Gujarat High Court
Sabirhusen Allauddin Ansari vs State Of Gujarat on 24 July, 2024
NEUTRAL CITATION
R/CR.MA/20128/2021 ORDER DATED: 24/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 20128 of 2021
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SABIRHUSEN ALLAUDDIN ANSARI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR CB DASTOOR for MR SUNIL M AGRAWAL(1796) for the Applicant(s)
No. 1,2,3,4
ANURAG R RATHOR(9315) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 24/07/2024
ORAL ORDER
1. Though duly served, respondent No.2 remained absent.
2. By way of the present petition, the petitioners are seeking following reliefs :
"a. This Hon'ble Curt be pleased to admit and allow the present application;
b. This Hon'ble Court be pleased to quash the F.I.R. bearing I. C.R. No.259/2019 registered with Shaher Kotda Police Station and Criminal Case No.111106/2019. Metro Magistrate Court No.3, A'bad, Ahmedabad City as per the offences under Sections 498(a), 323, 294(KH), 114 of the Indian Penal Code and Section 3, 7 of the Dowry Prohibition Act and all other subsequent proceedings pursuant to the said F.I.R. Annexure-A Page 1 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined c. During the pendency, final hearing and disposal of this application, this Hon'ble Court be pleased to stay further proceedings of the F.I.R. bearing I. C.R. No.259/2019 registered with Shaher Kotda Police Station, Ahmedabad City as per the offences under Sections 498(a), 323, 294(KH), 114 of the Indian Penal Code and Section 3, 7 of the Dowry Prohibition Act registered as Criminal Case No.111106/2019 pending in the Court of learned Metropolitan Magistrate, Court No.3, Ahmedabad city,
d) This Hon'ble Court be pleased to grant any other and further relief as deemed fit and expedient by this Hon'ble Court in the interest of justice.
3. Heard learned advocates for the respective parties.
4. It appears that in the present case respondent No.2 is wife and at the instance of respondent No.2, the proceeding alleging that the husband and in-laws has caused mental harassment and the cruelty the complainant. In this regard, the complaint came to be filed.
5. Earlier on the same ground, Criminal Misc. Application No.3422 of 2020 was filed, which came to be disposed of vide order dated 14.02.2020, which reads thus :
"1. By way of the present petition, the petitioners have prayed for the following relief in terms of para in terms of para 7(b):-
"This Hon'ble Court be pleased to quash the FIR Page 2 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined bearing I CR No.259/2019 registered with Shaher Kotda Police Station, Ahmedabad City as per the offences u/s 498(a), 323, 294(KH), 114 of the IPC and u/s 3 and 7 of the Dowry Prohibition Act and any other proceedings pursuant to the said FIR filed by the present opponent No.2 - orig. complainant against the applicants herein."
2. It appears that the chargesheet is filed in the matter and no charge is framed.
3. Having heard submissions made at bar and considering the averments made in the present petition, no case is made out to entertain the present petition without availing alternate remedy to file discharge application. Therefore, the present petition is not entertained at this stage. However, the petitioners are at liberty to file discharge application and also to file appropriate proceedings either u/s 397 or 482 of the Code of Criminal Procedure, 1973 before appropriate competent Court, after remedy to file discharge application is availed.
4. It is clarified that this Court has not examined the merits of the present application.
5. Accordingly, present petition stands disposed of."
6. Learned advocate for the petitioners has submitted that present petitioners are falsely enroped in the offence Learned advocate for the applicants has mainly submitted that the present litigation is nothing but sheer abuse of process of law. It appears that earlier one complaint was filed, which came to be withdrawn. Thereafter, subsequent complaint was filed by the wife, who left her matrimonial home in the year 2015 and was Page 3 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined residing at her parental home. Hence, the question does not arise to make out any torture or demand of dowry. It is submitted that the allegations levelled in the complaint are gross and imaginary. Looking to the conduct of the respondent No.2, it appears that with an intention to harass the present applicants, she has levelled false allegations. It appears that on the basis of baseless allegations of mental harassment and cruelty, no case is made out to invoke the provisions under Section 498, 294(B), 323 and 114 of the IPC read with Sections 3 and 7 of the Dowry Prohibition Act. It appears that respondent No.2 is habitual in filing one after another litigation. It appears that maintenance proceedings was also filed before the Family Court. Further, he has mainly raised voice that the learned Magistrate has committed an error not to consider the request of the applicants. After order of the first petition, the applicants approached the learned Trial Court and filed an application below Exh.3 to discharge them but the same is rejected as alleged offence took place in the year 2015 and considering the provisions of Section 468 Cr.P.C., it appears that though marriage was solemnized in the year 2013 and she resides separately, after the three years the Court cannot take the cognizance of the offence, the Trial Court has committed an error in rejecting the discharge application and he has relied on the decision of the Apex Court in Case of Sanapareddy Maheedhar Seshagiri vs. State of Andhra Pradesh reported in AIR 2008 SC 787.
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7. Learned APP has vehemently opposed the present petition and submitted that the Trial Court has not committed an error in rejecting the discharge application and after collecting the sufficient material, the offence is registered.
8. Having heard the learned advocates for the respective parties and having gone through the material available on record, It is worth to mention that the present application is successive application without change in the ground, though earlier petition was filed, at that time, charge-sheet was also filed. Hence, the question does not arise to go into the other allegations. Even otherwise, learned advocate has mainly submitted that the charge-sheet is filed belatedly after the 3 years cognizance is not permissible under Section 498A of IPC and no other ground is raised or argued by the learned advocate for the applicants except the under Section 468 Cr.P.C., but the perusing the impugned complaint, it appears that as the discharge application is dismissed on the said ground and the said ground is alone considered in the present petition as she revive petition under Section 482 of Cr.PC on the same ground is not maintainable.
It would be apposite to refer the decision of the Hon'ble Apex Court in case of Bhisham Lal Verma Vs. State of Uttar Pradesh & Anr. reported in 2023 SCC OnLine SC 1399.
8.1. From the complaint, it appears that the complaint date of cognizance is mentioned as 02.03.2019 after the six months to till date in the complaint, it is stated that marriage was solemnized Page 5 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined on 02.03.2013 but nowhere stated that the offence was committed in the year 2013. So far as the question of cognizance is concerned, in this regard, it would be apposite to refer the decision of Constitutional Bench of the Hon'ble Apex Court in case of Sarah Mathew vs. Institute of Cardio Vascular Diseases by its Director Dr K.M. Cherian and Others with HT Media Limited and others vs. State (Government of NCT of Delhi) with Hindustan Media Venture Limited and Others vs. State (Government of NCT of Delhi) reported in (2014) 2 SCC 62, wherein the Hon'ble Apex Court has elaborately discussed the provisions of Sections 468, 469, 470 and 473 of Cr.P.C. and held that and Ch.XXXVI (Ss. 46I7 to 473)- Bar of limitation unde- date relevant for computation of period of limitation under, held, is the date when criminal complaint is filed or date of institution of the prosecution/criminal proceedings, and not the date when a court/when Magistrate is takes cognizance. Further, under Section 473 of Cr.P.C., it is discretionary power, in the interest of justice, evn after the expiry of limitation, the Court has empowered to take cognizance and at the first blush, arguments advanced by the learned advocate for the applicants is not sustainable. That the Court has no power to take cognizance after expiry of limitation.
9. Even, law laid down by the Hon'ble Apex Court in case of Vanka Radhamanohari vs. Vanka Venkata Reddy reported in 1993 (3) SCC 4, wherein the Hon'ble Apex Court has observed as under :
"7. It is true that the object of introducing Section 468 was to put a bar of limitation on prosecutions and to Page 6 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined prevent the parties from filing cases after a long time, as it was though proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. This aspect has been mentioned in the statement and object, for introducing a period of limitation, as well as by this Court in the case of State of Punjab v. Sarwan Singh. But, that consideration cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault by the husband or other members of the family to the complainant. It is a matter of common experience that victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before a Court to unfold and relate the day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. As such, Courts while considering the question of limitation for an offence under Section 498A i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should judge that question, in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether "it is necessary to do so in the interest of justice".
9. Coming to the facts of the present case, the appellant is admittedly the wife of the respondent. She filed the petition of complaint in the year 1990, alleging that she was married to the respondent, who subjected her to cruelty, details whereof were mentioned in the complaint aforesaid. She further stated that on 4.5.1990 he has married again, deserting the appellant. In view of the allegation regarding second marriage, an offence under Section 494 of the Penal Code was also disclosed which is Page 7 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined punishable by imprisonment for a term which may extend to seven years. The High Court taking into consideration Section 468, has come to the conclusion that the complaint in respect of the offence under Section 498A which prescribes imprisonment for a term up to three years, was barred by time. Nothing has been said by the High Court in respect of the offence under Section 494 of the Penal Code, to which Section 468 of the Code is not applicable the punishment being for a term extending up to seven years. Even in respect of allegation regarding an offence under Section 489A of the Penal code, it appears that the attention of the High Court was not drawn to Section 473 of the Code. In view of the allegation that the complainant was being subjected to cruelty by the respondent, the High Court should have held that it was in the interest of justice to take cognizance even of the offence under Section 498A ignoring the bar of Section
468."
10. Even, the authority relied on by the learned advocate for the applicants, wherein stated that the offence under Section 498A is a continuous offence, even the said fact is also reiterated by the Hon'ble Apex Court in the authority relied upon by the learned advocate for the applicants in case of Sanapareddy Maheedhar Seshagiri (supra), wherein, the Hon'ble Apex Court has observed as under :
"23. The ratio of the above noted judgments is that while considering the applicability of Section 468 to the complaints made by the victims of matrimonial offences, the court can invoke Section 473 and can take cognizance of an offence after expiry of the period of limitation keeping in view the nature of allegations, the Page 8 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined time taken by the police in investigation and the fact that the offence of cruelty is a continuing offence and affects the society at large. To put it differently, in cases involving matrimonial offences the court should not adopt a narrow and pedantic approach and should, in the interest of justice, liberally exercise power under Section 473 Cr.P.C. for extending the period of limitation."
11. Considering the fact that date of commission of offence is 02.03.2019 and even for the shake of argument even then it is accepted that in the year 2015, she left her matrimonial home thereafter, she has filed maintenance application in the year 2016 before the learned Family Court since then dispute is going on. Hence, continuity of offence is there.
12. Further, Considering the law laid down by the Hon'ble Apex Court in case of Kamatchi vs. Lakshmi Narayan reported in (2022) 15 SCC 50, wherein it is observed that taking cognizance even after prescribed period of limitation, permissibly was discussed and purposive construction Construction is required to be done under section 468 Cr.P.C. and held that "Sections 468, 469 and 470 of Code of Criminal Procedure, 1973, Reckoning of limitation period - date from which limitation commences - Taking cognizance after prescribed period - impressibility - purposive construction of Section 468 Cr.P.C. - applicability of maxim actus curiae neminem gravabit." and in case of Amritlal vs. Soni Shantilal reported in 2022 (LiveLaw) SC 248, it is observed that as complaint is filed in reference to offences committed on 12.03.2019 and then after six month, in view of above settled proposition of law, the argument canvassed by the learned advocate for the applicants is not acceptable after Page 9 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined investigation, sufficient material is collected and even discharge application is rejected. Then no case is made out to interfere as mini trial is not permissible.
13. Further, It would be apposite to refer Section 294(b) of the Indian Penal Code, so offence is under Section 294(b) of IPC is also, prima facie, made out from bare reading and uncontroverted allegations made in the complaint.
14. Further, criminal proceeding would have to proceed entirely based on the allegations made in a complaint or the evidence collected during the investigation. It is not justified to embark inquiry or to hold mini trial qua genuineness or credibility of the material collected during the investigation and Court cannot go into correctness or otherwise of the material collected by the prosecution. In this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Manik B. vs. Kadapala Sreyes Reddy & Ors. reported in 2023 Live Law 642 (3 Judges' Bench) as mini-trial is not permitted while exercising jurisdiction under Section of 482 of Cr.P.C.
14.1. It would be further apposite to the decision of the Apex Court in case of (i) Central Bureau of Investigation Vs. Aryan Singh etc., reported in 2023 SCC Online Sc 379 and in case of
16. Whatever contentions raised by the applicant are defences of the applicant, which cannot be looked into at this stage in exercise of power under Section 482 of the Cr.P.C. and this Court should not hold mini-trial while exercising inherent jurisdiction Page 10 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined under Section 482 of the Cr.P.C. and (ii) in the case of Rajeev Kourav vs. Baisahab and Others reported in (2020) 3 SCC 317, wherein, it has been observed and held that, evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of criminal proceedings and High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 of the Cr.P.C for quashing of criminal proceedings, if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.
14.2. Further, it would be apposite refer the decision in the case of Ramveer Upadhyay and Anr. vs. State of U.P. and Anr. reported in 2022 OnLine SC 484 and & in case of Digvijaysinh Himmatsinh Jadeja vs. State of Gujarat reported in 2023(2) AIJEL-SC 72892, it is observed and held by the Apex Court that the High Court, while exercising jurisdiction under Section 482 of the Cr.P.C, would not ordinarily embark upon an enquiry into whether the evidence is reliable or not or whether there is reasonable possibility that the accusation would not be sustained and scuttled the investigation at very preliminary stage.
15. Considering the aforesaid conspectus facts, and settled position of law, the Court is unable to come any conclusion that the offence is not made out and complaint is filed only with a Page 11 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024 NEUTRAL CITATION R/CR.MA/20128/2021 ORDER DATED: 24/07/2024 undefined view to harass the petitioners and ulterior motive. Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial.
16. In view of above, argument canvassed by the learned advocate for the applicants is not acceptable as after investigation sufficient material is collected and even discharge application is rejected. No case is made out to entertain the present petition as mini trial is not permissible. Therefore, the petition stands dismissed. Notice is discharged.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 12 of 12 Downloaded on : Tue Jul 30 20:59:49 IST 2024