R/SCR.A/1363/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1363 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE
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 ?
URJIT BHUPENDRABHAI PATEL 2….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 – 3
MR RD DAVE, ADVOCATE for the Respondent(s) No. 2
MS CM SHAH, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 05/07/2017
ORAL JUDGMENT
1. Learned APP waives service of rule on behalf of
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the respondent No.1-State and learned advocate Mr.
R.D. Dave waives service of rule on behalf of
respondent No.2.
2. This application under article 226 of
Constitution of India and Section 482 of Cr.P.C. is
filed by 3 applicants seeking quashing of FIR being
CR.No.- I-31/2014 registered with Mahila Police
Station, District : Gandhinagar. The FIR is
registered for offences under Section 498 A, 504, 114
of Indian Penal Code and Section 3,4 and 7 of the
The Dowry Prohibition Act, 1961. The offence is
arising out a matrimonial relation where the
respondent No.2(complainant) is wife and petitioner
No.1 is her husband, petitioner No.2 is the father-
in-law and petitioner No.3 is the mother-in-law
(accused). The FIR filed contains allegation the
gist of which is the respondent No.2 got married to
petitioner No.1 on 14.07.2013 and had started
residing with the in-laws in a joint family
consisting of aforementioned members. At the time of
marriage the husband had informed the wife that the
mother-in-law is orthodox in nature and strict in her
approach of work. It is alleged that the mother-in-
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law mentioned to the complainant that her father was
renowned person and had given huge dowry of gold and
silver. Similarly, during her daughter’s marriage,
all the guest were treated with gold and silver
coins, but the father of the complainant has not
lived up to the standard and status of the
petitioner’s family.
It is also alleged that the petitioner used to
demand gold and silver bars, towards dowry and told
the complainant that if such dowry is not provided
then she will not get the status of the daughter-in-
law of the house.
It is alleged that the husband was suspicious in
nature and would not allow use of mobile phone and
she was not even permitted to talk with neighbour and
even when the husband and wife used to go out for an
outing, mother-in-law and father-in-law would also
accompany them.
The FIR also mentions that on 15.12.2013 all the
petitioners had come to the parental house of the
complainant and they raised the topic of not carrying
out marriage formalities as per the status and as per
the customs followed by their community. The father
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of the complainant assured that subsequently he would
do the needful. It is alleged that the father-in-law
and mother-in-law thereafter hurled abuses and
therefore such conduct of the petitioners was a cause
of mental harassment to the complainant.
The complainant mentions that the health of the
complainant deteriorated on account of mental
harassment and on 25.01.2014 as her condition
deteriorated, she was taken by the in laws to ICU,
Vadodara Heart Hospital, at Bharuch and was treated
and though the complainant had become very weak the
behaviour of her in laws did not change towards her
when her health still deteriorated the mother-in-law
sent the complainant to her parental house, at that
time also the mother-in-law told her to return only
with gold and silver bars otherwise she was not to
come back.
The complainant also mentions that on 23.03.2014
when the parents of the complainant met her in laws
met with Vadodara in religious functions.
It is stated that on 23.03.2014 in laws
mentioned to the parents of the complainant that as
the complainant is residing at her matrimonial place
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and not getting to her matrimonial house, image of
the family of the petitioner is being damaged in the
society and they are immediately sent to the
complainant to matrimonial home and that after
fulfilling all the requirements and demands of the
petitioners and if the parents of the complainant do
not fulfil their demand and then the complainant may
not be sent to her matrimonial home.
It is stated on 24.02.2014 on the birth day of
the complainant, she did not receive any phone call
from her in laws, the complainant got agitated and
called upon her husband and informed that her health
has deteriorated on account of the conduct of the in
laws and she informed that as she is quite afraid of
their such conduct she would not return from her
parental home it is in the aforesaid set of
circumstances the respondent No.2 (complainant) filed
a private complaint being Criminal Case No.17 of 2014
on 28.02.2014 with the Court of JMFC,Gandhinagar for
offence under Section 489A, 504 and 114 of IPC, and
the Section 3 and 7 of the Dowry Prohibition Act,
1961. On that day the 2nd Additional Civil Judge and
JMFC, Gandhinagar recorded the verification of the
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complainant and passed an order under Section 202 of
Cr.P.C., calling upon the Police Inspector, Mahila
Police Station, Gandhinagar to submit a report within
a period of 30 days.
3. In response thereto the Police Officer of
concerned Police Station recorded the statement of
the complainant, which is at Annexure-F and appears
to be recorded on 09.03.2014 in the said statement
the complainant has stated that in connection with
the complaint registered with the Magistrate Court,
the complainant is not desirous to continue with the
inquiry by the Court and that she wanted inquiry of
her complaint to be cancelled and statement to that
effect was recorded on the basis of this statement,
Police Inspector, Mahila Police Station, Gandhinagar
forwarded a report dated 18.03.2014 and this report
also reflected that. In the meantime, the complainant
filed pursis (declaration) seeking withdrawal of the
complaint filed on the basis of the pursis dated
12.03.2014, concerned JMFC Court, Gandhinagar passed
an order permitting withdrawal of the complaint, in
the order, it is recorded that after hearing the
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complainant and reading and perusing the withdrawal
pursis, the complainant was permitted to withdraw the
said complaint.
4. It appears that after the withdrawal of the said
complaint on 13.03.2014 i.e. on the next date, the
impugned FIR being CR No.I – 31 of 2014 filed with
the Gandhinagar Mahila Police Station in connection
with the aforementioned FIR, the petitioners have
been enlarged on anticipatory bail and thereafter the
present petition came to be filed, pending the
petition the charge-sheet after the investigation
came to be filed on 25.06.2014. The petitioners
therefore prayed for the amendment of the petition by
producing the copy of the charge-sheet and the
charge-sheet papers on record. The charge-sheet
produced indicates that the petitioners have been
chargesheeted not only for the offence for which FIR
is filed i.e. 498A, 504 and 114 of IPC but have also
chargesheeted for an offence under Section 406 of
IPC. The amendment had been granted by the Court at
the relevant time and after hearing the parties
attempt was also made for settling the matter by
negotiations. Hence, on 16.02.2017 this Court passed
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an order directing the trial Court not to proceed
further with the framing of the charge.
5. Heard learned advocate Shri PP Majmudar for the
petitioners, learned APP for the State and Mr. R.D.
Dave learned advocate for the respondent No.2
(Original complainant).
6. Learned advocates for the petitioners submtis
that the present FIR is malafide and vexatious
proceedings and continuing with any further
proceeding is nothing but abuse of process of law.
7. He submits that even if the allegations are seen
in the entirety, the same are quite general in
nature. There is complete absence of any allegation
of any physical torture or even verbal abuse, if all
the allegations are taken its face value still such
conduct on the part of the petitioners can never be
termed as cruelty so as to attract section 498A.
Section 406 which provides for the breach of trust,
prima facie also is not made out because no where in
the FIR there is any mentioned that the complainant
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had entrusted any property to the petitioners and
that such property has been dishonestly used or
disposed of. In so far as the allegations of the
demand of dowry is concerned, the petitioners belong
to a very reputed family and are having good name
within community and in the city of Bharuch and the
demand as is alleged of gold and silver bars are far
from truth and cannot be believed. He submits that
the chronology of evens suggest that the complainant
filed a complaint before the Magistrate Court, gives
a statement of not being interested in prosecuting
such complaint files a pursis for withdrawal and on
the very next day files an FIR which contains verbal
allegations this conduct would suggest that the
intention of the complainant was to get the
investigation done by police authorities as
investigated by police is also cumbersome and causes
damage to reputation in the society, otherwise there
was no need for the complainant to withdraw the
complaint before the Court of Magistrate, which was
filed with the same allegations. He submits that
there is yet another angle to this as the intention
of the complainant was to seek order of registration
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of FIR under Section 156 (3) of Cr.PC. But when the
Court of the Magistrate passed an order under Section
202, the complainant felt that her purpose will not
be served and hence withdrew the application to file
an FIR before the Police Station. Allegations are
absurd and unbelievable, in the nature of that the
mother-in-law made it compulsory to touch her feet
every morning and if she fails to do so, the mother-
in-law would start abusing her. He submits that even
from the paper of the charge-sheet, the charge cannot
be made out. The only witnesses mentioned in the
charge-sheet are relatives of the complainant, who
would be interested in supporting the complainant
rather than giving the correct version before the
Court. He submits that even if the charge-sheet is
filed or if the proceedings have proceeded beyond
framing of charge, the proceeding can be quashed, if
such proceedings are vexatious, mala fide in abuse of
process of law.
8. Learned advocate for the applicants relies upon
the following judgments; (I) Ravindra Singh vs.
Sukhbir Singh 2013 (09) SCC page 245, (II) Swapnil
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and others vs. State of Madhya Pradesh 2014 (13) SCC
page 567, unreported judgments. (III) Criminal Misc.
Application No. 4899 of 2015 dated 24.11.2015 and
unreported (IV) Criminal Misc. Application No. 20679
of 2013 dated 06.04.2017.
9. Learned APP submits that after due
investigation, the charge-sheet is filed she took
this Court to the gist of the charge as mentioned in
the Column 5 of the charge-sheet and submitted that
since now the charge-sheet is filed the petitioners
must be made to face the trial.
10. Learned advocate Mr.RD Dave, appearing on behalf
of the respondent No.2 submits that the conduct of
the petitioners speak about their attitude towards
the complainant. He submits that the complainant
herself is highly qualified and is expected to be
treated with some dignity even if there is no
physical torture and assault, considering the
educational qualification of the complainant and her
status in society, the conduct of the petitioners
would amount to mental harassment. He also submitted
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that the repeated insults hurled at the complainant
as also on type of mental cruelty for which the
petitioners need to be prosecuted he took this Court
to the allegations made in the FIR, more,
particularly on page 22 (e) and submitted that the
allegations of taunting the complainant by comparing
what the mother-in-law had brought in as dowry and
what has been given during her marriage, such
comparison was done to taunt the complainant which is
also type of mental cruelty. He further submits that
the conduct of the petitioners is also evident from
the fact that though the petitioners have been
enlarged on anticipatory bail, wherein one of the
condition was to not to change the residence without
prior permission of the Court yet as and when the
summons were issued from the Magistrate Court the
same have been returned with endorsement that the
petitioners have left the place of residence. He
also submitted that the proceedings under Section 125
of Cr.PC are also filed and are pending. He relied
upon the judgment of the Apex Court reported in 2012
(1) SCC page 130, Mahendri Ors. vs. State of U.P.
Anr. 2015 STPL(Web) 266 SC, took to support his
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contention that even if the complaint is filed,
withdrawn still another complaint/FIR can be filed
and maintained.
Shri Dave further submits that one of the
relevant consideration for not entertaining this
application, the subsequent conduct of the
petitioners he draws attention of this Court to the
list of ornaments which were given to the complainant
during the marriage. He draws attention of this Court
to page-84 which gives the list of gold ornaments and
submits that the value of such ornaments runs into
crores. He further submits that every time during
the pendency of this petition and other proceedings
arising out of the matrimonial dispute, these
ornaments were the point of friction and on account
of this negotiations attempted could never proceed as
the petitioners are adamant in not returning these
ornaments.
11. Having heard the rival parties and having gone
through the case papers, this Court is of the view
that the chronology of the incident/events that is to
say filing of a Criminal Complaint No. 17 of 2014 on
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28.02.2014 before the Judicial Magistrate,
Gandhinagar passing of the order by JMFC under
Section 202 on the same date, giving statement to
concerned Police Station in an inquiry. Pursuant to
the order of the JMFC under Section 202, withdrawal
of pursis on 12.03.2014 to withdraw the complaint and
filing of the FIR on the very next day for the same
allegations would indicate that the attempt is made
by the complainant to get what otherwise is not
permissible under the law. Once the Criminal
complaint is filed before the JMFC, and the Court
passed an order under Section 156 (3) of Cr.PC. or
passed an order under Section 202 of Cr.P.C. calling
for the inquiry report and postponing the issuance
of process or to issue process under Section 204 if
the Court is convinced on existence of cognizable
offence. In either case the Court takes cognizance.
In the instant case, the Court of JMFC after
recording the verification, has postponed issuance of
process and call upon the concerned Police Station to
submit an inquiry report. In ordinary circumstances,
also once the cognizance is taken, the Court is not
permitted to travel back to the pre-cognizance stage.
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Filing of FIR under Section 156(3) in the instant
case what could have been done by the Court of
Magistrate, seems to have been done by adopting in
genuine method in withdrawing the private complaint
after taking of cognizance and filing of FIR on the
very next day with the same Police Station.
12. The Court has also perused the nature of the
allegations made in the FIR and finds that at the
root of said allegations lies a cultural difference
between the two families which with the progress of
time resulted in incompatibility between the two
families and consequently between the husband and the
wife and this appears to have encouraged the
complainant to file the present complaint. None of
the allegations in the FIR can be termed to be the
act on the part of the petitioners which would fall
in the definition of cruelty.
13. This Court also finds that from the allegations
made in the FIR as well as the statement recorded of
the witnesses, there is no act on the part of the
petitioners, which could be considered an act to
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misappropriating or converting property belonging to
the complainant, which was entrusted by the
complainant to the petitioners and that such property
has been dishonestly misappropriated or converted to
the use of petitioners which would constitute
ingredients of criminal breach of trust.
14. It is also pertinent to mention that neither in
the private complaint nor in the FIR though both the
complaints appear to be in great detail mentions
about the handing over of any property or more
particularly the ornaments of the petitioners and
that such ornaments have been misappropriated or put
against the interest of the complainant. Hence, also
charge of Section 406 is not made out agaist the
petitioners. In so far as the allegations for the
demand of dowry is concerned, the perusal of the FIR
as well as the private complaint reflects that the
demand was made for bringing silver slabs and gold
slabs (exact translation of word gold and silver
PAATO used in FIR.) Such allegations in the present
sets of facts cannot be accepted as the same being
beyond the comprehension any prudent man that slabs
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of gold and silver were demanded that too after the
marriage has taken place.
15. Moreover, there are no specific allegations
specifying the time, period, place or an individual
who has made such demands.
16. In so far as the arguments of the advocate on
behalf of the complainant about the conduct of breach
of one of the condition of anticipatory bail the
change of address without prior permission of the
Court concerned cannot be considered as relevant at
this point in absence of any complaint or proceedings
for breach of such conditions when the order of grant
of anticipatory bail itself specifies that in case of
any breach of the condition legal action can be
initiated (Condition No.11).
17. Support can be drawn from the observations made
in an order dated 24.11.2015 passed in Criminal Misc.
Application (For quashing set aside FIR/Order)
No:4899 of 2015 :
“It appears that after almost a period of
three years the first informant thought fit
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to lodge the FIR. Rude and uncultured
behaviour as well as perfunctory abuses are
mundane matters and would not attract the
rigors of Section 498A of the IPC. There
has to be something more to attract Section
498A of the IPC. Even if I accept the
entire case of the prosecution, there is
nothing against the father-in-law and the
married sister-in-law. Whatever little has
been alleged is against the mother-in-law,
and that too, hurling of abuses, using of
perfunctory words, etc. They may be morally
guilty of not treating the daughter-in-law
with respect in an Indian society, but such
moral acts fall short of an offence under
Section 498A of the IPC.”
18. In so far as the contention of quashing at the
stage when charge-sheet is filed, reliance is placed
on judgment of the Apex Court Ravindra Singh (Supra)
where the Apex Court interpreting the word vexatious
harassment by process of law has held as under :-
"24. The word "vexatious" means
"harassment by the process of law","lacking justification" or with "intention
to harass". It signifies an action not
having sufficient grounds, and which
therefore, only seeks to annoy the
adversary. The hallmark of a vexatious
proceeding is that it has no basis in law
(or at least no discernible basis); and
that whatever the intention of the
proceeding may be, its only effect is to
subject the other party to inconvenience,
harassment and expense, which is so great,
that it is disproportionate to any gain
likely to accrue to the claimant; and thatPage 18 of 21
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R/SCR.A/1363/2014 JUDGMENTit involves an abuse of process of the
court. Such proceedings are different from
those that involve ordinary and proper use
of the process of the court."19. Reliance be placed on judgment of the Apex Court
Swapnil and others vs. State of Madhya Pradesh
(Supra) is as under:
"11. The second respondent has been living
separately since April 2011 and hence, there is
no question of any beating by the appellants as
alleged by her. The relationship having got
strained ever since April 2011, even application
for restitution of conjugal rights having been
withdrawn on 16-04-2012 as the second respondent
was not interested to live together, it is
difficult to believe that there is still a
demand for dowry on 30-04-2012 coupled with
criminal intimidation. The allegations are vague
and bereft of the details as to the place and
the time of the incident. We had called for the
records and have gone through the same. The
materials before the learned Judicial
Magistrate, First Class, Indore are not
sufficient to form an opinion that there is
ground for presuming that the appellant-accused
have committed the offence under the charged
sections. The Additional Sessions Court and the
High Court missed these crucial points while
considering the petition filed by the appellants
under Section 397 and Section 482 CrPC
respectively. The veiled object behind the lame
prosecution is apparently to harass the
appellants. We are, hence, of the view that the
impugned prosecution is wholly unfounded.12. Therefore, to secure the ends of justice and
for preventing abuse of the process of the
criminal court, the charges framed by the
Judicial Magistrate, First Class, Indore in
Criminal Case No. 10245 of 2012 against the
appellant-accused are quashed. The appellant-accused are quashed. The appellant-accused are
discharged. However, we make it clear thatPage 19 of 21
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R/SCR.A/1363/2014 JUDGMENTnothing contained in this judgment shall have a
bearing on any proceedings between the parties
regarding their matrimonial disputes before the
Family Court, since our observations are only
for the purpose of this judgment."20. The reliance upon by the judgment of the
Mahendri and others (Supra) by the respondent No.2 in
support of his argument that where the private
complaint is filed before the Magistrate and is
withdrawn with a purpose to file an FIR for the same
offence under as is the facts in this case then the
FIR can be registered.
21. This argument on the basis of the captioned
judgment would not hold good as in the cited
judgment, the applicant's application was filed
before the concerned Court seeking an order under
Section 156 (3) of Cr.P.C. And such application was
rejected by the Court of competent jurisdiction and
after such rejection the FIR came to be registered.
(see Para 6 and 7) therefore in the case cited the
application before the concerned Court the stage of
cognizance was not crossed unlike in the facts of the
present case where cognizance was taken and order
under Section 202 of Cr.P.C. was passed.
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R/SCR.A/1363/2014 JUDGMENT22. In view of the aforementioned findings
continuing of the FIR would be an abuse of process of
law. The allegations in the FIR do not constitute an
offence for which the FIR and the charge-sheet is
filed. Therefore the FIR deserves to be and is
hereby quashed.
23. While, quashing the FIR, this Court is compelled to
make an observation in connection with the "Stridhan" as
claimed by the complainant, therefore, it would be
appropriate for the Court to issue directions to the
petitioners that "Stridhan" which is Right of a wife
should be rightly handed over to the complainant
(respondent No.2) herein and such an act would further
strengthen the claim of the petitioners of being a family
of good reputation and culture. Rule is made absolute.
No order as to costs.
(A.Y. KOGJE, J.)
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