Ajay Surendrakumar Mishra vs State Of Gujarat And Others

A.P. Thaker, J

The Registry has put up present Note for Speaking to Minutes filed by learned advocate for the applicant stating that in the order dated 21.06.2019 passed by this Court, the case pending before the lower court being being Criminal Case No. 5154 of 2017 has been wrongly transcribed as 514 of 2017. It is requested that the said mistake may be corrected.

Upon perusal of the papers and the contents of the Note for Speaking to Minute, it appears that inadvertently instead of Criminal Case No. 5154 of 2017, Criminal Case No. 514 of 2017 is transcribed in the said order dated 21.06.2019. Present Note for Speaking to Minute is allowed. In the order dated 21.06.2019, words 'Criminal Case No. 514 of 2017' be read as 'Criminal Case No. 5154 of 2017'. Fresh writ be issued accordingly.

Note for Speaking to Minutes is disposed of accordingly.

M.S. MONALI BHATT ADDL. PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1

Date: 21/06/2019

CAV JUDGMENT

By way of present application under Section 482 of the Criminal Procedure Code, the applicant has sought for the reliefs to quash and set aside the First Information Report (FIR) being C.R. No. I - 214/2016 registered with Sola Police Station, Ahmedabad City dated 27.10.2016 and the charge-sheet bearing charge-sheet No. 88/2017 dated 26.06.2017 which culminated into Criminal Case No. 514 of 2017 pending before the learned 8th Additional Civil Judge and Judicial Magistrate, First Class, Ahmedabad for the offences punishable under Sections 307, 498A, 406, 354A(i)(ii), 323, 504, 506(2) read with Section 114 of the Indian Penal Code and under Sections 3 and 7 of the Dowry Prohibition Act, 1961.

It is contended by the applicant that applicant is the brother-in-law (diyar) of the original complainant No. 2 and is residing in Uttar Pradesh. It is also contended that the marriage between the complainant and accused No. 1 was solemnized on 24.06.2012 at Pratapgarh, Uttar Pradesh and since marriage, the complainant was residing with accused No. 1 at Ahmedabad.

It is contended by the applicant that he came to know from other co-accused that after 15 days of the marriage, the complainant deserted accused No. 1-husband by saying that she was never interested to marry the accused No. 1 and was forced by her parents to get married. It is contended that the original accused tried to sort out the entire issue and asked the complainant to come back but she did not respond and was continuously threatening the co-accused that she would indulge him in serious offences by filing the complaints. It is contended that original accused No. 1 - husband has filed divorce petition in Uttar Pradesh wherein divorce decree was passed. It is contended that as a counter-blast and with mala fide intention, the impugned FIR has been filed for the alleged offences committed during 2012 to 2014. It is contended that the complaint against them has been filed is absolutely upon misrepresentation and false statement and it has been filed with a view to harass the applicants and to extract money.

It is contended by the applicant that after being arraigned as accused, they have approached before this Court for quashing of the impugned FIR by filing Criminal Misc. Application No. 31311 of 2016 and they have also filed anticipatory bail application which was allowed by the learned Additional District and Sessions Judge, Ahmedabad (Rural). It is contended that after investigation, the charge-sheet has been filed before the trial Court.

It is contended by the applicant that the allegations made against the present applicant are absolutely vague and general in nature and he is innocent and unknown about the incident and nowhere concerned or connect with the original accused No. 1 in any manner. It is contended that no specific role has been attributed to him and he is arraigned as accused only with a view to pressurize the accused No. 1 to 3 and to extract money from them. It is alleged that the allegation made against him is vague and general in nature. On all these grounds, he has prayed to allow the present application by quashing and setting aside the entire proceedings against them.

The original complainant has filed affidavit-in-reply as well as additional affidavit-in-reply wherein she has opposed the present application and has prayed to dismiss the application.

She has stated that she got engaged with accused No. 1 - Abhay Mishra in the year 2012 and at the time of engagement, the accused persons demanded dowry from complainant's father to the tune of Rs. 5,00,000/- and even, thereafter, they have obtained dowry amount of Rs. 12,50,000/-. She has stated that she was living with her husband, father-in-law and mother-in-law at Ahmedabad and when she became pregnant, they used to pressurize her to get pre-natal diagnosis and further told her that if she is diagnosed with a girl, she will have to abort the child and that the accused persons herein would accept the child if a boy is born. She has narrated that she gave birth a boy in Satyam Hospital at Himmatnagar on 30.09.2013 and her father informed about the same to the accused husband, father-in-law and mother-in-law. It is also stated that the accused have visited the hospital and they being superstitious, administered some substance in the child's mouth as a result of which the child vomited blood and got seriously ill. She has stated that thereafter, the child was brought to the Rajasthan Hospital and medical bill was paid by her father. She has stated that in April 2014, she was brought to the Uttar Pradesh and, thereafter, her husband came back to Ahmedabad on account of employment. It is contended that thereafter, accused No. 1 ill treated her and, thereafter, he called her father and her father took her back at Himmatnagar. It is stated that thereafter, the compromise was arrived at and she went to her matrimonial home at Ahmedabad and at that time she was pressurized to give Rs. 10,00,000/-. She has narrated the facts that her mother-in-law has given one glass of 'sharbat' to her and forced her to drink and due to which, she got seriously ill and on medical examination, it was found that some particles were found in her stomach.

It is stated by the complainant in the affidavit-in-reply that on 19.07.2014, her husband brought her to Ahmedabad and at that time, her mother-in-law did not let her and husband entered her house and told the accused husband that father-in-law and mother-in-law would have killed her if he had not asked her to accompany him to Patan. She has stated that kerosene was sprinkled by her father-in-law and mother-in-law and lighted a matchstick and threw on her body due to which she suffered burn on her body and that she managed to take her son and escaped from the house and started shouting for help due to which neighbor rushed to her house and, thereafter, the husband, father-in-law and mother-in-law were taken to Sola Police Station where the settlement has been taken place between the parties and the complaint was not lodged. According to her, she has suffered mental cruelty as well as physical cruelty at the instance of the accused persons and the complainant and the applicants relied on the divorce decree and against that, she has filed necessary appeal and ultimately the divorce decree has been set aside.

The complainant has stated in her affidavit-in-reply that earlier application for quashing of the FIR was withdrawn and, therefore, the present application may be rejected. She has contended that the applicant herein is involved in behaving indecently with her and there are serious allegations against him under Section 354 A(ii) of the Indian Penal Code. It is also stated that the present applicant is also involved in the entire incident. She has stated that from the investigation papers, the role of the present applicant has been found and the charge-sheet has been filed and, therefore, the present application may not be entertained and the same may be rejected with exemplary costs.

Heard Mr. Suraj Shukla, learned advocate for the applicant, Ms. Monali Bhatt, learned Additional Public Prosecutor for respondent No. 1 - State and Mr. Vishal Awtani, learned advocate for respondent No. 2 - original complainant at length. Perused the material placed on record.

Mr. Suraj Shukla, learned advocate for the applicant has submitted the same facts which are narrated in the memo of application and has submitted that the applicant is the brother-in-law and has never visited at Ahmedabad and no specific allegations against the present applicant are made and never stayed with the original accused. He has prayed to allow the present application.

Per contra, Ms. Monali Bhatt, learned Additional Public Prosecutor for respondent No. 1 - State has vehemently opposed the present application and has submitted that the charge-sheet has been filed and the present applicant was present at the time of incident and there is allegation under Sections 498A and 354 A(i)(ii) of the Indian Penal Code. She has submitted that earlier quashing petition was filed and this is a second attempt for quashing of the FIR and divorce decree has been set aside by the appellate court. She has submitted that the charge-sheet has been filed and, therefore, at this stage, the present application may be rejected.

Mr. Vishal Awtani, learned advocate for respondent No. 2 - original complainant, while adopting the arguments of learned Additional Public Prosecutor, has also submitted that earlier the application for quashing of FIR was withdrawn by the applicant and, therefore, now, this is a second application, which is not maintainable and there is specific allegation against the applicant in the FIR. He has submitted that as the charge-sheet has been filed, let the trial Court decides the matter on merits and there is question of facts involved in the matter and, therefore, this application may be rejected.

It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice.

The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.

A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence.

Considering the rival contentions and on perusal of the material placed on record, it transpires that there is no dispute as to the marriage between the original accused No. 1 and the complainant. There is allegations against the present accused is regarding his behaving indecently with the complainant. On perusal of the FIR, it appears that no specific particular has been mentioned regarding any indecent behave with the complainant. It also transpires from the statements of the neighbours that at the time of the incident of sprinkling of kerosene on the body of the complainant and, throwing the matchstick on her, the present accused was not present and only the husband, father-in-law and mother-in-law were present. It also appears from the record that there is vague and general allegation against the present applicant, who is student. It reveals from the affidavit-in-reply that the entire narration and allegations of the demand of dowry, physical and mental torture are against the husband, father-in-law and mother-in-law and whatever allegations are made against the present applicant is vague and general in nature and no specific particulars regarding alleged indecent behaviour by the present applicant is nature in the complaint. Under these circumstances, so far as the present applicant is concerned, the impugned FIR and consequential proceedings qua the present applicant are required to be quashed and set aside.

Regarding earlier criminal misc. application for quashing which was withdrawn is concerned, it is pertinent to note that the said criminal misc. application for quashing was filed by all the accused and it was not decided on merits. Therefore, the withdrawal of the application itself may not affect the present proceedings.

For the foregoing reasons, the application is allowed. The First Information Report being C.R. No. I - 214/2016 registered with Sola Police Station, Ahmedabad City dated 27.10.2016 and the charge-sheet bearing charge-sheet No. 88/2017 dated 26.06.2017 which culminated into Criminal Case No. 514 of 2017 pending before the learned 8th Additional Civil Judge and Judicial Magistrate, First Class, Ahmedabad and other consequential proceedings are hereby quashed and set aside qua the present applicant. The proceedings against the other accused be continued in accordance with law. Rule is made absolute to the aforesaid extent. Direct service is permitted.