R/CR.MA/17808/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 17808 of 2015
With
CRIMINAL MISC.APPLICATION NO. 20207 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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 ?
MAYURBHAI VINAYBHAI KAKU….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR DAIFRAZ HAVEWALLA, ADVOCATE for the Applicant(s) No. 1
MR NILESH R PARMAR, ADVOCATE for the Applicant(s) No. 1
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MS KIRAN D PANDEY, ADVOCATE for the Respondent(s) No. 2
MR DM DEVNANI, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/01/2018
COMMON ORAL JUDGMENT
As the issues raised in both the captioned applications are the same and
the prayer is also to quash the selfsame criminal proceedings, those were heard
analogously and are being disposed of by this common judgment and order.
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The Criminal Misc. Application No.17808 of 2015 has been filed by the
brotherinlaw of the respondent no.2, whereas the connected matter, i.e. the
Criminal Misc. Application No.20207 of 2015 has been filed by the fatherin
law and the motherinlaw respectively of the respondent no.2.
By these two applications 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 proceedings of the
Criminal Case No.3681 of 2015 pending in the Court of the learned JMFC
(Municipal), Court No.23, Rajkot, arising from the First Information Report
being ICR No.39 of 2015 registered with the Mahila Police Station, Rajkot,
for the offences punishable under Sections 498A, 323, 504 read with Section
114 of the Indian Penal Code.
The First Information Report lodged by the respondent no.2 reads as
under :
“My name Kalyaniben W/o. Anandbhai Kaku Brahmkshatriya, aged 23
years, Occu: Household, Resi. 508, Viharya Premier Society No.2, Opp.
Gandhi Sagar Talav, Nr. Rajwada Palace, Nagpur, Resi. at present 6,
Aryanagar, SantKabir Road, Street no. 72, Yash selection, Rajkot, Mo.
No. 9426419239,
Here by dictate the fact of my complaint personally that, I am residing
at my above mentioned present address at the residence of my father
since last seven months. I have no any issue. My marriage was
performed with Anand as per my custom and usage in Fun hotel at
Rajkot on 12/12/2013 and after marriage I was residing in a joint
family with my husband, mother in law and father in law, and thereafter
my husband, mother in law and father in law used to quarrel with me
entire day on small issues and used to drag me out and my brother in
law Mayurbhai Kaku who is residing in Bangalore, often and often
used to tell me telephonically that there is nothing has remained good in
his house after my arrival, and his all relatives have stopped to come to
his house and he used to tell me often and often that he would make a
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case against me and often and often used to quarrel with me, my mother
in law is also used to use abusive language to me and my mother in law,
father in law and brother in law used to instigate against me. Hence my
husband bitten me, and in which my mother in law and father in law
also came along with him, and they were also telling me to stay at my
father’s house, and told me to go away carrying my luggage and drag
me out of the house in my worn cloths, and I had ornaments of their’s
which also they snatched from me. I had come to my motherfather’s
house at Rajkot. Since then I am residing at the house of my father, and
today I have come with my father to lodge the complain.
So, my husband Anand Vijaybhai, uncle in law Vijaybhai Chandubhai,
Aunt in law Trushaben Vijaybhai kaku and bother in law mayurbhai
Vinaybhai kaku residing No.123, Nagpur and No.4 of Bangalore often
and often having beaten me by giving physical and mental harassment.
The present is my complaint against them as per law.”
The plain reading of the FIR would suggest that the marriage of the
respondent no.2 was solemnized with one Anand Vinubhai Kaku on 12th
December 2013 at Rajkot. The husband is not before this Court. As alleged,
soon after the marriage, the husband and the inlaws started harassing the
respondent no.2 on trivial issues. So far as the brotherinlaw is concerned,
indisputably, he is residing at Bangalore. However, the allegations against the
brotherinlaw are that he used to callup from Bangalore and threatening the
respondent no.2 on telephone. To put it briefly, the sum and substance of the
allegations against the three applicants herein are that of instigating the
husband, and upon such instigation, the husband used to treat his wife cruelly.
At the end of the investigation, chargesheet came to be filed. The filing of the
chargesheet culminated in the Criminal Case No.3618 of 2015 which is
pending as on date in the Court of the learned JMFC, Court No.23, Rajkot. The
statements of the parents of the respondent no.2 are practically on the same line
as what has been stated in the FIR. There has been no issues in the wedlock.
It appears that the husband filed an application in the court at Nagpur
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for restitution of conjugal rights. Considering the same, I thought fit to explore
the possibility of some amicable settlement so that the marriage can be saved.
In such circumstances, the following order was passed on 29th November 2017
:
“Ms. Pandey, the learned counsel appearing for the respondent No.2
wife submits that the respondent No.2 is very much eager and anxious
to go back to her matrimonial home. She further informs that the
husband has filed an application in the Court at Nagpur for restitution
of the conjugal rights. The same is suggestive of the fact that the
husband would also like to reconcile with the wife. There are some
proceedings initiated by the wife at Rajkot and the next date of hearing
in the Court at Rajkot is 14th December, 2017. The husband is to remain
present on that date.
With a view to explore the possibility of an amicable settlement, the
respondent No.2 Kalyani W/o. Anand Kaku shall remain present before
this Court on 15th December, 2017. On 15th December, 2017 the
husbandAnand Kaku shall also personally remain present before this
Court.
Mr. Havewalla, the learned counsel appearing for the applicant shall
inform about this order to his client. If an amicable settlement takes
place, it would be in the interest of one and all, otherwise, the matter
will be heard finally on 15th December, 2017.
Let the matter appear on 15th December, 2017 on top of the board.
To be heard with Criminal Misc. Application No.20207 of 2015.”
Pursuant to the order passed by this Court referred to above, the parties
remained present before this Court. The wife expressed her willingness to go
back to her matrimonial home but the husband was very reluctant to reconcile.
According to the husband, he has been harassed like anything and, therefore,
he does not want to continue with the marriage. The husband also submitted
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that not only he has been harassed but for no fault on the part of his parents and
brother they have also been implicated in the prosecution. I could make it out
that the relations have gone sour to a considerable extent. In such
circumstances, I could not pursue further for an amicable settlement. In the
course of the talks with the parties, I could make it out that the differences
between the husband and the wife were not that serious. The maladjustment in
the marital life has been, prima facie, on account of the difference of opinions
and petty household issues. Since the settlement did not materialize the matter
had to be heard on merits.
Mr.Havewalla, the learned counsel appearing for the applicants,
submitted that even if the entire case of the prosecution is believed or accepted
to be true, none of the ingredients to constitute the offence of cruelty within the
meaning of Section 498A of the Indian Penal Code are spelt out. He submitted
that, as usual, in a matrimonial dispute, the wife thought fit to go before the
police and the police registered a stereotyped FIR of harassment.
Mr.Havewalla submitted that the application filed by his client for restitution of
conjugal rights was ultimately withdrawn and now his client has initiated
proceedings for divorce. Such proceedings are initiated in the court at Nagpur.
The learned counsel would submit that there being merit in this application, the
same be allowed and the prosecution be quashed.
Mr.Havewalla, the learned counsel appearing for the applicants, pointed
out that the husband is paying Rs.7,50000 per month towards the maintenance
of his wife, i.e. the respondent no.2.
On the other hand, this application has been vehemently opposed by
Ms.Kiran D.Pandey, the learned counsel appearing for the respondent no.2,
appointed by the High Court Legal Services Authority. Ms.Pandey would
submit that as chargesheet has been filed the same would suggest that there is
a prima facie case against the applicants for the purpose of putting them on
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trial. She would submit that there are allegations of harassment and the
prosecution should be permitted to establish its case in the course of the trial.
In such circumstances, she prays that there being no merit in this application,
the same be rejected.
Mr.Devnani, the learned APP appearing for the State, submitted that as
chargesheet has been filed, the prosecution may be permitted to proceed with
the trial and try to establish its case.
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 should be quashed.
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 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.
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
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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.
In R.P. Kapur v. State of Punjab, (AIR 1960 SC 866) the apex 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;
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(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.
The Supreme Court, in the case of State of A.P. v. 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.
The illustrative categories indicated by this Court are as follows:
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“(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
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him due to private and personal grudge.
A plain reading of the FIR and the chargesheet papers reveal that the
allegations levelled by the respondent No.2 are quite vague, general and
sweeping, specifying no instances of criminal conduct. Although the
respondent No.2 is much more annoyed with her husband, with an obvious
motive, yet has arrayed the parents of the husband as well as the brother of the
husband residing and settled at Bangalore. The police also seems to have
recorded stereotyped statements of the witnesses and has filed the 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.
In Preeti Gupta v. 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.
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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
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
tranquility 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.
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R/CR.MA/17808/2015 JUDGMENT33. 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 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 beforePage 12 of 22
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R/CR.MA/17808/2015 JUDGMENTthe Hon'ble Minister for Law and Justice to take appropriate steps in
the larger interest of the society."In the aforesaid context, it will also be profitable to quote a very recent
pronouncement of the Supreme Court in the case of Arnesh Kumar v. 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 498A 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 non
bailable 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 provision. In a quite number of cases, bedridden
grandfathers and grandmothers 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 498A 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,Page 13 of 22
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R/CR.MA/17808/2015 JUDGMENTIPC 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 Parliament had to intervene
and on the recommendation of the 177th Report of the Law CommissionPage 14 of 22
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R/CR.MA/17808/2015 JUDGMENTsubmitted 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. .... ....."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 aboutPage 15 of 22
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R/CR.MA/17808/2015 JUDGMENTrapprochement 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."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."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.
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R/CR.MA/17808/2015 JUDGMENTOnce 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 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.Ms.Kiran Pandey, the learned counsel appearing for the respondent
no.2, as well as Mr.D.M.Devnani, the learned APP, in their 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.Devnani, 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.Devnani, at the best, the applicants
could plead in their defence the category No.7, as indicated by the Supreme
Court in the case of State of Haryana (supra).Since Mr.Devnani has raised such 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 the case of State of Haryana (supra) is reproduced
hereinbelow:
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R/CR.MA/17808/2015 JUDGMENT"(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."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 is with an oblique motive, then even if the
FIR and the chargesheet disclose commission of a cognizable offence on plain
reading of the both, 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.Devnani, the learned APP 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, due to 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 charge
sheet papers discloses the commission of a cognizable offence.
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R/CR.MA/17808/2015 JUDGMENTIt is because of the growing tendency to involve innocent persons that
the Supreme Court in the case of Pawan Kumar v. 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 utmost care."
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
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R/CR.MA/17808/2015 JUDGMENTthe 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 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 ill
treatment, 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.
Lord Denning, in Kaslefsky v. 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 isPage 20 of 22
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R/CR.MA/17808/2015 JUDGMENTno 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 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."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 effectPage 21 of 22
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R/CR.MA/17808/2015 JUDGMENTupon 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."For the foregoing reasons, I hold that if the criminal proceedings are
allowed to continue so far as the applicants herein are concerned, then it will be
nothing short of abuse of process of law and travesty of justice. This is a fit
case wherein the inherent powers under Section 482 of the Code should be
exercised for the purpose of quashing the FIR and the chargesheet so far as the
applicants herein are concerned.
Both the applications succeed and are hereby allowed. The proceedings
of the Criminal Case No.3681 of 2015 pending in the Court of the learned
JMFC (Municipal), Court No.23, Rajkot, arising from the First Information
Report being ICR No.39 of 2015 registered with the Mahila Police Station,
Rajkot, are hereby quashed so far as the applicants of the two applications are
concerned. All the consequential proceedings pursuant thereto shall stand
terminated. The trial shall now proceed further in accordance with law
expeditiously so far as the original accused no.1, i.e. the husband is concerned.
Rule made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.)
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