Whether Reporters Of Local Papers … vs State Of Gujarat & on 12 July, 2017

R/CR.MA/383/2012 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 383 of 2012

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 ?

HASMUKHBHAI CHUNILAL SOLANKI 6….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)

Appearance:
MR HEMANT K MAKWANA, ADVOCATE for the Applicant(s) No. 1 – 7
MS KIRAN D PANDEY, ADVOCATE for the Respondent(s) No. 2
MR RUTVIJ OZA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2

CORAM: HONOURABLE MR.JUSTICE B.N. KARIA

Date : 12/07/2017

ORAL JUDGMENT

1. This application has been filed by the

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applicants/original accused under Section 482 of the

Code of Criminal Procedure (for brevity “CrPC”)

praying to quash and set aside the complaint, being

C.R. No. II-2 of 2012 registered with Visnagar Police

Station, District: Mehsana for the offence punishable

under Sections 498(A), 114 of the Indian Penal Code

and Sections 3, 7 of the Dowry Prohibition Act, 1961

(for brevity “Act”)

2. Brief facts of the case are that the marriage of

applicant no.1 was solemnized with the respondent

no.2 on 11.12.2000 as per Hindu rites and rituals

and out of their wedlock, the respondent no.2 had

given birth to two children; namely Akilesh and

Anirudh. However, marriage life of the applicant

no.1 could not continue for a long time, as frequent

quarrels were continued, and therefore, the

respondent no.2 stared living separate from the

applicant no.1 since 2009. The respondent no.2 filed

an application under Section 97 CrPC in the court of

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learned JMFC Mehsana, wherein parties mutually

agreed to retain custody of children with the

applicant no.1. Thereafter, the respondent no.2

approached the court of Senior Civil Judge Mehsana,

by preferring an application under section 10 of the

Hindu Marriage Act interalia seeking judicial

separation on various grounds as set-out therein,

and along with the said application, the respondent

no.2 filed an application under Section 24 of the

Hindu Marriage Act, 1955 interalia seeking

maintenance allowance Rs. 1500/- per month, till

disposal of matrimonial disputes pending in the

court of Civil Judge (S.D.) Mehsana. The respondent

no.2 also approached Women Safety Cell, Mehsana,

by way of an application, being M. Su.Cell/Javak

42/2009, and also lodged the impugned complaint

against the present applicants.

3. Heard learned advocate Mr. Hemant K.

Makwana appearing on behalf of the applicants,

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learned advocate Ms. Kiran D. Pandey appearing on

behalf of the respondent no.2 and learned APP Mr.

Rutvij Oza appearing on behalf of the respondent

no.1-State.

4. Learned advocate Mr. Hemant K. Makwana

appearing on behalf of the applicants submitted

that the allegations levelled against the present

applicants in the impugned complaint are totally

baseless and vexatious. That, the accused no.7 in

the impugned complaint is the uncle of applicant

no.1. He is aged about 75 years and staying apart

from the applicant no. 1. Accused no.2 is father of

the applicant no.1. He is aged about 80 years and

suffering from paralysis. Accused no.3 is mother of

two sons, namely Hardik and Kuldip aged about 15

years and 13 years as well as daughter named

Jagruti aged about 16 years and she got married in

the year 1993 and since then settled at her

matrimonial home at Chanasma, District: Mehsana.

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Accused nos.4,5 and 6 are cousin brothers, who are

already settled at Dantiwada, Chekhla and

Amraivadi in Ahmedabad, respectively.

5. Learned advocate Mr. Hemant K. Makwana

appearing on behalf of the applicants further stated

at the bar that the parties have amicably settled

their disputes and divorce has been taken place by

a deed of divorce dated 13th July, 2014. He has

drawn attention of this Court to the settlement

arrived at by and between the parties, whereby the

husband has been acquitted by the learned JMFC,

Visnagar in Criminal Case No. 898/2012 vide order

dated 30th August, 2014, and therefore, considering

the said settlement as well as on merits, the

impugned complaint lodged against the applicants

is required to be quashed and set aside.

6. Learned advocate Ms. Kiran D. Pandey

appearing on behalf of the respondent no.2 also

supported the contents of the deed of divorce and

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signature put by the respondent no.2 below the said

deed. She submitted that two children begotten out

of their wedlock are staying with the applicant no.1.

Learned advocate for the respondent no.2 stated at

the bar that fresh notice issued by this Court has

been duly served upon the respondent no.2.

Considering the facts, it is requested to pass

necessary orders in the interest of justice.

7. Mr. Rutvij Oza, learned APP for the respondent

no.1 State fairly conceded that considering the

matrimonial dispute and resolution thereof, and as

the applicant no.1 has been acquitted by the

competent court of law at Visnagar in Criminal Case

No. 898/2012, this Court may exercise discretionary

powers under Section 482 CrPC in favour of the

applicants.

8. Heard learned advocates/APP of the respective

parties at length. From the document produced on

record as well as contents of the application and

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facts placed before this Court, it appears that

marriage of the applicant no.1 was solemnized with

the respondent no.2 on 11th December, 2000 and

out of the said wedlock, two children were born

namely Akilesh and Aniruddh. The marriage life of

the applicant no.1 and respondent no.2 was not

happy, and therefore, the respondent

no.2/complainant started living separate since the

year 2009. It appears from the record that she

approached various forums by way of different

litigations on one pretext or the other. One such

application under Section 97 CrPC was preferred by

the respondent no.2 before the Court of learned

JMFC at Mehsana, in which, the parties have

mutually agreed to retain custody of the children

with the husband/applicant no.1. It also appears

that thereafter, she approached the court of

learned Senior Civil Judge Mehsana by preferring an

application under Section 10 of the Hindu Marriage

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Act seeking judicial separation on various grounds,

as set-out therein. She also filed an application

under Section 24 of the Hindu Marriage Act, 1955

seeking maintenance allowance of Rs. 1500/- per

month, till disposal of the matrimonial dispute. She

also approached Women Safety Cell, Mehsana by

filing an application, being M. Su. Cell/Javak 42/2009

and attended the proceedings from time to time,

and thereafter, it appears that she filed impugned

FIR on 6th January, 2012 alleging that she was being

ill-treated by her husband and his family members,

who allegedly demanded dowry amount of Rs. 1 lac

for the purpose of car. The said FIR came to be

registered by the respondent no.2, as C.R. No. II-2 of

2012 at Visnagar Police Station, District: Mehsana

against the present applicants. If we analyse merits

of this case, it appears that since 2009, respondent

no.2 was staying separately from the applicants;

including her husband-applicant no.1. She had

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initiated various litigations before different forums;

including filing a petition for judicial separation

under Section 10 of the Hindu Marriage Act, 1955.

She has also made an application under Section 24

of the Hindu Marriage Act, praying for interim

maintenance in sum of Rs. 1500/- per month. This

complaint was lodged by the respondent no.2 on 6th

January 2012 after three years after separation from

the applicant no.1. It appears from the application

that applicant no.2 is father-in-law of the

respondent no.2 aged about 80 years. The applicant

no.3 is the sister-in-law, who was married in the

year 1993 and mother of two sons and one

daughter. Applicants no. 4, 5 and 6 are the cousin

brothers of the complainant and applicant no.4 is

working with Agricultural University at Dantiwada

since 1991 and he is father of two children,

applicant no.5 is married in Sidhdhpur and staying

at Chekhla, Ta: Kankrej, while applicant no.6 is

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married since 1995 and staying at Amraivadi at

Ahmedabad. Applicant no.7 Ramabhai is uncle-in-

law, aged about 75 years and residing at village

Umbari, Taluka: Shihori. As all the applicants are

staying separately from the applicant no.1 and

respondent no.2, perpetrating cruelty to the

respondent no.2, or causing harassment to her, or

demanding any amount by way of dowry cannot be

believed at all by this Court. Further, it is submitted

by learned advocates and learned APP for the

respective parties that dispute between the

applicant no.1 and his wife-respondent no.2 has

been resolved amicably by mutual understanding

and divorce has taken place between them and a

deed of divorce is also produced on the record. It is

also agreed by both the parties that Criminal Case

No. 898 of 2012 pending before the court of JMFC at

Visnagar as well as HMP No. 9 of 2010 pending

before the court of learned Senior Civil Judge

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Mehsana , Criminal Case No. 54/2013 pending

before the court of learned JMFC, Mehsana were to

be withdrawn by the respondent no.2 at her own

costs. The custody of children would be continued

with the applicant no.1 and respondent no.2, being

their mother, is free to meet her children at any

point of time. It appears that this deed of divorce

has been executed before Notary on 31st July, 2014

under the signatures and in presence of two

witnesses. It also appears from the copy of the

judgment passed in Criminal Case No. 898 of 2012

that the respondent no.2 was examined before the

same Court vide ex. 15 and she has clearly stated

that there was normal disputes with the in-laws in

matrimonial home and none of the accused have

given any physical or mental cruelty to her or no

demand of dowry was made. It is further stated that

the complaint was filed by the complainant in hot

haste manner and she had put only her signature.

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As she did not support the contents of the

complaint, she was declared hostile. The learned

Judge, after considering the facts and evidence, was

pleased to acquit the present applicant no.1 by

order dated 30th August, 2014. From the documents

produced on record, prima facie, it appears that

dispute is settled between the parties amicably and

divorce deed was executed on 31st July, 2014 as

well as in the Criminal Case No. 898 of 2012

pending before the court of learned Additional

Judicial Magistrate, First Class, Visnagar, wherein

the applicant no.1, being an accused, was acquitted

on 30th August, 2014. Considering this aspect as

well as on merits, this Court is of the view that

powers under Section 482 CrPC needs to be

exercised in favour of the applicants no.2 to 7, as

this application is not pressed so far as the

applicant no.1 is concerned.

9. Considering the above stated facts, as the

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complainant deposed before the learned Trial Court

in her criminal complaint, she had no dispute with

her in-laws nor any torture was given, physically or

mentally, by them nor any demand of dowry was

made by them and this complaint was lodged by the

family members in hasty manner. She has put her

signature only. Here this court would like to refer to

a decision of Hon’ble Supreme Court in the case of

Gian Singh v. State of Punjab Anr., reported

in (2012) 10 SCC 303 wherein three-Judge Bench

while dealing with number of decisions has held that

quashing of offence or criminal proceedings on the

ground of settlement between an offender and

victim is not the same thing as compounding of

offence. They are different and not interchangeable.

The Court held that in different situations, the

inherent power may be exercised in different ways

to achieve its ultimate objective. Formation of

opinion by the High Court before it exercises

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inherent power under Section 482 CrPC on either of

the twin objectives viz., (i) to prevent abuse of the

process of any court, or (ii) to secure the ends of

justice is a sine qua non. In paragraph 55, the Apex

Court further went on to add that in the very nature

of its constitution it is the judicial obligation of the

High Court to undo a wrong in course of

administration of justice, or to prevent continuation

of unnecessary judicial process, which is founded on

the legal maxim quando lex aliquid alicui concedit,

conceditur et id sine qua res ipsa esse non potest.

The Apex court in the said decision also placed

reliance upon a five Judge Bench decision of Punjab

Haryana High Court in the case of Kulvinder Singh

v. State of Punjab, reported in (2007)4 CTC 769,

wherein the Bench referred to quite a few decisions

of the Apex court; including the decisions in Madhu

Limaye v. State of Maharashtra, reported in (1977)

4 SCC 551, State of Haryana v. Bhajan lal, reported

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in 1992 Supp (1) SCC 335, State of Karnataka v. L.

Muniswamy, reported in (1977) 2 SCC 699,

Simrikhia v. Dolley Mukherjee, reported in (1990) 2

SCC 437, B. S. Joshi v. State of Haryana, reported in

(2003) 4 SCC 675 and Ramlal, reported in (2005) 1

SCC 347 and framed the following guidelines:

(Kulwinder Singh case reported in (2007) 4 CTC 769

in para 21;

“21…..(a) Cases arising from matrimonial
discord, even if other offences are introduced
for aggravation of the case.

(b) Cases pertaining to property disputes
between close relations, which are
predominantly civil in nature and they have
a genuine or belaboured dimension of
criminal liability. Notwithstanding a touch of

criminal liability, the settlement would bring
lasting peace and harmony to larger number
of people.

(c) to (f) xxxxx

While parting with this part, it appears
necessary to add that the settlement or

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compromise must satisfy the conscience of the
court. The settlement must be just and fair
besides being free from the undue pressure,
the court must examine the cases of weaker
and vulnerable victims with necessary
caution.”

To conclude, it can safely be said that
there can never be any hard and fast category
which can be prescribed to enable the Court to
exercise its power under Section 482 CrPC..
The only principle that can be laid down is the
one which has been incorporated in the
Section itself, i.e., “to prevent abuse of the
process of any Court” or “to secure the ends of
justice.”

10. Here appears to be a case which has its origin

in the domestic dispute between the parties, which

dispute has, it appears, been resolved by them.

That being so, continuance of the prosecution

where the complainant is not ready to support the

allegations which are now described by her as

arising out of some hasty manner and

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misconception will be a futile exercise that will

serve no purpose. The continuance of the

proceedings is thus nothing but an empty formality.

Section 482 CrPC could, in such circumstances, be

justifiably invoked by the High Court to prevent

abuse of the process of law and thereby preventing

a wasteful exercise by the courts below.

11. Resultantly, this Application is hereby partly

allowed. Complaint, being C.R. No. II-2 of 2012

registered with Visnagar Police Station, District:

Mehsana for the offence punishable under Sections

498(A), 114 of the Indian Penal Code and Sections

3, 7 of the Dowry Prohibition Act, 1961 is hereby

quashed and set aside, so far as the applicants no.

2 to 7 are concerned. Applicant no.1 to stand trial.

12. Rule nisi made absolute qua applicant nos. 2

to 7. Rule discharged qua applicant no.1. No costs.

(B. N. KARIA, J )

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ksdarji

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