Gujarat High Court
Girishkumar Amrutlal Davda vs State Of Gujarat on 7 September, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/SCR.A/975/2017 ORDER DATED: 07/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 975 of 2017
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GIRISHKUMAR AMRUTLAL DAVDA & 8 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2,3,4,5,6,7,8,9
MR D V KANSARA(7498) for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/09/2022
ORAL ORDER
1. Heard Mr. P. P. Majmudar, the learned advocate appearing for the writ-applicants, Ms. Maithili Mehta, the learned APP appearing for the respondent No.1 and Mr. D. V. Kansara, the learned advocate appearing for the respondent No.2 (original complainant).
2. By way of present writ-application the writ-applicants are invoking Article 226 of the Constitution of India read with Section 482 of the Criminal Procedure Code, 1973 are seeking quashing of F.I.R. bearing C.R. No.II-3065 of 2013 registered Page 1 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 with Veraval City Police Station, Dist Gir Somnath for the offences punishable under Sections 498-A, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860.
3. The Investigating Officer by report dated 8.10.2013 subsequently added Sections 402, 403 and 406 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act. The investigation in connection with the aforesaid FIR culminated into the charge-sheet being No.I-50 of 2013 and charge-sheet No.I-50A of 2014 before the Court of learned Chief Judicial Magistrate, Gir Somnath at Veraval and Criminal Case No.1112 of 2013 as also Criminal Case No. 853 of 2014 came to be registered which are pending adjudication.
4. The marriage of the respondent No.2 with the writ- applicant No.1 was solemnized on 24.1.1999 as per their customs and ritual at Keshod. Soon after the marriage the respondent No.2 - original complainant went to reside with the writ-applicant No.1 at Mangrol.
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R/SCR.A/975/2017 ORDER DATED: 07/09/2022 4.1 It is alleged by the respondent No.2 that the writ- applicants No.1 to 3 physically and mentally harassed the respondent No.2. It is further alleged that when the respondent No.2 travelled to Mumbai alongwith writ-applicant No.1 to reside with writ-applicants No.4 and 5 (brother-in-law and sister-in-law), the respondent No.2 was subjected to physical and mental harassment and that there was demand of dowry from the respondent No.2.
4.2 It is further alleged that the respondent No.2 was sent back to Mangrol and the writ-applicant No.1 stayed back in Mumbai and thereafter left for Dubai. The respondent No.2 has further alleged that while her stay in Mangrol with the writ-applicants for a period of one year, the respondent No.2 was subjected to physical and mental harassment by the writ- applicants No.2 to 9. Thereafter the respondent No.2 was sent to Dubai. It is further alleged that the respondent No.2 was expecting baby therefore she was sent back to India and she allegedly stayed at her matrimonial house for a period of ten Page 3 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 days and thereafter went to reside at her parental house. The respondent No.2 gave birth to a daughter on 19.12.2000 viz. Priyanka and the writ-applicant No.1 had chosen not to come to see their daughter.
4.3 It is alleged that in-laws use to taunt the respondent No.2 for having delivered a baby girl and harassed her. The respondent No.2 alongwith daughter again went to reside at Dubai and on 11.12.2003 a son viz. Kashyap was born out of the wedlock. The respondent No.2 was again sent back to India on the assurance by the writ-applicant No.1 that the writ-applicant No.1 would shift to India. It is alleged that the respondent No.2 with her children resided with her sister-in- law and her husband in Mumbai. It is further alleged that when the respondent No.2 went to Keshod to reside with the writ-applicants No.8 and 9 and after sometime the respondent No.2 alongwith her children went to Rajkot to reside with the writ-applicants No.2 and 3. It is alleged that the marriage of brother-in-law of the respondent No.2 was fixed and, therefore, Page 4 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 assurance was given by the writ-applicant No.1 that the respondent No.2 would be treated well. The respondent No.2 went to Dubai with the writ-applicant No.1 for a period of two years.
4.4 It is further alleged in the complaint that the respondent No.2 left from Dubai and went to Vasai to reside with her in- laws. The writ-applicant No.1 returned to India on 20.5.2013 and thereafter the writ-applicant No.1 had subjected the respondent No.2 to physical and mental harassment and allegedly the writ-applicant No.1 dropped the respondent No.2 near the house of respondent No.2. It is also alleged by the respondent No.2 that the respondent No.2 suspected that the writ-applicant No.1 has an affair with one Dolyben and that as a result the writ-applicant No.1 did not treat the respondent No.2 well. It is thus alleged that the writ-applicants in connivance with each other subjected the respondent No.2 to physical and mental harassment and tortured and demanded dowry from the respondent No.2. With the aforesaid and other Page 5 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 allegations the respondent No.2 filed the impugned F.I.R. which came to be registered against the writ-applicants herein bearing C.R. No.II-3065 of 2013 which culminated into charge-sheet bearing No.I-50 of 2013 and charge-sheet No.I- 50A of 2014 before the Court of learned Chief Judicial Magistrate, Gir Somnath at Veraval and Criminal Case No.1112 of 2013 as also Criminal Case No. 853 of 2014.
5. Being aggrieved by the aforesaid complaint filed by the respondent No.2 the writ-applicants herein have approached before this Court seeking following prayers which read thus :-
"(A) YOUR LORDSHIPS may be pleased to quash and set aside F.I.R. being C.R. No.II-3065 of 2013 registered with Veraval City Police Station, Dist Gir Somnath (at ANNEXURE-A hereto) as well as charge sheet being no. I-50 of 2013 submitted before the Court of Learned Chief Judicial Magistrate, Gir Somnath at Veraval (at ANNEXURE-B) and Criminal Case No. 1112 of 2013 pending with the Court of Learned Chief Judicial Magistrate, Gir Somnath at Veraval and all consequential proceedings pursuant to the aforesaid F.I.R.;Page 6 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022
R/SCR.A/975/2017 ORDER DATED: 07/09/2022 "21 (A) as well as supplementary charge sheet no. I-50A of 2014 submitted before the Court of learned Chief Judicial Magistrate, Gir Somnath, Veraval and Criminal Case No.853 of 2014 pending before the Court of learned Chief Judicial Magistrate, Gir Somnath, Veraval."
"21 (B) as well as charge sheet no.I-50 A of 2014 submitted before the Court of learned Chief Judicial Magistrate, Gir Somnath, Veraval and Criminal Case No.853 of 2014 pending before the Court of learned Chief Judicial Magistrate, Gir Somnath, Veraval."
(B) During pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further proceedings of F.I.R. being C.R. No. II-3065 of 2013 registered with Veraval City Police Station, Dist Gir Somnath (at ANNEXURE-A hereto) as well as charge sheet being no. I-50 of 2013 submitted before the Court of Learned Chief Judicial Magistrate, Gir Somnath at Veraval (at ANNEXURE-B) and Criminal Case No.1112 of 2013 pending with the Court of Learned Chief Judicial Magistrate, Gir Somnath at Veraval and all consequential proceedings pursuant to the aforesaid F.I.R.; (C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;"
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R/SCR.A/975/2017 ORDER DATED: 07/09/2022
6. At the outset, Mr. Majmudar, the learned advocate appearing for the writ-applicants does not press the present writ-application qua the writ-applicants No.1, 2 and 3 (original accused Nos.1, 2 and 3).
6.1 Mr. P. P. Majmudar, the learned advocate appearing for the writ-applicants submitted that so far as the allegation against the writ-applicants No.4 and 5 is concerned, the marriage between the writ-applicant No.1 and respondent No.2 came to be solemnized in the year 1999 and marriage between the writ-applicants No.4 and 5 were solemnized in the year 1996 and they were residing separately at Rajkot. Mr. Majmudar, the learned advocate submitted that the writ-
applicants No.6 and 7 were also residing separately. Mr. Majmudar, the learned advocate further submitted that the marriage between the writ-applicants No.8 and 9 was solemnized in the year 1992 and they were also residing separately.
6.2 Relying on the aforesaid submissions, Mr. Majmudar, the Page 8 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 learned advocate submitted that the allegations levelled in the impugned FIR are false and the writ-applicants never harassed the respondent No.2 and they are unnecessarily roped in by the respondent No.2 and the allegations levelled against them are false and vague in nature.
7. Ms. Maithili Mehta, the learned APP appearing for the respondent No.1 - State submitted that appropriate order be passed considering the nature of allegations levelled against the writ-applicants herein.
8. In the facts of the present case, the allegations against the other writ-applicants i.e. writ-applicants No.4 to 9 (original accused Nos.4 to 9) are vague in nature. From the perusal of documents on record, no specific averment is alleged in the impugned FIR against the writ-applicants No.4 to 9 (original accused Nos.4 to 9). The provisions added against the writ-
applicants No.4 to 9 (original accused Nos.4 to 9) in view of this Court could not be applicable.Page 9 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022
R/SCR.A/975/2017 ORDER DATED: 07/09/2022 8.1 On perusal of materials on record, it is borne from the record that the respondent No.2 herein resided with the rest of the writ-applicants No.4 to 9 (original accused Nos.4 to 9) as stated in the FIR only for a very short period. The aforesaid stay with the other family members of the writ-applicant No.1 would not attract the provision as mentioned in the FIR as well as the charge-sheet against the writ-applicants No.4 to 9 (original accused Nos.4 to 9).
9. At this stage, it is apposite to refer to the following proposition of law :-
(a) In the case of Neelu Chopra and Anr. vs. Bharti, reported in (2009) 10 SCC 184, paragraphs 9 to 12 read thus :-
"(9.) In order to lodge a proper complaint, mere mention of the Sections and the language of those Sections is not be all and end of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence.Page 10 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022
R/SCR.A/975/2017 ORDER DATED: 07/09/2022 (10) When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would-be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.
(11.) The High Court has merely mentioned that the allegation in the complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the appellants. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A, IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh.
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R/SCR.A/975/2017 ORDER DATED: 07/09/2022 (12.) This is apart from the fact that despite service of notice, the complainant neither appeared before this Court nor engaged any counsel to represent her. Under the circumstances we are of the opinion that the judgment of the High Court deserves to be set aside. It is, accordingly, set aside and the order of the learned Magistrate taking cognizance is quashed. The complaint is quashed under Section 482, Cr.P.C."
(b) In the case of Bhaskar Lal Sharma and Anr. Vs. Monica, reported in (2009) 10 SCC 604, paragraphs "(53.) The offence of criminal breach of trust as defined in Sec. 405 of the IPC may be held to have been committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do.
(54.) The essential ingredients for establishing an offence of criminal breach of trust as defined in Sec. 405 and punishable under Sec. 406 IPC with sentence for a period up to three Page 12 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 years or with fine or with both, are:-
[(i) entrusting any person with property or with any dominion over property;] [(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.] (55.) We have noticed heretobefore that the correspondences exchanged between the spouses or by and between Vikas and his in-laws do not disclose any allegation which would amount to criminal misconduct on the part of the appellants.
(56.) With the aforementioned backdrop of events, we may now notice the allegations made in the complaint petition filed by the respondent against the appellants. The only allegation which brings the case within the purview of Sec. 406 is that appellant No.2 had taken all the gifts/cash given by the invitees/guests. Technically, this allegation would the definition of breach of trust within the meaning of Sec. 405 of the IPC. Entrustment of some properties and/or dominion over them, if any, therefore, is attributed only against the appellant No.2. Other allegations made against thel appellants are general in nature. Entrustment is said to have been made to the appellants and/or their son. No definite case of Page 13 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 entrustment of any property has been made against the appellant No. 1. He is only said to have given back to the complainant's parent the entire cloth and jewelry. No demand was made by the respondent.
(57.) Offering of Rs.25 lakhs for grant of divorce by mutual consent as compensation to the complainant, which is three times of the amount of the value of `Streedhana' and/or amount spent by the complainant's father per se does not constitute any offence of Sec. 406 of the Code. Any gift made to the bridegroom or his parents - whether in accordance with any custom or otherwise also would not constitute any offence under Sec. 406 of the Code.
(58.) In State of Punjab V/s. Pritam Chand & Ors. [2009 (2) SCALE 457] : (2009 AIR SCW 1457), it has been held:-
["4. Sec. 406 IPC deals with punishment for criminal breach of trust. In a case under Sec. 406 the prosecution is required to prove that the accused was entrusted with property or he had dominion over the property and that the accused misappropriated or converted the property to his own use or used or disposed of the property or willfully suffered any person to dispose of the property dishonestly or in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to carrying out of the trust."] (See also Harmanpreet Singh Ahluwalia & Ors. V/s. State of Page 14 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 Punjab & Ors.[2009 (7) SCALE 85]) : (2009 AIR SCW 3976).
(59.) We, therefore, are of the opinion that prima facie a case under Sec. 406 of the IPC has been made out only against appellant No.2.
(61.) The appeals are allowed to the extent mentioned hereinabove. The summoning order dated 21.3.2005 passed against the appellants except Appellant No.2 is set aside. It is clarified that the proceedings can continue only against the appellant No.2, that too in respect of Sec. 406 IPC only."
(c) In the case of Anand Kumar Mohatta and Anr. vs. State (NCT of Delhi) Department of Home and Anr., reported in (2019) 11 SCC 706, paragraphs 29 and 30 read thus :-
"(27.) We are of the opinion that the present case falls under the 1st, 3rd and 5th category set out in the para 102 of the judgment in the case of Bhajan Lal (supra). In such a situation, the High Court erred in dismissing the petition of the Appellants filed under Section 482 of Cr.P.C. This was a fit case for the High Court to exercise its inherent power under Section 482 of Cr.P.C. to quash the FIR.
(28) It is necessary here to remember the words of this Court in State of Karnataka v. L. Muniswamy and others, 1977 2 Page 15 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 SCC 699 which read as follows: -
7. ..In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.
10. In view of aforesaid ratio as referred above and facts of the present case, the allegations levelled against the writ-
applicants No.4 to 9 (original accused Nos.4 to 9) can be said to be vague and devoid of merit. The dispute is mainly between the husband and wife. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by Page 16 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 each and every accused in committing of that offence. Looking to the complaint in question, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these writ- applicants in the commission of offence.
11. The writ-applicants herein have not pressed the present writ-application qua writ-applicant No.1 (husband) accused No.1, writ-applicant No.2 (father-in-law) accused No.2 and writ-applicant No.3 (mother-in-law) accused No.3 respectively.
12. In view of the aforesaid findings as stated above, the writ-application is allowed qua writ-applicants No.4 to 9 (original accused Nos.4 to 9) to the aforesaid extent. The F.I.R. bearing C.R. No.II-3065 of 2013 registered with Veraval City Police Station, Dist Gir Somnath and charge-sheet bearing No.I- 50 of 2013 and charge-sheet No.I-50A of 2014 which has culminated in Criminal Case No.1112 of 2013 as also Criminal Case No. 853 of 2014 before the Court of learned Chief Page 17 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022 R/SCR.A/975/2017 ORDER DATED: 07/09/2022 Judicial Magistrate, Gir Somnath at Veraval are quashed and set aside qua writ-applicants No.4 to 9 (original accused Nos.4 to 9) and the same shall continue qua writ-applicants No1, 2 and 3 (original accused No.1 to 3).
13. Mr. D. V. Kansara, the learned advocate appearing for the respondent No.2 submitted that proceedings with regard to maintenance are pending between the parties. The aforesaid order shall not stall those proceedings. If any maintenance is directed to be given to the respondent No.2 the writ-applicant shall continue paying the maintenance.
14. In the facts and circumstances of the present case, the criminal cases as stated above be decided as expeditiously as possible.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 18 of 18 Downloaded on : Sun Dec 25 01:20:41 IST 2022