Gujarat High Court
Keshabhai Jivabhai Makwana vs State Of Gujarat on 7 August, 2023
NEUTRAL CITATION
R/CR.MA/21233/2021 ORDER DATED: 07/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21233 of 2021
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KESHABHAI JIVABHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/08/2023
ORAL ORDER
1. Rule returnable forthwith. Mr. Soaham Joshi, learned APP waives service of notice of rule on behalf of respondent no.1 - State of Gujarat.
2. When the matter is called out, learned APP has submitted that the investigation is over and chargesheet is about to file. In view of this, Mr. Rohan Majmudar, learned advocate for the petitioners, upon instructions, does not press this petition qua petitioner no.2 viz.Kirankumar Keshabhai Makwana.
Page 1 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined Therefore, the present petition is disposed of as not pressed qua the petitioner no.2 viz.Kirankumar Keshabhai Makwana with a view to avail of appropriate legal remedy available under the law.
Learned advocate for the petitioners argued the matter for the petitioner no.1 i.e. the father of the petitioner no.2.
3. The brief facts of the present case are as under:-
3.1 As per the case of the FIR, the marriage of the complainant's daughter Payal solemnized with Kirankumar Keshabhai Makwana residing at Khimanavas, Taluka Vav, District Banaskantha, who presently residing at Staff Quarter Bhansali Hospital, Deesa as per the customs of society in the year 2018 and after that her Daughter Payal lived with her husband Kirankumar and her mother-in-law at Khimanavas, Taluka Vav. Thereafter, after a year ago, the husband of the deceased got a job as a staff nurse in Deesa Bhansali Hospital and she agreed to live with her husband in the staff quarters at Bhansali Hospital, Deesa. Her daughter Payal used to come Page 2 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023 NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined to visit his parental home once a month and stay with her parents for a day or two and returned back to her husband's house at Deesa. After marraige, her husband kept her well for a year and then started harassing her after getting a job as a staff nurse at Bhansali Hospital, Deesa. 3.2 It is the case of the complainant that the daughter complainant came to meet her parents for the first time after her husband came to stay at Deesa, she said her parents that, "My husband Kirankumar is telling me that you should bring two lakh rupees from your parents." When deceased has denied to bring money from her parents, the husband slapped the deceased and told that you should talk to your parents. It is further stated that when daughter of complainant started crying saying to him, "Get two lakh rupees from your father", the parents calmed her down and did not let her talk to anyone so that she would not disturb her household and sent her back to stay with her husband at Disa and thereafter, after lapse of six months, when his daughter Payal again came to see the complainant, told that, "My husband is asking me what your father wants to give you and I have a job so I will Page 3 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023 NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined get another wife too, saying to me asked for two lakh rupees, when I did not give it to him and he tortured the Payal and Keshabhai Jivabhai Makwana also told his son Kirankumar to bring two lakh rupees. Even then I explained to my daughter Payal that her household should not be ruined and live well with her husband. As per the FIR, on 07/10/2021 at around 07:30 PM the father of the deceased called on mobile phone of the petitioner no.2 twice but he did not receive the phone and after that at around 23.40 p.m. Keshabhai Jeevabhai Makwana called the husband of the complainant and told that "Your daughter Payal has been admitted to Bhansali Hospital for treatment so please come soon so that the husband of the complainant went Deesa without informing about the same to the family members and thereafter on next day morning, the husband of the complainant came home and told the complainant that their daughter Payal is dead in Deesa Bhansali Hospital and she has been declared dead by Dr. Shrina of Bhansali Hospital. Therefore, the impugned FIR is registered with the Deesa City South Police Station.
4. Mr. Rohan Majmudar, learned advocate for the Page 4 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023 NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined petitioners has submitted that on bare reading of FIR, only accusation is made to the extent that at one point of time, the present petitioner no.1 - the father-in-law on his instance, the petitioner no.2 - husband has demanded Rs.2 lakh from the deceased. Thereafter, he has further submitted that the father-in-law is undisputably staying separately from the petitioner no.2 - husband as well as deceased - wife and they are residing in different villages. He has further submitted that looking to the allegations made, there is no absolutely incident and no specific role is attributed to the petitioner no.1 except the general allegations made at one place in the FIR and therefore, he submitted that no ingredients of Section-498A, 306 are satisfied read with Sections-3 and 7 of the Dowry Prohibition Act.
5. Mr. Majmudar, learned advocate has submitted that the petitioner no.1 being an elder person aged about 60 years, his case can be considered, as otherwise also, looking to the FIR, no offence is made out. Mr. Majmudar, learned advocate further submitted that in view of the judgment of Hon'ble Apex Court in the case of State of Haryana Vs. Bhajanlal Page 5 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023 NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined reported in AIR 1992 SC 604, this Court should exercise the discretionary power under Section-482 of Cr.P.C.
6. Per contra, Mr. Soaham Joshi, learned APP has strongly opposed the prayer made in the present petition and submitted that now the investigation is carried out and charge-sheet is about to file in the present proceedings as the investigation is almost over. He has further submitted that considering the averments made in the FIR, prima-facie, the offence is made out against the father-in-law also and therefore, he prays that this Court should not exercise discretion by exercising inherent powers under Section-482 of Cr.P.C. where prima-facie case is made out against the petitioner no.1. He further submitted that the power under Section-482 should be exercised very sparingly and therefore, he prays to dismiss this petition.
7. I have considered the rival submissions made at the bar.
I have also consider the tenure of the FIR. Sections-306, 498A & 114 of IPC as well as Sections-3 & 7 of the Dowry Prohibition Act reads as under:
Page 6 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined 498A. 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 purpose 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.
306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
114. Abettor present when offence is committed.-- Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have Page 7 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023 NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined committed such act or offence.
3. Penalty for giving or taking dowry.--1[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2 [with imprisonment for a term which shall not be less than 3 [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]: --1[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]\:"
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than 4[five years].] 5[(2) Nothing in sub-section (1) shall apply to, or in relation to,
-- 1[(2) Nothing in sub-section (1) shall apply to, or in relation to,--
(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under Page 8 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023 NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined this Act: Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.]
7. Cognizance of offences.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;
(b) no Court shall take cognizance of an offence under this Act except upon--
(i) its own knowledge or a police report of the facts which constitute such offence, or
(ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;
(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.
Explanation.--For the purposes of this sub-section, "recognized welfare institution or organisation" means a social welfare institution or organisation recognized in this behalf by the Central or State Government.
Page 9 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined (2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply to any offence punishable under this Act.] 2 [(3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.] 2 [(3)Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.]"
8. Considering the FIR, it transpires that the allegations made in the FIR at one place, whereby, it is alleged that the husband of the deceased i.e. petitioner no.2 has not pressed the petition before this court, has demanded Rs.2 lakh at the instance of present petitioner no.1, who happens to be the father of the petitioner no.2, even otherwise, there is mo material available on the record, which implicate the petitioner no.1 remotely in the said offence. Moreover, considering the undisputed fact that the petitioner no.1 is residing separately from the petitioner no.2 - son as well as the deceased and at the time of incident, he was also not present and considering the fact that the ingredients of Page 10 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023 NEUTRAL CITATION R/CR.MA/21233/2021 ORDER DATED: 07/08/2023 undefined Section-498A, 306 of IPC read with Sections-3 & 7 of the Dowry Prohibition Act are not satisfied qua the present petitioner no.1. Therefore, continuation of proceedings of present FIR against the petitioner no.1 is amounts to an abuse of process of law in view of the judgment of Hon'ble Apex Court in the case of State of Haryana Vs. Bhajanlal reported in AIR 1992 SC 604, this is fit case to exercise powers under Section-482 of Cr.P.C.
9. In the result, this application is allowed. The FIR being C.R. No.11195004210995 of 2021 registered with Deesa South Police Station, Banaskantha, is hereby ordered to be quashed qua the petitioner no.1 herein. All consequential proceedings pursuant thereto shall stand terminated qua the petitioner no.1 herein.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
(SANDEEP N. BHATT,J) A. B. VAGHELA Page 11 of 11 Downloaded on : Sun Sep 17 00:25:03 IST 2023