R/CR.MA/8913/2011 CAV JUDGMENT

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
MR KL PANDYA, APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 01/08/2017

CAV JUDGMENT

1. This application has been filed by the applicant

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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 :-

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“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

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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.

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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)

ksdarji

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