Ors. reported in (2022) 6 SCC 599. Even, no allegation is levelled against the present accused to cause any injury to the complainant and no any evidence or medical certificate is produced about the treatment of alleged injury.
9.2. So far as offence under Sections 504 and 506 of IPC are concerned, the learned Apex Court in the 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 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 Page 7 of 10 Downloaded on : Mon Jun 24 21:22:41 IST 2024 NEUTRAL CITATION R/CR.MA/13938/2022 ORDER DATED: 20/06/2024 undefined 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)"
10. In the aforesaid backdrop, complaint is filed. It is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of Page 8 of 10 Downloaded on : Mon Jun 24 21:22:41 IST 2024 NEUTRAL CITATION R/CR.MA/13938/2022 ORDER DATED: 20/06/2024 undefined a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hardand-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon'ble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported in AIR 2006 SC 2872 in case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :Page 9 of 10 Downloaded on : Mon Jun 24 21:22:41 IST 2024
NEUTRAL CITATION R/CR.MA/13938/2022 ORDER DATED: 20/06/2024 undefined (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."
11. In the result, the applications are allowed only qua applicant Nos.1, 3, 4, 5, 6 and 7. The impugned complaint being C.R. No.I-68 of 2021 registered with Mahila Police Station, Junagadh as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside only qua applicant Nos.1, 3, 4, 5, 6 and 7 herein. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 10 of 10 Downloaded on : Mon Jun 24 21:22:41 IST 2024