Gujarat High Court
Maheshbhai Sureshbhai Makwana vs State Of Gujarat on 14 February, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/12985/2021 ORDER DATED: 14/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 12985 of 2021
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MAHESHBHAI SURESHBHAI MAKWANA
Versus
STATE OF GUJARAT
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Appearance:
MR MRUNAL R DHOLARIA(11915) for the Applicant(s) No. 1
MR. BHAUMIK DHOLARIYA(7009) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3,4,5
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 14/02/2022
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is a petition under Article 226 of the Constitution of India where this Court on 03.01.2022 passed the following order:-
"1. Draft amendment is permitted. Copy be given to the learned Additional Public Prosecutor.
2. The petitioner is aggrieved by the denial of the custody of his wife. It is emerging from the record that the FIR being No. 11198007210085 of 2021 has been lodged with the Bagdana Police Station, District Bhavnagar on 10.03.2021 for the offences punishable under Sections 363 and 366 of the Indian Penal Code. The same is pending.
3. The petitioner has been protected by this Court in a quashing petition being Criminal Misc. Application No. 6210 of 2021, however, since there is no stay against the investigation, the outcome shall be firstly need known to the Court. It is expected of the officer concerned to bear in mind Rule 12 of the Juvenile Justice Rules and the decisions of the Apex Court in case of Jarnail Singh vs. State Of Haryana [(2013) 7 Page 1 of 4 Downloaded on : Wed Feb 16 21:18:58 IST 2022 R/SCR.A/12985/2021 ORDER DATED: 14/02/2022 SCC 263] and State Of M.P. vs. Anoop Singh [(2015) 7 SCC 773].
4. Once these preliminary details are placed before this Court, after hearing both the sides, other and further order shall be passed.
5. List the matter on 10.01.2022."
2. On 01.02.2022 the following was the order:-
"1. Today, the corpus has been brought before this Court. She is desirous to join petitioner. parents are also before us though video conferencing in the presence of Mr. B.B. Shah, Full Time Secretary, District Legal Service Authority, Bhavnagar. They have confirmed of having filed an affidavit indicating that the compromise with the applicant has resulted into their agreeing to daughter joining the applicant.
2. Noticing the two birth certificates, one of 08.03.2004 and the other of 09.11.2003, let the truthfulness of the same be investigated by the police. However, the decisions of the Apex Court in the case of Jarnail Singh vs. State of Haryana, 2013(7) SCC 263 and in the case of State of Madhya Pradesh vs Anoop Singh, (2015)7 SCC 773 will make her major on 08.03.2023.
3. As an application for quashment is already preferred and her request for early hearing of the same is being sought Mr. Bhaumik Dholariya, learned advocate for the applicant is seeking time of two weeks. According to him, although the corpus is major and she has expressed her wish to join the petitioner, he would want the quashment on the strength of the birth date of the girl being of 08.03.2003 and the decisions of the Apex Court in that respect. He coupled with the element of settlement, which has already come by way of affidavit before this Court.
4. For now, his request is being acceded to. His request is being acceded to. Matter is being posted on 14.02.2022. The corpus may continued to be housed at Women Protection Home. In wake of this Page 2 of 4 Downloaded on : Wed Feb 16 21:18:58 IST 2022 R/SCR.A/12985/2021 ORDER DATED: 14/02/2022 request on the part of learned advocate, let the aspect of birth date be independently examined by the authority. None of the observations shall have any binding effect so far as the truthfulness of the documents before the police is concerned.
5. We have requested Mr. B.B. Shah, Full Time Secretary, District Legal Service Authority, Bhavnagar to ensue the safe return of the corpus to the Women Protection Home.
6. Applicant shall be at liberty to approach this Court even prior to 14.02.2022 if there is an order of any order that favours the applicant in relation to the application for quashing."
3. Today, learned advocate Mr. Dholaria has shared the affidavit filed by the Ganuben Sadulbhai Gohil, the mother of the corpus and the order of quashment of FIR passed in Criminal Misc. Application No. 6210 of 2021 on 10.02.2022 against the present petitioner on the strength of the birth certificate of the corpus.
4. The corpus who was staying at the Nari Vikash Gruh is present before this Court so also her mother. Her mother has no resistance and permits the daughter to join the present petitioner.
5. Apart from the quashment of the FIR, we notice that heavy reliance is placed on the decision of Apex Court in the case of Jarnail Singh vs. State of Haryana, 2013(7) SCC 263. The corpus is major as per the said decision and that fact by way of affidavit was also brought to the notice at the time of quashment. Regardless of its non-mentioning in the order, the Court is noticing that the case of the applicant would be covered by the said decision with no resistance from either the Investigating Agency or from the Page 3 of 4 Downloaded on : Wed Feb 16 21:18:58 IST 2022 R/SCR.A/12985/2021 ORDER DATED: 14/02/2022 parents.
6. Resultantly when there is no legal impediments and the parents are happy to accept the decision of the corpus, nothing survives. We allow the corpus to join the petitioner.
7. Petition is accordingly disposed of.
(SONIA GOKANI, J) (MAUNA M. BHATT,J) Bhoomi Page 4 of 4 Downloaded on : Wed Feb 16 21:18:58 IST 2022