[1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicants herein – original accused to quash and set aside the impugned FIR being C.R. No.I218/2010 registered with Sola Police Station, Ahmedabad City filed by respondent No.2 herein – original complainant against the applicants for the offences punishable under Sections 498A, 323, 506(2) and 114 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). [2.0] That respondent No.2 herein – original complainant who hails from a village has lodged the impugned FIR being C.R. No.I218/2010 with Sola Police Station, Ahmedabad City against the applicants herein – original accused for the offences punishable under Sections 498A, 323, 506(2) and 114 of the IPC alleging interalia that all the accused persons were harassing and ill treating her and time and again telling her that her parents have not given anything to her and have send her to the matrimonial house as a beggar and time and again they were making taunts and thereafter have deserted her with her minor child. It is further alleged that even on 25.09.2008 also, her motherinlaw had thrown cooker on her, gave threats that if she does not leave the house, she will be burnt and since then she is staying at her parents house. Therefore, it is alleged that the applicants have committed the offences punishable under Sections 498A, 323, 506(2) and 114 of the IPC. That being aggrieved and dissatisfied with the impugned FIR, the applicants herein – original accused have preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.
[3.0] Shri Percy Kavina, learned counsel appearing on behalf of the applicants has vehemently submitted that applicants have not committed any offence as alleged for offences under Sections 498 A, 323, 506(2) and 114 of the IPC and that the impugned FIR is nothing but abuse of law.
[3.1] It is further submitted that as such for the offences alleged to have happened in 2008, impugned FIR has been lodged in the year 2010 and there is a delay in filing the FIR and therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Kishan Singh (Decd.) through L.Rs. v. Gurpal Singh & Ors. reported in AIR 2010 SC 3624, it is requested to quash and set aside the impugned FIR.
[3.2] It is further submitted by Shri Kavina, learned counsel appearing on behalf of the applicants that as such there is not cause of action to file the impugned FIR as since 2008, the complainant is residing at her parental house and the impugned FIR has been lodged in the year 2010 i.e. after a period of more than two years. It is further submitted that as such in earlier proceedings before this Court, no such grievance of illtreatment and/or harassment by the applicants was made by the complainant before the learned Judges of this Court who heard the complainant also in Special Criminal Application No.4126/2010 as well as Criminal Miscellaneous Application No.274/2010. It is submitted that even this Court also tried for settlement and the parties were also heard in the chamber. However, no such grievance was made by the complainant with respect to illtreatment and/or harassment by the applicants. Therefore, it is submitted that the allegations made in the FIR are absolutely an afterthought and therefore, it is requested to quash and set aside the impugned criminal proceedings. It is further submitted that till the earlier proceedings before this Court, as such no FIR was filed by the complainant. Therefore, impugned FIR is nothing but an afterthought which deserves to be quashed and set aside. Therefore, it is requested to allow the present application and quash and set aside the impugned criminal proceedings.
[4.0] Application is opposed by Ms. Kruti Shah, learned advocate appearing on behalf of the original complainant. It is submitted that as such there are specific averments and allegations in the FIR prima facie making out commission of cognizable offences which are required to be further investigated by the Investigating Officer. It is further submitted that right from very beginning the complainant has made grievance with respect to ill treatment and harassment by the applicants and even in the proceedings under Section 97 of the CrPC initiated by the husband and even before this Court also, the complainant made grievances with respect to illtreatment and harassment by the applicants. It is submitted that as such the complainant has been harassed like anything. It is submitted that the minor child is suffering from a serious disease of cerebral palsy and requires continuous treatment for which the money is required. It is submitted that even despite the interim order passed for medical treatment, not a single amount was paid for maintenance of the child. Hence, somehow or the other, wife is managing and giving treatment to her child who is suffering from cerebral palsy. It is submitted that the dispute started for dowry demand as the wife is coming from village and the applicants are residing in the city. It is submitted that as such number of litigations have been initiated against the complainant only with a view to harass her and to make her tired. Therefore, it is requested to dismiss the present application.
[5.0] In reply, Shri Kavina, learned counsel appearing on behalf of the applicants has specifically denied that the husband has not complied with the interim order passed by this Court and has not done anything towards medical treatment of the child.
[6.0] Heard the learned advocates appearing for respective parties at length. The impugned FIR has been lodged against the applicants herein – inlaws for the offences punishable under Sections 498A, 323, 506(2) and 114 of the IPC. The same is sought to be quashed and set aside mainly on the ground that there is a delay in filing the FIR and that it is nothing but an afterthought. The impugned FIR is also sought to be quashed and set aside on the ground that no cause of action has arisen and that even no such grievance was made before this Court in earlier proceedings. However, from the documents on record, it appears that right from very beginning and even in the proceedings initiated by husband under Section 97 of the CrPC, it was the specific case on behalf of the complainant with respect to harassment and illtreatment by the applicants. It has been specifically alleged that time and again the complainant was harassed and illtreated and there was a dowry demand and even in the year 2008 and even on 25.09.2008, the motherinlaw had thrown cooker on her and tried to kill her and throwing the complainant out from the house and she was threatened that if she does not leave, she will be killed and since then she is residing at her parents' house. It is required to be noted that son of the complainant, a minor child is suffering from cerebral palsy even at the time when she was thrown out from her house. Number of proceedings have been initiated between the parties with respect to custody of the child etc. and even with respect to the medical treatment to be given to the child and pursuant to the interim order passed by this Court, the husband was directed to give medical treatment/cooperate the complainant wife in giving medical treatment to the child. There are dispute between the parties with respect to the compliance of the interim order. It is required to be noted that the wife is coming from a small village and the applicants are residing in city and there are number of proceedings initiated between the parties and only thereafter at last the complainant has lodged the impugned FIR. In the facts and circumstances of the case, the impugned FIR is not required to be quashed and set aside solely on the ground that it has been filed belatedly. As stated herein above, the averments and allegations made in the FIR cannot be said to be an afterthought. Earlier also, the grievances have been made by the complainant with respect to illtreatment and harassment. Under the circumstances, the decision of the Hon'ble Supreme Court in the case of Kishan Singh (Supra) would not be of any assistance to the applicants in the facts and circumstances of the case.
[6.1] So far as the contention on behalf of applicants that in earlier proceedings before this Court, when the parties were called in the chamber for negotiations, no such grievance was made by the complainant about illtreatment is concerned, the aforesaid is specifically denied by the learned advocate appearing on behalf of the original complainant. It is a specific case on behalf of the complainant that with respect to harassment and illtreatment by the applicants, a specific grievance was made before the learned Single Judge also. Be that as it may, when in the earlier proceedings also, there are specific allegations with respect to ill treatment and harassment by the applicants, it cannot be said that the allegations and averments made in the impugned FIR are afterthought. It is required to be noted that that the minor child is suffering from a serious disease of cerebral palsy and needs a standard medical treatment and support.
[6.2] Considering the aforesaid facts and circumstances of the case, more particularly, when there are specific averments and allegations in the FIR, which prima facie discloses commission of cognizance offences which are required to be further investigated by the IO, it appears to the Court that no case is made out to quash and set aside the impugned FIR at the threshold and without any further investigation.
[7.0] In view of the above and for the reasons stated above, present application fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule is discharged. Adinterim relief granted earlier, if any, stands vacated forthwith.
[7.1] At this stage, Shri Kavina, learned advocate appearing on behalf of the applicants has prayed to continue the adinterim relief granted earlier so as to enable the applicants to obtain appropriate order from Hon'ble Supreme Court. In the facts and circumstances of the case and so as to enable the applicants to challenge the present order before the higher Forum, adinterim relief granted earlier is directed to be continued till 15th April 2012.
(M.R. Shah, J.) menon