Gujarat High Court
Subhag Ghanshyamdas Shah vs State Of Gujarat & on 11 September, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/12005/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET
ASIDE FIR/ORDER) NO. 12005 of 2012
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SUBHAG GHANSHYAMDAS SHAH....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1
MR HK PATEL, APP for the Respondent(s) No. 1
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 11/09/2017
ORAL ORDER
1. This application is filed for quashing of the FIR being C.R. No.I-127/2006 and Criminal Case No.2237/2006 pending before the 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara.
2. It is the case of the applicant that the applicant having married respondent no.2 - original complainant and migrated to Canada. However, on account of incompatibility the marriage did not succeed. However, during the course of marriage, a son was born and therefore, the differences between the applicant and the respondent - wife cropped up, which were right to be resolved internally. However, the applicant was Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Oct 01 18:31:20 IST 2017 R/CR.MA/12005/2012 ORDER constrained to file a petition for divorce on 29.03.2006 in Canada, and as a counter blast to the petition filed by the applicant for divorce in Canada, the respondent no.2 filed the present FIR on 13.04.2006.
3. The FIR was registered for the offence being C.R. No.I- 127/2006 registered with Panigate Police Station for the offence under Sections 498-A, 406, 467, 468, 471 and 120- B of the Indian Penal Code and under Sections 3 and 7 of the Dowry Act. In the FIR it is alleged that the applicant has tampered with the marriage certificate on the basis of which he successfully got his migration to Canada and thereafter, having achieved his objective to migrate to Canada on the strength of the marriage and a forged certificate the applicant started demanding amount of Rs.2.5 Lacs from the complainant and her family members.
4. The complaint was filed against the applicant and five other family members pursuant to which the other family members came to be arrested and charge-sheeted. The applicant, being a resident of Canada and had never come to India, could not be arrested and his name was reflected in column no.2 of the charge-sheet.
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R/CR.MA/12005/2012 ORDER
5. The learned advocate for the applicant submitted that it is the case of matrimonial discord, which is the result of filing of the complaint as the applicant filed a divorce petition. Counter that the present FIR is registered. He submitted that the fact that the FIR is filed with malafide intention, is clear that though the complainant herself was permanent resident of Canada and the applicant had also migrated along with the complainant to Canada, still all the family members, who were residing at Vadodara, have also been implicated in the offence. He submitted that after due trial, the 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate has granted clean acquittal by the detailed judgment and order dated 24.03.2012 in Criminal Case No. 2237/2006. It is submitted that despite all the efforts being made to serve the complainant the complainant has not appeared before this Court. Lastly, under the order of this Court for substituted service the notice of the court was published in the newspaper. Thereafter also, no appearance is filed on behalf of the respondent - complainant. It is therefore, submitted that the respondent no.2 is no more interested in prosecuting the present FIR.
6. The learned APP submitted that the case of the applicant Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Oct 01 18:31:20 IST 2017 R/CR.MA/12005/2012 ORDER cannot be considered as he has not made himself available to the investigation. The allegations made in the FIR are enough to attract the ingredients against the applicant. He submitted that in the absence of the respondent - complainant the case of the applicant may not be considered.
7. I have gone through the allegations made in the FIR, the charge-sheet filed against the arrested accused as well as the judgment rendered by the trial court in connection with the trial of the co-accused. This Court is of the view that the allegations leveled in the FIR do not specifically make out the case of Section 467, 468 and 471 of IPC against the applicant. The allegations regarding 498(A) also appear to be general in nature. The fact that the marriage between the applicant and the respondent has no more remained compatible, has resulted into filing of the petition for divorce in Canada. The date and chronology, on which the divorce petition is filed in Canada and the impugned FIR filed in Vadodara, would lead this Court to believe that the intention of the wife appears to counter the divorce petition filed in Canada or else the allegations, which are made in the FIR and the chronology of dates mentioned therein. The Court would have accepted the Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Oct 01 18:31:20 IST 2017 R/CR.MA/12005/2012 ORDER reaction from the wife at an earlier point of time. In the event that the entire investigation is now scrutinized by the court of proper jurisdiction, which has resulted in clean acquittal of the co-accused, no useful purpose would be served in continuing the prosecution, especially when the respondent no.2 has not taken care of remaining present before this Court despite the petition and her complaint pending since the date it was filed.
8. In view of the aforesaid, the FIR being C.R. No.I-127/2006 and Criminal Case No.2237/2006 pending before the 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara are ordered to be quashed. The application is allowed. Rule is made absolute.
(A.Y. KOGJE, J.) Dolly Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Oct 01 18:31:20 IST 2017