Whether This Case Involves A … vs State Of Gujarat & on 5 July, 2017

R/SCR.A/1363/2014 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1363 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE A.Y. KOGJE

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 ?

URJIT BHUPENDRABHAI PATEL 2….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)

Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 – 3
MR RD DAVE, ADVOCATE for the Respondent(s) No. 2
MS CM SHAH, APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

Date : 05/07/2017

ORAL JUDGMENT

1. Learned APP waives service of rule on behalf of

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the respondent No.1-State and learned advocate Mr.

R.D. Dave waives service of rule on behalf of

respondent No.2.

2. This application under article 226 of

Constitution of India and Section 482 of Cr.P.C. is

filed by 3 applicants seeking quashing of FIR being

CR.No.- I-31/2014 registered with Mahila Police

Station, District : Gandhinagar. The FIR is

registered for offences under Section 498 A, 504, 114

of Indian Penal Code and Section 3,4 and 7 of the

The Dowry Prohibition Act, 1961. The offence is

arising out a matrimonial relation where the

respondent No.2(complainant) is wife and petitioner

No.1 is her husband, petitioner No.2 is the father-

in-law and petitioner No.3 is the mother-in-law

(accused). The FIR filed contains allegation the

gist of which is the respondent No.2 got married to

petitioner No.1 on 14.07.2013 and had started

residing with the in-laws in a joint family

consisting of aforementioned members. At the time of

marriage the husband had informed the wife that the

mother-in-law is orthodox in nature and strict in her

approach of work. It is alleged that the mother-in-

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law mentioned to the complainant that her father was

renowned person and had given huge dowry of gold and

silver. Similarly, during her daughter’s marriage,

all the guest were treated with gold and silver

coins, but the father of the complainant has not

lived up to the standard and status of the

petitioner’s family.

It is also alleged that the petitioner used to

demand gold and silver bars, towards dowry and told

the complainant that if such dowry is not provided

then she will not get the status of the daughter-in-

law of the house.

It is alleged that the husband was suspicious in

nature and would not allow use of mobile phone and

she was not even permitted to talk with neighbour and

even when the husband and wife used to go out for an

outing, mother-in-law and father-in-law would also

accompany them.

The FIR also mentions that on 15.12.2013 all the

petitioners had come to the parental house of the

complainant and they raised the topic of not carrying

out marriage formalities as per the status and as per

the customs followed by their community. The father

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of the complainant assured that subsequently he would

do the needful. It is alleged that the father-in-law

and mother-in-law thereafter hurled abuses and

therefore such conduct of the petitioners was a cause

of mental harassment to the complainant.

The complainant mentions that the health of the

complainant deteriorated on account of mental

harassment and on 25.01.2014 as her condition

deteriorated, she was taken by the in laws to ICU,

Vadodara Heart Hospital, at Bharuch and was treated

and though the complainant had become very weak the

behaviour of her in laws did not change towards her

when her health still deteriorated the mother-in-law

sent the complainant to her parental house, at that

time also the mother-in-law told her to return only

with gold and silver bars otherwise she was not to

come back.

The complainant also mentions that on 23.03.2014

when the parents of the complainant met her in laws

met with Vadodara in religious functions.

It is stated that on 23.03.2014 in laws

mentioned to the parents of the complainant that as

the complainant is residing at her matrimonial place

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and not getting to her matrimonial house, image of

the family of the petitioner is being damaged in the

society and they are immediately sent to the

complainant to matrimonial home and that after

fulfilling all the requirements and demands of the

petitioners and if the parents of the complainant do

not fulfil their demand and then the complainant may

not be sent to her matrimonial home.

It is stated on 24.02.2014 on the birth day of

the complainant, she did not receive any phone call

from her in laws, the complainant got agitated and

called upon her husband and informed that her health

has deteriorated on account of the conduct of the in

laws and she informed that as she is quite afraid of

their such conduct she would not return from her

parental home it is in the aforesaid set of

circumstances the respondent No.2 (complainant) filed

a private complaint being Criminal Case No.17 of 2014

on 28.02.2014 with the Court of JMFC,Gandhinagar for

offence under Section 489A, 504 and 114 of IPC, and

the Section 3 and 7 of the Dowry Prohibition Act,

1961. On that day the 2nd Additional Civil Judge and

JMFC, Gandhinagar recorded the verification of the

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complainant and passed an order under Section 202 of

Cr.P.C., calling upon the Police Inspector, Mahila

Police Station, Gandhinagar to submit a report within

a period of 30 days.

3. In response thereto the Police Officer of

concerned Police Station recorded the statement of

the complainant, which is at Annexure-F and appears

to be recorded on 09.03.2014 in the said statement

the complainant has stated that in connection with

the complaint registered with the Magistrate Court,

the complainant is not desirous to continue with the

inquiry by the Court and that she wanted inquiry of

her complaint to be cancelled and statement to that

effect was recorded on the basis of this statement,

Police Inspector, Mahila Police Station, Gandhinagar

READ  Smt Meeta Sharma vs Shashi Kant Bharadwaj & Ors on 24 July, 2017

forwarded a report dated 18.03.2014 and this report

also reflected that. In the meantime, the complainant

filed pursis (declaration) seeking withdrawal of the

complaint filed on the basis of the pursis dated

12.03.2014, concerned JMFC Court, Gandhinagar passed

an order permitting withdrawal of the complaint, in

the order, it is recorded that after hearing the

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complainant and reading and perusing the withdrawal

pursis, the complainant was permitted to withdraw the

said complaint.

4. It appears that after the withdrawal of the said

complaint on 13.03.2014 i.e. on the next date, the

impugned FIR being CR No.I – 31 of 2014 filed with

the Gandhinagar Mahila Police Station in connection

with the aforementioned FIR, the petitioners have

been enlarged on anticipatory bail and thereafter the

present petition came to be filed, pending the

petition the charge-sheet after the investigation

came to be filed on 25.06.2014. The petitioners

therefore prayed for the amendment of the petition by

producing the copy of the charge-sheet and the

charge-sheet papers on record. The charge-sheet

produced indicates that the petitioners have been

chargesheeted not only for the offence for which FIR

is filed i.e. 498A, 504 and 114 of IPC but have also

chargesheeted for an offence under Section 406 of

IPC. The amendment had been granted by the Court at

the relevant time and after hearing the parties

attempt was also made for settling the matter by

negotiations. Hence, on 16.02.2017 this Court passed

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an order directing the trial Court not to proceed

further with the framing of the charge.

5. Heard learned advocate Shri PP Majmudar for the

petitioners, learned APP for the State and Mr. R.D.

Dave learned advocate for the respondent No.2

(Original complainant).

6. Learned advocates for the petitioners submtis

that the present FIR is malafide and vexatious

proceedings and continuing with any further

proceeding is nothing but abuse of process of law.

7. He submits that even if the allegations are seen

in the entirety, the same are quite general in

nature. There is complete absence of any allegation

of any physical torture or even verbal abuse, if all

the allegations are taken its face value still such

conduct on the part of the petitioners can never be

termed as cruelty so as to attract section 498A.

Section 406 which provides for the breach of trust,

prima facie also is not made out because no where in

the FIR there is any mentioned that the complainant

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had entrusted any property to the petitioners and

that such property has been dishonestly used or

disposed of. In so far as the allegations of the

demand of dowry is concerned, the petitioners belong

to a very reputed family and are having good name

within community and in the city of Bharuch and the

demand as is alleged of gold and silver bars are far

from truth and cannot be believed. He submits that

the chronology of evens suggest that the complainant

filed a complaint before the Magistrate Court, gives

a statement of not being interested in prosecuting

such complaint files a pursis for withdrawal and on

the very next day files an FIR which contains verbal

allegations this conduct would suggest that the

intention of the complainant was to get the

investigation done by police authorities as

investigated by police is also cumbersome and causes

damage to reputation in the society, otherwise there

was no need for the complainant to withdraw the

complaint before the Court of Magistrate, which was

filed with the same allegations. He submits that

there is yet another angle to this as the intention

of the complainant was to seek order of registration

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of FIR under Section 156 (3) of Cr.PC. But when the

Court of the Magistrate passed an order under Section

202, the complainant felt that her purpose will not

be served and hence withdrew the application to file

an FIR before the Police Station. Allegations are

absurd and unbelievable, in the nature of that the

mother-in-law made it compulsory to touch her feet

every morning and if she fails to do so, the mother-

in-law would start abusing her. He submits that even

from the paper of the charge-sheet, the charge cannot

be made out. The only witnesses mentioned in the

charge-sheet are relatives of the complainant, who

would be interested in supporting the complainant

rather than giving the correct version before the

Court. He submits that even if the charge-sheet is

filed or if the proceedings have proceeded beyond

framing of charge, the proceeding can be quashed, if

such proceedings are vexatious, mala fide in abuse of

process of law.

8. Learned advocate for the applicants relies upon

the following judgments; (I) Ravindra Singh vs.

Sukhbir Singh 2013 (09) SCC page 245, (II) Swapnil

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and others vs. State of Madhya Pradesh 2014 (13) SCC

page 567, unreported judgments. (III) Criminal Misc.

Application No. 4899 of 2015 dated 24.11.2015 and

unreported (IV) Criminal Misc. Application No. 20679

of 2013 dated 06.04.2017.

9. Learned APP submits that after due

investigation, the charge-sheet is filed she took

this Court to the gist of the charge as mentioned in

the Column 5 of the charge-sheet and submitted that

since now the charge-sheet is filed the petitioners

must be made to face the trial.

10. Learned advocate Mr.RD Dave, appearing on behalf

of the respondent No.2 submits that the conduct of

the petitioners speak about their attitude towards

the complainant. He submits that the complainant

herself is highly qualified and is expected to be

treated with some dignity even if there is no

physical torture and assault, considering the

educational qualification of the complainant and her

status in society, the conduct of the petitioners

would amount to mental harassment. He also submitted

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that the repeated insults hurled at the complainant

as also on type of mental cruelty for which the

petitioners need to be prosecuted he took this Court

READ  Anuradha Yadav vs Amit Gupta on 7 June, 2017

to the allegations made in the FIR, more,

particularly on page 22 (e) and submitted that the

allegations of taunting the complainant by comparing

what the mother-in-law had brought in as dowry and

what has been given during her marriage, such

comparison was done to taunt the complainant which is

also type of mental cruelty. He further submits that

the conduct of the petitioners is also evident from

the fact that though the petitioners have been

enlarged on anticipatory bail, wherein one of the

condition was to not to change the residence without

prior permission of the Court yet as and when the

summons were issued from the Magistrate Court the

same have been returned with endorsement that the

petitioners have left the place of residence. He

also submitted that the proceedings under Section 125

of Cr.PC are also filed and are pending. He relied

upon the judgment of the Apex Court reported in 2012

(1) SCC page 130, Mahendri Ors. vs. State of U.P.

Anr. 2015 STPL(Web) 266 SC, took to support his

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contention that even if the complaint is filed,

withdrawn still another complaint/FIR can be filed

and maintained.

Shri Dave further submits that one of the

relevant consideration for not entertaining this

application, the subsequent conduct of the

petitioners he draws attention of this Court to the

list of ornaments which were given to the complainant

during the marriage. He draws attention of this Court

to page-84 which gives the list of gold ornaments and

submits that the value of such ornaments runs into

crores. He further submits that every time during

the pendency of this petition and other proceedings

arising out of the matrimonial dispute, these

ornaments were the point of friction and on account

of this negotiations attempted could never proceed as

the petitioners are adamant in not returning these

ornaments.

11. Having heard the rival parties and having gone

through the case papers, this Court is of the view

that the chronology of the incident/events that is to

say filing of a Criminal Complaint No. 17 of 2014 on

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28.02.2014 before the Judicial Magistrate,

Gandhinagar passing of the order by JMFC under

Section 202 on the same date, giving statement to

concerned Police Station in an inquiry. Pursuant to

the order of the JMFC under Section 202, withdrawal

of pursis on 12.03.2014 to withdraw the complaint and

filing of the FIR on the very next day for the same

allegations would indicate that the attempt is made

by the complainant to get what otherwise is not

permissible under the law. Once the Criminal

complaint is filed before the JMFC, and the Court

passed an order under Section 156 (3) of Cr.PC. or

passed an order under Section 202 of Cr.P.C. calling

for the inquiry report and postponing the issuance

of process or to issue process under Section 204 if

the Court is convinced on existence of cognizable

offence. In either case the Court takes cognizance.

In the instant case, the Court of JMFC after

recording the verification, has postponed issuance of

process and call upon the concerned Police Station to

submit an inquiry report. In ordinary circumstances,

also once the cognizance is taken, the Court is not

permitted to travel back to the pre-cognizance stage.

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Filing of FIR under Section 156(3) in the instant

case what could have been done by the Court of

Magistrate, seems to have been done by adopting in

genuine method in withdrawing the private complaint

after taking of cognizance and filing of FIR on the

very next day with the same Police Station.

12. The Court has also perused the nature of the

allegations made in the FIR and finds that at the

root of said allegations lies a cultural difference

between the two families which with the progress of

time resulted in incompatibility between the two

families and consequently between the husband and the

wife and this appears to have encouraged the

complainant to file the present complaint. None of

the allegations in the FIR can be termed to be the

act on the part of the petitioners which would fall

in the definition of cruelty.

13. This Court also finds that from the allegations

made in the FIR as well as the statement recorded of

the witnesses, there is no act on the part of the

petitioners, which could be considered an act to

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misappropriating or converting property belonging to

the complainant, which was entrusted by the

complainant to the petitioners and that such property

has been dishonestly misappropriated or converted to

the use of petitioners which would constitute

ingredients of criminal breach of trust.

14. It is also pertinent to mention that neither in

the private complaint nor in the FIR though both the

complaints appear to be in great detail mentions

about the handing over of any property or more

particularly the ornaments of the petitioners and

that such ornaments have been misappropriated or put

against the interest of the complainant. Hence, also

charge of Section 406 is not made out agaist the

petitioners. In so far as the allegations for the

demand of dowry is concerned, the perusal of the FIR

as well as the private complaint reflects that the

demand was made for bringing silver slabs and gold

slabs (exact translation of word gold and silver

PAATO used in FIR.) Such allegations in the present

sets of facts cannot be accepted as the same being

beyond the comprehension any prudent man that slabs

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of gold and silver were demanded that too after the

marriage has taken place.

15. Moreover, there are no specific allegations

specifying the time, period, place or an individual

who has made such demands.

16. In so far as the arguments of the advocate on

behalf of the complainant about the conduct of breach

of one of the condition of anticipatory bail the

READ  Doli Banerjee-vs-Prabir Banerjee on 13 June, 1996

change of address without prior permission of the

Court concerned cannot be considered as relevant at

this point in absence of any complaint or proceedings

for breach of such conditions when the order of grant

of anticipatory bail itself specifies that in case of

any breach of the condition legal action can be

initiated (Condition No.11).

17. Support can be drawn from the observations made

in an order dated 24.11.2015 passed in Criminal Misc.

Application (For quashing set aside FIR/Order)

No:4899 of 2015 :

“It appears that after almost a period of
three years the first informant thought fit

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to lodge the FIR. Rude and uncultured
behaviour as well as perfunctory abuses are
mundane matters and would not attract the
rigors of Section 498A of the IPC. There
has to be something more to attract
Section
498A of the IPC. Even if I accept the
entire case of the prosecution, there is
nothing against the father-in-law and the
married sister-in-law. Whatever little has
been alleged is against the mother-in-law,
and that too, hurling of abuses, using of
perfunctory words, etc. They may be morally
guilty of not treating the daughter-in-law
with respect in an Indian society, but such
moral acts fall short of an offence under
Section 498A of the IPC.”

18. In so far as the contention of quashing at the

stage when charge-sheet is filed, reliance is placed

on judgment of the Apex Court Ravindra Singh (Supra)

where the Apex Court interpreting the word vexatious

harassment by process of law has held as under :-

             "24.       The    word     "vexatious"    means
"harassment by the process of law",

"lacking justification" or with "intention
to harass". It signifies an action not
having sufficient grounds, and which
therefore, only seeks to annoy the
adversary. The hallmark of a vexatious
proceeding is that it has no basis in law
(or at least no discernible basis); and
that whatever the intention of the
proceeding may be, its only effect is to
subject the other party to inconvenience,
harassment and expense, which is so great,
that it is disproportionate to any gain
likely to accrue to the claimant; and that

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it involves an abuse of process of the
court. Such proceedings are different from
those that involve ordinary and proper use
of the process of the court."

19. Reliance be placed on judgment of the Apex Court

Swapnil and others vs. State of Madhya Pradesh

(Supra) is as under:

"11. The second respondent has been living
separately since April 2011 and hence, there is
no question of any beating by the appellants as
alleged by her. The relationship having got
strained ever since April 2011, even application
for restitution of conjugal rights having been
withdrawn on 16-04-2012 as the second respondent
was not interested to live together, it is
difficult to believe that there is still a
demand for dowry on 30-04-2012 coupled with
criminal intimidation. The allegations are vague
and bereft of the details as to the place and
the time of the incident. We had called for the
records and have gone through the same. The
materials before the learned Judicial
Magistrate, First Class, Indore are not
sufficient to form an opinion that there is
ground for presuming that the appellant-accused
have committed the offence under the charged
sections. The Additional Sessions Court and the
High Court missed these crucial points while
considering the petition filed by the appellants
under Section 397 and
Section 482 CrPC
respectively. The veiled object behind the lame
prosecution is apparently to harass the
appellants. We are, hence, of the view that the
impugned prosecution is wholly unfounded.

12. Therefore, to secure the ends of justice and
for preventing abuse of the process of the
criminal court, the charges framed by the
Judicial Magistrate, First Class, Indore in
Criminal Case No. 10245 of 2012 against the
appellant-accused are quashed. The appellant-

accused are quashed. The appellant-accused are
discharged. However, we make it clear that

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nothing contained in this judgment shall have a
bearing on any proceedings between the parties
regarding their matrimonial disputes before the
Family Court, since our observations are only
for the purpose of this judgment."

20. The reliance upon by the judgment of the

Mahendri and others (Supra) by the respondent No.2 in

support of his argument that where the private

complaint is filed before the Magistrate and is

withdrawn with a purpose to file an FIR for the same

offence under as is the facts in this case then the

FIR can be registered.

21. This argument on the basis of the captioned

judgment would not hold good as in the cited

judgment, the applicant's application was filed

before the concerned Court seeking an order under

Section 156 (3) of Cr.P.C. And such application was

rejected by the Court of competent jurisdiction and

after such rejection the FIR came to be registered.

(see Para 6 and 7) therefore in the case cited the

application before the concerned Court the stage of

cognizance was not crossed unlike in the facts of the

present case where cognizance was taken and order

under Section 202 of Cr.P.C. was passed.

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22. In view of the aforementioned findings

continuing of the FIR would be an abuse of process of

law. The allegations in the FIR do not constitute an

offence for which the FIR and the charge-sheet is

filed. Therefore the FIR deserves to be and is

hereby quashed.

23. While, quashing the FIR, this Court is compelled to

make an observation in connection with the "Stridhan" as

claimed by the complainant, therefore, it would be

appropriate for the Court to issue directions to the

petitioners that "Stridhan" which is Right of a wife

should be rightly handed over to the complainant

(respondent No.2) herein and such an act would further

strengthen the claim of the petitioners of being a family

of good reputation and culture. Rule is made absolute.

No order as to costs.

(A.Y. KOGJE, J.)
Alok

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