R/CR.MA/383/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 383 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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 ?
HASMUKHBHAI CHUNILAL SOLANKI 6….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR HEMANT K MAKWANA, ADVOCATE for the Applicant(s) No. 1 – 7
MS KIRAN D PANDEY, ADVOCATE for the Respondent(s) No. 2
MR RUTVIJ OZA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 12/07/2017
ORAL JUDGMENT
1. This application has been filed by the
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applicants/original accused under Section 482 of the
Code of Criminal Procedure (for brevity “CrPC”)
praying to quash and set aside the complaint, being
C.R. No. II-2 of 2012 registered with Visnagar Police
Station, District: Mehsana for the offence punishable
under Sections 498(A), 114 of the Indian Penal Code
and Sections 3, 7 of the Dowry Prohibition Act, 1961
(for brevity “Act”)
2. Brief facts of the case are that the marriage of
applicant no.1 was solemnized with the respondent
no.2 on 11.12.2000 as per Hindu rites and rituals
and out of their wedlock, the respondent no.2 had
given birth to two children; namely Akilesh and
Anirudh. However, marriage life of the applicant
no.1 could not continue for a long time, as frequent
quarrels were continued, and therefore, the
respondent no.2 stared living separate from the
applicant no.1 since 2009. The respondent no.2 filed
an application under Section 97 CrPC in the court of
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learned JMFC Mehsana, wherein parties mutually
agreed to retain custody of children with the
applicant no.1. Thereafter, the respondent no.2
approached the court of Senior Civil Judge Mehsana,
by preferring an application under section 10 of the
Hindu Marriage Act interalia seeking judicial
separation on various grounds as set-out therein,
and along with the said application, the respondent
no.2 filed an application under Section 24 of the
Hindu Marriage Act, 1955 interalia seeking
maintenance allowance Rs. 1500/- per month, till
disposal of matrimonial disputes pending in the
court of Civil Judge (S.D.) Mehsana. The respondent
no.2 also approached Women Safety Cell, Mehsana,
by way of an application, being M. Su.Cell/Javak
42/2009, and also lodged the impugned complaint
against the present applicants.
3. Heard learned advocate Mr. Hemant K.
Makwana appearing on behalf of the applicants,
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learned advocate Ms. Kiran D. Pandey appearing on
behalf of the respondent no.2 and learned APP Mr.
Rutvij Oza appearing on behalf of the respondent
no.1-State.
4. Learned advocate Mr. Hemant K. Makwana
appearing on behalf of the applicants submitted
that the allegations levelled against the present
applicants in the impugned complaint are totally
baseless and vexatious. That, the accused no.7 in
the impugned complaint is the uncle of applicant
no.1. He is aged about 75 years and staying apart
from the applicant no. 1. Accused no.2 is father of
the applicant no.1. He is aged about 80 years and
suffering from paralysis. Accused no.3 is mother of
two sons, namely Hardik and Kuldip aged about 15
years and 13 years as well as daughter named
Jagruti aged about 16 years and she got married in
the year 1993 and since then settled at her
matrimonial home at Chanasma, District: Mehsana.
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Accused nos.4,5 and 6 are cousin brothers, who are
already settled at Dantiwada, Chekhla and
Amraivadi in Ahmedabad, respectively.
5. Learned advocate Mr. Hemant K. Makwana
appearing on behalf of the applicants further stated
at the bar that the parties have amicably settled
their disputes and divorce has been taken place by
a deed of divorce dated 13th July, 2014. He has
drawn attention of this Court to the settlement
arrived at by and between the parties, whereby the
husband has been acquitted by the learned JMFC,
Visnagar in Criminal Case No. 898/2012 vide order
dated 30th August, 2014, and therefore, considering
the said settlement as well as on merits, the
impugned complaint lodged against the applicants
is required to be quashed and set aside.
6. Learned advocate Ms. Kiran D. Pandey
appearing on behalf of the respondent no.2 also
supported the contents of the deed of divorce and
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signature put by the respondent no.2 below the said
deed. She submitted that two children begotten out
of their wedlock are staying with the applicant no.1.
Learned advocate for the respondent no.2 stated at
the bar that fresh notice issued by this Court has
been duly served upon the respondent no.2.
Considering the facts, it is requested to pass
necessary orders in the interest of justice.
7. Mr. Rutvij Oza, learned APP for the respondent
no.1 State fairly conceded that considering the
matrimonial dispute and resolution thereof, and as
the applicant no.1 has been acquitted by the
competent court of law at Visnagar in Criminal Case
No. 898/2012, this Court may exercise discretionary
powers under Section 482 CrPC in favour of the
applicants.
8. Heard learned advocates/APP of the respective
parties at length. From the document produced on
record as well as contents of the application and
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facts placed before this Court, it appears that
marriage of the applicant no.1 was solemnized with
the respondent no.2 on 11th December, 2000 and
out of the said wedlock, two children were born
namely Akilesh and Aniruddh. The marriage life of
the applicant no.1 and respondent no.2 was not
happy, and therefore, the respondent
no.2/complainant started living separate since the
year 2009. It appears from the record that she
approached various forums by way of different
litigations on one pretext or the other. One such
application under Section 97 CrPC was preferred by
the respondent no.2 before the Court of learned
JMFC at Mehsana, in which, the parties have
mutually agreed to retain custody of the children
with the husband/applicant no.1. It also appears
that thereafter, she approached the court of
learned Senior Civil Judge Mehsana by preferring an
application under Section 10 of the Hindu Marriage
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Act seeking judicial separation on various grounds,
as set-out therein. She also filed an application
under Section 24 of the Hindu Marriage Act, 1955
seeking maintenance allowance of Rs. 1500/- per
month, till disposal of the matrimonial dispute. She
also approached Women Safety Cell, Mehsana by
filing an application, being M. Su. Cell/Javak 42/2009
and attended the proceedings from time to time,
and thereafter, it appears that she filed impugned
FIR on 6th January, 2012 alleging that she was being
ill-treated by her husband and his family members,
who allegedly demanded dowry amount of Rs. 1 lac
for the purpose of car. The said FIR came to be
registered by the respondent no.2, as C.R. No. II-2 of
2012 at Visnagar Police Station, District: Mehsana
against the present applicants. If we analyse merits
of this case, it appears that since 2009, respondent
no.2 was staying separately from the applicants;
including her husband-applicant no.1. She had
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initiated various litigations before different forums;
including filing a petition for judicial separation
under Section 10 of the Hindu Marriage Act, 1955.
She has also made an application under Section 24
of the Hindu Marriage Act, praying for interim
maintenance in sum of Rs. 1500/- per month. This
complaint was lodged by the respondent no.2 on 6th
January 2012 after three years after separation from
the applicant no.1. It appears from the application
that applicant no.2 is father-in-law of the
respondent no.2 aged about 80 years. The applicant
no.3 is the sister-in-law, who was married in the
year 1993 and mother of two sons and one
daughter. Applicants no. 4, 5 and 6 are the cousin
brothers of the complainant and applicant no.4 is
working with Agricultural University at Dantiwada
since 1991 and he is father of two children,
applicant no.5 is married in Sidhdhpur and staying
at Chekhla, Ta: Kankrej, while applicant no.6 is
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married since 1995 and staying at Amraivadi at
Ahmedabad. Applicant no.7 Ramabhai is uncle-in-
law, aged about 75 years and residing at village
Umbari, Taluka: Shihori. As all the applicants are
staying separately from the applicant no.1 and
respondent no.2, perpetrating cruelty to the
respondent no.2, or causing harassment to her, or
demanding any amount by way of dowry cannot be
believed at all by this Court. Further, it is submitted
by learned advocates and learned APP for the
respective parties that dispute between the
applicant no.1 and his wife-respondent no.2 has
been resolved amicably by mutual understanding
and divorce has taken place between them and a
deed of divorce is also produced on the record. It is
also agreed by both the parties that Criminal Case
No. 898 of 2012 pending before the court of JMFC at
Visnagar as well as HMP No. 9 of 2010 pending
before the court of learned Senior Civil Judge
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Mehsana , Criminal Case No. 54/2013 pending
before the court of learned JMFC, Mehsana were to
be withdrawn by the respondent no.2 at her own
costs. The custody of children would be continued
with the applicant no.1 and respondent no.2, being
their mother, is free to meet her children at any
point of time. It appears that this deed of divorce
has been executed before Notary on 31st July, 2014
under the signatures and in presence of two
witnesses. It also appears from the copy of the
judgment passed in Criminal Case No. 898 of 2012
that the respondent no.2 was examined before the
same Court vide ex. 15 and she has clearly stated
that there was normal disputes with the in-laws in
matrimonial home and none of the accused have
given any physical or mental cruelty to her or no
demand of dowry was made. It is further stated that
the complaint was filed by the complainant in hot
haste manner and she had put only her signature.
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As she did not support the contents of the
complaint, she was declared hostile. The learned
Judge, after considering the facts and evidence, was
pleased to acquit the present applicant no.1 by
order dated 30th August, 2014. From the documents
produced on record, prima facie, it appears that
dispute is settled between the parties amicably and
divorce deed was executed on 31st July, 2014 as
well as in the Criminal Case No. 898 of 2012
pending before the court of learned Additional
Judicial Magistrate, First Class, Visnagar, wherein
the applicant no.1, being an accused, was acquitted
on 30th August, 2014. Considering this aspect as
well as on merits, this Court is of the view that
powers under Section 482 CrPC needs to be
exercised in favour of the applicants no.2 to 7, as
this application is not pressed so far as the
applicant no.1 is concerned.
9. Considering the above stated facts, as the
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complainant deposed before the learned Trial Court
in her criminal complaint, she had no dispute with
her in-laws nor any torture was given, physically or
mentally, by them nor any demand of dowry was
made by them and this complaint was lodged by the
family members in hasty manner. She has put her
signature only. Here this court would like to refer to
a decision of Hon’ble Supreme Court in the case of
Gian Singh v. State of Punjab Anr., reported
in (2012) 10 SCC 303 wherein three-Judge Bench
while dealing with number of decisions has held that
quashing of offence or criminal proceedings on the
ground of settlement between an offender and
victim is not the same thing as compounding of
offence. They are different and not interchangeable.
The Court held that in different situations, the
inherent power may be exercised in different ways
to achieve its ultimate objective. Formation of
opinion by the High Court before it exercises
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inherent power under Section 482 CrPC on either of
the twin objectives viz., (i) to prevent abuse of the
process of any court, or (ii) to secure the ends of
justice is a sine qua non. In paragraph 55, the Apex
Court further went on to add that in the very nature
of its constitution it is the judicial obligation of the
High Court to undo a wrong in course of
administration of justice, or to prevent continuation
of unnecessary judicial process, which is founded on
the legal maxim quando lex aliquid alicui concedit,
conceditur et id sine qua res ipsa esse non potest.
The Apex court in the said decision also placed
reliance upon a five Judge Bench decision of Punjab
Haryana High Court in the case of Kulvinder Singh
v. State of Punjab, reported in (2007)4 CTC 769,
wherein the Bench referred to quite a few decisions
of the Apex court; including the decisions in Madhu
Limaye v. State of Maharashtra, reported in (1977)
4 SCC 551, State of Haryana v. Bhajan lal, reported
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in 1992 Supp (1) SCC 335, State of Karnataka v. L.
Muniswamy, reported in (1977) 2 SCC 699,
Simrikhia v. Dolley Mukherjee, reported in (1990) 2
SCC 437, B. S. Joshi v. State of Haryana, reported in
(2003) 4 SCC 675 and Ramlal, reported in (2005) 1
SCC 347 and framed the following guidelines:
(Kulwinder Singh case reported in (2007) 4 CTC 769
in para 21;
“21…..(a) Cases arising from matrimonial
discord, even if other offences are introduced
for aggravation of the case.
(b) Cases pertaining to property disputes
between close relations, which are
predominantly civil in nature and they have
a genuine or belaboured dimension of
criminal liability. Notwithstanding a touch of
criminal liability, the settlement would bring
lasting peace and harmony to larger number
of people.
(c) to (f) xxxxx
While parting with this part, it appears
necessary to add that the settlement or
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compromise must satisfy the conscience of the
court. The settlement must be just and fair
besides being free from the undue pressure,
the court must examine the cases of weaker
and vulnerable victims with necessary
caution.”
To conclude, it can safely be said that
there can never be any hard and fast category
which can be prescribed to enable the Court to
exercise its power under Section 482 CrPC..
The only principle that can be laid down is the
one which has been incorporated in the
Section itself, i.e., “to prevent abuse of the
process of any Court” or “to secure the ends of
justice.”
10. Here appears to be a case which has its origin
in the domestic dispute between the parties, which
dispute has, it appears, been resolved by them.
That being so, continuance of the prosecution
where the complainant is not ready to support the
allegations which are now described by her as
arising out of some hasty manner and
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misconception will be a futile exercise that will
serve no purpose. The continuance of the
proceedings is thus nothing but an empty formality.
Section 482 CrPC could, in such circumstances, be
justifiably invoked by the High Court to prevent
abuse of the process of law and thereby preventing
a wasteful exercise by the courts below.
11. Resultantly, this Application is hereby partly
allowed. Complaint, being C.R. No. II-2 of 2012
registered with Visnagar Police Station, District:
Mehsana for the offence punishable under Sections
498(A), 114 of the Indian Penal Code and Sections
3, 7 of the Dowry Prohibition Act, 1961 is hereby
quashed and set aside, so far as the applicants no.
2 to 7 are concerned. Applicant no.1 to stand trial.
12. Rule nisi made absolute qua applicant nos. 2
to 7. Rule discharged qua applicant no.1. No costs.
(B. N. KARIA, J )
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