Kanubhai Fulchandbhai Jotangia and 3 vs State of Gujarat and 1

Honourable Mr. Justice M.R. Shah

The present Criminal Miscellaneous Application u/s 482 of the Code of Criminal Procedure has been preferred by the applicants original accused nos. 2 to 5 to quash and set aside the impugned FIR, being C.R. No. I 4/2011 registered with Hisanpur Police Station for the offence punishable under Sections 498A, 323, 504 and 506(2) of the Indian Penal Code and under Sections 3 and 7 of the Dowry Prohibition Act.

The impugned FIR has been lodged by respondent no. 2-wife against the applicants and her husband with Hisanpur Police Station on 05/1/2011 for the offences alleged to have been committed from the date of her marriage with original accused no. 1 till 27/02/2008 and for the period between 12/04/2010 to 09/06/2010 for the offences punishable under Sections Sections 498A, 323, 504 and 506(2) of the Indian Penal Code and under Sections 3 and 7 of the Dowry Prohibition Act alleging interalia that her husband was ill-treating her and/or harassing her for dowry etc. and the applicants, who are the father-in-law, mother-in-law, brother-in-law and sister-in-law, were instigating her husband. It is further alleged in the Complaint that she left her husband''s house on 27/02/2008 and thereafter went to the house of applicants nos. 1 and 2-original accused nos. 2 and 3 on 12/04/2010 for her conjugal rights. The family members used various methods to oust her from the residential house. Being aggrieved and dissatisfied with the impugned FIR, the applicants, who are the father-in-law, mother-in-law, brother-in-law and sister-in-law, have preferred the present application u/s 482 of the Code of Criminal Procedure.

Shri Hardik Dave, learned advocate appearing on behalf of the applicants has vehemently submitted that the applicants have not committed any offence as alleged. It is submitted that as such immediately after the marriage in the year 1987, the original complainant-respondent no. 2 had stayed with her husband at different places like Ukai etc. and in the year 2008 she stayed with her husband at village Salejada. It is submitted that immediately from the date of marriage respondent no. 2-original complainant had never resided with applicants nos. 1 and 2. It is further submitted that all the applicants were residing separately and there was no question of harassing respondent no. 2-original complainant as alleged. It is submitted that even otherwise there are vague and general allegations against the applicants, which do not constitute the offence as alleged. It is further submitted that even for the offence alleged to have happened in the month of April, 2010, the impugned FIR has been filed in the month of January 2011 as an afterthought. It is further submitted that in the month of May, 2010 the husband had filed a divorce petition. It is further submitted that despite the fact that respondent no. 2-original complainant was residing separately with her husband at Salejada, and despite the reason that there was no reason to go to the residence of applicants nos. 1 and 2 for restitution of conjugal rights, still with a malafide intention she had gone to the residence of applicants nos. 1 and 2 for which applicant no. 1 immediately approached the concerned police authority submitting that with a view to harass them she has gone to their residence and, therefore, it is requested to quash and set aside the impugned FIR in exercise of powers u/s 482 of the Code of Criminal Procedure.

The present application is opposed by Ms. Falguni Trivedi, learned advocate appearing on behalf of respondent no. 2-original complainant. It is submitted that there are specific averments and allegations in the FIR, which prima facie discloses cognizable offences, which are further required to be investigated and, therefore, it is requested not to exercise the powers u/s 482 of the Code of Criminal Procedure at this stage.

Shri L.B. Dabhi, learned APP has requested to pass an appropriate order considering the facts and circumstances of the case.

Heard the learned advocates appearing on behalf of the respective parties and considered the impugned FIR as it is. Considering the averments and allegations made in the Complaint against the applicants and treating the same as it is, it appears that as such there are vague and general allegations against the applicants for harassment. It is required to be noted that applicants nos. 1 and 2 are the father-in-law and the mother-in-law and applicants nos. 3 and 4 are the brother-in-law and sister-in-law, who are right from the very beginning residing separately. It is not in dispute that the husband was serving in Electricity Company and was transferred from place to place and at the time of marriage he was at Ukai and at the time when respondent no. 2-original complainant left the house in the year 2008 he was serving and residing at village Salejada. Thus, it is not in dispute that respondent no. 2-original complainant stayed with her husband separately and she has never stayed and/or resided with the applicants. Considering the general and vague allegations in the FIR, prima facie it appears that it cannot be said that the applicants have committed any offence as alleged. It is also required to be noted at this stage that though in the year 2008 when she left the house of her husband at village Salejada there was no reason for her to go to the residence of applicants nos. 1 and 2 for restitution of conjugal rights in the month of April, 2010, which shows the conduct on the part of respondent no. 2-original complainant and, therefore, it prima facie appears that as such on the basis of general and vague allegations made in the FIR, the proceedings against the applicants for the offence alleged under Sections 498A, 323, 504 and 506(2) of the Indian Penal Code and under Sections 3 and 7 of the Dowry Prohibition Act cannot be continued and to continue such criminal proceedings against the applicants would be harassment to the applicants and it would be abuse of process of law and Court and, therefore, it appears that this is fit case to exercise the powers u/s 482 of the Code of Criminal Procedure.

In view of the above and for the reasons stated hereinabove, the present application succeeds. The impugned FIR, being C.R. No. I 4/2011 registered with Hisanpur Police Station for the offence punishable under Sections 498A, 323, 504 and 506(2) of the Indian Penal Code and under Sections 3 and 7 of the Dowry Prohibition Act is hereby quashed and set aside so far as the applicants are concerned. The same shall be without prejudice to the rights and contentions of respondent no. 2-original complainant and original accused no. 1-husband in the trial, which shall be dealt with in accordance with law and on its own merits.

Direct service is permitted.