498A Quash against Husband & family members, Wife had affair wanted to get divorce

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION NO. 8913 of 2011
In CRIMINAL MISC.APPLICATION NO. 10054 of 2011

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE B.N. KARIA

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder?

ROSHANKUMAR DANIELBHAI DESAI & 5….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)

Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1 – 6
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MS NEHA C SHUKLA, ADVOCATE for the Respondent(s) No. 2

CORAM: HONOURABLE MR.JUSTICE B.N. KARIA Date : 01/08/2017 CAV JUDGMENT

KARIA Date : 01/08/2017 CAV JUDGMENT

1. This application has been filed by the applicant under Section 482 of the Code of Criminal Procedure (for brevity “CrPC”) praying to quash and set aside complaint, being C.R.No. I-26 of 2011 registered with Anand Mahila Police Station for the offence punishable under Section 498(A), 406, 506(2), 114 of the Indian Penal Code.

2. Brief facts of the case are that the marriage of the complainant was solemnized with the applicant no.1 as per Christian rites and rituals at Baroda and out of their wedlock, a female child namely Roshita is begotten. At the time of marriage, certain articles were given by the family of complainant alongwith of Rs. 25,000/- to the applicants. Not only that, on the birthday of Roshita, gift of Maruti car was given to the family members of the applicants. Thereafter, ill treatment was meted out to her in the form of demand of more “kariavar”. That, on 15.10.2007, she got service in Petlad Civil Hospital and thereafter also on frequent occasions, ill treatment was meted out to her. That on 12.08.2009, she went to her parental home at Baroda and there also, the applicants came and give her physical and mental torture. For about one and half year, she stayed at her parental home. Though, everybody took interest to settle their disputes, however, all attempts failed. Suddenly, on 29.08.2010, family members of applicant-husband came to the house of complainant at Baroda and agreed to take her. However, she disagreed to go, and therefore, on 01.09.2010 she went to the house of her aunt at Anand, and thereafter, she came at Ahmedabad and contacted one Jyotsnaben Patil, who is working in an NGO and with the help of the said NGO, a complaint came to be filed. It is alleged in the complaint that ill treatment was meted out to her even from her mother-father also, who used to help applicants family and accordingly, it is alleged that from her real mother and father also harassment was meted out to her and that is how the complaint is filed against the present applicants.

3. Heard learned advocate Mr. Ashish M. Dagli appearing on behalf of the applicants, learned advocate Ms. Neha C. Shukla appearing on behalf of the respondent no.2 and learned APP Mr. KL Pandya appearing on behalf of the respondent no.1-State.

4. Learned advocate Mr. Ashish M. Dagli appearing on behalf of the applicants submitted that the impugned complaint is filed only with a view to harass and apply pressure tactics upon the applicants inasmuch as the complainant, who in fact is in illicit relationship with one Renison Suresh Roy of Petlad and in past also, the complainant has admitted her relationship, and therefore, anyhow she intends to get divorce from the applicant no.1 and as the same is not given, one after another false and frivolous complaints are lodged by her. That, even minor daughter of the applicant no.1 is also with the family members of the applicants as at no point of time, any application is filed for for seeking her custody. On the contrary, application for maintenance filed by the respondent no.2, being Criminal Misc. Application No. 223 of 2010 came to be withdrawn. That on 22.09.2010, the complainant left her matrimonial home of her own accord and since then, she is residing at different places, and not even at the place of her parents. That, a public notice was published in daily news paper ‘Gujarat Samachar’ on 22.09.2010 by the parents of the respondent no.2, seeking her whereabouts. That, on one occasion, the applicant no.1 tried to resolve entire controversy, however in connivance with Renison, attack was made upon the applicant no.1, and for which, a complaint was given before Anand Town Police Station on 04.05.2011. That, the impugned complaint is lodged with a malafide intention and purpose so as to anyhow get divorce  from the applicant no.1. Even accusations are made against parents-in-law by the respondent no.2 so as anyhow get success in getting divorce. That, vague and absurd allegations are made to harass and pressurize the applicants.

5. Per contra, learned advocate Ms. Neha C. Shukla appearing on behalf of the respondent no.2 submitted that during the span of her married life, the complainant has delivered a female child namely “Roshita”. Thereafter, on 15.10.2007, she got job in Petlad Civil Hospital and on the basis of doubt of illicit relationship with another person, the respondent no.2 was being harassed mentally and physically by the present applicants and other family members. On 12.09.2009, the complainant went to her parental home at Baroda and there also, the applicants used to come and give her physical and mental torture. Since the respondent no.2 was unable to bear physical and mental harassment from the applicants. She shifted to her aunt’s place. The articles given to the applicants at the time of marriage by her family and cash of Rs. 25,000/- and Maruti Fronti given to the family members of the applicants are still with them. Learned advocate submitted that ill treatment was meted out to her by demanding more kariyavar. When the respondent no.2 could not satisfy such huge demand, her husband deserted her and thereafter, the complainant no.2 left her matrimonial home to stay at her parental home. That, despite complainant’s parents tried to fulfill all their demands as well as also tried to solve the issues, but applicants did never cooperate and on the contrary stick to their habit of torturing and harassing the present complainant. It is further submitted by learned advocate for the respondent no.2 that she is ready and willing to stay with the applicant no.1 at every point of time, and therefore,  previous complaint, lodged by her, was withdrawn. That, sister-in-law of the respondent no.2 has filed Family Suit No. 136 of 2016 before the Criminal Court at Anand, which shows mentality of the family of the applicant no.1, as he did not want to continue cordial relation with her relatives. Therefore, no case is made out to quash the impugned complaint. The complainant does not propose to enter into arena of allegations made with regard to her character, as such allegations are clear case of harassment and cruelty to the complainant by the applicants. Ultimately, it was requested by learned advocate for the respondent no.2 to dismiss the present application.

6. Learned APP Mr. KL Pandya appearing on behalf of the respondent No.1 in his arguments submitted that considering the facts of the case and documentary evidence produced on the record by either side, this Court may pass necessary order in the interest of justice.

7. Heard learned advocates appearing on behalf of the respective parties and learned APP for the respondent no.1 at length.

8. Having considered record of the case, submissions made by learned advocates for the respective parties and learned APP, it appears that earlier also, the respondent no.2 had filed a complaint before the Chief Judicial Magistrate, Anand, which was registered as Inquiry Case No. 52/2010 for the offence punishable under Sections 498A, 406, 504, 506(2), 114 of the Indian Penal Code on 18th October, 2010, wherein learned Magistrate was pleased to pass an order under Section 202 CrPC directing Anand Town Police Station to make an inquiry and to submit the report. Before submission of report by the police, it appears that on 1st November, 2010, the complainant withdrew said complaint unconditionally. Prior to that, it appears from the record that in February 2009 also, the respondent no.2/complainant made an application to the Police, wherein, in presence of family members of all the parties, she admitted about her relationship with another male person declaring that she had made lot of mistakes and harassed applicant no.1 like anything, where her signature is also put on 27th February 2009. It appears that on 22nd September 2010, complaint was sent to Anand Police Station against all five family members making same allegations which are made in the the present complaint. It also appears that few days prior to 22nd September 2010, she left her matrimonial home, and thereafter, she is reported to have been staying at different places, not even at the place of her parents. On 22nd September 2010, in ‘Gujarat Samachar’, a public notice was issued by the maternal uncle of the respondent no.2 to know her whereabouts. The parents of the respondents no.2 have also admitted some relation of their daughter. On an application sent by the respondent no.2 to Anand Town Police Station, primary investigation was made and preventive measures/actions under Section 107 CrPC were initiated against the applicants no. 1, 2, 3 and 6. However, as far as other allegations are concerned, no prima facie case is found to be believable by the police. It also appears that on 18th October, 2010, another complaint was filed before the Chief Judicial Magistrate, Anand, which was registered as Criminal Case No. 52 of 2010 alleging very same offence and incident for the offence punishable under Section 498A, 406, 504, 506(2) 114 of the Indian Penal Code, which was sent under section 202 CrPC to Anand Town Police Station with a direction to submit report within 30 days. As observed, before submitting the report vide Exhibit 4 on 1st November, 2010, the respondent no.2 withdrew her complaint. At the third round, when same allegations were made by her against the present applicants, it appears from the documents that the applicant no.1 tried to resolve entire controversy with the respondent no.2, but he was attacked, and for which, a complaint was also given by him to the Police Inspector, Anand Town Police Station on 4th May, 2011. The applicant no.1 also lodged a complaint before the Court at Anand alleging offence punshable under Sections 425, 427, 497, 506(2), 114 of the Indian Penal Code. It appears from the record and documents produced before this Court that the respondent no.2, is in habit of filing complaints, with a malafide intention and purpose to anyhow get a consent divorce from the applicant no.1. It also appears that even accusation have been made by the respondent no.2 against her parents. Prima facie, this Court is of the view that respondent no.2 has tried to get divorce  from the applicant no.1 by making vague allegations, so as to harass and pressurize the applicants. It is alleged that applicant no.1 is serving as a Teacher on a fixed salary; applicant nos. 2 and 3 are retired persons, applicant 4 is doing household work and the applicant no.5 is also serving as a Teacher in the school and if they are prosecuted to face criminal trial anyhow, they may lose their job, which eventuality does not arise in the given set of facts and circumstances.

9. The aforesaid circumstances takes this Court to some of the propositions of law laid down by the Hon’ble Apex Court on the issue of exercising powers under Section 482 of the Code of Criminal Procedure :-

a) In a case reported in 2015 1 SCC 513 (Rajib Ranjan and Others v. R. Vijaykumar), the Hon’ble Apex Court while dealing with an issue related to civil proceedings vis-a-viz a criminal complaint, propounded a feature analysing the chronology of events and has held that allegations of fabricating records were mischievously made just to give colour of criminality to a civil case and further, the same were made after losing battle in civil proceedings. Hence, the Apex Court was of the opinion that the complaint was not bonafide amounted to misuse and abuse of the process of law and thereby, quashed the complaint.
b) Now, if the case on hand is to be seen, it is quite clear that the disputed document was forming part of the Civil suit way back in 2003 and taking advantage of reiteration of production in the year 2012, in 2013, a complaint came to be filed. The record as stated above indicates that the respondent complainant is very much a part of the civil proceedings and was shown as defendant No.1 way back in 2003 and therefore, the ratio laid down by Apex Court appears to be applicable to the case on hand and therefore, the relevant extract contained in the Paragraph of the above decision is reproduced hereunder :-

25. In Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1, the Court reiterated the scope and ambit of power of the High Court under Section 482 of the Code in the following words:

“23. This Court in a number of cases has laid down the scope and ambit of courts’ powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent  abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the could would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases

25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP, 1 1964 AC 1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys, 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the  court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court’s power to prevent such abuse is of great constitutional importance and should be jealously preserved.

46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.”

c) In yet another decision in the case of Pooja Ravinder Devidasani v. State of Mahrashtra and Another reported in (2014) 16 SCC 1, where also the Hon’ble Apex Court has considered in a similar way and found that the proceedings are required to be quashed from being misused and in Paragraph 30 it was held as under :-

“30. Putting the criminal law into motion is not a matter of course. To settle the scores between the parties which are more in the nature of a civil dispute, the parties cannot be permitted to put the criminal law into motion and courts cannot be a mere spectator to it. Before a Magistrate taking cognizance of an offence under Sections 138/141 of the NI Act, making a person vicariously liable has to ensure strict compliance with the statutory requirements. The superior courts should maintain purity in the court. The High Court ought to have quashed the complaint against the appellant which is nothing but a pure abuse of process of law.”
d) In another decision in the case of D.P. Gulati, Manager Accounts, Jetking Infotrain Limited v. State of Uttar Pradesh and Another reported in 2015 11 SCC 730, the Apex Court while dealing with the powers under Section 482 of the Code of Criminal Procedure has propounded that this exercise of power is aimed at to prevent the abuse of process of law and the duty under Section 482 of the code of Criminal Procedure is to see and secure the ends of justice and also that no proceedings are abused. The relevant paragraph of the said decision is worth to be taken note of and hence, reproduced hereinafter :-

“7. We have carefully considered the rival submissions made before us. From a bare perusal of Section 482 of the Code, it is clear that the object of exercise of power under the section is to prevent abuse of process of law, and to secure ends of justice. In Rajiv Thapar v. Madan Lal Kapoor, this Court has enumerated the steps required to be followed before invoking inherent jurisdiction by the High Court under Section 482 of the Code as under :-  “30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC :

30.1. Step one : whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two : whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three : whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?

30.4 Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5 If the answer is all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.”

10. Considering the facts of this case, this Court is of the opinion that complaint is not filed bonafidely by the complainant, as it amounts to misuse and abuse of process of law. The complainant has used criminal prosecution as an instrument to harass and/or seek divorce from the applicant no.1, with an ulterior motive to pressurize the accused. As per opinion of this Court, it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. To settle the scores between the complainant and the accused no.1, the parties cannot be permitted to put criminal law into motion and the courts cannot be a mere spectator to it. Under the circumstances, the impugned complaint against the present applicants is nothing, but a pure abuse of process of law, and thereby, require its quashment.

11. Resultantly, this Application is allowed. Complaint, being C.R.No. I-26 of 2011 registered with Anand Mahila Police Station is hereby quashed and set aside. D.S. Permitted.

12. Ad interim relief granted earlier stands confirmed. Rule nisi made absolute to the aforestated extent. No costs.

(B. N. KARIA, J)

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