IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6594 of 2015
FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? NO
PRADYOTKUMAR NATWARBHAI VASAIYA & 3….Applicant(s)
STATE OF GUJARAT & 1….Respondent(s)
MR ABHISHEK M MEHTA, ADVOCATE for the Applicant(s) No. 1 – 4
MR P P MAJMUDAR, ADVOCATE for the Respondent(s) No. 2
MS MOXA THAKKAR, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/02/2018
1 By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs: “12(A) Your Lordships may kindly be pleased to admit and allow this petition;
(B) Your Lordships may be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned FIR being 1st CR No.252/2015 dated 20.9.2015 with Sector 7 Police Station, District: Gandhinagar; (Annexure A).
(C) Pending hearing and final disposal of present petition, Your Lordships may be pleased to stay further proceedings in connection with or pursuant to impugned FIR being Ist CR No.252/2015 dated 20.9.2015 with Sector7 Police Station, District: Gandhinagar.
(D) Your Lordships may be pleased to grant ad interim relief/s in terms of para above;
(E) Any other and further relief/s as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted.”
2 It appears from the materials on record that the writ applicant No.1 is the husband, the writ applicant No.2 is the fatherinlaw, the writ applicant No.3 is the motherinlaw and the writ applicant No.4 is the sisterinlaw of the respondent No.2 – original first informant. The respondent No.2 got married with the writ applicant No.1 herein on 22nd November 2009. In the wedlock, a son was born on 18th October 2011 named “Krishil”. It is the case of the respondent No.2 that the first six months of the marital life were quite happy, but, on 23rd May 2010 i.e. almost after six months from the date of the marriage, having seen the articles gifted by the parents of the respondent No.2 at the time of her marriage, the fatherinlaw and motherinlaw got annoyed and started taunting the respondent No.2 that such articles would not be gifted even by a class – IV employee or any illiterate person. As usual, allegations have been levelled of mental as well as physical cruelty inasmuch as the respondent No.2 has gone to the extent of levelling allegations against the fatherinlaw of trying to outrage her modesty. The respondent No.2 has not spared even her sisterinlaw i.e. the writ applicant No.4. The First Information Report translated in English is extracted hereunder:
“1 My marriage according to the rites and rituals was solemnized on 22.11.2009, with the accused No.1 Pradhyotkumar Natvarlal Vasaiya as per the Hindu rituals. Accused No.2 is my fatherinlaw, No.3 my motherinlaw and No.4 is my sisterinlaw. After the marriage, we were staying at the above mentioned address of the accused. In the wedlock, a son was born on 18.10.2011. His name is Krishiv alias Krish. His age is approximately four years. Until first six month of the marriage, my motherinlaw, fatherinlaw, sisterinlaw and my husband used to be very good with me. But on 23.05.2010, seeing the trunk given by my father as per social rituals of my caste, my fatherinlaw and my motherinlaw insulted and humiliated me that day saying that my father is a class 4 peon and my illiterate mother will never understand and they opened my trunk and said that my father had not given anything and that I came without anything and they taunted me and I was physically and mentally tortured for dowry.
2 Thereafter my motherinlaw, fatherinlaw and sisterinlaw had given me so much physical and mental torture. I was often criticized and taunted with bad words relating to my father and mother. I used to tell this to my husband but he also took their side, scaring me with big eyes and threatened and instigated me to commit suicide.
3 I was tortured so much that I was prohibited to watch a T.V. There was a restriction on meeting any outsider coming to our home and I was living life miserably.
4 When my husband was transferred to Bhiwandi, I felt lonely and I found my father in law’s attitude towards me changed. He used to behave characterless even though I was the wife of his son. He used to stare and try to touch my hand when I would give him tea/water. And sometimes he tried to put his face very near to me. During this period of harassment, I could not sleep at night because sometimes he tried to enter in my room also. And when I did agree with their gestures, they often humiliated me and abuse me with bad words repeatedly. He used to touch my cheeks and do other bad gestures.
5 In my marriage, my fatherinlaw had spent Rupees 8 lakh. He demanded and pressurized me to recover the expenditure from my father. My husband also repeatedly pressurised me to ask my father to give money and jewellery.
6 After the birth of my son, despite my job, the responsibilities of my son were totally with me. My fatherinlaw also tried to take advantage of my loneliness. But I didn’t obey him so he framed false incident and beat me and dragged me out of the home he did a mean act. He was touching my cheek while I was sitting on dining table to prepare cold milk, and milk got spilled over. My mother in law taunted and said where was I looking and along with my sister in law they started beating me. My sister in law broke my phone to, and even beat me holding my hair.
7 My motherinlaw and sisterinlaw beat me holding my hair, my fatherinlaw also hit me and dragged me out of the house. During this incident, they tore my clothes also. My phone was broken so I called my father using neighbor’s phone and he directly did not come to my matrimonial home and informed about this to my uncle in law (Ashwinbhai) who came.
I had pain in my ear due to unbearable injuries in the ear. Because of this, he (Ashwinbhai) himself took me to the hospital. It was not safe to be there, he being a wellwisher dropped me to my parent’s home. Thus all the accused jointly tortured me for dowry and physical and mentally tortured. They made my life miserable in their house and I was tortured to the limit and instigated to commit suicide.
Thus, all these greedy people tortured me physically and mentally for dowry. Now I reside at my parent’s address mentioned above. This being my legal complaint against all the accused; I kindly requested you to take necessary legal action against them.”
3 On 5th November 2015, this Court passed the following order: “Let rule be issued to the respondents, returnable on 26.2.2016. Mr. Pandya, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1. The respondent No.2 be served directly through the investigating officer of the concerned police station. Let there be an adinterim order in terms of para12(C). Direct service is permitted.”
4 Mr. J.M. Panchal, the learned counsel appearing for the writ applicants vehemently submitted that the First Information Report lodged by the respondent No.2 is nothing, but an abuse of the police machinery as well as the process of law. The learned counsel would submit that in a matrimonial dispute between the husband and wife, the wife has levelled absolutely false and reckless allegations against the fatherinlaw, motherinlaw and sisterinlaw. It is further submitted that many material facts were suppressed at the time when the F.I.R. was lodged by the respondent No.2.
5 Mr. Panchal invited the attention of this Court to a medical certificate dated 9th September 2014 issued by a medical officer of the General Hospital, Gandhinagar as regards the injuries sustained by the motherinlaw i.e. the writ applicant No.3 herein. It appears that, on 23rd August 2014, the respondent No.2 inflicted injuries on the head of her motherinlaw with a “Sansi” (Stainless steel kitchenware). Mr. Panchal, thereafter, invited the attention of this Court to the proceedings initiated by the husband before the Family Court for the custody of the son under the Guardians and Wards Act. Mr. Panchal invited my attention to the copy of the application filed by the husband, which is at page: 37 of the paper book [Annexure: ‘H’ collectively]. Mr. Panchal, thereafter, invited the attention of this Court to the plaint of a Family Suit No.91 of 2015 filed by the husband i.e. the writ applicant No.1 for divorce in the Family Court at Gandhinagar. The husband prayed for divorce on the ground of cruelty and incessant harassment towards him and his family members at the end of his wife i.e. the respondent No.2. Mr. Panchal, thereafter, invited the attention of this Court to the judgment and decree passed by the Family Court, Gandhinagar dated 30th November 2017 allowing the Family Suit filed by the husband and granting a decree of divorce to the husband on the ground of cruelty. The learned counsel invited the attention of this Court to the issues framed by the Family Court, Gandhinagar. In the Family Suit No.91 of 2015 filed by the husband, the issues framed are extracted hereunder:
“(1) Whether the petitioner husband proves that he is treated with cruelty by the respondent wife?
(2) Whether the petitioner husband proves that he has been deserted by respondent wife?
(3) Whether respondent wife proves that she has been deserted by the petitioner without any reasonable cause?
(4) Whether respondent wife proves that she is treated with cruelty by the petitioner husband?
(5) Whether the petitioner husband is entitled to divorce as pryaed for against the respondent wife?
(6) What order?”
6 The Family Court answered the issues referred to above as under:
“1) As held.
6) As per final order.”
7 Mr. Panchal submitted that the judgment and decree passed by the Family Court, Gandhinagar came to be challenged by the wife before this Court by filing a First Appeal No.4199 of 2017. This Court has admitted the appeal and by way of an adinterim relief, the judgment and decree has been stayed.
8 Mr. Panchal submitted that after a full fledged trial, the Family Court held that the husband was able to prove that his wife deserted him and treated him with cruelty. The learned counsel would submit that all these facts are relevant for the purpose of deciding the present application seeking quashing of the F.I.R. Mr. Panchal submitted that the allegations against the fatherinlaw came to be levelled almost after a period of more than one year.
9 In such circumstances referred to above, Mr. Panchal prays that there being merit in this writ application, the same be allowed and the F.I.R. be quashed.
10 On the other hand, this writ application has been vehemently opposed by Mr. P.P. Majmudar, the learned counsel appearing for the respondent No.2. He would submit that the allegations levelled in the F.I.R. do disclose more than a prima facie case against all the writ applicants. He would submit that the police should be permitted to complete the investigation in accordance with law.
11 The learned A.P.P. appearing for the State submitted that having regard to the nature of the allegations, the F.I.R. may not be quashed.
12 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 F.I.R. should be quashed.
13 The law relating to quashing is well settled. If the allegations are absurd or do not make out any case or if it can be held that there is abuse of the process of law, the proceedings can be quashed, but if there is a triable case, the Court does not go into the reliability or otherwise of the version or the counter version. In matrimonial cases, the Courts have to be cautious when omnibus allegations are made particularly against the relatives who are not generally concerned with the affairs of the couple. In Amit Kapoor v. Ramesh Chander and Anr. [(2012) 8 SCC 460], the Supreme Court has observed:
“27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions Of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a fullfledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the chargesheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
(Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949];
Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234 : (AIR 1988 SC 709)];
Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892];
Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059 : (AIR 1996 SC 309)];
G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513 : (AIR 2000 SC 754)];
Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703 : (AIR 2003 SC 1069)];
Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128];
State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497 : (AIR 1996 SC 2983)];
Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634 : (1995 AIR SCW 2364)];
Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283 : (AIR 2005 SC 9)];
Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869];
Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412 : (AIR 2010 SC (Supp) 864)];
V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356 : (AIR 2009 SC 3258)];
Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297 : (AIR 2009 SC 3250)];
Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82 : (AIR 1987 SC 877)];
State of Bihar v. P. P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260];
Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275 : (2001 AIR SCW 2504)];
M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19 : (AIR 2001 SC 3014)];
Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and
S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (LandS) 1201 : (AIR 2001 SC 3253)]).
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”
14 In Kailash Chandra Agrawal and Anr. v. State of U.P. and Ors. (Criminal Appeal No.2055 of 2014 decided on 6th September 2014) (reported in 2014 AIR SCW 6152), it was observed:
“9. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In Kans Raj v. State of Punjab and Ors. [(2000) 5 SCC 207 : (AIR 2000 SC 2324)], it was observed:
“5………A tendency has, however, developed for roping in all relations of the inlaws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.
“The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role.
10. The parameters for quashing proceedings in a criminal complaint are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of Court’s process, quashing jurisdiction can be exercised. Reference may be made to
K. Ramakrishna and Ors. v. State of Bihar and Anr. [(2000) 8 SCC 547 : (AIR 2000 SC 3330)],
Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. [(1998) 5 SCC 749 : (AIR 1998 SC 128)],
State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. [(1992) Suppl 1 SCC 335 : (AIR 1992 SC 604)] and
Asmathunnisa v. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Anr. [(2011) 11 SCC 259 : (AIR 2011 SC 1905)].”
[See: Taramani Parakh vs. State of Madhya Pradesh, reported in 2015(3) Scale 616]
15 The picture that emerges from the materials on record is that the respondent No.2 shifted to her parental home in July 2011 as she was pregnant. On 18th October 2011, she gave birth to a son. It appears that on account of the matrimonial disputes, she remained at her parental home till April 2014. On 30th April 2012, the husband stood transferred to Bhiwandi (Maharastra). The husband is an employee of Torrent Power. It appears that the wife declined to join the husband at Bhiwandi (Maharastra). The company had provided a fully furnished house to live, but, for some reason or the other, the wife declined. The husband stayed at Bhiwandi till 20th April 2015. He came to be transferred again to Ahmedabad in the year 2015. It also appears that for some time, the respondent No.2 came back to her matrimonial home and started residing with her inlaws. On 23rd August 2014, she picked up a quarrel with her motherinlaw and hit her on her head with a “Sansi” (Stainless Steel kitchenware). This fact is not disputed by the wife.
16 It appears that the police registered a chapter case under Section 107 of the Code of Criminal Procedure, 1973 against the respondent No.2. The respondent No.2 was asked to furnish a surety (personal guarantee) for the purpose of maintaining peace. It is only after the husband filed a Family Suit seeking a decree of divorce in the year 2015, the respondent No.2 thought fit to go to the police and lodge the F.I.R. It is important to note that the Family Suit seeking a decree of divorce came to be filed by the husband on 1st September 2015. The Court issued summons to the wife and on receipt of the summons issued by the Family Court, the respondent No.2 lodged an F.I.R. on 20th September 2015.
17 My overall assessment of the matter is that as the respondent No.2 got cornered from all sides, the only remedy left open for her was to go to the police and register the F.I.R. levelling all sorts of wild allegations. I am conscious of the fact that the question whether the respondent No.2 has in fact been harassed and treated with cruelty is a matter of trial, but, having regard to the thumping materials on record and not disputed, I am of the view that the involvement of the police in the matter will be nothing, but, gross abuse of the police machinery and also the abuse of the process of law.
18 The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out primafacie 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 investigation or framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold.
19 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 498A of the Indian Penal Code which reads as under :
“498A. 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.ÿExplanation. 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 498A 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 498A 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.”
20 In the aforesaid context, it will also be profitable to quote a 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 498A is a cognizable and nonbailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bedridden grandfathers and grandmothers 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 chargesheeting 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 nonbailable 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. …. …..”
21 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.””
22 In the result, this writ application succeeds and is hereby allowed. The F.I.R. being C.R. No.I252 of 2015 registered at the Sector 7 Police Station, District: Gandhinagar is hereby quashed. Rule is made absolute. Direct service is permitted.