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4 Whether This Case Involves A … vs State Of Gujarat & on 6 April, 2017

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 20679 of 2013

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE N.V.ANJARIA

NATUBHAI SOMABHAI ROHIT 5….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)

Appearance:
MR PREMAL R JOSHI, ADVOCATE for the Applicant(s) No. 1 – 6
MRS KIRAN P JOSHI, ADVOCATE for the Applicant(s) No. 1 – 6
MR MD CHAUHAN, ADVOCATE for the Respondent(s) No. 2
MR. RUTVIJ OZA, APP for the Respondent(s) No. 1

CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

Date : 06/04/2017

In the facts and circumstances of the case, Rule returnable forthwith. Learned Additional Public Prosecutor Mr. Rutvij Oza waives service of Rule for the respondent state, whereas learned advocate Mr. N. D. Chaudhary waives service of rule for respondent No.2-the original complainant. The application is taken up for hearing today.

1.1 This application is filed under section 482 of the Code of Criminal Procedure, 1973, for quashment of the First Information Report bearing Crime Register No.I-310 of 2013 lodged with Panigate Police Station, Vadodara. The F.I.R. is in respect of the alleged offences under sections 498-A, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860, read with section 3 and section 7 of the Dowry Prohibition Act.

2. In all ten persons-all family members are shown as accused in the First Information Report. Accused No.1 is husband, accused No.2 is father-in-law, accused No.3 is mother-in-law, whereas accused Nos. 4 and 5 are sister-in- laws and the remaining accused Nos. 6 to 10 are shown as brother-in-laws. As far as the present application is concerned, it is filed by applicant No.1-original accused No.6, applicant No.2-original accused No.4, applicant No.3-original accused No.5, applicant No.4-original accused No.7, applicant No.5- original accused No.9 and applicant No.6-original accused No.10. In other words, the applicants are sister-in-laws and brother-in-laws of the complainant.

3. According to the FIR lodged on 12.12.2013, the marriage of the complainant was solemnised on 21.05.2010 and after marriage, she went to her matrimonial house for consummation of marriage. She started living in the company of the family members namely the husband, father-in-law, mother-in-law and in-laws. According to the complaint, the initial period of seven months or so, passed by smooth. However, thereafter the members in the matrimonial family started misbehaving with the complainant over small issues. The complainant stated that she hoped that everything would get improved with the passage of time. She stated that both her sister-in-laws used to taunt her that she was less educated and that marriage of their brother-the husband was required to be solemnised with a girl of higher community and well educated who was serving with him in the office. It was alleged that accused No.1 husband was prompted to re-marry, therefore other members also used to harass the complainant. Accused No.9 and accused No.10 also used to state that they did not want to keep the complainant as wife.

4. Learned advocate for the applicants Mr. Premal Joshi submitted that applicant No.5 and applicant No.6 who are accused Nos. 9 and 10, are old persons aged about 70 and 90 years respectively; that they are dragged into First Information Report by levelling wrong allegations. It was submitted that applicant Nos.1 and 2 have children aged about 7 years and 4 years and that they have been staying separately. Applicant Nos. 3 and 4 have also minor children aged 6 years and 6 months. It was further submitted that the complainant had earlier moved an application under the Protection of Women from Domestic Violence Act, 2005, and that the instant FIR came to be filed out of vengeance, and allegations therein did not have element of truth. It was further submitted that complainant’s cousin sister married with brother of accused No.1 husband, who has also lodged complaint with Umreth Police Station against all the family members.

4.2 On the other hand, learned APP and learned advocate for the complainant submitted that the First Information Report contained allegations about harassment, taunting and asking the complainant to bring dowry and therefore the offences alleged are made out. They therefore submitted that the First Information Report was not liable to be quashed.

5. Having carefully gone through the contents of the First Information Report and the allegations therein and the other material produced on record, the following factual aspects have emerged unctrovertedly. (i) In the First Information Report, the period of commission of offence was mentioned to be from 21.05.2010 onwards. The complaint was filed in December, 2013. (ii) Applicant No.1-accused No.6 is advocate by profession, who stays and practices at Nadiad. Applicant No. 1 and 2 stay at separate address, for which the residential address proof is produced in the nature of Sanad of Bar Council. These both applicants have minor children. (iii) Applicant Nos. 3 and 4 also stay separately, which is sought to be fortified by producing APL card on record. Similarly, the applicant Nos. 5 and 6 have shown their residence separate by producing the electricity bills and identity card issued by the Election Commission of India. (iv) The aforesaid aspects imply that all the applicants accused have got their separate residences. Applicant Nos. 3 and 4 stay at Anand, whereas applicant Nos. 4 and 5 stay at Mohubha.

5.1 Prior to lodging of the FIR on 12.12.2013, the complainant filed on 30.07.2007, a complaint under the Domestic Violence Act, wherein also she had roped in all the family members, which show her tendency to indulge into allegations and filing complaint and at least the filling of FIR was a successive act. Another circumstance shown was that the brother of the husband had also married with the cousin sister of the complainant and the said cousin sister also lodged the complaint against all the family members.

5.2 In addition to the above all the aspects, when the instant FIR is carefully perused, though it contains allegations, the allegations are vague and non-specific. They are non-specific qua the contents as well as non-specific qua the persons. Generally stating that in-laws used to taunt and harass without giving the specific particulars may not meet the test of adequacy in law.

5.3 In Neelu Chopra and another vs. Bharti [(2009) 10 SCC 184], the Supreme Court emphasised that the complaint should show the exact role played by the appellants and should show which accused committed what offence, without which the complaint would be suffering from vice of vagueness.

5.4 In Neelu Chopra (supra), the following observations were made and the complaint was quashed in exercise of powers under section 482, Cr.P.C..

“In order to lodge a proper complaint, mere mention of the sections
and the language of those sections is not the be all and end all of the
matter. What is required to be brought to the notice of the court is
the particulars of the offence committed by each and every accused
and the role played by each and every accused in committing of that
offence.” (para-9)

“When we see the complaint, the complaint is sadly vague. It does
not show as to which accused has committed what offence and what
is the exact role played by these appellants in the commission of
offence. There could be said something against Rajesh, as the
allegations are made against him more precisely but he is no more
and has already expired. Under such circumstances, it would be an
abuse of the process of law to allow the prosecution to continue
against the aged parents of Rajesh, the present appellants herein, on
the basis of a vague and general complaint which is silent about the
precise acts of the appellants.” (para-10)

“The High Court had merely mentioned that the allegations in the
complaint are of retaining jewellery articles in possession of the
husband and the petitioners. Now if the articles were in the
possession of the husband, there is not question of the present
appellants being in possession of the jewellery. This is apart from the
fact that it has already been expressed by us that there is no
mention of the date on which the said ornaments, if any, were
entrusted to the appellants or even the date when they were
demanded back and were refused to be given back by the appellants
or any one of them. Insofar as the offence under Section 498-A IPC is
concerned, we do not find any material or allegation worth the name
against the present appellants. All the allegations appear to be
against Rajesh.” (para-11)

6. Besides to the generality and vagueness of the allegations, if the ingredients necessary to make out the offence under 498A, IPC are looked into, as observed by the Supreme Court in Bhaskar Lal Sharma vs. Monika [(2009) 10 SCC 604], the allegations of harassment should be of such nature and extent so as to coerce the wife to meet any unlawful demand of dowry or any other unlawful conduct on part of the accused of a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. Closely examining the allegations in the instant FIR, these elements as well as the degree of seriousness in the allegations could be said to be in wanting.

7. The tendency to rope in all the family members in the FIR speaks for themselves and in such circumstances, the requirements of alleging specific role for each of the members becomes necessary, for which the indispensable aspects that all should stay together. The Supreme Court has viewed with suspicion the conduct of disgruntled complainant in bringing into picture the entire family and the family members to level allegations under section 498A against all of them.

8. In G. V. Rao vs. L.H.V. Prasad [(2203) SCC 693), the Supreme Court held that a complaint relating to matrimonial dispute where all the members are roped into irrespective of role, becomes liable to be quashed. The court observed as under,

“There has been an outburst of matrimonial disputes in recent times.
Marriage is a sacred ceremony, the 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 commission of 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 other reasons which need not be mentioned
here for not encouraging matrimonial litigation so that the parties
may ponder over their defaults and terminate their 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 ýoung’ days in chasing their ‘çases’ in different courts.”
(para-12)

9. Having regard to above position and the facts cumulatatively operating, when the allegations are shown to be non-specific and not of the degree of seriousness contemplated in law, and when the applicants accused are shown to be living separately coupled with attendant facts and aspects noticed and noted above, the allegations become too bald to be sustained in law. Applicant Nos. 5 and 6 are aged about 70 years and 90 years respectively. In light of the above facts and circumstances, the FIR and the allegations therein turned out to be abuse of process of law and could be said to be only for wrecking vengeance.

10. As a result of the above discussion, the First Information Report bearing First Information Report bearing Crime Register No.I-310 of 2013 with Panigate Police Station, Vadodara in respect of the alleged offences under sections 498-A, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860, read with section 3 and section 7 of the Dowry Prohibition Act, is hereby quashed.

Rule is made absolute.
(N.V.ANJARIA, J.)

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