R/CR.MA/3132/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 3132 of 2015
[On note for speaking to minutes of order dated 22/11/2017 in
R/CR.MA/3132/2015 ]
AMRITPALSINGH MAHENDRASINGH KALER 2….Applicant(s)
Versus
DALJITKAUR W/O. AMRITPALSINGH MAHENDRASINGH KALER
1….Respondent(s)
Appearance:
MR GAURAV K MEHTA, ADVOCATE for the Applicant(s) No. 1 – 3
MR MJ BUDDHBHATTI, ADVOCATE for the Respondent(s) No. 1
MR DHARMESH DEVNANI, APP for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 07/12/2017
ORAL ORDER
By this note for speaking to minutes, it has been pointed out by
the learned counsel that in paras 4 and 25 of the judgment and order
dated 22nd November 2017, a wrong number of the criminal case has
been stated. In paras 4 and 25, there is a reference of the Criminal Case
No.1758 of 2015. The correct Criminal Case Number is 238 of 2014.
The Registry is directed to effect the necessary correction and issue a
fresh writ of the order. Note is disposed of.
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(J.B.PARDIWALA, J.)
chandresh
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 3132 of 2015
AMRITPALSINGH MAHENDRASINGH KALER 2….Applicant(s)
Versus
DALJITKAUR W/O. AMRITPALSINGH MAHENDRASINGH KALER
1….Respondent(s)
Appearance:
MR DR BHATT, ADVOCATE for the Applicant(s) No. 2 – 3
MR GAURAV K MEHTA, ADVOCATE for the Applicant(s) No. 1
MR MJ BUDDHBHATTI, ADVOCATE for the Respondent(s) No. 1
MR DHARMESH DEVNANI, APP for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/11/2017
ORAL ORDER
1 Rule returnable forthwith. Mr. Dharmesh Devnani, the learned
APP waives service of notice of rule for and on behalf of the respondent
No.2 State of Gujarat. Mr. Buddhbhatti, the learned counsel has
entered appearance on behalf of the respondent No.1 original first
informant and waives service of notice of rule.
2 By this application under Section 482 of the Code of Criminal
Procedure, 1973, the applicants – original accused persons seek to
invoke the inherent powers of this Court, praying for quashing of the
First Information Report being C.R. No.I21 of 2014 lodged with the
Maninagar Police Station, Ahmedabad for the offence punishable under
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Sections 498A, 506(2) and 294B read with 114 of the Indian Penal Code
and Sections 3 and 7 of the Dowry Prohibition Act.
3 It is brought to my notice that on 25th March 2015, the following
order was passed:
“Issue notice to the respondents, returnable on 8.6.2015. Mr. Shah, the
learned APP waives service of notice for and on behalf of the respondent
No.2 State of Gujarat. The respondent No.1 be served directly through
the I.O of the concerned Police Station.
Having heard Mr.Aditya Bhatt, the learned advocate appearing on behalf
of Mr. D.R. Bhatt, the learned advocate for the applicants and having gone
through the materials on record, I am of the view that the applicants have
been able to make out a strong primafacie case to have an interim order
in terms of para 6(B). I accordingly grant such relief. Direct service
permitted.”
4 This Court was given to understand that the investigation is still
going on and in such circumstances, interim order in terms of para 6(B)
was granted. With the grant of the interim order in terms of para 6(B),
the investigation was stayed. However, it appears that the chargesheet
was filed way back in the year 2014 itself. With the filing of the
chargesheet, the Criminal Case No.1758 of 2015 came to be registered in
the Court of the Metropolitan Magistrate, Court No.15 at Ahmedabad.
5 It appears from the materials on record that the respondent No.1 –
original first informant got married with the applicant No.1 herein on
27th November 2013. The parties before me are North Indians. The
marriage was solemnized at Delhi. The first informant left the
matrimonial home on 5th December 2013, as according to her, she was
being harassed and there was a demand of Rupees Ten lac. After leaving
the matrimonial home on 5th December 2013, an F.I.R. was lodged at the
concerned police station on 5th February 2014. Within two months
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thereafter, the police filed chargesheet for the offence enumerated
above. The first informant has alleged that soon after marriage, the
applicant No.1 – husband told her that he was not interested in the
marriage and had married with the first informant only for the purpose
of money. The allegations against the applicants Nos.2 and 3 i.e. the
fatherinlaw and motherinlaw are that of instigating the husband.
6 Having heard the learned counsel appearing for the parties and
having considered the materials on record, the only question that falls
for my consideration is whether the proceedings of the criminal case
should be quashed.
7 This is a case in which the wife stayed at her matrimonial home
for just eight days. I fail to understand what went wrong within a period
of eight days that she had to leave the matrimonial home. Even after
leaving the matrimonial home in the month of December 2013, the
F.I.R. came to be lodged in February 2014. The case appears to be one of
a serious maladjustment in the marital life. The wife as usual has
levelled wild and reckless allegations of harassment and cruelty not only
against the husband, but even against the fatherinlaw and motherin
law. The allegations dot not inspire any confidence worth the name. In
my view, continuation of the criminal proceedings will be nothing, but
an abuse of the process of law.
8 It is now well settled that the power under Section 482 of the
Code has to be exercised sparingly, carefully and with caution, only
where such exercise is justified by the tests laid down in the Section
itself. It is also well settled that Section 482 of the Code does not confer
any new power on the High Court but only saves the inherent power,
which the Court possessed before the enactment of the Criminal
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Procedure Code. There are three circumstances under which the
inherent jurisdiction may be exercised, namely (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.
9 The investigation of an offence is the field exclusively reserved for
the Police Officers, whose powers in that field are unfettered, so long as
the power to investigate into the cognizable offence is legitimately
exercised in strict compliance with the provisions under Chapter XII of
the Code. While exercising powers under Section 482 of the Code, the
Court does not function as a Court of appeal or revision. As noted above,
the inherent jurisdiction under the Section, although wide, yet should be
exercised sparingly, carefully and with caution and only when such
exercise is justified by the tests specifically laid down in the Section
itself. It is to be exercised ex debito justitiae to do real and substantial
justice for the administration of which alone courts exist. Authority of
the court exists for advancement of justice and if any attempt is made to
abuse that authority so as to produce injustice, the court has power to
prevent such abuse. It would be an abuse of process of the court to allow
any action which would result in injustice and prevent promotion of
justice. In exercise of the powers court would be justified to quash any
proceeding if it finds that initiation or continuance of it amounts to
abuse of the process of court or quashing of these proceedings would
otherwise serve the ends of justice. When no offence is disclosed by the
complaint, the court may examine the question of fact. When a
complaint is sought to be quashed, it is permissible to look into the
materials to assess what the complainant has alleged and whether any
offence is made out even if the allegations are accepted in toto.
10 In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the Apex
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Court summarized some categories of cases where inherent power can,
and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the
institution or continuance e.g. want of sanction;
ii) where the allegations in the first information report or complaint
taken at its face value and accepted in their entirety do not
constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal
evidence adduced or the evidence adduced clearly or manifestly
fails to prove the charge.
11 The Supreme Court, in the case of State of A.P. Vs. Vangaveeti
Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred
to above, observing thus:
“6. In dealing with the last category, it is important to bear in mind the
distinction between a case where there is no legal evidence or where there
is evidence which is clearly inconsistent with the accusations made, and a
case where there is legal evidence which, on appreciation, may or may not
support the accusations. When exercising jurisdiction under Section 482 of
the Code, the High Court would not ordinarily embark upon an enquiry
whether the evidence in question is reliable or not or whether on a
reasonable appreciation of it accusation would not be sustained. That is
the function of the trial Judge. Judicial process no doubt should not be an
instrument of oppression, or, needless harassment. Court should be
circumspect and judicious in exercising discretion and should take all
relevant facts and circumstances into consideration before issuing process,
lest it would be an instrument in the hands of a private complainant to
unleash vendetta to harass any person needlessly. At the same time the
Section is not an instrument handed over to an accused to shortcircuit a
prosecution and bring about its sudden death. The scope of exercise of
power under Section 482 of the Code and the categories of cases where the
High Court may exercise its power under it relating to cognizable offences
to prevent abuse of process of any court or otherwise to secure the ends of
justice were set out in some detail by this Court in State of Haryana v.
Bhajan Lal [1992 Supp. (1) SCC 335]. A note of caution was, however,
added that the power should be exercised sparingly and that too in rarest
of rare cases.
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The illustrative categories indicated by this Court are as follows:
“(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the F.I.R. or complaint
and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where the allegations in the F.I.R. do not constitute a cognizable
offence but constitute only a noncognizable offence, no investigation is
permitted by a Police Officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions
of the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to spite
him due to private and personal grudge.”
12 A plain reading of the FIR and the chargesheet papers reveal that
the allegations levelled by the respondent No.1 are quite vague, general
and sweeping, specifying no instances of criminal conduct. Although the
respondent No.1 is much more annoyed with her husband, with an
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obvious motive, has arrayed the inlaws too. The Police also seems to
have recorded stereotype statements of the witnesses who are none
other than the parents and other relatives of the respondent No.1 and
has filed a chargesheet. If a person is made to face a criminal trial on
some general and sweeping allegations without bringing on record any
specific instances of criminal conduct, it is nothing but abuse of process
of the Court. The Court owes a duty to subject the allegations levelled in
the complaint to a thorough scrutiny to find out primafacie whether
there is any grain of truth in the allegations or whether they are made
only with the sole object of involving certain individuals in a criminal
charge.
13 In Preeti Gupta Vs. State of Jharkhand, reported in 2010
Criminal Law Journal 4303(1), the Supreme Court observed the
following:
“28. It is a matter of common knowledge that unfortunately matrimonial
litigation is rapidly increasing in our country. All the courts in our country
including this court are flooded with matrimonial cases. This clearly
demonstrates discontent and unrest in the family life of a large number of
people of the society.
29. The courts are receiving a large number of cases emanating from
section 498A of the Indian Penal Code which reads as under :
“498A. Husband or relative of husband of a woman subjecting her to
cruelty.Whoever, being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also
be liable to fine.
Explanation. For the purposes of this section, ‘cruelty’ means :
(a) any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb
or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
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coercing her or any person related to her to meet any unlawful demand for
any property or valuable security or is on account of failure by her or any
person related to her to meet such demand.”
30. It is a matter of common experience that most of these complaints
under section 498A IPC are filed in the heat of the moment over trivial
issues without proper deliberations. We come across a large number of
such complaints which are not even bona fide and are filed with oblique
motive. At the same time, rapid increase in the number of genuine cases of
dowry harassment are also a matter of serious concern.
31.The learned members of the Bar have enormous social responsibility
and obligation to ensure that the social fiber of family life is not ruined or
demolished. They must ensure that exaggerated versions of small incidents
should not be reflected in the criminal complaints. Majority of the
complaints are filed either on their advice or with their concurrence. The
learned members of the Bar who belong to a noble profession must
maintain its noble traditions and should treat every complaint under
section 498A as a basic human problem and must make serious
endeavour to help the parties in arriving at an amicable resolution of that
human problem. They must discharge their duties to the best of their
abilities to ensure that social fiber, peace and tranquillity of the society
remains intact. The members of the Bar should also ensure that one
complaint should not lead to multiple cases.
32. Unfortunately, at the time of filing of the complaint the implications
and consequences are not properly visualized by the complainant that such
complaint can lead to insurmountable harassment, agony and pain to the
complainant, accused and his close relations.
33. The ultimate object of justice is to find out the truth and punish the
guilty and protect the innocent. To find out the truth is a herculean task in
majority of these complaints. The tendency of implicating husband and all
his immediate relations is also not uncommon. At times, even after the
conclusion of criminal trial, it is difficult to ascertain the real truth. The
courts have to be extremely careful and cautious in dealing with these
complaints and must take pragmatic realities into consideration while
dealing with matrimonial cases. The allegations of harassment of
husband’s close relations who had been living in different cities and never
visited or rarely visited the place where the complainant resided would
have an entirely different complexion. The allegations of the complaint are
required to be scrutinized with great care and circumspection. Experience
reveals that long and protracted criminal trials lead to rancour, acrimony
and bitterness in the relationship amongst the parties. It is also a matter
of common knowledge that in cases filed by the complainant if the
husband or the husband’s relations had to remain in jail even for a few
days, it would ruin the chances of amicable settlement altogether. The
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process of suffering is extremely long and painful.
34. Before parting with this case, we would like to observe that a serious
relook of the entire provision is warranted by the legislation. It is also a
matter of common knowledge that exaggerated versions of the incident are
reflected in a large number of complaints. The tendency of over implication
is also reflected in a very large number of cases.
35. The criminal trials lead to immense sufferings for all concerned. Even
ultimate acquittal in the trial may also not be able to wipe out the deep
scars of suffering of ignominy. Unfortunately a large number of these
complaints have not only flooded the courts but also have led to enormous
social unrest affecting peace, harmony and happiness of the society. It is
high time that the legislature must take into consideration the pragmatic
realities and make suitable changes in the existing law.It is imperative for
the legislature to take into consideration the informed public opinion and
the pragmatic realities in consideration and make necessary changes in the
relevant provisions of law. We direct the Registry to send a copy of this
judgment to the Law Commission and to the Union Law Secretary,
Government of India who may place it before the Hon’ble Minister for Law
and Justice to take appropriate steps in the larger interest of the society.”
14 In the aforesaid context, it will also be profitable to quote a recent
pronouncement of the Supreme Court in the case of Arnesh Kumar Vs.
State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd
July, 2014. In the said case, the petitioner, apprehending arrest in a case
under Section 498A of the IPC and Section 4 of the Dowry Prohibition
Act, 1961, prayed for anticipatory bail before the Supreme Court, having
failed to obtain the same from the High Court. In that context, the
observations made by the Supreme Court in paras 6, 7 and 8 are worth
taking note of. They are reproduced below:
“6. There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section 498
A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives.
The fact that Section 498A is a cognizable and nonbailable offence has
lent it a dubious place of pride amongst the provisions that are used as
weapons rather than shield by disgruntled wives. The simplest way to
harass is to get the husband and his relatives arrested under this
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provision. In a quite number of cases, bedridden grandfathers and grand
mothers of the husbands, their sisters living abroad for decades are
arrested. Crime in India 2012 Statistics published by National Crime
Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762
persons all over India during the year 2012 for offence under Section 498
A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those
arrested under this provision in 2012 were women i.e. 47,951 which
depicts that mothers and sisters of the husbands were liberally included in
their arrest net. Its share is 6% out of the total persons arrested under the
crimes committed under Indian Penal Code. It accounts for 4.5% of total
crimes committed under different sections of penal code, more than any
other crimes excepting theft and hurt. The rate of chargesheeting in cases
under Section 498A, IPC is as high as 93.6%, while the conviction rate is
only 15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.
7. Arrest brings humiliation, curtails freedom and cast scars forever. Law
makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson; the
lesson implicit and embodied in the Cr.PC. It has not come out of its
colonial image despite six decades of independence, it is largely considered
as a tool of harassment, oppression and surely not considered a friend of
public. The need for caution in exercising the drastic power of arrest has
been emphasized time and again by Courts but has not yielded desired
result. Power to arrest greatly contributes to its arrogance so also the
failure of the Magistracy to check it. Not only this, the power of arrest is
one of the lucrative sources of police corruption. The attitude to arrest first
and then proceed with the rest is despicable. It has become a handy tool to
the police officers who lack sensitivity or act with oblique motive.
8. Law Commissions, Police Commissions and this Court in a large
number of judgments emphasized the need to maintain a balance between
individual liberty and societal order while exercising the power of arrest.
Police officers make arrest as they believe that they possess the power to do
so. As the arrest curtails freedom, brings humiliation and casts scars
forever, we feel differently. We believe that no arrest should be made only
because the offence is nonbailable and cognizable and therefore, lawful
for the police officers to do so. The existence of the power to arrest is one
thing, the justification for the exercise of it is quite another. Apart from
power to arrest, the police officers must be able to justify the reasons
thereof. No arrest can be made in a routine manner on a mere allegation
of commission of an offence made against a person. It would be prudent
and wise for a police officer that no arrest is made without a reasonable
satisfaction reached after some investigation as to the genuineness of the
allegation. Despite this legal position, the Legislature did not find any
improvement. Numbers of arrest have not decreased. Ultimately, the
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Parliament had to intervene and on the recommendation of the 177th
Report of the Law Commission submitted in the year 2001, Section 41 of
the Code of Criminal Procedure (for short Cr.PC), in the present form
came to be enacted. It is interesting to note that such a recommendation
was made by the Law Commission in its 152nd and 154th Report
submitted as back in the year 1994. …. …..”
15 In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported
in AIR 2013 SC 181, the Supreme Court observed as under:
“19. Coming
to the facts of this case, when the contents
of the FIR is
perused, it is apparent that there are no allegations against Kumari Geeta
Mehrotra and Ramji Mehrotra except casual reference of their names who
have been included in the FIR but mere casual reference of the names of
the family members in a matrimonial dispute without allegation of active
involvement in the matter would not justify taking cognizance against
them overlooking the fact borne out of experience that there is a tendency
to involve the entire family members of the household in the domestic
quarrel taking place in a matrimonial dispute specially if it happens soon
after the wedding.
20. It would be relevant at this stage to take note of an apt observation of
this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad Ors.
reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this
Court had held that the High Court should have quashed the complaint
arising out of a matrimonial dispute wherein all family members had been
roped into the matrimonial litigation which was quashed and set aside.
Their Lordships observed therein with which we entirely agree that:
“there has been an outburst of matrimonial dispute in recent times.
Marriage is a sacred ceremony, main purpose of which is to enable
the young couple to settle down in life and live peacefully. But little
matrimonial skirmishes suddenly erupt which often assume serious
proportions resulting in heinous crimes in which elders of the
family are also involved with the result that those who could have
counselled and brought about rapprochement are rendered helpless
on their being arrayed as accused in the criminal case. There are
many reasons which need not be mentioned here for not
encouraging matrimonial litigation so that the parties may ponder
over their defaults and terminate the disputes amicably by mutual
agreement instead of fighting it out in a court of law where it takes
years and years to conclude and in that process the parties lose
their young days in chasing their cases in different courts.”
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The view taken by the judges in this matter was that the courts would not
encourage such disputes.
21. In yet another case reported in AIR 2003 SC 1386 in the
matter of B.S. Joshi Ors. vs. State of Haryana Anr. it was
observed that there is no doubt that the object of introducing
Chapter XXA containing Section 498A in the Indian Penal Code
was to prevent the torture to a woman by her husband or by
relatives of her husband. Section 498A was added with a view to
punish the husband and his relatives who harass or torture the wife
to coerce her relatives to satisfy unlawful demands of dowry. But if
the proceedings are initiated by the wife under Section 498A
against the husband and his relatives and subsequently she has
settled her disputes with her husband and his relatives and the wife
and husband agreed for mutual divorce, refusal to exercise inherent
powers by the High Court would not be proper as it would prevent
woman from settling earlier. Thus for the purpose of securing the
ends of justice quashing of FIR becomes necessary, Section 320
Cr.P.C. would not be a bar to the exercise of power of quashing. It
would however be a different matter depending upon the facts and
circumstances of each case whether to exercise or not to exercise
such a power.”
16 Thus, it could be seen from the above that the apex Court has
noticed the tendency of the married women roping in all the relatives of
her husband in such complaints only with a view to harass all of them,
though they may not be even remotely involved in the offence alleged.
17 Once the FIR is lodged under Sections 498A/406/323 of the IPC
and Sections 3 and 7 of the Dowry Prohibition Act, whether there are
vague, unspecific or exaggerated allegations or there is no evidence of
any physical or mental harm or injury inflicted upon woman that is
likely to cause grave injury or danger to life, limb or health, it comes as
an easy tool in the hands of Police and agencies like Crime Against
Women Cell to hound them with the threat of arrest making them run
helter skelter and force them to hide at their friends or relatives houses
till they get anticipatory bail as the offence has been made cognizable
and nonbailable. Thousands of such complaints and cases are pending
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and are being lodged day in and day out. There is a growing tendency to
come out with inflated and exaggerated allegations roping in each and
every relation of the husband and if one of them happens to be of higher
status or of a vulnerable standing, he or she becomes an easy prey for
better bargaining and blackmailing.
18 Mr. Buddhbhatti, the learned counsel appearing for the
respondent No.1 in his own way may be right in submitting that the
Court, while exercising inherent power under Section 482 of the Code,
should not embark upon an enquiry as regards the truthfulness of the
allegations because, according to Mr. Buddhbhatti, once there are
allegations disclosing commission of a cognizable offence, then whether
they are true or false, should be left for the trial Court to decide at the
conclusion of the trial. According to Mr. Buddhbhatti, at the best, the
applicants can plead in their defence the category No.7, as indicated by
the Supreme Court in the case of State of Haryana (supra).
19 Since Mr. Buddhbhatti has raised such an issue, I must deal with it
as it goes to the root of the matter. For the sake of convenience, category
7, as laid down by the Supreme Court in State of Haryana (supra) is
reproduced hereinbelow:
“(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to spite
him due to private and personal grudge.”
20 I am of the view that the category 7 referred to above should be
taken into consideration and applied in a case like the present one, a bit
liberally. If the Court is convinced by the fact that the involvement by
the complainant of all close relatives of the husband including the
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husband is with an oblique motive, then even if the FIR and the charge
sheet disclose commission of a cognizable offence, the Court, with a
view to doing substantial justice, should read in between the lines the
oblique motive of the complainant and take a pragmatic view of the
matter. If the proposition of law as sought to be canvassed by Mr.
Buddhbhatti, the learned counsel is applied mechanically to this type of
cases, then in my opinion, the very inherent power conferred by the
Code upon the High Court would be rendered otiose. I am saying so for
the simple reason that if the wife, on account of disputes with her
husband, decides to not only harass her husband, but all other close
relatives of the husband, then she would ensure that proper allegations
are levelled against each and every such relative, although knowing fully
well that they are in no way concerned with the matrimonial dispute
between the husband and the wife. Many times the services of
professionals are availed of and once the complaint is drafted by a legal
mind, it would be very difficult thereafter to pick up any loopholes or
other deficiencies in the same. However, that does not mean that the
Court should shut its eyes and raise its hands in helplessness, saying that
whether true or false, there are allegations in the first information report
and the chargesheet papers discloses the commission of a cognizable
offence.
It is because of the growing tendency to involve innocent persons
that the Supreme Court in the case of Pawan Kumar Vs. State of
Haryana, AIR 1998 SC 958 has cautioned the Courts to act with
circumspection. In the words of the Supreme Court “often innocent
persons are also trapped or brought in with ulterior motives and therefore
this places an arduous duty on the Court to separate such individuals from
the offenders. Hence, the Courts have to deal such cases with circumspection,
sift through the evidence with caution, scrutinize the circumstances with
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utmost care.”
21 Many times, the parents including the close relatives of the wife
make a mountain out of a mole. Instead of salvaging the situation and
making all possible endeavours to save the marriage, their action either
due to ignorance or on account of sheer hatredness towards the husband
and his family members, brings about complete destruction of marriage
on trivial issues. The first thing that comes in the mind of the wife, her
parents and her relatives is the Police, as if the Police is the panacea of
all evil. No sooner the matter reaches up to the Police, then even if there
are fair chances of reconciliation between the spouses, they would get
destroyed. The foundation of a sound marriage is tolerance, adjustment
and respecting one another. Tolerance to each other’s fault to a certain
bearable extent has to be inherent in every marriage. Petty quibbles,
trifling differences are mundane matters and should not be exaggerated
and blown out of proportion to destroy what is said to have been made
in the heaven. The Court must appreciate that all quarrels must be
weighed from that point of view in determining what constitutes cruelty
in each particular case, always keeping in view the physical and mental
conditions of the parties, their character and social status. A very
technical and hyper sensitive approach would prove to be disastrous for
the very institution of the marriage. In matrimonial disputes the main
sufferers are the children. The spouses fight with such venom in their
heart that they do not think even for a second that if the marriage would
come to an end, then what will be the effect on their children. Divorce
plays a very dubious role so far as the upbringing of the children is
concerned. The only reason why I am saying so is that instead of
handling the whole issue delicately, the initiation of criminal
proceedings would bring about nothing but hatredness for each other.
There may be cases of genuine illtreatment and harassment by the
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husband and his family members towards the wife. The degree of such
illtreatment or harassment may vary. However, the Police machinery
should be resorted to as a measure of last resort and that too in a very
genuine case of cruelty and harassment. The Police machinery cannot be
utilized for the purpose of holding the husband at ransom so that he
could be squeezed by the wife at the instigation of her parents or
relatives or friends. In all cases where wife complains of harassment or
illtreatment, Section 498A of the IPC cannot be applied mechanically.
No F.I.R is complete without Sections 506(2) and 323 of the IPC. Every
matrimonial conduct, which may cause annoyance to the other, may not
amount to cruelty. Mere trivial irritations, quarrels between spouses,
which happen in day today married life, may also not amount to cruelty.
22 Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All ER 398
observed as under:
“When the conduct consists of direct action by one against the other, it can
then properly be said to be aimed at the other, even though there is no
desire to injure the other or to inflict misery on him. Thus, it may consist
of a display of temperament, emotion, or perversion whereby the one gives
vent to his or her own feelings, not intending to injure the other, but
making the other the objectthe buttat whose expense the emotion is
relieved.”
When there is no intent to injure, they are not to be regarded as cruelty
unless they are plainly and distinctly proved to cause injury to
health ……..when the conduct does not consist of direct action against the
other, but only of misconduct indirectly affecting him or her, such as
drunkenness, gambling, or crime, then it can only properly be said to be
aimed at the other when it is done, not only for the gratification of the
selfish desires of the one who does it, but also in some part with an
intention to injure the other or to inflict misery on him or her. Such an
intention may readily be inferred from the fact that it is the natural
consequence of his conduct, especially when the one spouse knows, or it
has already been brought to his notice, what the consequences will be, and
nevertheless he does it, careless and indifferent whether it distresses the
other spouse or not. The Court is, however not bound to draw the
inference. The presumption that a person intends the natural consequences
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of his acts is one that may not mustbe drawn. If in all the circumstances it
is not the correct inference, then it should not be drawn. In cases of this
kind, if there is no desire to injure or inflict misery on the other, the
conduct only becomes cruelty when the justifiable remonstrances of the
innocent party provoke resentment on the part of the other, which evinces
itself in actions or words actually or physically directed at the innocent
party.”
23 What constitutes cruelty in matrimonial matters has been well
explained in American Jurisprudence 2nd edition Vol. 24 page 206. It
reads thus:
“The question whether the misconduct complained of constitute cruelty and
the like for divorce purposes is determined primarily by its effect upon the
particular person complaining of the acts. The question is not whether the
conduct would be cruel to a reasonable person or a person of average or
normal sensibilities, but whether it would have that effect upon the
aggrieved spouse. That which may be cruel to one person may be laughed
off by another, and what may not be cruel to an individual under one set
of circumstances may be extreme cruelty under another set of
circumstances.”
24 For the foregoing reasons, I hold that if the criminal proceedings
are allowed to continue, then it will be nothing short of abuse of process
of law and travesty of justice. This is a fit case wherein the inherent
power under Section 482 of the Code should be exercised for the
purpose of quashing the criminal case proceedings.
25 In the result, this application succeeds and is hereby allowed. The
proceedings of the Criminal Case No.1758 of 2015 pending in the Court
of the Metropolitan Magistrate, Court No.15 at Ahmedabad arising from
the F.I.R. being C.R. No.I21 of 2014 lodged with the Maninagar Police
Station, Ahmedabad are quashed. Rule is made absolute. Direct service
is permitted.
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(J.B.PARDIWALA, J.)
chandresh
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