Tag Archives: Fake 498a

Hon JUSTICE J.B.PARDIWALA quashes #fake498a against NRI husband. Guj HC #498aQuash

In this case, wife files #498a case on her #NRI_Husband. Three incidents are alleged, one of which is on on Feb 2014 while the husband has left India on 04th june 2013 !! He seems to have taken employment and is living in Bahrain (Middle East). The Mother in law is projected as a cruel woman but the allegations against her are vague in nature.

The Hon Judge orders as follows “….I have no hesitation worth the name in quashing the proceedings of the Criminal Case referred to above so far as the mother-in-law is concerned. As such, there are no allegations which constitute cruelty within the meaning of Section 498A of the Indian Penal Code. Whatever allegations have been levelled are quite vague and general. So far as the husband is concerned, I take notice of the fact that from June 2013 he is in Bahrain. It seems that he has taken up employment in Bahrain. As usual, it appears that the first informant could not adjust herself at her matrimonial home on account of the disputes which could be termed as mundane matters. In the result, this application is allowed. The FIR being CR-II No.44 of 2014 registered with the Jalalpore Police Station, District Navsari, as well as the proceedings of the Criminal Case No.3757 of 2014 pending in the Court of the learned JMFC, Navsari, are hereby quashed. …”

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R/CR.MA/12027/2015 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 12027 of 2015

===============

PARESHBHAI PRAVINBHAI PATEL & 1….Applicant(s)

Versus

STATE OF GUJARAT & 1….Respondent(s)

================

Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1 – 2
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 02/02/2017

ORAL ORDER

The respondent no.2 although served with the notice issued by this Court, yet has chosen not to remain present either in person or through an advocate and oppose this application.

By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants – original accused nos.1 and 2 seek to invoke the inherent powers of this Court praying for quashing of the FIR being CR-II No.44 of 2014 registered with the Jalalpore Police Station, District Navsari, for the offence punishable under Sections 498A, 323, 504 read with Section 114 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.

The applicants before me are none other than the husband and the mother-in-law of the respondent no.2 – first informant.

It appears from the materials on record that the respondent no.2 got married to the applicant no.1 on 10th December 2012. It is alleged in the FIR that the husband is addicted to liquor. The husband used to pick up quarrel on petty issues and harass the first informant.

In the FIR, there is a reference of three specific incidents. Let me start with the incident of 15th February 2013. It is alleged that on that day, the applicant no.1 came home heavily drunk and started beating the first informant. According to the first informant, she left the matrimonial home. While at her parental home, she realized that she had conceived. On 28th September 2013, the first informant gave birth to a baby girl at the Civil Hospital, Navsari. It is alleged that no one from the family of the husband came to inquire about the health of the first informant or to have a look at the new born baby. The third incident is dated 26th February 2014. It is alleged that on that particular day, the applicant no.1 called up the first informant on her mobile and told her that if she would get Rs.1 lac from her parents he would come on the next day and take her back to the matrimonial home. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

As usual, the mother-in-law has also been projected as a very cruel woman.

Mr.Bharda, the learned counsel appearing for the applicant, submitted that even if the entire case of the first informant is accepted or believed to be true, none of the ingredients to constitute an offence of cruelty within the meaning of Section 498A of the Indian Penal Code are spelt out. He submitted that the FIR is false for the simple reason that on 26th February 2014, the applicant no.1 was not in India and was in Bahrain (Middle East). The learned counsel pointed out that the applicant no.1 left India on 4th June 2013. This itself goes to show that the FIR was concocted by levelling false allegations. He submitted that there is no case worth the name so far as the mother-in-law is concerned.

On the other hand, this application has been vehemently opposed by Ms.Thakore, the learned APP appearing for the State. The learned APP would submit that the plain reading of the FIR prima facie discloses commission of a cognizable offence. The learned APP would submit that the police should be permitted to complete the investigation so far as the applicant no.1 is concerned. She pointed out that charge-sheet has been filed so far as the mother-in-law is concerned, and in the said charge-sheet, the applicant no.1 has been shown as an absconder. She prays that this application be rejected. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the FIR so far as the applicant no.1 is concerned, should be quashed and the proceedings of the Criminal Case No.3757 of 2014 pending in the Court of the learned JMFC, Navsari, so far as the applicant no.2 is concerned, should be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

I have no hesitation worth the name in quashing the proceedings of the Criminal Case referred to above so far as the mother-in-law is concerned. As such, there are no allegations which constitute cruelty within the meaning of Section 498A of the Indian Penal Code. Whatever allegations have been levelled are quite vague and general. So far as the husband is concerned, I take notice of the fact that from June 2013 he is in Bahrain. It seems that he has taken up employment in Bahrain. As usual, it appears that the first informant could not adjust herself at her matrimonial home on account of the disputes which could be termed as mundane matters.

In the result, this application is allowed. The FIR being CR-II No.44 of 2014 registered with the Jalalpore Police Station, District Navsari, as well as the proceedings of the Criminal Case No.3757 of 2014 pending in the Court of the learned JMFC, Navsari, are hereby quashed. Rule made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.)

MOIN


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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In laws ready to gift a crore worth bungalow NOT people who demanded dowry !! Fake 498A busted !

A husband who took her on pleasure trips, In-laws who were ready to gift her a bungalow worth crore, are NOT the people could have have demanded dowry !! Major inconsistencies in FAKE 498a case brought out and husband & family acquitted #fake_498a #fake_dowry

Screenshot - 19_05_2016 , 12_44_02.png

Pay & quash. ALSO guarantee secrecy so that all sh!t will be under wraps !!

Taking money to quash a 498a 406 case itself leads to a suspicion, that the woman was NOT serious about punishment but just wanted money, and used the police / IPC as a convenient tool !

Now, IF you add a secrecy clause to the quash Judgement, that leads to further suspicion that the woman is planning her second attack !!!

So, in this case, Not only is the man paying to quash, now a clause has been added to stop the flow of information !! for example , this quash says “…..It is also agreed that the parties shall not use, circulate or publicize any evidence or marriage photographs, CDs etc. against the others, which is in their possession which is to the detriment to the other and shall destroy them. It is also agreed that the parties shall not contact each other’s relatives, friends and colleagues of the other side in any manner whatsoever. It is also agreed that the parties shall not create any encumbrances which shall be detrimental to the other. …..” !!


IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 391/2016

Date of Decision: May 10th, 2016

JITENDER KUMAR & ORS ….. Petitioner
Through: Mr. Rajendra Kumar Tiwari, Advocate.

versus

STATE (NCT OF DELHI) & ORS ….. Respondent
Through: Mr. M.P. Singh, Additional Public Prosecutor for the State with Sub- Inspector Umed Singh, Police Station Mianwali Nagar, Delhi and Sub-Inspector Raman Pratap, Police Station CWS, Nanakpura.

CORAM:
HON’BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

 

  1. The present petition under Section 482 Cr.P.C. has been filed by the petitioner, namely, Smt. Jitender Kumar, Sh. Mahavir Singh, Smt. Laxmi, Sh. Narender Kumar and Ms. Pooja for quashing of FIR No.88/2008 dated 19.11.2008, under Sections 498A/406/34 IPC registered at Police Station C.W.C. Nanak Puri on the basis of mediation report in Delhi Mediation Centre, Tis Hazari Courts in view of the settlement arrived at between petitioner no.1 and respondent no.2, Smt. Poornima @ Sonia on 24.03.2014.
  2. Learned Additional Public Prosecutor for respondent-State submitted that the respondent No.2, present in the Court has been identified to be the complainant/first-informant in the FIR in question by SI Umedh Singh.
  3. The factual matrix of the present case is that the marriage between petitioner no.1 and the respondent no.2 was solemnized on 23.04.2008. The family of the husband of the complainant was not satisfied with the dowry. All of the complainant’s jewellery was taken away by her mother-in-law including Rs. 24,000/- cash. The husband of the complainant along with his other family members used to beat and abuse the complainant on several occasions. They also used to humiliate the complainant and her father on the demand of Rs.15 Lakhs at various instances. The respondent no.2/complainant lodged a complaint which resulted into the registration of the FIR in question against the petitioners. Subsequently, on 24.03.2014, during the pendency of the proceedings of Section 12 of D.V. Act instituted by the petitioner against the respondent no.2, the matter was amicably settled between the petitioner no.1 and respondent no.2.
  4. Respondent No.2, present in the Court, submitted that the dispute between the parties has been amicably resolved. As per the mediation report, it is agreed that the parties shall take divorce by way of mutual consent. It is agreed that the petitioner no.1 shall pay the total settlement amount of Rs. 6 Lacs towards as her past, present and future maintenance and permanent alimony and any other legal claims. It is also agreed petitioner no.1 shall pay Rs. 2 Lacs at the time of quashing of the FIR in question. It is agreed that petitioner no.1 has already handed over a DD bearing no. 000614 drawn on PMC Bank for a sum of Rs. 1 Lac to respondent no.2. It is also agreed that the first motion petition shall be filed on or before 21.04.2014 and the second motion petition for divorce by mutual consent shall be filed after six months of the allowing of the first motion petition and within two months thereafter. It is also agreed that petitioner no.1 shall withdraw his petition for divorce on the ground of cruelty which is pending before concerned Family Court, west, THC, Delhi on the 05.04.2014. It is also agreed that respondent no.2 shall withdraw the petition under Section 12 of D.V. Act and her petition under Section 125 Cr.P.C. pending before concerned Family Court, West, THC, Delhi on 05.04.2014. It is also agreed that respondent no.2 shall withdraw the executions filed by her before concerned Family Court, West, THC, Delhi on their next dates of hearing i.e. 02.04.2014 and 16.04.2014 respectively. It is also agreed that both parties shall approach this Court for quashing of the FIR in question within the one month from the date of grant of decree of divorce and that respondent no.2 shall cooperate with petitioner no.1 and his family members. It is also agreed that after the decree of annulment is passed, respondent no.2 shall not have any right, title or interest in the property of petitioner no.1 or his ancestors. It is also agreed that the parties shall not retract from their respective statements failing which they shall make themselves liable for legal action as per law. It is also agreed that the parties shall not use, circulate or publicize any evidence or marriage photographs, CDs etc. against the others, which is in their possession which is to the detriment to the other and shall destroy them. It is also agreed that the parties shall not contact each other’s relatives, friends and colleagues of the other side in any manner whatsoever. It is also agreed that the parties shall not create any encumbrances which shall be detrimental to the other. It is also agreed that the parties shall not give any effect to the complaint, if any already filed and shall not file any complaint against the other in future in respect of the marriage between them subject to the conditions of the settlement being fulfilled. It is also agreed that the parties shall not interfere in the future in each other’s lives and that they shall not visit the workplace or residence of each other. It is also agreed that the parties shall not try to contact each other except through their lawyers and As per the convenience of the lawyers they can have a meeting in the chamber of lawyers in order to give effect to this settlement and bring the litigation to an end. It is also agreed that the parties shall not use the evidence, if any in their possession against the other party before any authority. It is also agreed that the parties shall appear before the Court to abide by the terms of and conditions set out in the agreement and not to dispute the same herein after in future. It is also agreed that the parties shall not make any claim of any nature against each other in respect of the present dispute. It is agreed that the parties shall appear before the Court of Ld. MM (Mahila Court)-02, West, THC, Delhi on 02.04.2014 and on subsequent dates As well as before the Court of Ms. Reena Singh Nag, Ld. Judge, Family Courts, West THC, Delhi on 05.04.2014 and on subsequent dates as well as this Court for quashing of the FIR in question to abide by the terms set out in this settlement. Respondent No.2 affirmed the contents of the aforesaid settlement and of her affidavit dated 07.12.2015 supporting this petition. In the affidavit, the respondent no.2 has stated that she has no objection if the FIR in question is quashed. All the disputes and differences have been resolved through mutual consent. Now no dispute with petitioners survives and so, the proceedings arising out of the FIR in question be brought to an end. Statement of the respondent no.2 has been recorded in this regard in which she stated that she has entered into a compromise with the petitioners and has settled all the disputes with them. She further stated that she has no objection if the FIR in question is quashed.
  5. In Gian Singh v. State of Punjab (2012) 10 SCC 303 Apex Court has recognized the need of amicable resolution of disputes in cases like the instant one, by observing as under:-
    • “61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”
  6. The aforesaid dictum stands reiterated by the Apex Court in a recent judgment in Narinder Singh v. State of Punjab (2014) 6 SCC 466. The relevant observations of the Apex Court in Narinder Singh (Supra) are as under:-
    • “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings.
    • 29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:
      • (i) ends of justice, or
      • (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.
    • 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.\
    • 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.
  7. The inherent powers of the High Court ought to be exercised to prevent the abuse of process of law and to secure the ends of justice. The respondent no.2 agreed to the quashing of the FIR in question without any threat or coercion or undue influence and has stated that the matter has been settled out of her own free will. As the matter has been settled and compromised amicably, so, there would be an extraordinary delay in the process of law if the legal proceedings between the parties are carried on. So, this Court is of the considered opinion that this is a fit case to invoke the jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law and to secure the ends of justice.
  8. The incorporation of inherent power under Section 482 Cr.P.C. is meant to deal with the situation in the absence of express provision of law to secure the ends of justice such as, where the process is abused or misused; where the ends of justice cannot be secured; where the process of law is used for unjust or unlawful object; to avoid the causing of harassment to any person by using the provision of Cr.P.C. or to avoid the delay of the legal process in the delivery of justice. Whereas, the inherent power is not to be exercised to circumvent the express provisions of law.
  9. It is settled law that the inherent power of the High Court under Section 482 Cr.P.C. should be used sparingly. The Hon’ble Apex Court in the case of State of Maharashtra through CBI v. Vikram Anatrai Doshi and Ors. MANU/SC/0842/2014 and in the case of Inder Singh Goswami v. State of Uttaranchal MANU/SC/0808/2009 has observed that powers under Section 482 Cr.P.C. must be exercised sparingly, carefully and with great caution. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings.
  10. It is a well settled law that where the High Court is convinced that the offences are entirely personal in nature and therefore do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, pursuing prosecution would be waste of time and energy. Non-compoundable offences are basically an obstruction in entering into compromise. In certain cases, the main offence is compoundable but the connected offences are not. In the case of B.S. Joshi and others v. State of Haryana and another 2003 (4) SCC 675 the Hon’ble Apex Court observed that even though the provisions of Section 320 Cr.P.C. would not apply to such offences which are not compoundable, it did not limit or affect the powers under Section 482 Cr.P.C. The Hon’ble Apex Court laid down that if 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. In the nutshell, the Hon’ble Apex Court justified the exercise of powers under Section 482 Cr.P.C. to quash the proceedings to secure the ends of justice in view of the special facts and circumstances of the case, even where the offences were non- compoundable. In the light of the aforesaid, this Court is of the view that notwithstanding the fact the offence under Section 498A IPC is a non- compoundable offence, there should be no impediment in quashing the FIR under this section, if the Court is otherwise satisfied that the facts and circumstances of the case so warrant.
  11. The Courts in India are now normally taking the view that endeavour should be taken to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs such as, matrimonial disputes between the couple or/and between the wife and her in-laws. India being a vast country naturally has large number of married persons resulting into high numbers of matrimonial disputes due to differences in temperament, life-styles, opinions, thoughts etc. between such couples, due to which majority is coming to the Court to get redressal. In its 59th report, the Law Commission of India had emphasized that while dealing with disputes concerning the family, the Court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. Further it is also the constitutional mandate for speedy disposal of such disputes and to grant quick justice to the litigants. But, our Courts are already overburdened due to pendency of large number of cases because of which it becomes difficult for speedy disposal of matrimonial disputes alone. As the matrimonial disputes are mainly between the husband and the wife and personal matters are involved in such disputes, so, it requires conciliatory procedure to bring a settlement between them. Nowadays, mediation has played a very important role in settling the disputes, especially, matrimonial disputes and has yielded good results. The Court must exercise its inherent power under Section 482 Cr.P.C. to put an end to the matrimonial litigations at the earliest so that the parties can live peacefully.
  12. Since the subject matter of this FIR is essentially matrimonial, which now stands mutually and amicably settled between the parties, therefore, continuance of proceedings arising out of the FIR in question would be an exercise in futility and is a fit case for this Court to exercise its inherent jurisdiction.
  13. In the facts and circumstances of this case, in view of statement made by the respondent no.2 and the compromise arrived at between the parties, the FIR in question warrants to be put to an end and proceedings emanating thereupon need to be quashed.
  14. Accordingly, this petition is allowed and FIR No.88/2008 dated 19.11.2008, under Sections 498A/406/34 IPC registered at Police Station C.W.C. Nanak Puri and the proceedings emanating therefrom are quashed against the petitioners.
  15. This petition is accordingly disposed of.

 

(P.S.TEJI) JUDGE MAY 10, 2016 dd

498a 406 DV cocktail 27 years after marriage on scientist husband. UP HC quashes 498a, talks of misuse!

  • Marriage in November 1986
  • Two children aged approx 27 years and 20 years out of wedlock
  • Husband a doctorate and scientist. Couple have lived abraod and in India
  • After approx 25 years couple split and wife has filed 498A, DV, maintenance cocktail on husband
  • In addition to getting Rs 15000 p,m. and 170000 from husband, wife files 498a, 406, 323, 504 case in 2013 !! yes 27 years later
  • The learned Magistrate, passed summoning order in a mechanical manner !
  • Husband runs to HC for quash (after approaching apex court !!).
  • HC orders “…application under Section 482 Cr.P.C., is allowed and the impugned summoning order dated 16.07.2013 along with entire proceedings of the complaint case are hereby quashed…”

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

RESERVED

Court No. – 22

Case :- U/S 482/378/407 No. – 5246 of 2013

Applicant :- Dr. Bijoy Kundu
Opposite Party :- The State Of U.P And Anr.
Counsel for Applicant :- Rohit Tripathi,Chandra Bhushan Pandey
Counsel for Opposite Party :- Govt. Advocate,Saurabh Mishra

Hon’ble Mahendra Dayal,J.

This application under Section 482 Cr.P.C., has been filed for quashing of the summoning order dated 16.07.2013 passed in Criminal Case No.45/2013, under Sections 498-A, 323, 504, 506 and 406 IPC, by the Court of Judicial Magistrate, Court No.35, Lucknow, whereby the applicant has been summoned to face trial. A prayer has also been made for quashing of the entire proceedings of the aforesaid criminal case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The brief facts are that the applicant and the opposite party No.2 are husband and wife. The marriage between them was solemnized in the month of November, 1986. The applicant is working on the post of Chief Scientist in C.D.R.I., Lucknow. Two sons were born out of the wedlock. The first son is a Computer Engineer and is aged about 27 years, while the second son is aged about 20 years. It was in the year 1989-1991 that the applicant visited United States and stayed there for a considerable period. During his stay at United States, he pursued the opposite party No.2 to take admission in the M.B.A. Course. He also took her to several countries. However, despite all efforts from the side of the applicant, the opposite party No.2 neglected the applicant and some times abused him also by calling him illegitimate child of his parents. The applicant was ultimately forced to move out from his own house in the month of March, 2012 on account of cruelty from the side of the opposite party No.2 and since then both of them have been living separately. The opposite party No.2 also filed a suit for divorce in the year 2012 on the ground of cruelty and desertion. She also filed a case under the Domestic Violence Act and also claimed maintenance under Section 125 Cr.P.C. The Court fixed monthly maintenance of Rs.15,000/- as an interim measure and the applicant paid a sum of Rs.1,70,000/- to the opposite party No.2 towards maintenance allowance. In order to further harass the applicant, the opposite party No.2 filed an application under Section 156(3) Cr.P.C., which was treated as complaint case. The learned Magistrate, after following the procedure of the complaint case, passed the impugned summoning order in a mechanical manner. There was absolutely no material to attract the offence of Section 406 IPC. There is also no material on record to attract the offence of Sections 498-A, 504 or 506 IPC. The impugned summoning order, passed by the learned Magistrate, therefore, suffers from manifest error of law and is liable to be set aside.

Learned counsel for the opposite party No.2 has filed counter affidavit and has stated therein that the entire facts narrated in the complaint are true and on the basis of the allegations, the charges under Sections 498-A, 323, 504, 506 and 406 IPC are fully made out. The applicant after having acquired control over the movable or immovable properties belonging to the opposite party No.2, has misappropriated the property and has left her to face destitution. The opposite party No.2 has no source of income. It has further been averred that the opposite party No.2 has half share in a plot at Sector-H, Aliganj, Lucknow, which is measuring 2200 sq. ft., but in order to misappropriate the share of the opposite party No.2, the applicant sold the entire plot without the knowledge and consent of the opposite party No.2. Several other allegations have been made in the counter affidavit to show that the applicant had committed the offence of misappropriation of property. The submission on behalf of the opposite party No.2 is that on the basis of the allegations made in the complaint and the statement, the learned Magistrate has rightly passed the summoning order and there is no sufficient ground for quashing of the summoning order.

A perusal of the record reveals that while entertaining this application under Section 482 Cr.P.C., this Court vide order dated 24.10.2013 directed that no coercive measure shall be taken against the applicant. Since the aforesaid order could not be extended from some reason, the applicant moved an application on 18.09.2014 making request that the interim order granted on 24.10.2013 be extended. A Coordinate Bench of this Court while passing order on this application, provided that the applicant may apply for bail before the trial court within three weeks and the trial court shall decide his bail application on the same day considering that the applicant is a public servant. This order was passed considering the fact that merely by directing that no coercive measure shall be taken against the applicant, would not amount to stay of the proceedings.

Feeling aggrieved by this order, the applicant approached the Hon’ble Apex Court and the Hon’ble Apex Court on 10.10.2014 passed an order that the earlier order passed by this Court on 24.10.2013 shall stand restored. The special leave petition filed by the applicant was disposed of by Hon’ble the Apex Court on 11.01.2016 requesting this Court to dispose of the application under Section 482 Cr.P.C., within a period of six weeks, from the date of communication of the order. The said order of Hon’ble the Apex Court was placed on record on this Court on 01.02.2016.

Learned counsel for the applicant has relied upon several decisions of Hon’ble the Apex Court to show that no offence under Section 406 IPC or Section 498-A IPC is made out against the applicant. One of such case law relied upon by the applicant is reported in (2010) 68 ACC Page 246 – Bhaskar Lal Sharma and another vs. Monica. In this case, Hon’ble the Apex Court has held that the essential ingredient to attract the offence of Section 498-A IPC is that the complainant must make allegations of harassment to meet unlawful demand of dowry or any unlawful conduct on the part of the accused which is likely to drive woman to commit suicide or to cause grave injury or danger to life limb or health. The only allegation that the accused kicked the complainant with her leg and told her that her mother was a liar, does not make out an offence under Section 498-A IPC. For the offence of Section 406 IPC, Hon’ble the Apex Court has held that the essential ingredients for establishing an offence, are entrusting any person with property or with any dominion over property and the person entrusted dishonestly misappropriating on converting to his own use that property or willfully suffering any other persons so to do. Hon’ble the Apex Court has held that in the absence of essential ingredients, no offence under Sections 498-A and 406 IPC would be made out. Hon’ble the Apex Court on the basis of the aforesaid observations passed an order quashing the summoning order.

For invoking of the power under Section 482 Cr.P.C., to quash the summoning order or the proceedings of the complaint case, the applicant has placed reliance on a decision of the Hon’ble Apex Court reported in (2006) 6 SCC Page 736 – Indian Oil Corporation vs. NEPC India Ltd. & Ors. In this case, Hon’ble the Apex Court has held that if the allegations in the complaint, taken on their face value, disclose a criminal offence, the complaint cannot be quashed merely because it relates to a commercial transaction or breach of contract for which civil remedy is available. However, if it is found that frivolous criminal complaint has been filed knowing well that remedy lies only in civil law, the person who filed such complaint should be made accountable, in accordance with law at the end of such proceedings.

Another case law relied upon by the applicant is reported in (2013) 3 SCC Page 330 – Rajiv Thapar & Ors. vs. Madan Lal Kapoor. In this case, Hon’ble the Apex Court has held that the discretion vested in the High Court under Section 482 Cr.P.C., can be exercised to prevent the abuse of process of law and to secure the ends of justice. The High Court can exercise its jurisdiction himself and make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the complainant against the accused. To invoke the inherent jurisdiction, the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his defence is based on sound and reasonable facts.

In the background of the aforesaid legal principles of law, this Court after examining the contents of the complaint, finds that the marriage between the applicant and the opposite party No.2 took place in the year 1986 and after the birth of two sons in the year 1987 and 1993 respectively, the differences arose between them. The opposite party No.2 started making serious allegations against her husband and simultaneously filed several cases, one for divorce, one under Domestic Violence Act and one under Section 125 Cr.P.C. The fourth case is the present one, in which, the impugned summoning order has been passed. After such a long gap, making demand of dowry and harassment for demand of dowry, is not only highly improbable, but it is also not established from the allegations. It is not disputed between the parties that after differences between them, both of them started living separately. The applicant took a rented flat in Metro City, Lucknow. The allegations with regard to extending threats do not at all attract the offence of Section 498-A IPC. The allegations made by the opposite party No.2 in her complaint are inadequate to show that there was any demand of dowry on the part of the applicant. The object of enactment of Section 498-A IPC is to prevent the custom for demanding dowry. It has also been experienced by the courts that the provisions of Section 498-A IPC is misused in order to take revenge or exert pressure on the other side for some ulterior motive. The jurisdiction of the High Court to quash the summoning order in such cases should be exercised where it appears that the provision is being misused. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

So far as the offence of Section 406 IPC is concerned, the only allegation against the applicant is that the opposite party No.2 was having half share in a plot of land which the applicant sold without her knowledge and consent. This averment made by the opposite party No.2 does not make out the offence of Section 406 IPC because the essential ingredients of entrustment is missing, which is necessary for attracting the offence of criminal misappropriation. Moreover, the opposite party No.2 has an alternative remedy before the civil court in case her right in the immovable property has been affected.

So far as the other offences under Section 323, 504, 506 IPC are concerned, there is absolutely no evidence to attract those offences also. A perusal of the impugned order reveals that the learned Magistrate in a technical manner and without considering as to whether any prima-facie offence is made out against the applicant, passed the impugned summoning order, which is erroneous for the reason that the learned Magistrate has not recorded his satisfaction that the aforesaid offences are made out against the applicant. It is unfortunate on the part of the parties that even after twenty years of marriage and having two adult sons, they are litigating in such a manner making serious allegations against each other. Both the parties belong to a respected family and the applicant is holding a very high position and is facing several cases.

After having considered the contents of the complaint and the law on the subject as discussed above and the impugned summoning order, I am of the view that none of the offences, as indicated in the impugned summoning order, are made out against the applicant and as such the impugned order is manifestly erroneous and is liable to be set aside.

In the result, the application under Section 482 Cr.P.C., is allowed and the impugned summoning order dated 16.07.2013 along with entire proceedings of the complaint case are hereby quashed.

Order Date :- 5th May, 2016

Rakesh/-

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM Allahabad HC site with necessary Emphasis, Re formatting


498a 506 on 6 of famly claimng abortion etc but invstigaton reveals NO abortion! Guj HC classic quash !

A wife files a fake 498a on Husband and 6 members of his  family claiming forced abortion and other cruelty. However investigation reveals that there is NO abortion. In laws who were 6 years and 9 years at the time of marriage are included in her case. The Hon HC say continuation of this case would be an “abuse of the process of law”, and quashes the case against everyone except the husband !!

Specifically the Hon Court notes “….5. As usual, all the family members have been implicated in the alleged offence. It deserves to be noted that the applicants Nos. 5 and 6, at the time of marriage, were 9 years and 6 years of age respectively. Even they have not been spared. As such, there are no allegations worth the name against the applicants herein except the allegation against the husband.

6. There are allegations of causing forcible abortion. However, the investigation revealed that there was no abortion. No charge-sheet has been filed for the offence under Section 313 of the Indian Penal Code.

7. In my view, continuation of the Criminal proceedings against the applicants herein will be nothing but an abuse of the process of law….”

Saying so, the Hon HC quashes the case against every one of the accused except the husband

********************************
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 14730 of 2015
**********************************************************
JIJABRAV BHASKAR PATIL & 6….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
**********************************************************
Appearance:
MR GAJENDRA P BAGHEL, ADVOCATE for the Applicant(s) No. 1 – 7
MR CB DASTOOR, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
**********************************************************

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 10/12/2015

ORAL ORDER

1. This application, at the outset, is not pressed so far as the applicant No.1-husband is concerned. The application so far as the applicant No.1 stands disposed of as not pressed.

2. By this application under Section 482 of the Code of Criminal Procedure 1973, the applicants-original accused persons seek to invoke the inherent powers of this Court, praying for quashing of the proceeding of Criminal Case No.2342 of 2015, pending in the Court of the Judicial Magistrate First Class, Navsari, arising from C.R. No. I-4 of 2015 lodged with the Jalalpur Police Station, Navsari for the offence punishable under Sections 498(a), 323, 313, 504, 506(2) read with Section 114 of the Indian Penal Code and Sections 4 and 5 of the Prohibition of Dowry Act.

3. The applicant No.2 is the brother-in-law, the applicant No.3 is the sister-in-law, the applicant No.4 is the mother-in-law, the applicant No.5 is the daughter of applicants Nos.2 and 3, the applicant No.6 is also the daughter of the applicants Nos. 2 and 3, and the applicant No.7 is the brother-in-law.

4. It is the case of the first informant that her marriage was solemnized with the original accused No.1 on 16th April, 2001. She has levelled allegations of cruelty in the form of harassment in house-hold matters. She has levelled allegations against the other family members, stating that they are instigating the husband and taunting her.

5. As usual, all the family members have been implicated in the alleged offence. It deserves to be noted that the applicants Nos. 5 and 6, at the time of marriage, were 9 years and 6 years of age respectively. Even they have not been spared. As such, there are no allegations worth the name against the applicants herein except the allegation against the husband.

6. There are allegations of causing forcible abortion. However, the investigation revealed that there was no abortion. No charge-sheet has been filed for the offence under Section 313 of the Indian Penal Code.

7. In my view, continuation of the Criminal proceedings against the applicants herein will be nothing but an abuse of the process of law.

8. I had an occasion to deal with this type of matter wherein all the members of the family of the husband are roped in. I may quote the observations made by this Court in the case of Dipakbhai Ratilal Patel Vs. State of Gujarat, Criminal Misc. Application No.5819 of 2009, decided on 26th September, 2014 as under :-

“16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.”

23. 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. 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, bed-ridden 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. …. …..”

24. 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.”

25. 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.

26. 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.

27. Mr. Raval, 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 Mr. Raval, once there are allegations disclosing commission of a cognizable offence, then whether they are true or false, should be left for the trial Court to decide at the conclusion of the trial. According to Mr. Raval, at the best, the applicants Nos. 2 to 6 could plead in their defence the category No.7, as indicated by the Supreme Court in the case of State of Haryana (supra).

28. 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.”

29. 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 Mr. Raval, 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.”

30. More importantly, the respondent No.2 has not explained as to why it took more than four years for her to register the FIR. Is it so because the husband initiated proceedings for divorce in the year 2006. My attention has been drawn by Mr. Patel, the learned Advocate appearing on behalf of the applicants to a notice dated 17th April, 2008, issued by the respondent No.2, through her advocate to the petitioner No.1, wherein there is not a whisper of any allegations against any of the relatives of the husband, which includes the applicants Nos. 2 to 6.

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 ill-treatment 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.

32. 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.”

33. 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.”

9. For the foregoing reasons, I hold that if the Criminal Proceedings are allowed to continue so far as the applicants are concerned, then it will be nothing short of abuse of process of law.

10. In the result, the application succeeds and is hereby partly allowed. The proceedings of the Criminal Case No. 2342 of 2015, pending in the Court of the Judicial Magistrate First Class, Navsari are hereby ordered to be quashed so far as the applicant Nos. 2 to 7 are concerned. Rule is made absolute to the aforesaid extent.

11. The case shall proceed further expeditiously in accordance with law so far as the applicant No.1-husband is concerned.

R/CR.MA/14730/2015

ORDER

(J.B.PARDIWALA, J.)