Gujarat High Court
Parmar Saburbhai Ganpatbhai Bhalabhai vs State Of Gujarat & 2 on 19 August, 2016
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/74/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 74 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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PARMAR SABURBHAI GANPATBHAI BHALABHAI....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR HEMANT B RAVAL, ADVOCATE for the Applicant(s) No. 1
MR. K L PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 19/08/2016
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R/CR.MA/74/2014 JUDGMENT
ORAL JUDGMENT
1 This application under Section 482 of the Code of Criminal Procedure, 1973, has been preferred with the prayer to quash and set aside the Criminal Case No. 467/2013 (Police Inquiry No. 3/12) registered on 15.3.2012, before the J.M.F.C at Bahuchraji for the offences punishable under Sections 363,366,366(A) 504,506(2),212, and 114 of the Indian Penal Code, qua the present applicant.
2 The case of the prosecution, in brief, is that respondent No.3(original Complainant) has filed private complaint against the present applicant and others, wherein, it was alleged that the complainant respondent No.3, had visited the house of the present applicant for search of her daughter Ekta, due to which she was threatened by the present applicant. Not only this but also, that, she was informed by the present applicant that her daughter had come at his house and stayed for night and went to Ahmedabad. 3 Heard Mr. Hemant B Raval, learned advocate for the applicant, Mr. K L Pandya, learned Additional Page 2 of 14 HC-NIC Page 2 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT Public Prosecutor for the respondentState. None has appeared for respondents Nos. 2 and 3, however, duly served with the notice issued by this Court. 4 It is submitted by Mr. Raval, learned advocate for the applicant that complaint was lodged by one Mr. J D Solanki, before the Bahuchraji Police Station under Section 363,366 of the Indian Penal Code, which was registered as C.R No.I8/2011. That in the said complaint name of the present applicant was never disclosed and even before the police complaint no doubt about illegally keeping his daughter Ekta and helping the main accused Dilip Umedbhai Parmar was created. Thereafter, wife of the complainant Madhuben Solanki filed another private complaint for the same cause of action against the present applicant and others under Sections 363,366,376,212,506(2) and 114 of the Indian Penal Code. It is alleged in the second private complaint that the complainant went at the house of the present applicant for search of her daughter Ekta. She was threatened by the present applicant and also informed that her daughter had come at his house and stayed for night and went at Ahmedabad. False allegations are made against the Page 3 of 14 HC-NIC Page 3 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT present applicant in the second complaint just to harass the applicant. That, the second complaint was filed before the learned JMFC at Bahuchraji on 15.03.2012, which was registered as Criminal Case No. 467 of 2013 (Police Inquiry No.3/12) and learned JMFC, Bahuchraji, was pleased to consider the case under the Sections 363,366,376,212,506(2) and 114 of the IPC, and issued arrest warrant against the present applicant and others on 17.10.2013. That, only with a view to harass the present applicant said criminal case is registered with the learned JMFC at Bahuchraji. It is further argued that it is clearly abuse of the process of the Court. Therefore, it is requested by him to quash and set aside the criminal complaint No. 467/2013 (Police Inquiry No. 3/12) pending before the learned JMFC at Bahuchraji under Sections 363,366,376,212,506(2) and 114 of the IPC, qua the present applicant and arrest warrant issued on 17.10.2013.
5 On the other side, Mr. K L Pandya, learned Additional Public Prosecutor for respondent No.1 State, strongly objected the submissions made by the Page 4 of 14 HC-NIC Page 4 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT learned advocate for the applicant and argued that, though, the name of the present applicant was not given in previous complaint lodged by Mr. Jayantibhai Dahyabhai Solanki, it was not possible for the Investigating Agency to proceed further with the investigation as the accused himself was not available and tress out, and therefore, a summary was sought by the police with a permission to investigate the offence in future. That, the complaint was lodged by Madhuben J Solanki on 15.03.2012, she has clearly alleged that when she visited the house of the present applicant for the search of her daughter Ekta, present applicant threatened the complainant i.e. respondent No.3 by informing that her daughter had come at his residence and stayed for night and went to Ahmedabad. Filing the second complaint by respondent No.3, she has clearly explained that on a previous day of filing the complaint, she came to know that her daughter had stayed at the house of the present applicant at night. However, she was kidnapped by the accused No.1 with the help of other coaccused. Prima facie, the applicant is involved in the offence and this Court should not exercise the inherent powers by quashing Page 5 of 14 HC-NIC Page 5 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT the complaint or the criminal case registered against the present applicant. That, this Court should refrain from quashing the criminal complaint lodged by the respondent No.3 against the present applicant considering the entire facts of the case. Hence, it was requested by him to dismiss the application. Respondents Nos. 2 and 3 are absent and have not chosen to remain present before this Court. However, they were duly served with the notice as per the report of the learned District and Sessions Judge, Mehsana, vide letter dated 14.03.2014. Hence, no arguments from respondents Nos. 2 and 3. 6 Having considered the facts of the case, submissions made by the learned advocates for the respective parties and documents produced on record, it appears that initially Solanki (Vankar) Jayantibhai Dahyabhai of Bahuchraji, District: Mehsana, lodged the complaint before the Bahuchraji Police Station of Mehsana District under Sections 363,366 of the Indian Penal Code on 24.01.2011. The offence was committed as per the complaint produced at Annexure 'A' on 17.1.2011 at 18:00 hours. Name of the accused as per Page 6 of 14 HC-NIC Page 6 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT the complaint was Parmar Dilip Umedbhai, resident of Shankhalpur, taluka: Bahuchraji, District: Mehsana. As per the submissions made in this complaint her daughter had gone to attend her school namely 'Nutan High School' on 17.1.2011 at about 10:30 morning as she was studying in standard 10th . But, she did not return back at 17:00 p.m. Hence, Madhuben inquired the costudents of the school in respect of her daughter namely Ekta as well as from the relatives also. But, there was no favourable news of her daughter. Therefore, a declaration was given before the Bahuchraji Police Station on 18.01.2011, in respect of the missing of the daughter. Thereafter, on an inquiry it was found from the elder brother of the complainant Jayantibhai Dahyabhai Solanki that, on 17.1.2011 at about 18:00 p.m one Dilip Umedbhai Parmar resident of Shankhalpur had kidnapped the daughter of the complainant namely Ekta. Therefore, the complainant inquired of this Dilip Umedbhai Parmar at his residence at village Chaveli, Taluka: Chanasma, but he was not found at the residence. Hence, this complaint was lodged by the father of the daughter against this Dilip Umedbhai Parmar under Sections 363 and 366 of Page 7 of 14 HC-NIC Page 7 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT the Indian Penal Code. There is nothing on record that what investigation was made by the Investigating Agency after lodging the complaint. But, it transpires from the order passed by the learned JMFC, Bahuchraji, in connection with another complaint before his Court lodged by the Complainant Solanki (Vankar) Madhuben Jayantibhai resident of Shankhalpur against the four accused namely Parmar Dilip Umedbhai, original accused in the previous complaint lodged by father of the victim daughter, no.2Parmar Saburbhai Ganpatbhai present applicant, No.3Parmar Laxmiben Hemabhai and no.4 Parmar Rakeshbhai Hemabhai for the offences punishable under Sections 363,366,376,212,506(2) and 114 of the Indian Penal Code. That, this complaint was lodged on 15.03.2012, after passing of 1 year and 2 months of the previous complaint at Annexure'A' by her husband. Allegations against the present applicant in the second complaint produced at Annexure'B' were made that the complainant wife went at the house of the present applicant for search of her daughter Ekta, then it was threatened by the present applicant informing her that her daughter had come at her house and stayed for night and went at Ahmedabad. In the Page 8 of 14 HC-NIC Page 8 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT second complaint, in paragraph 2 it is stated that the accused No.1 was not arrested by the Bahuchraji Police in connection with the previous complaint, but, yesterday at about 4:00 p.m she came to know that her daughter and the accused No.1 Dilip Umedbhai Parmar came to the house of the present applicant and stayed for a night. Therefore, she herself accompanied with her husband and Solanki Naginbhai Nagarbhai went to the house of the present applicant and inquired. Hence, the present applicant annoyed by the complainant, abused her saying that her daughter had come to his house and stayed for a night. At present, she was available at the residence of Laxmiben Hemabhai and Rakeshbhai Hemabhai under their custody at Ahmedabad. They can brought their daughter, while the complainant had visited his house. In this connection, if his name could be disclosed or any family members would be involved complainant would be murdered, hence, this complaint was lodged. Initially, after getting verification of the complainant, learned judge was pleased to direct the Investigating Officer of Bahuchraji Police Station to inquire and submit the status report of the previous complaint, which was Page 9 of 14 HC-NIC Page 9 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT registered with the Bahuchraji Police Station vide C.R No. 8/2011, within 15 days. Thereafter, it appears that another order was passed by the learned JMFC, Bahuchraji, on 6.5.2013 considering the police record in connection with the C.R No. I8/2011. As per the order passed by the learned JMFC, the accused Parmar Dilip Umedbhai was not traceable and hence with a liberty for further investigation a summary was sought by the police. In the report it was not found that any conspiracy was made by the present applicant or other accused in giving shelter to the accused under Section 212 of the Indian Penal Code. But as allegations were made by the complainant under Section 376 of Indian Penal Code, the victim girl was not found, no further investigation was possible as reported. Learned judge was pleased to order to make an inquiry under Section 202(2) of Cr.P.C. Again, the learned judge passed the detailed order on 17.10.2013, to issue arrest warrant against all the four accused for the offences punishable under Sections 363,366,366A, 504,506(2),212 and 114 of Indian Penal Code. In the previous complaint lodged by the father of the victim girl, name of the present applicant was not disclosed Page 10 of 14 HC-NIC Page 10 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT at initial stage nor he was involved alleging knowing, participating in the alleged offence in any manner by this applicant. After passing of 1 year and 2 months approximately from the filing of previous complaint by the father, the mother preferred second complaint on 15.03.2012 involving the present applicant and other two coaccused, as if, they had kidnapped her daughter namely Ekta on 17.1.2011. In the second complaint, only allegations against the present applicant are made that the daughter of the complainant and the accused stayed at the house of the present applicant at night and while making an inquiry by the complainant she was threatened and informed that her daughter had come to his house and stayed at night and went to Ahmedabad. She should not come back, otherwise, she would be murdered. If such a threat was given by the present applicant, certainly, complaint can be lodged and would be maintainable for giving shelter to the accused and daughter of the complainant or for threatening and killing her daughter in future. But so far as kidnapping of her daughter on 17.1.2011 is concerned, participation of the present applicant is ruled out. The complainant has tried to drag the Page 11 of 14 HC-NIC Page 11 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT present applicant unnecessarily by lodging the second complaint before the learned JMFC at Bahuchraji. While no allegations were made by her husband in previous complaint before the Bahuchraji Police Station registered vide C.R No. I8/2011 dated 24.1.2011. Police has certainly opened its road for further investigation while seeking "A" summary before the learned JMFC, Bahuchraji, as the accused was not traced out as per the report. Police has never closed this chapter. Road for further investigation in respect of the complaint registered with Bahuchraji Police Station vide C.R No.I8/2011 is available as and when required. But, prima facie, present applicant is not involved in an offence under Section 363,366 of Indian Penal Code, kidnapping the daughter of the complainant. Two complaints on same cause of action and for one incident would not be maintainable in the eyes of law.
7 In the case of K Karunakaran vs. State of Kerala, reported in 1997, Cri.LJ, 3618 (Kerala), the Apex Court has held and observed as under:
"The exercise of power under Section 482 CrPC is the exception and not the rule. The section does Page 12 of 14 HC-NIC Page 12 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of CrPC. The inherent powers have been conferred, apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon it by law. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (I) to give effect to an order under CrPC,(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. (para 8) While exercising the powers under the Section 482 CrPC, the High Court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. In exercise of the powers the court would be justified in quashing any proceedings if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice".
8 This Court is justified after applying the test laid down in the section itself for exercising role and substantial justice for the administration of which this Court exist by quashing the criminal complaint i.e. Criminal Case No. 467/2013 (Police Page 13 of 14 HC-NIC Page 13 of 14 Created On Thu Aug 25 02:05:49 IST 2016 R/CR.MA/74/2014 JUDGMENT Inquiry No.3/12) pending before the learned JMFC, Bahuchraji Court qua the present applicant. Hence, the following order:
Present application is hereby allowed. Criminal Case No. 467/2013 (Polie Inquiry No.3/12) pending before the learned JMFC, Bahuchraji, for the offences punishable under Sections 363,366,376,212,506(2) and 114 of the IPC is hereby quashed and set aside, qua the present applicant. Rule is made absolute, accordingly.
The Investigating Officer is at liberty to investigate the offence registered vide C.R No.I 8/2011 dated 24.01.2011, registered before the Bahuchraji Sub Division, Visnagar Taluka, District:
Mehsana under sections 363 and 366 of Indian Penal Code.
(B.N. KARIA, J.) Bimal Page 14 of 14 HC-NIC Page 14 of 14 Created On Thu Aug 25 02:05:49 IST 2016