Gujarat High Court
Kaji Wasimakram M vs State Of Gujarat & on 28 August, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/5060/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 5060 of 2013
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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KAJI WASIMAKRAM M....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HEMANT B RAVAL, ADVOCATE for the Applicant(s) No. 1
MR CHIRAG A. PRAJAPATI for MR VAIBHAV A VYAS, ADVOCATE for the
Respondent(s) No. 2
MR KL PANDYA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 28/08/2017
CAV JUDGMENT
1. This application has been filed by the Page 1 of 18 HC-NIC Page 1 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT applicant/accused under Section 482 of the Code of Criminal Procedure (for brevity "CrPC") praying to quash and set aside the complaint, being C.R.No. II- 3007 of 2013 registered with Karanj Police Station, Ahmedabad for the offence punishable under Sections 506(1), 509 of the Indian Penal Code.
2. Brief facts of the impugned complaint are that on 10.09.2012, when the complainant was present on his table at the court compound, one person aged about 22 to 25 years had taken his photograph in his mobile phone and therefore, the complainant himself and other 2-3 colleague advocates tried to catch him, however, he escaped by running away. On the same day, earlier on point of time, the complainant had received threat calls on his mobile phone and asked not to take case of Azizbhai and was also intimidated that if she will be continued as an advocate of her client, she will be put to trouble in no time. Thus, the complainant Page 2 of 18 HC-NIC Page 2 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT inquired from her client Azizuraheman Pirji that whether he know any such person and provide any information, if he had knowledge. Thereafter, as the said incident was serious and was concerning her safety and security, the complainant has lodged the impugned complaint.
3. Heard learned advocate Mr. Hemant B. Raval appearing on behalf of the applicant, learned advocate Mr. Chirag A. Prajapati for Mr. Vaibhav A. Vyas appearing on behalf of the respondent no.2 and learned APP Mr. KL Pandya appearing on behalf of the respondent no.1.
4. Learned advocate Mr. Hemant B. Raval appearing on behalf of the applicant has submitted that the applicant is doing service in Vodaphone Company at Sarkhej, Ahmedabad and marriage of the applicant's sister was solemnized with on Mr. Ajizoorrehman Mohammadumar Pirji on 21.04.2012 and thereafter, her sister went to the house of her Page 3 of 18 HC-NIC Page 3 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT husband but, later on, the applicant realized that her husband had some relation with one lady advocate and because of that, the husband of her sister was not behaving with her sister properly as well as harassing her sister. Sister of the applicant filed maintenance application, being Criminal Misc. Application no. 259/2012 under Section 125 of the Code of Criminal Procedure before the court of learned JMFC, Viramgam. Not only that, the sister of the complainant lodged complaint against her husband and other relatives under Sections 498(A), 323, 504, 506(2) of the Indian Penal Code and Section 3 and 7 of the Dowry Prohibition Act. Moreover, sister of the applicant has also lodged another complaint under the provisions of Domestic Violence Act before the court of learned Metropolitan Magistrate, Ahmedabad. That, earlier complainant/respondent no.2 was pressurizing to the sister of the present applicant and telling her to Page 4 of 18 HC-NIC Page 4 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT take back all the cases filed against her husband and on 21.01.2013, the respondent no.2 has filed false and fabricated complaint against the present applicant with a view to harass him and his sister Salmaben. Thereafter, police started investigation and the applicant shocked when police reached at the house of the applicant to arrest him. This is nothing but subterfuge on the part of the respondent no.2. This is a clear case of the counter blast. The impugned complaint is the clear case of the abuse of the law and malafide intention of the respondent no.2. Even on the face value of the allegation, no case is made out. In support of his arguments, learned advocate Mr. Raval has placed reliance upon the decision in the case of Madhavrao Jiwajirao Scindia & Anr. v. Sambhajirao Chandrojirao Ahgre & Ors.. Ultimately, it was requested by him to quash the present complaint and allow this application.
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5. Per contra, learned advocate Mr. Chirag A. Prajapati for Mr. Vaibhav A. Vyas appearing on behalf of the respondent no.2 has opposed the submissions made by the learned advocate for the applicant and submitted that after police inquiry, at the instance of the police authorities, client of the respondent no.2 had shown photographs of his engagement ceremony, wherein one of the photograph, respondent no.2 and her colleague advocates could identify the person who had taken photograph and client of the respondent no.2, he stated the name of that person as Vasim Mohmmad Kaji -applicant and respondent no.2 apprehended that he would misuse his photograph hence, she lodged the impugned complaint. Though, commission of cognizable offence was disclosed, no FIR was registered by the policy at the relevant point of time and therefore, complainant gave written application to the Commissioner of Police on Page 6 of 18 HC-NIC Page 6 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT 08.01.2013 as well as orally made request to the policy authorities to register complaint and ultimately, on 21.01.2013, FIR came to be registered by police authority. That, applicant is resident of Viramgam and one Salmaben Kaji who has filed the case against client of the respondent no.2 namely Azizuraheman Pirji and it is clear that the applicant has taken photograph of the respondent no.2 for malafide intention. As per knowledge and information of the respondent no.2, the Investigating Officer has recorded the statements of various witnesses, which clearly discloses the fact that respondent no.2 was intimidated on mobile phone and his photograph was taken by the applicant. Hence, a conspiracy is hatched by the applicant in connivance with Salmaben, who has raised matrimonial dispute with her husband ie., client of the respondent no.2. That, inherent powers vested with this Court under Page 7 of 18 HC-NIC Page 7 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT Section 482 CrPC may not be exercised in favour of the applicant. Ultimately, it was requested by him to dismiss this application.
6. Learned APP Mr. KL Pandya appearing on behalf of the respondent no.1-State has supported the arguments advanced by learned advocate for the respondent no.2 and has submitted that the applicant has appropriate remedy at an appropriate stage, if aggrieved after investigation and therefore, since the applicant is left with other remedy at appropriate stage, this is not the stage where the Court may hamper process of investigation, and therefore, ultimately urged not to interfere with the present proceedings and to dismiss the same.
7. Heard learned advocates appearing on behalf of the respective parties.
8. Having considered the facts of the case, submissions made by learned advocates for the respective parties, evidence on record as well as Page 8 of 18 HC-NIC Page 8 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT averments made by the respondent no.2 in her complaint, it appears that the same complaint was registered under Section 506(1) and 509 of the Indian Penal Code, therefore, first of all let we examine whether any of the ingredients has been invited in both the provisions are applicable in the present facts of the case. Section 506 IPC provides for committing the offence of criminal intimidation and such an act, if made by any person, shall be punished with imprisonment of either description for a term, which may extend to two years, or with fine, or with both. Section 509 provides to insult to the modesty of women or uttering any word or making any sound or gesture or exhibiting any object with an intention that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or intrusion upon the privacy of such woman. The word 'modesty' has not been defined anywhere in the Indian Penal Code nor in Section Page 9 of 18 HC-NIC Page 9 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT 354 and 509 IPC. What the legislature had in mind when it used the word modesty in Sections 354 and 509 IPC was protection of an attribute which is peculiar to woman, as a virtue which attaches to a female on account of her sex and she possesses it irrespective of her age. No particular yardstick of universal application can be made for measuring the amplitude of modesty of woman, as may vary from country to country or society to society. Mere insult will not attract Section 509 IPC. For a prosecution under Section 509 IPC, there must be a definite allegation of insult to the modesty of woman or intrusion into the privacy of woman. Thus, the allegation must involve modesty of woman or privacy of woman. Mere insult or false allegation will not attract a prosecution under Section 509 IPC.
9. Considering the aforesaid provisions of Indian Penal Code, let we examine the averments made by Page 10 of 18 HC-NIC Page 10 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT the respondent no.2 in her complaint. In the complaint, it is stated that on 10th September 2012, when the complaint was working on her table, somebody took photograph of the complainant in his mobile phone. It is further stated that previously also from the different phone numbers, she was threatened by such person that the complainant would not defend the case of her client Ajizoorrehman Mohammadumar Pirji, otherwise dire consequences would be faced by her. The complainant tried to catch that person alongwith her advocate friends. But, the person was escaped from the place of offence. While making inquiry, it was found that the applicant was the person, who had taken photographs in his mobile phone, and therefore, she informed to Karanj Police Station in writing in the very same day. It is apprehended by her that such photograph would be misused by that person/accused, and therefore, this complaint was Page 11 of 18 HC-NIC Page 11 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT lodged. Now, the background of lodging the complaint would also require to be considered by this Court. It is alleged by the applicant that marriage of the sister of the applicant was solemnized with Mr. Ajizoorrehman Mohammadumar Pirji on 21st April 2012. Thereafter, his sister went at her husband's house at Ahmedabad. The sister of the applicant realized that her husband had some relation with one advocate- respondent no.2 and due to such type of relation of brother-in-law of the applicant, her sister was not treated properly and her husband started harassing her as well as beaten on any point of time. It is further averred by the applicant that her sister had filed application for maintenance under Section 125 CrPC before the court of learned JMFC at Viramgam, Dist: Ahmedabad as well as one complaint was lodged against her husband and relatives before the same court under Sections 498(A), 323, 504, 506(2) Page 12 of 18 HC-NIC Page 12 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act. Copy of the application filed by the sister of the present applicant under Section 125 CrPC, being Criminal Misc. Application No. 259 of 2012 has been produced at page no. 13 as well as other complaint filed by her under Section 506(2) of the Indian Penal Code against her husband and complainant no.2 has been produced at page no.
31. It appears from the aforesaid complaint also that sister of the present applicant has made serious allegations against complainant/respondent no.2. It also appears that sister of the applicant filed complaint before the court of the learned Metropolitan Magistrate, Ahmedabad under Section 9(B) and 37(2)(C) of the Domestic Violence Act and copy thereof has been produced at Exhibit 15. As per say of the applicant, respondent no.2 was pressurizing the sister of the applicant to withdraw the cases filed against her husband, and therefore, Page 13 of 18 HC-NIC Page 13 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT on 21st January 2013, respondent no.2 filed a false and frivolous complaint against the present applicant with a view to harass him, which was registered with the Karanj Police Station being C.R. No. II-3007 of 2013 for the offence punishable under Sections 506(1), 509 of the Indian Penal Code. From this averments and background of this complaint, it appears that there is an old dispute with the respondent no.2 and the present applicant, as sister of the present applicant was married with one Ajizoorrehman Mohammadumar Pirji. Sister of the present applicant has made certain allegations against the respondent no.2-complainant as well as her husband. This Court is not concerned with the aforesaid allegations made by the sister of the present applicant in her complaint, but this aspect cannot be ignored by this Court while considering the facts of this case.
10. Averments made by the respondent no.2 in her Page 14 of 18 HC-NIC Page 14 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT complaint, there is complete absence of threatening the respondent no.2/complainant by the present applicant with an injury to reputation or property, in whom, she is interested. It is nowhere averred in the complaint that the present applicant had threatened with an intention to cause alarm to the complainant or to cause the complainant to do any act which she is not legally bound to do as the means of avoiding the execution of such threat or to cause her to omit to do any act which she is legally entitled to do as the means of avoiding the execution of such threat. There is no definite allegation of such insult to the modesty of the complainant or intrusion her privacy. Merely, taking a photograph by the present applicant in his mobile found or apprehending by the complainant that the photograph would be misused by the applicant cannot take place any ingredients under Section 506(1) or 509 IPC. Further, at the time of alleged Page 15 of 18 HC-NIC Page 15 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT offence committed by the present applicant, complainant has never identified the present applicant nor by her colleagues. Later on, after making some inquiry to her client and some photographs of engagements were shown to her, the present applicant was identified by her client. From the record, it transpires that sister of the present applicant was married with one Mr. Ajizoorrehman Mohammadumar Pirji and was a client of respondent no.2, against whom, serious allegations were made by the sister of the present applicant as well as the respondent no.2- complainant. She has filed three different complaints against her husband before different authorities/Court, in which also, serious allegations are made against her husband and present complainant. Looking to the facts and circumstances of this case, this Court is of the view that the complaint is an abuse of process of law and Page 16 of 18 HC-NIC Page 16 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT with malafide intention. On face value of allegations, the complaint does not make out any offence, as there is no substance worth the name.
11. In case of Rashmi Kumar (Smt) v. Mahesh Kumar Bhada reported in (1997) 2 SCC 397, it is held by Apex Court that High Court would be loath and circumspect to exercise its extraordinary power under Section 482 CrPC. Court would have to consider that whether exercise of power would advance cause of justice or would tantamount to abuse of process of Court. Social stability and order require to be regulated by proceedings against offender as it is offence against society as whole. This cardinal principle should always be kept in mind before embarking upon exercise of inherent power vested in Court.
12. This court is of the opinion that it would be unfair and/or contrary to continue criminal proceedings and/or continuation of the criminal Page 17 of 18 HC-NIC Page 17 of 18 Created On Sat Sep 02 16:35:37 IST 2017 R/CR.MA/5060/2013 CAV JUDGMENT would cause abuse the process of law. To secure the ends of justice, it would be appropriate to put to end to the impugned criminal proceedings.
13. In view of the above, Criminal Misc. Application is hereby allowed. Complaint, being C.R.No. II-3007 of 2013 registered with Karanj Police Station, Ahmedabad is hereby quashed and set aside with all consequential proceedings.
14. Rule nisi made absolute to the aforestated extent. However, there shall be no order as to costs.
{B. N. Karia, J} ksdarji Page 18 of 18 HC-NIC Page 18 of 18 Created On Sat Sep 02 16:35:37 IST 2017