Karshanbhai Hathibhai Patel & vs State Of Gujarat & on 15 September, 2017

R/CR.MA/2717/2012 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 2717 of 2012

KARSHANBHAI HATHIBHAI PATEL 1….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)

Appearance:
MR PS PATEL, ADVOCATE for the Applicant(s) No. 1 – 2
MR P B KHAMBHOLJA, ADVOCATE for the Respondent(s) No. 2
MR RONAK RAVAL, APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 15/09/2017
ORAL ORDER

1.Heard learned advocate Mr. P. S. Patel for
the applicants, learned advocate Mr. P. B.
Khambholja for respondent No.2 and learned
APP Mr. Ronak Raval for respondent No.1 –
State. Perused the record.

2.The applicants herein are aged about 79 and
76 years respectively in the year 2012, when
this application was filed u/s.482 of the
Code of Criminal Procedure, 1973 (‘Cr.P.C.’,
for short) for quashing the FIR lodged at
Himmatnagar town police station of
Sabarkantha District being C.R.No. I – 189 of
2011 for the alleged offences punishable
under Sections 498A, 323, 324, 504 read with

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Section 114 of the Indian Penal Code (‘IPC’,
for short), so also u/s.135 of the Bombay
Police Act for which chargesheet No. I – 161
of 2011 was filed before the competent court
on 21.9.2011. The record shows that after
service of notice, on 11.4.2012, the co-
ordinate bench has granted interim relief in
terms of paragraph 9(B) of the application
and thereby, stayed the further proceedings
in connection with the FIR under reference.
It was observed in such order that interim
relief is granted considering the nature of
allegations vis-a-vis the age of the
applicants. Such interim relief was made
absolute on 20.6.2012 while admitting the
application and, thereby, it is in force till
date. Thereby, practically, criminal trial
against the present applicants has been
stayed for couple of years and, therefore, at
the time of hearing of the matter, an inquiry
was made to verify that whether criminal
trial against remaining accused has been
completed or not. It is undisputed fact that
respondent No.2 herein is original
complainant and she lodged a complaint
against her husband, namely, Satishbhai
Karshanbhai Patel and present applicants, who
are parents of such Satishbhai Karshanbhai
Patel, thereby, in-laws of respondent No.2.

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It is disclosed at bar that complaint is
still at the stage of trial before the
criminal court.

3.The sum and substance of the FIR lodged by
respondent No.2 is to the effect that her
husband had abused and beaten her and caused
injuries to her so also their son, namely,
Harsh, on his right hand with a knife. It is
also alleged that the present applicants had
instigated their son and husband of the
complainant and they have also harassed the
complainant mentally and physically and
abetted and instigated the husband of the
complainant to drag her out of their house.
Such incident is dated 7.8.2011. Respondent
No.2 has personally lodged her complaint
before the Police Station Officer of
Himmatnagar police station. She has, after
disclosing the minute details in the
complaint regarding her two sons and marriage
life etc., alleged that she and her sons had
come to know about the illicit relationship
of her husband with one another lady for 2-
1/2 years and, therefore, when she has tried
to discuss on such issue with him, he got
provoked and used to beat them frequently. It
is also further stated that because of such
incident, she had been to her parental house
for 4 to 5 times and stayed there for about 8

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months, but, thereafter, there was compromise
and hence, she had returned back to the house
of her in-laws. It is further alleged that on
the date of incident i.e. 7.8.2011, at about
11.30 a.m., the applicants have provoked the
husband of the complainant by telling him
that complainant has mixed poison in the meal
and, therefore, husband of respondent No.2 –
complainant has started an altercation with
respondent No.2 and their son, namely, Harsh.
When complainant denied to have mixed poison
in the meal, her husband has using abusive
language and under provocation of his
parents, quarreled with the complainant, took
knife from the dinner table and started
giving knife blows to Harsh, son of the
complainant, who sustained injuries on his
right hand and back portion. Based on such
incident, when there was hue and cry at the
place, it is categorically stated in the
complaint itself by the complainant that
neighbours, namely, Kantibhai Jesingbhai
Patel, Hasmukhbhai Patel, Sureshbhai Raval
etc. came to the spot and got them separated
and saved her from being beaten from her
husband, who was giving kick and fist blows.
There is categorical statement in the
complaint itself that for doing so, in-laws
of the complainant were instigating her

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husband and that because of such instigation,
husband of the complainant was beating the
complainant repeatedly.

4.Therefore, there is categorical statement
about role and involvement of the present
applicants with reference of witnesses. In
view of such fact, it would be appropriate to
verify that whether witnesses are supporting
the case of the complainant or not. For the
purpose, if we verify the statement of
Harshkumar Satishbhai Patel, being son of the
complainant and thereby, grandson of
applicants; he has in categorical terms
disclosed to the police in his statement that
parents are having doubt about the character
of each other and, therefore, were quarreling
since 7 to 8 years. However, so far as
present incident is concerned, he
categorically supports the case of the
complainant in verbatim, further disclosing
that he has been injured by window glass
because of the fist blows by his father and
that he and his mother were dragged out of
the house, and the neighbours have saved
them. It is also categorically stated that
after dragging them out, the applicants and
their son had closed the door so as to
restrict the complainant and the witnesses
from entering into the house and, therefore,

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they had been to police station to lodge the
complaint.

5.Statements of Parthkumar Satishbhai Patel,
another son of the couple so also Nikeshkumar
Narshibhai Patel and Swetangkumar Narshibhai
Patel though support the case of the
complainant, since they were not eye-
witnesses and may be termed as interested
witnesses, we may ignore their statements.

6.However, statements of three eye-witnesses,
whose names are disclosed by the complainant
in her complaint and recorded herein above,
namely, Hasumatiben Jitendrakumar Patel,
Savitaben Prahladbhai Patel and Kantibhai
Jesingbhai Patel, who are neighbours of the
applicants and the complainant, make it clear
that all these three witnesses have
categorically confirmed the incident, though
they have admitted that they have not seen
the husband of the complainant beating her or
their son Harsh, but they have certainly
noticed the quarrel and dragging out of
complainant by her husband and when they
intervened and asked the husband of the
complainant to open the door to take the
complainant and her son in the house, the
house was not opened by them and thereby,
complainant and her son were not allowed to

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stay in their house.

7.Therefore, there is prima facie evidence
regarding abetment and instigation to their
son by the applicants to drag out the
complainant and then not to allow the
complainant and her son to enter into the
house. This would certainly result into
committing offence u/s.498A, if not u/ss.323,
324 and 504 of the IPC.

8.As against that, the sum and substance of
applicants’ case is to the effect that none
of the witnesses have seen the incident as
alleged by the complainant and that
applicants are aged persons, amongst which
the applicant No.1 has major difficulty in
eyesight and, thereby, he cannot be asked to
undergo a criminal trial for such offences.
Relevant documentary evidence to prove the
age and difficulty of eyesight, so also
injury certificate of complainant and her
son, are placed on record to show that there
are no grievous injuries at all on their
body. However, none of such documentary
evidence disproves the allegations made
against the applicants by the independent
witnesses being neighbours. Whereas,
respondent No.2 has filed an affidavit,
contesting the application, alleged on oath

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before this court about the illicit
relationship of her husband and cruelty being
meted out to her by her husband and
petitioners. She has supported the version of
her complaint and statements of neighbours,
confirming that she and her son have been
dragged out of the house and deserted by the
applicants and their son.

9.Learned advocate for the applicants is
relying upon the decision of Hon’ble the
Supreme Court of India between Pashaura
Singh Vs. State of Punjab Ors. reported in
(2010)11 SCC 749 submitting that FIR
manifestly attended with mala fides and
actuated with ulterior motive would result
into abuse of process and is liable to be
quashed. There cannot be any question to such
decision. It is also settled legal position
that provision of Section 498A is to be used
sparingly and it should not result into abuse
of process of law at the hands of wife so as
to harass the in-laws or other relatives.
However, only because of some such judicial
pronouncements, it cannot be said that in all
cases of complaint u/s.498A, the FIR should
be quashed against in-laws, even if there is
prima facie material against them.

10. In the present case, as already

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discussed herein above, irrespective of final
determination in criminal trial, at this
stage, the court has to simply verify the
availability of prima facie evidence against
the applicants, so as to quash the FIR in
absence of any such evidence. Thereby, if
there is some material, which is sufficient,
if proved during trial, to convict the
applicants, then, only because the applicants
are aged or having some difficulty in
eyesight, it cannot be said that FIR should
be quashed since applicants are only in-laws
of the complainant – victim. Therefore, when
there is categorical statement of independent
witnesses in the form of neighbours that
husband of the complainant had dragged the
complainant and their son out of the house in
presence of the applicants, and when there is
allegation that it was done upon instigation
of the applicants and, thereafter, by their
act when the applicants have failed to open
the door when knocked by the neighbours and
witnesses and, thereby, denied the entry of
complainant and her son in the house where
they were staying at the relevant time, even
that would certainly be termed as cruelty. In
view of such fact, I do not see any reason to
quash the FIR against the applicants only
because of their age or some physical

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disability in the form of low eyesight. For
such disability, since there is no question
of identification, as complainant and
applicants are known to each other,
applicants may apply for permanent exemption
during trial and, thereby, to remain present
only on specific dates, either for
identification or for necessary statement
u/s.313 of the Cr.P.C. for any such reason.

11. For the foregoing reasons, I do not find
any substance in the present Criminal Misc.
Application so as to allow or quash the FIR
under reference. Hence, the application
stands dismissed. Interim relief, if any
granted earlier, shall stand vacated.

(S.G. SHAH, J.)
binoy

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