Gujarat High Court
Romeshbhai S/O Chandubhai Parekh & vs State Of Gujarat & on 30 March, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/2791/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING &
SET ASIDE FIR/ORDER) NO. 2791 of 2012
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ROMESHBHAI S/O CHANDUBHAI PAREKH &
2....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR. MAHARSHI PATEL for HL PATEL ADVOCATES,
ADVOCATE for the Applicant(s) No. 1 - 3
HCLS COMMITTEE, ADVOCATE for the Respondent(s)
No. 2
MR RB THAKOR, ADVOCATE for the Respondent(s) No. 2
MR KP RAVAL, APP for the Respondent(s) No. 1
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CORAMHONOURABLE MR.JUSTICE B.N. KARIA
:
Date : 30/03/2017
ORAL ORDER
1. The present application has been preferred by the applicants-accused under section 482 of the Code of Criminal Procedure, 1973 {"CrPC" for brevity} for quashing and setting aside the Page 1 of 15 HC-NIC Page 1 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER complaint, being Criminal Misc. Application No. 20 of 2012 registered with the Principal Judicial Magistrate, First Class, Vadnagar District: Mehsana with exemplary cost.
2. Brief facts of the case are that on 30.07.2011, the husband of the respondent no.2 filed a complaint, being C.R. No. I-57/2011 with Vadnagar Police Station for the offence punishable under Sections 366, 380 and 114 of the Indian Penal Code stating therein that on 10.06.2011, he received a message from his wife Rukaiyaben on telephone that his daughter Najma had taken away Rs. 20,000/- from his house on 09.06.2011, which were received by him from LIC and she had also taken 2 to 3 pairs of her clothes, which were also found missing. That, they waited up to next day morning, but she did not return, and thereafter an application was given to Vadnagar Police Station, being Janva Jog entry No. 25/11 on 14.06.2011. That, on further Page 2 of 15 HC-NIC Page 2 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER inquiry, he learnt that his daughter Najma was taken away by the applicant no.1 with a gold chain of 1 tola, which she use to put on her body and thereby, complaint mentioned above came to be filed. Thereafter, a Criminal Misc. Application No. 14387/2011 was filed before this Court by the present applicant no.1 and Najmabano-daughter of respondent no.2 for quashing of the above said complaint, and after hearing, the said complaint was quashed. After quashing the complaint, once again, the respondent no.2 herein filed one application under Section 97 CrPC, being Criminal Misc. Application No. 20/2012 for issuing a search warrant of legally wedded wife of the applicant no.1, and therefore, this application is filed by the applicants to quash and set aside the said application.
3. Heard learned advocate Mr. Maharshi Patel for HL Patel Advocates appearing on behalf of the Page 3 of 15 HC-NIC Page 3 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER applicants, learned advocate Mr. R.B. Thakor appearing on behalf of the respondent no.2 and learned APP Mr. K.P. Raval appearing on behalf of the respondent no.1-State.
4. It was submitted by learned advocate Mr. Maharshi Patel appearing on behalf of the applicants that the respondent no.2 has filed application under Section 97 of the CrPC before the court of learned Judicial Magistrate, First Class, Vadnagar against the present applicants, wherein learned Judge was pleased to issue notice by an order dated 9th February, 2012 . That, daughter of the respondent no.2 viz., Najma when got married with the applicant no.1, at that time also, a false complaint was lodged by the husband of respondent no.2 before the police, which was registered as C.R. No. I-57/2011 for the offence punishable under Sections 366, 380 and 114 of the Indian Penal Code. That, a Criminal Misc. Application No. 14387/2011 Page 4 of 15 HC-NIC Page 4 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER was filed before this Court by the present applicant no.1 and his legally wedded wife Najmabano- daughter of respondent no.2 seeking quashment of the said complaint, and after hearing, it was quashed and thereby Criminal Misc. Application No. 14387/2011 preferred by the applicants stood allowed vide order dated 13th January, 2012. Applicant no.1 is legally wedded husband of Najma- daughter of the respondent no.2, and applicants no. 2 and 3 are the parents of the applicant no.1. That, after quashing the complaint, once again, with a view to harass the present applicants, the respondent no.2 herein ie., mother in law of the applicant no.1 filed another application under Section 97 CrPC, being Criminal Misc. Application No. 20/2012 for issuance of search warrant of legally wedded wife of the applicant no.1. That, applicant no.1 got married with Najma on 16th June, 2011 at Adarsh Vivah Mandal at Kshipra, District: Page 5 of 15
HC-NIC Page 5 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER Devas, State: Madhya Pradesh, as per vedic rites and rituals. That, both of them are major and in support of his arguments, school leaving certificate showing their birth dates are produced on the record. That, the wife of the applicant no.1 made declaration on oath that she has not taken any amount nor precious ornaments from her house and she had come to the applicant no.1 with worn clothes from her house. That, she has further declared that she has not been pressurized nor allured by the applicant no.1 and she is marrying with the applicant no.1 on her own and after understanding and with a free will. That, with an oblique motive, because the respondent no.2 does not like her and her getting married with applicant no.1, as he belongs to different religion, but at the same time, the daughter of the respondent and the wife of the applicant no.1 have right to marry with any person of her choice and the said act is not an Page 6 of 15 HC-NIC Page 6 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER offence. That, filing of the application requesting the Judicial Magistrate, First Class to issue search warrant against the applicant is nothing but an abuse of process of the law, and therefore, it was requested by Mr. Maharshi Patel, learned advocate appearing on behalf of the applicants to quash and set aside the complaint, being Criminal Misc. Application No. 20/2012 registered before the learned Judicial Magistrate, First Class, Vadnagar, District: Mahesana by allowing this Application.
5. Mr. R.B. Thakor, learned advocate appearing on behalf of the respondent no.2 does not dispute the aspect that the daughter of the respondent no.2 is married to the applicant no.1 and marriage certificate has also been produced on the record. Considering the affidavit filed by the daughter of the respondent no.2 viz., Najma that she was staying with the applicant no.1, and out of their wedlock, one baby boy is begotten on 14th Page 7 of 15 HC-NIC Page 7 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER April, 2012. Thus, their marriage was with the consent of daughter of the respondent no.2, and therefore, this Court may pass necessary order.
6. Mr. KP Raval, learned APP appearing on behalf of the respondent no.1 has also supported the arguments advanced by learned advocate Mr. Maharshi Patel appearing on behalf of the applicants, considering the facts and circumstances of this case. It is further argued that with a view to pressurize the applicant, Criminal Misc. Application No. 20/2012 under Section 97 CrPC was filed by the respondent no.2. Hence, a request is made by him to pass necessary orders in the interest of justice.
7. Having considered the facts of the case, submissions made by learned advocates appearing on behalf of the respective parties, documents produced on the record, it appears that the marriage of applicant no.1 was solemnized with Najmabano alias Riya Mohmadali-daughter of the Page 8 of 15 HC-NIC Page 8 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER respondent no.2-Rukkaiyaben Mohmadali Momin Suthar, aged about 22 years on 16th June, 2011 and a certificate of marriage issued by Adarsh Vivah Mandal Madhya Pradesh, Bhopal is also brought on the record. It also appears from the record that the daughter of the respondent no.2 converted her religion and a certificate to that effect was issued by the said institution on 16th June, 2011, is placed on record together with a school leaving certificate of daughter of the respondent no.2 wherein, her birth date is mentioned as 2nd December, 1989. While the school leaving certificate of the applicant no.1 is also produced on the record, which was issued by the school authority showing the date of birth of the applicant no.1 as "27th February, 1989". Thus, at the relevant point of time ie., on 15.06.2011, the daughter of the respondent no.2 viz., Suthar Najma Bano alias Riya Mohammad Ali, aged about: 22 years has declared that, by her consent, she had Page 9 of 15 HC-NIC Page 9 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER married with the applicant no.1. It is declared by her that without any pressure, she had decided to marry with the applicant no.1. In her affidavit, she has declared that she had married with the applicant no.1 and she was accepted by her husband. No ornaments were taken by her while leaving her parental home. No pressure from either side nor any inducement was given to her. Again, she had filed an affidavit that she had got married with applicant no.1 on 16th June, 2011 and out of their wedlock, one baby boy viz., Jay, is born on 14th April, 2012. A birth certificate of the boy is also produced on the record. She has further declared that disputes are private in nature, and therefore, public at large is not at all affected by the offence, as she had married with the applicant no.1 by her own consent and no offence has been committed by the applicant; as alleged in the complaint made by her mother ie., respondent no.2. It also appears from Page 10 of 15 HC-NIC Page 10 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER the record that previously, one complaint was lodged by the husband of the respondent no.2 before Vadnagar Police Station, being C.R. No. I-
57/2011 for the offence punishable under Sections 366, 380 and 114 of the Indian Penal Code, against which, the applicant no.1 and Najmabano-daughter of the respondent no.2 preferred Criminal Misc. Application No. 14387/2011 for quashing and setting aside the said complaint, which came to be allowed by this Court (Coram: Hon'ble Mr. Justice Anant S. Dave) vide order dated 30th January, 2012.
8. It appears that with a view to harass the present applicants, the respondent no.2-mother-in- law of the applicant no.1 again filed a complaint, being Criminal Misc. Application No. 20/2012 under section 97 CrPC for issuance search warrant, despite her daughter having legally wedded with the applicant no.1. This is merely an abuse of process of law by the respondent no.2, involving all Page 11 of 15 HC-NIC Page 11 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER the family members. Under these circumstances, a question would arise whether High Court can exercise powers vested under Section 482 of the Code of Criminal Procedure, to quash the impugned complaint in these sets of facts. Hence, this court would like to analyze the following decision, to arrive at a just conclusion.
9. In the case of State of Haryana and others V. Bhajan Lal & Ors., reported in 1992 Supp(1) SCC 335, the Apex Court has broadly set out circumstances under which, High Court can exercise powers under section 482 of Criminal Procedure Code. It is held that;
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, Page 12 of 15 HC-NIC Page 12 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER clearly defined and sufficiently channelized and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised;
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence,no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Page 13 of 15 HC-NIC Page 13 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent persons can ever reach a just conclusion that there is sufficient grounds for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
10. In the aforesaid premises, this application deserves to be allowed. Therefore, the impugned complaint, being Criminal Misc. Application No. 20 Page 14 of 15 HC-NIC Page 14 of 15 Created On Sat Aug 12 10:45:50 IST 2017 R/CR.MA/2791/2012 ORDER of 2012 registered before the Principal Judicial Magistrate, First Class, Vadnagar District: Mehsana is hereby quashed and set aside, qua the applicants. 11. Rule is made absolute accordingly. Ad-interim relief granted earlier stands confirmed. No order as to costs.
(B.N. KARIA, J.) ksdarji Page 15 of 15 HC-NIC Page 15 of 15 Created On Sat Aug 12 10:45:50 IST 2017