Gujarat High Court
Dipak Rajeshbhai Chunara vs State Of Gujarat on 8 November, 2023
NEUTRAL CITATION
R/SCR.A/5781/2020 ORDER DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5781 of 2020
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DIPAK RAJESHBHAI CHUNARA
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE with
MR HEMANG M SHAH, ADVOCATE for the Applicants
MS MONALI BHATT, APP for the Respondents No. 1 - State
RULE SERVED BY DS for the Respondents No. 2 - Complainant
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/11/2023
ORAL ORDER
1. This is an application filed by the applicants for quashment of the impugned complaint being C.R. No.11191030200030/2020 registered with the Mahila Police Station (West), Ahmedabad City for the offences punishable under Sections 498A, 406, 323, 294(B) and 114 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.
2. The brief facts of the prosecution case are that after one month from her marriage dated 14.12.2015 till the date of complaint i.e. 11.07.2020, all the applicants together have mentally and physically tortured the complainant for the small things of house-hold chores, used filthy language, demanded dowry of about ten lakhs, used her 'stri dhan' and Page 1 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023 NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined thereby compelled to live dependable life. Hence, the impugned complaint.
3. Rule is already issued and served to the complainant twice, but she has chosen not to appear and contest this application before this Court. Therefore, looking to the pendency of the matters, this Court has no option but to hear and decide this application on merit finally today.
4. Heard learned advocates.
5.1 Learned senior advocate Mr.Shalin Mehta with learned advocate Mr.Hemang Shah for the applicants has submitted that during the pendency of this application, divorce is granted by the learned competent Court of Canada to applicant No.1 and respondent No.2 and thereafter, the complainant - respondent No.2 has re-married and now settled at Canada. He has further submitted that he came to know recently that while enjoying her second marriage, she gets pregnant now-a-days. He has submitted that the marriage was solemnised on 14.12.2015 and on 23.12.2015, the complainant and applicant No.1 went to Canada together. He has submitted that thereafter, both were living in Canada. He has further submitted that though both are living separately and in Canada, they quarrelled each other Page 2 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023 NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined on many points. He has submitted that many times, the complainant did not prepare food for applicant No.1 and ignored her responsibilities towards applicant No.1. He has submitted that the complainant and her parents started harassment to applicant No.1 on each and every points on video call. He has submitted that since such harassment became so intolerable, on 26.06.2017, applicant No.1 tried to commit suicide by drinking chemical detergent, but fortunately, he was rescued.
5.2 He has submitted that the applicant has decided to go back to India so both the families can sit together and bring amicable solution in presence of the community leaders and therefore, they have booked tickets for India dated 07.09.2017, but on 05.09.2017, the complainant got annoyed and started shouting, went to neighbour's house and called Canadian Police and informed them that applicant No.1 is bringing her to India against her Will. The police officer separated both of them and warned the applicant No.1 to leave her alone and not to contact or meet the complainant without her consent, failure to which strict action will be taken against him. He has submitted that thereafter, the applicant No.1 left his apartment and sent to his friend's home, he cancelled the ticket of the complainant and left Canada alone on 07.09.2017. The complainant had never Page 3 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023 NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined contacted the applicant No.1 thereafter. The applicant No.1 stayed in India for about six months. He has submitted that the complainant came to India on her own later on. 5.3 He has submitted that all the members of the family tried to resolve the dispute amicably together, with the help of the society leaders, but on insistence and pressure of the parents of the complainant that applicant No.1 and the complainant will live in Canada and not in India. Ultimately, the applicants have surrendered and agreed for the wish of the parents of the complainant and they jointly went to Canada on 21.01.2018. He has submitted that they were not in contact from 05.09.2017 till 17.12.2018. He has submitted that during all these period of separation for about three years i.e. from 05.09.2017 till date, respondent No.2 and applicant No.1 had been living separately in different districts of Canada and never consummated the marriage.
5.4 He has submitted that the applicants have tried a lot to settle the dispute but the complainant and her parents did not cooperate and therefore, it failed. He has submitted that ultimately, divorce petition was filed before the learned Court at Canada, which was allowed. The complainant and the applicant are separated and the complainant got Page 4 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023 NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined remarried with another guy and settled in her matrimonial life. He has submitted that it came to know that she is not pregnant during his second marriage.
5.5 He has submitted that in view of above background, this application is nothing but an abuse of process of law and it would not be fruitful to continue with it any further. He has submitted that the complainant has wrongly dragged all the family members of applicant No.1 in the offence in question. He has submitted that in view of the decision of the Hon'ble Apex Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, this application may be allowed. He has also relied upon the decision of the Hon'ble Apex Court in the case of Preeti Gupta & Anr. V/s. State of Jharkhand & Anr., reported in (2017) 7 SCC 667. He has submitted that the impugned FIR may be quashed and the consequently, the proceedings arising from the impugned complaint may also be quashed.
6. Per contra, learned APP for the State has submitted that there is prima facie material against the applicants and therefore, this application may be dismissed. She has submitted that there are various allegations against the applicants, which can be proved during the trial and therefore, let the trial may be faced by them. She has Page 5 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023 NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined submitted that this Court should not exercise its powers very sparingly in favour of the applicants. She has submitted that this application may be dismissed.
7.1 I have considered the rival submissions made by the learned advocates for the respective parties. I have also perused the documents available on record. I have considered the averments made in this application. From record it transpires that applicant No.1 and the complainant were residing separately in Canada. The complainant had not stayed with her in-laws except few days and therefore, the allegations levelled against them would not stand any further. The complainant had dragged all the family members wrongly. It is a case of false and over-implication by the complainant. Applicants No.2 to 5 were arrested and are on bail.
7.2 It is noted that this Court has, while issuing rule, granted interim relief that no coercive action shall be taken against the applicants. There were various ups and downs during their marriage life. Further, there are various allegations against each other. However, since the complainant gets remarried with another person and it is reported that now, she is pregnant and is happy in her matrimonial life, it would not be proper to observe anything Page 6 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023 NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined qua the allegations and the averments made in this application any further against any one. Further, the learned competent Court at Canada has granted divorce, which holds the filed still.
7.3 At this stage, it will be fruitful to mention the judgment of the Hon'ble Supreme Court in the case of Preeti Gupta (supra), wherein it is observed in paragraph 33 thus :-
"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 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 Page 7 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023 NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined 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."
7.4 Further, it will also be fruitful to mention the judgment of Hon'ble Supreme Court in the case of Bhajan Lal (supra), wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.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 sec.482 of the Code Page 8 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023 NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined 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.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.Page 9 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023
NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code. (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 Page 10 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023 NEUTRAL CITATION R/SCR.A/5781/2020 ORDER DATED: 08/11/2023 undefined 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."
7.5 Under the circumstances and keeping in mind the ratio laid down by the Hon'ble Apex Court noted above, this application needs to be allowed by quashing the impugned complaint.
8. In view of above, this application is allowed. The impugned complaint being C.R. No.11191030200030/2020 registered with the Mahila Police Station (West), Ahmedabad City is hereby quashed and set aside, qua the applicants only. Consequently, the proceedings arising from the impugned complaint, if any, are also quashed and set aside, qua the applicants only.
Direct service is permitted.
(SANDEEP N. BHATT,J) M.H. DAVE Page 11 of 11 Downloaded on : Fri Nov 10 20:56:32 IST 2023