Gujarat High Court
Pratiksha W/O Priyanshu Gyanprakash ... vs State Of Gujarat on 11 November, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/CR.MA/3635/2016 ORDER DATED: 11/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3635 of 2016
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PRATIKSHA W/O PRIYANSHU GYANPRAKASH MEHTA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MANISH J PATEL(2131) for the Applicant(s) No. 1
MR RAJESH K SHAH(784) for the Respondent(s) No. 2
MS. VRUNDA C. SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 11/11/2022
ORAL ORDER
1. Rule. Ms. Vrunda C. Shah, learned Additional Public Prosecutor and Mr. Rajesh K. Shah, learned advocate, waive service of notice of Rule on behalf of respondent Nos.1 & 2 respectively.
2. This application has been filed by the wife of the applicant under section 482 of the Code of Criminal Procedure for quashing and setting aside the F.I.R. being C.R. No.I-238 of 2010 registered with Amraiwadi Police Station, Dist.: Ahmedabad for offfences punishable under sections 406, 420 and 114 of the Indian Penal Code and subsequently Criminal Case No.1506 of 2015 registered before learned Metropolitan Magistrate Court No.7, Ahmedabad against the applicant.
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3. Mr. Manish J. Patel, learned counsel appearing for the applicant submitted that the complainant is husband of the applicant herein. They married around 18 years ago and residing together at Ahmedabad and since 2007, they went to USA and resided there. Mr. Patel, learned counsel submitted that the complainant having Locker No. 119A jointly with his brother Harendra Mehta since 21.01.1997 in Dena Bank, Maninagar East branch, D.K. Complex, Ahmedabad-380008. On 02.07.2004, name of Harendra Mehta has been deleted with his consent and name of wife of the complainant has been entered with the complainant and since then they are operating the said locker. As per the say of the complainant, he has put certain gold and diamond ornaments in the locker and lastly it has been operated by the complainant on 07.11.2007.
4. Mr. Patel, learned counsel submitted that as per the say of the complainant, in month of February, 2010, when he came to India at Ahmedabad, he went to Bank to operate locker, at that time, the Bank Manager Shri Kalpesh Shah has informed him that, his locker has been broken by his wife and taken all ornaments and given in writing. Hence, the complainant has given complaint that, the accused i.e. his wife and the then Bank Managar- Shri Kalpesh Shah have conspired with each other and take away all his ornaments and certain saving certificates.
5. Mr. Patel, learned counsel submitted that, looking to the complaint, there is prima-facie civil nature dispute and only Page 2 of 7 Downloaded on : Sun Dec 25 06:02:00 IST 2022 R/CR.MA/3635/2016 ORDER DATED: 11/11/2022 with a view to color as criminal offence, the impugned complaint is filed. The applicant - accused is named as divorced wife, but as such there is no divorce and yet both are husband and wife. Children are residing with the applicant- accused at U.S.A. Out of that, one daughter had married and son who is suffering by Thalisimiya, whose treatment is going-on and only applicant- accused is looking after both the children.
6. Mr. Patel, learned counsel submitted that, the complainant has suppressed the facts and stated that, there is divorce with his wife and she has taken away all the ornaments and saving certificates, but it has not been stated that, this locker was in joint name of husband and in past also, wife has operated and having right to operate. Mr. Patel, learned counsel further submitted that, merely making an allegations that she has taken away ornaments and saving certificates are not sufficient.
7. Mr. Patel, learned counsel submitted that during the investigation, the complainant failed to produce any documents, which indicate that he has taken divorce from the applicant- accused. Mr. Patel, learned counsel further submitted that the applicant-accused is legally wedded wife of the complainant and she has right to operate locker, as she is joint account holder of the said locker.
8. Mr.Rajesh K. Shah, learned advocate for the respondent no.2, referring to the judgment rendered in the case Page 3 of 7 Downloaded on : Sun Dec 25 06:02:00 IST 2022 R/CR.MA/3635/2016 ORDER DATED: 11/11/2022 of Raysingbhai Kanjibhai Gamit and Ors vs. State of Gujarat and Ors. reported in 2016 (3) GLH 244, submits that where the factual foundation for an offence has been laid down, the Court should be reluctant to quash the proceedings, even on the premise that one or two ingredients having not been established prima facie and held that if there is a substantial compliance with the requirement of offence, the High Court should refrain from exercising jurisdiction under Section 482 of the Cr.P.C. Mr.Shah submitted that it was the duty of the Bank Manager to inquire from the complainant regarding the authority of the wife to pray for breaking open the locker and hence, submitted that the discretion may not be exercised. Mr.Shah has relied on paragraph 10 of the above judgment which reads as under:
"10. To arrive at this conclusion, the Court is recalling of the proposition of law propounded by series of decisions of this Court as well as the Hon'ble Apex Court which postulate that disputed questions of fact are not the subject matter of exercise of jurisdiction under Section 482 of the Cr.P.C. It is also held by the Hon'ble Apex Court that simply because the civil litigation is going on between the parties, it is not to be presumed that crime is not committed and must have been lodged just with a view to abuse the process of law. Few relevant decisions of the Hon'ble Apex Court of a recent time worth to be taken note of in the background of present facts and circumstance. In a decision in case of N. Soundaram V/s. P.K.Pounraj & Anr., reported in (2014) 10 SCC 616, the Hon'ble Apex Court was confronted with the situation that a business transaction took place between the accused persons and the complainant's husband and in respect of that dispute pertaining to business transaction, accused persons along with several other accused entered into the premises and ransacked it. Therein, the controversy was pertaining to recovery of money and therefore, complaint was not justified to be entertained as it is purely of a civil nature. In the background Page 4 of 7 Downloaded on : Sun Dec 25 06:02:00 IST 2022 R/CR.MA/3635/2016 ORDER DATED: 11/11/2022 of that circumstance, the Hon'ble Apex Court examined the issue and propounded that power under Section 482 of the Cr.P.C. has to be exercised sparingly and cautiously just to prevent abuse of process of law or to secure the ends of justice. It has also been propounded by the Hon'ble Apex Court that inherent powers should not be exercised to stifle a legitimate prosecution and by holding so, the Hon'ble Apex Court exercising inherent powers set aside the order passed by the High Court and restore the criminal prosecution by further directing the Magistrate to expedite the trial. Relevant extract of the said decision are in Para.13, 14 and 15 which read, thus;
"13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal.] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of power under Section 482 CrPC. [See MCD v. Ram Kishan Tohtagi.] An investigation should not be shut out at the threshold if the allegations have some substance. [See Vindo Raghuvanshi v. Ajay Arora]
14. An overall perusal of the materials placed before us makes out a prima facie case against the accused which requires to be decided by conducting a proper trial. At this stage the High Court cannot analyse and meticulously consider the evidence and anticipate whether it will end up in conviction or acquittal. This is not the stage to decide whether there is any truth in the allegations made but to form an opinion whether on the basis of the allegation a cognizable offence or offences alleged has been prima facie made out. The guilt or other- wise of the accused can be proved only after conducting a full-fledged trial. In the circumstances, in our opinion, it is not proper for the High Court to interfere with the proceedings and quash the final report submitted by the police.
15. On the other hand we do not think that the High Court was right in opining that the dispute between the parties is civil in nature. This is a case where serious allegations were Page 5 of 7 Downloaded on : Sun Dec 25 06:02:00 IST 2022 R/CR.MA/3635/2016 ORDER DATED: 11/11/2022 made against the accused party. Just because the allegations involve the factum of recovery of money it cannot be concluded that the complaint is purely civil in nature when other serious allegations prima facie attract the penal provisions. In our considered opinion the High Court seriously misdirected itself in coming to a conclusion that it is for the competent civil court to decide the said appeal...... In our opinion, in the background and circumstances of this case the High Court should not have exercised the power under Section 482 CrPC which resulted in miscarriage of justice."
9. The facts of the matter suggest that the matrimonial disputes and the fact of divorce were not informed to the Bank. The complainant had not taken any steps to close down the Bank locker or to get the name of the wife deleted from the locker which was jointly operated by them. The complainant as a husband ought to have proceeded against the wife who by suppressing all the material facts about the relationship between the parties had prayed before the Branch Manager for breaking open the locker on the ground of having lost the key of the joint locker. The Bank would have no knowledge about the relationship between the parties unless and until informed. The FIR against the present applicant is sheer abuse of the process of the law.
10. In the case of Vineet Kumar and Ors vs. State of Uttar Pradesh and Another, reported in 2017 (13) SCC 369, the Apex Court has observed in Paragraph 41 thus:-
"41. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused Page 6 of 7 Downloaded on : Sun Dec 25 06:02:00 IST 2022 R/CR.MA/3635/2016 ORDER DATED: 11/11/2022 by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is to the following effect : (SCC p. 379, para 102) "102. (7) Where a criminal proceeding is manifestly attended with mala fide 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."
11. Considering the ratio as laid down by the Hon'ble Apex Court and facts of the present case, this Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised for securing the ends of justice.
12. In the result, the application is allowed. The impugned first information report being C.R. No.I-238 of 2010 registered with Amraiwadi Police Station, Dist.: Ahmedabad and subsequently Criminal Case No. 1506 of 2015 registered against the applicant and the proceedings initiated in pursuance thereof are quashed and set aside qua the present applicant. Rule is made absolute.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 7 of 7 Downloaded on : Sun Dec 25 06:02:00 IST 2022