Hon J Shri J.B. Pardiwala hits out at stereotype, copy-paste FIRs in his 498a quash !! Dec’16

Hon Justice Shri J.B. Pardiwala hits out at sterotype, copy-paste FIRs in his recent 498a quash !! Dec’16

“…20. This Court over a period of time has noticed that the First Information Report field by wife contains following allegations:
“1. The father of the wife is a beggar.
2. Rs.5,00,000/- has been demanded by the husband and his family members by way of dowry.”
Without these two allegations, no First Information Report in the State of Gujarat is complete so far as the offence under Section 498(A) of the IPC is concerned….”

The Hon HC quashes this false 498a cases roping in relatives with an oblique motive !!

*************** case from Gujarat HC website *********************

R/CR.MA/7507/2015 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 7507 of 2015

FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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BIPINKUMAR DEVENDRABHAI PARMAR & 3….Applicant(s)

Versus

STATE OF GUJARAT & 1….Respondent(s)

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Appearance:

MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1 – 4

MR.HIREN M MODI, ADVOCATE for the Respondent(s) No. 2

MS SHRUTI PATHAK, APP for the Respondent(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 09/12/2016

ORAL JUDGMENT

  1. By this application under Section 482 of the Code of Criminal Procedure 1973, the applicants-original accused persons seek to invoke inherent powers of this Court praying for quashing the First Information Report registered as C.R. No.I-87/2015 with the Gotri Police Station, District-Vadodara for the offence punishable under Section 498(A), 323, 294(b) read with Section 114 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act.
  2. The case of the first informant as reflected from the First Information Report may be summarized as under:

2.1 The first informant got married with the applicant no.1 on 19.05.2014. The applicant no.2 is the father-in-law. The applicant no.3 is the mother-in-law and the applicant no.4 is the sister-in-law of the first informant. It appears that within a very short time the matrimonial life of the first informant got disturbed. She thought fit to lodge an FIR on 31.03.2015 i.e. within almost one year from the date of the marriage alleging harassment and cruelty at the end of the applicants herein. It is alleged in the FIR that the husband used to ask the first informant to press his legs and head. It is further alleged that the applicants herein also used to ill-treat the first informant. It is alleged that the applicants used to taunt her that she had not brought sufficient dowry from her parental house.

  1. The learned counsel appearing for the applicants would submit that the allegations leveled in the First Information Report are palpably false. The first informant could not adjust herself at the house of the applicants soon after the marriage. The learned counsel further pointed out that efforts were made by the people of the community to dissolve the marriage on certain terms and conditions. He pointed out that the first informant’s family demanded an amount of Rs.3,00,000/- to dissolve the marriage which was not acceptable to the applicants. He would submit that the allegations are stereo type. It is submitted that even if the entire case as put up by the first informant is accepted as true, none of the ingredients to constitute the offence of cruelty within the meaning of Section 498(A) are spelt out. In such circumstances referred to above, the learned counsel prays that the application may be allowed and FIR be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  • On the other hand, this application has been vehemently opposed by Mr. Modi, the learned counsel appearing for the first informant and Ms. Pathak, the learned APP for the State. Both the learned counsel would submit that the plain reading of the FIR prima-facie disclose the commission of a cognizable offence. It is submitted that this Court may not embark upon an inquiry whether the allegations are true or false. A primafacie case is to be seen for the purpose of quashing of the FIR. In such circumstances referred to above both the learned counsel would submit that there being no merit in this application. The same may be rejected.

  • 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 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;
    
    (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. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus:
    "6. In dealing with the last category, it is important to
    bear in mind the distinction between a case where there is
    no legal evidence or where there is evidence which is
    clearly inconsistent with the accusations made, and a case
    where there is legal evidence which, on appreciation, may
    or may not support the accusations. When exercising
    jurisdiction under Section 482 of the Code, the High Court
    would not ordinarily embark upon an enquiry whether the
    evidence in question is reliable or not or whether on a
    reasonable appreciation of it accusation would not be
    sustained. That is the function of the trial Judge.
    Judicial process no doubt should not be an instrument of
    oppression, or, needless harassment. Court should be
    circumspect and judicious in exercising discretion and
    should take all relevant facts and circumstances into
    consideration before issuing process, lest it would be an
    instrument in the hands of a private complainant to unleash
    vendetta to harass any person needlessly. At the same time
    the Section is not an instrument handed over to an accused
    to short-circuit 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:
    
    "(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 non-cognizable
    offence, no investigation is permitted by a Police Officer
    without an order of a Magistrate as contemplated under
    Section 155(2) of the Code.
    
    (5) Where the allegations made in the FIR or complaint are
    so absurd and inherently improbable on the basis of which
    no prudent person can ever reach a just conclusion that
    there is sufficient ground for proceeding against the
    accused.
    
    (6) Where there is an express legal bar engrafted in any
    of the provisions of the Code or the concerned Act (under
    which a criminal proceeding is instituted) to the
    institution and continuance of the proceedings and/or where
    there is a specific provision in the Code or the concerned
    Act, providing efficacious redress for the grievance of the
    aggrieved party.
    
    (7) Where a criminal proceeding is manifestly attended
    with mala fide and/or where the proceeding is maliciously
    instituted with an ulterior motive for wreaking vengeance
    on the accused and with a view to spite him due to private
    and personal grudge.
    
  • Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.
  • A plain reading of the FIR and the charge-sheet 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, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet. 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 prima-facie 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. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  • In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:-

    "28. It is a matter of common knowledge that unfortunately
    matrimonial litigation is rapidly increasing in our
    country. All the courts in our country including this court
    are flooded with matrimonial cases. This clearly
    demonstrates discontent and unrest in the family life of a
    large number of people of the society.
    
    29. The courts are receiving a large number of cases
    emanating from section 498-A of the Indian Penal Code which
    reads as under :
    
    "498-A. Husband or relative of husband of a woman
    subjecting her to cruelty.-Whoever, being the husband or
    the relative of the husband of a woman, subjects such woman
    to cruelty shall be punished with imprisonment for a term
    which may extend to three years and shall also be liable to
    fine.
    
    Explanation.- For the purposes of this section, 'cruelty'
    means :
    
    (a) any wilful conduct which is of such a nature as is
    likely to drive the woman to commit suicide or to cause
    grave injury or danger to life, limb or health (whether
    mental or physical) of the woman; or
    
    (b) harassment of the woman where such harassment is with
    a view to 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 498-A 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
    498-A as a basic human problem and must make serious
    endeavour to help the parties in arriving at an amicable
    resolution of that human problem. They must discharge their
    duties to the best of their abilities to ensure that social
    fiber, peace and tranquillity of the society remains
    intact. The members of the Bar should also ensure that one
    complaint should not lead to multiple cases.
    
    32. Unfortunately, at the time of filing of the complaint
    the implications and consequences are not properly
    visualized by the complainant that such complaint can lead
    to insurmountable harassment, agony and pain to the
    complainant, accused and his close relations.
    
    33. The ultimate object of justice is to find out the
    truth and punish the guilty and protect the innocent. To
    find out the truth is a herculean task in majority of these
    complaints. The tendency of implicating husband and all his
    immediate relations is also not uncommon. At times, even
    after the conclusion of criminal trial, it is difficult to
    ascertain the real truth. The courts have to be extremely
    careful and cautious in dealing with these complaints and
    must take pragmatic realities into consideration while
    dealing with matrimonial cases. The allegations of
    harassment of husband's close relations who had been living
    in different cities and never visited or rarely visited the
    place where the complainant resided would have an entirely
    different complexion. The allegations of the complaint are
    required to be scrutinized with great care and
    circumspection. Experience reveals that long and protracted
    criminal trials lead to rancour, acrimony and bitterness in
    the relationship amongst the parties. It is also a matter
    of common knowledge that in cases filed by the complainant
    if the husband or the husband's relations had to remain in
    jail even for a few days, it would ruin the chances of
    amicable settlement altogether. The process of suffering is
    extremely long and painful.
    
    34. Before parting with this case, we would like to
    observe that a serious relook of the entire provision is
    warranted by the legislation. It is also a matter of common
    knowledge that exaggerated versions of the incident are
    reflected in a large number of complaints. The tendency of
    over implication is also reflected in a very large number
    of cases.
    
    35. The criminal trials lead to immense sufferings for all
    concerned. Even ultimate acquittal in the trial may also
    not be able to wipe out the deep scars of suffering of
    ignominy. Unfortunately a large number of these complaints
    have not only flooded the courts but also have led to
    enormous social unrest affecting peace, harmony and
    happiness of the society. It is high time that the
    legislature must take into consideration the pragmatic
    realities and make suitable changes in the existing law.It
    is imperative for the legislature to take into
    consideration the informed public opinion and the pragmatic
    realities in consideration and make necessary changes in
    the relevant provisions of law. We direct the Registry to
    send a copy of this judgment to the Law Commission and to
    the Union Law Secretary, Government of India who may place
    it before the Hon'ble Minister for Law and Justice to take
    appropriate steps in the larger interest of the society."
    

  • 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 Vs. State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd July, 2014. In the said case, the petitioner, apprehending arrest in a case under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961, prayed for anticipatory bail before the Supreme Court, having failed to obtain the same from the High Court. In that context, the observations made by the Supreme Court in paras 6, 7 and 8 are worth taking note of. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick
  • They are reproduced below:-

        "6. There is phenomenal increase in matrimonial disputes in
        recent years. The institution of marriage is greatly
        revered in this country. Section 498-A of the IPC was
        introduced with avowed object to combat the menace of
        harassment to a woman at the hands of her husband and his
        relatives. The fact that Section 498-A 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 grand-
        fathers and grand-mothers of the husbands, their sisters
        living abroad for decades are arrested. Crime in India 2012
        Statistics published by National Crime Records Bureau,
        Ministry of Home Affairs shows arrest of 1,97,762 persons
        all over India during the year 2012 for offence under
        Section 498-A of the IPC, 9.4% more than the year 2011.
        Nearly a quarter of those arrested under this provision in
        2012 were women i.e. 47,951 which depicts that mothers and
        sisters of the husbands were liberally included in their
        arrest net. Its share is 6% out of the total persons
        arrested under the crimes committed under Indian Penal
        Code. It accounts for 4.5% of total crimes committed under
        different sections of penal code, more than any other
        crimes excepting theft and hurt. The rate of charge-
        sheeting in cases under Section 498A, IPC is as high as
        93.6%, while the conviction rate is only 15%, which is
        lowest across all heads. As many as 3,72,706 cases are
        pending trial of which on current estimate, nearly 3,17,000
        are likely to result in acquittal.
    
        7. Arrest brings humiliation, curtails freedom and cast
        scars forever. Law makers know it so also the police. There
        is a battle between the law makers and the police and it
        seems that police has not learnt its lesson; the lesson
        implicit and embodied in the Cr.PC. It has not come out of
        its colonial image despite six decades of independence, it
        is largely considered as a tool of harassment, oppression
        and surely not considered a friend of public. The need for
        caution in exercising the drastic power of arrest has been
        emphasized time and again by Courts but has not yielded
        desired result. Power to arrest greatly contributes to its
        arrogance so also the failure of the Magistracy to check
        it. Not only this, the power of arrest is one of the
        lucrative sources of police corruption. The attitude to
        arrest first and then proceed with the rest is despicable.
        It has become a handy tool to the police officers who lack
        sensitivity or act with oblique motive.
    
        8. Law Commissions, Police Commissions and this Court in a
        large number of judgments emphasized the need to maintain a
        balance between individual liberty and societal order while
        exercising the power of arrest. Police officers make arrest
        as they believe that they possess the power to do so. As
        the arrest curtails freedom, brings humiliation and casts
        scars forever, we feel differently. We believe that no
        arrest should be made only because the offence is non-
        bailable 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 Commission
        submitted in the year 2001, Section 41 of the Code of
        Criminal Procedure (for short Cr.PC), in the present form
        came to be enacted. It is interesting to note that such a
        recommendation was made by the Law Commission in its 152nd
        and 154th Report submitted as back in the year 1994. ....
        ....."
    
    1. In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported in AIR 2013, SC 181, the Supreme Court observed as under:-
      "19. Coming to the facts of this case, when the contents of
      the FIR is perused, it is apparent that there are no
      allegations against Kumari Geeta Mehrotra and Ramji
      Mehrotra except casual reference of their names who have
      been included in the FIR but mere casual reference of the
      names of the family members in a matrimonial dispute
      without allegation of active involvement in the matter
      would not justify taking cognizance against them
      overlooking the fact borne out of experience that there is
      a tendency to involve the entire family members of the
      household in the domestic quarrel taking place in a
      matrimonial dispute specially if it happens soon after the
      wedding.
      
      20. It would be relevant at this stage to take note of an
      apt observation of this Court recorded in the matter of
      G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC
      693 wherein also in a matrimonial dispute, this Court had
      held that the High Court should have quashed the complaint
      arising out of a matrimonial dispute wherein all family
      members had been roped into the matrimonial litigation
      which was quashed and set aside. Their Lordships observed
      therein with which we entirely agree that: there has been
      an outburst of matrimonial dispute in recent times.
      Marriage is a sacred ceremony, main purpose of which is to
      enable the young couple to settle down in life and live
      peacefully. But little matrimonial skirmishes suddenly
      erupt which often assume serious proportions resulting in
      heinous crimes in which elders of the family are also
      involved with the result that those who could have
      counselled and brought about rapprochement are rendered
      helpless on their being arrayed as accused in the criminal
      case. There are many reasons which need not be mentioned
      here for not encouraging matrimonial litigation so that the
      parties may ponder over their defaults and terminate the
      disputes amicably by mutual agreement instead of fighting
      it out in a court of law where it takes years and years to
      conclude and in that process the parties lose their young
      days in chasing their cases in different courts.
      
      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."
      
    2. 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.
  • Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. 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. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  • Ms. Pathak, the learned APP in his own way may be right in submitting that the Court, while exercising inherent power under Section 482 of the Code, should not embark upon an enquiry as regards the truthfulness of the allegations because, according to the learned APP, 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 the learned APP, 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. Raval 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 State of Haryana (supra) is reproduced hereinbelow:-

    "(7) Where a criminal proceeding is manifestly attended
    with mala fide and/or where the proceeding is maliciously
    instituted with an ulterior motive for wreaking vengeance
    on the accused and with a view to spite him due to private
    and personal grudge."
    

  • 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 charge-sheet 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 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.
  • It is because of the growing tendency to involve innocent persons that the Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court “often innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care.”

  • This Court over a period of time has noticed that the First Information Report field by wife contains following allegations:

    “1. The father of the wife is a beggar.

    1. Rs.5,00,000/- has been demanded by the husband and his
      family members by way of dowry.”
  • Without these two allegations, no First Information Report in the State of Gujarat is complete so far as the offence under Section 498(A) of the IPC is concerned.

    1. In such circumstances referred to above, this Court was compelled to observe the following in the judgment and order dated 26.09.2014 passed in Criminal Misc. Application No.5819 of 2009.

      “31.Many times, the parents including the close relatives
      of the wife make a mountain out of a mole. Instead of
      salvaging the situation and making all possible endeavours
      to save the marriage, their action either due to ignorance
      or on account of sheer hatredness towards the husband and
      his family members, brings about complete destruction of
      marriage on trivial issues. The first thing that comes in
      the mind of the wife, her parents and her relatives is the
      Police, as if the Police is the panacea of all evil. No
      sooner the matter reaches up to the Police, then even if
      there are fair chances of reconciliation between the
      spouses, they would get destroyed. The foundation of a
      sound marriage is tolerance, adjustment and respecting one
      another. Tolerance to each other’s fault to a certain
      bearable extent has to be inherent in every marriage. Petty
      quibbles, trifling differences are mundane matters and
      should not be exaggerated and blown out of proportion to
      destroy what is said to have been made in the heaven. The
      Court must appreciate that all quarrels must be weighed
      from that point of view in determining what constitutes
      cruelty in each particular case, always keeping in view the
      physical and mental conditions of the parties, their
      character and social status. A very technical and hyper
      sensitive approach would prove to be disastrous for the
      very institution of the marriage. In matrimonial disputes
      the main sufferers are the children. The spouses fight with
      such venom in their heart that they do not think even for a
      second that if the marriage would come to an end, then what
      will be the effect on their children. Divorce plays a very
      dubious role so far as the upbringing of the children is
      concerned. The only reason why I am saying so is that
      instead of handling the whole issue delicately, the
      initiation of criminal proceedings would bring about
      nothing but hatredness for each other. There may be cases
      of genuine illtreatment and harassment by the husband and
      his family members towards the wife. The degree of such ill-
      treatment 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 498-A 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.

      1. Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All
        ER 398 observed as under:-

        “When the conduct consists of direct action by one against
        the other, it can then properly be said to be aimed at the
        other, even though there is no desire to injure the other
        or to inflict misery on him. Thus, it may consist of a
        display of temperament, emotion, or perversion whereby the
        one gives vent to his or her own feelings, not intending to
        injure the other, but making the other the object-the butt-
        at 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
        must-be 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.”

      2. What constitutes cruelty in matrimonial matters has
        been well explained in American Jurisprudence 2nd edition
        Vol. 24 page 206. It reads thus:-

        “The question whether the misconduct complained of
        constitute cruelty and the like for divorce purposes is
        determined primarily by its effect upon the particular
        person complaining of the acts. The question is not whether
        the conduct would be cruel to a reasonable person or a
        person of average or normal sensibilities, but whether it
        would have that effect upon the aggrieved spouse. That
        which may be cruel to one person may be laughed off by
        another, and what may not be cruel to an individual under
        one set of circumstances may be extreme cruelty under
        another set of circumstances.”

    2. For the foregoing reasons, I hold that if the investigation of the First Information Report is permitted to continue, then it will be nothing but abuse of process of the 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. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

    3. The application succeeds and is hereby allowed. The First Information Report being C.R. No.I-87/2015 lodged before the Gotri Police Station, District- Vadodara, is hereby quashed. Rule is made absolute.

    4. At this stage, I may only say that since the applicant no.1 and the first informant are quite young they should dissolve the marriage by initiating appropriate proceedings before the Court concerned so that both can start living their own life.

    (J.B.PARDIWALA, J.)

    ABHISHEK

    Page 20 of 20 HC-NIC Page 20 of 20

    Created On Tue Jan 03 17:37:40 IST 2017

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