NEUTRAL CITATION
R/CR.MA/20338/2019 ORDER DATED: 19/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20338 of 2019
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VIJESHBHAI RAMSINHBHAI BHURIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1- State
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 19/08/2023
ORAL ORDER
1. Rule. Learned advocate Mr. Ashish Dagli upon receiving instructions does not press this application. Hence, the present application is dismissed qua the application No.1.
2. This matter is taken up for consideration for applicant Nos.2 & 3, who happen to the wife and mother-in-law of the applicant No.1 (accused No.1).
3. The present application is filed for seeking following main reliefs:
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NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined "A That this Hon'ble Court may be pleased to admit this Criminal Misc. Application B) This Hon'ble Court may be pleased to allow this Criminal Misc. Application by quashing and setting aside the impugned FIR at Annexure-A being CR No.1- 129 of 2019 registered with Makarpura Police station, Dist. Vadodara in the interest of justice C) Pending admission, hearing and till final disposal of this petition, this Hon'ble court may be pleased to grant stay as to further proceedings of CR No.1-129 of 2019 registered with Makarpura Police station, Dist. Vadodara interest of justice."
4. Brief facts as per the case of the applicants in this application are as such that one complaint came to be filed against the present applicants as CR No.1-129 of 2019 registered before Makarpura police station, Vadodara City dated 30.7.2019 for the offences punishable under Sections 323, 354(D),(1)(2), 504, 506(2) and 114 of the Indian Penal code. It is further the say of the applicants in this application that the applicants have not committed any offence as alleged in the FIR and even otherwise bare reading of the FIR no offence Page 2 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined as alleged in the FIR is made out against the present applicants and therefore looking to this fact the case of the present applicants need consideration. It is further the say of the applicants in this application that the incident is of the year 1.4.2018 to 22.8.2018 for which the FIR has been filed belatedly after a delay of one year. It is further the say of the applicants in this application that no cogent reasons or grounds have been stated by the complainant for filing the complaint with such a delay. Looking to this fact also the case of the applicants need consideration. It is further the say of the applicants in this application that in fact the applicant No.2 herein had initially filed a complaint against the complainant before the police station and the present FIR has been filed just to harass and pressurize all the applicants herein. It is further the say of the applicants in this application that in fact the applicant No.1 is a senior of the complainant and for taking promotion in service these tactics are played and the applicants herein are falsely implicated in the present offence and have played no role as alleged in the FIR.
5. Heard learned advocate Mr. Ashish M. Dagli for the Page 3 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined applicants and Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP) for the respondent - State. 6.1 As no notice is issued to respondent No.2, the matter is pending since 2019 before this Court, learned APP has tendered the report received from Makarpura Police Station, Vadodara date 16.8.2023, whereby it is stated that during the pendency of this application, charge-sheet is filed.
6.2 I have considered the fact that the allegations are levelled against applicant No.2 - wife of the accused No.1 and applicant No.3 - mother-in-law of the accused No.1. I have also considered the material avail on record in order to the alleged incident taken place in the year 2017, when the complainant was working at Lalbaug Division, at that point of time, the applicant No.1 - accused No.1 was serving as Junior Engineer in the company and applicant No.1 used to visit the office of the complainant regularly. Somewhere in April 2018, the applicant No.1 came to the office of complainant and has stated her that applicant No.1 has fallen in love with the complainant. The complainant asked to applicant Page 4 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined No.1 not to talk such things with her. After such alleged incident, after a few days, applicant No.1 called at the mobile number of complainant and stated that in the religion of applicant No.1, two marriages are allowed and therefore, he wants to marry her. Thereafter, applicant Nos.2 and 3 came to office of complainant in the afternoon and started abusing to complainant and also subsequently, assaulted by giving threats. The complainant stared shouting to save her to Girishbhai Vasava, Amrutbhai Chauhan, Jaisinh Rohit and all the persons had intervened. Thereafter, some scuffle has taken place as the applicant Nos.2 & 3 have assaulted physically to the complainant and also threaten her with dire consequences. Therefore, the complainant is filed on 22.8.2018 and as per the complaint, on 30.7.2019, complaint is filed and incident is occurred between 1.4.2018 to 22.8.2018.
7.1 Learned advocate Mr. Ashish M. Dagli for the applicant Nos.2 & 3 has drawn the attention of this towards the fact that the complaint is filed after a delay of one year. He has further submitted that pursuant to such incident, proceeding of chapter case was initiated Page 5 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined and concluded and necessary bond was also taken pursuant to the such chapter case. Therefore, on the same set of facts, such F.I.R. cannot be entertained. Furthermore, he has submitted the there is no other witness, who can support such say of the complainant and the complaint is filed with some mala fide intention. He has further submitted that the entire incident must have been captured in the CCTV Camera but somehow due to technical glitch, CCTV Footage is not available. Furthermore, he has submitted that qua the applicant Nos.2 & 3 being lady accused, this Court can consider the case of the applicant Nos.2 & 3, who should not be asked to face the proceedings of trial unnecessarily and prima facie, when the complaint itself is not genuine and is filed with a view to harass the present applicants. 7.2 Lastly, he has submitted that merely filing of charge-sheet does not incline this Court to exercising the powers under Section 482 of the Criminal Procedure Code. He has relied on the judgment of the Hon'ble Apex Court Anand Kumar Mohatta vs State (Govt. Of Nct Of Delhi), reported in (2019) 11 SCC 706, more specifically, paragraph 14 is relevant and has submitted Page 6 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined that this Court can exercise the power under Section 482 of the Criminal Procedure Code.
8. Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP) for the respondent - State has submitted that now investigation is concluded and charge-sheet is also filed. Further, there is material which indicates the some verbal exchanges taken place between the complainant and the applicant Nos.2 & 3, but there is nothing on the record to support the say of the complainant about the physical assault. sFurther, he has submitted that prima facie case is made out, and therefore, this Court should not exercise the powers under Section 482 of the Criminal Procedure Code, which should be exercised very sparingly.
9.1 I have considered the rival submissions made at the bar. I have also considered the fact that the complaint is lodged under the provisions of Sections 323, 354(D),(1)(2), 504, 506(2) and 114 of the Indian Penal code, as under:
"323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either Page 7 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
354D. Stalking.--(1) Any man who--
(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking:
Provided that such conduct shall not amount to stalking if the man who pursued it proves that--
(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and justified.
(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and Page 8 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined shall also be liable to fine."
9.2 Additionally, I have taken into consideration the fact that the First Information Report (F.I.R.) was filed after a delay of approximately one year. Although there is an element of active involvement on the part of the husband, who is accused No.1 and shares a relationship with the complainant, it becomes evident from the sequence of events and the charge-sheet papers available for the perusal of this Court, that there have been verbal exchanges involving the complainant, applicant Nos. 2 and 3, who are the wife and mother-in-law of one of the applicants, and applicant No.1, who allegedly shares a relationship with the complainant. Consequently, it appears that a discussion concerning such matters occurred during a meeting held within the complainant's office premises. It is conceivable that heated exchanges occurred during this interaction. Subsequently, following that incident, the proceedings of a chapter case were concluded by securing appropriate bonds from the parties. Hence, the present complainant has lodged the complaint after a lapse of about one year, based on the same set of allegations. This timeframe underscores the necessity to scrutinize the complainant's genuine Page 9 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined intentions, especially with regards to the allegations against accused Nos.2 and 3. Furthermore, it becomes apparent that the elements stipulated under Sections 323, 354(D)(1)(2), 504, 506(2), and 114 of the Indian Penal Code are not adequately fulfilled. Additionally, it is also evident that the no ingredients under Sections 323, 354(D)(1)(2), 504, 506(2) and 114 of the Indian Penal code is satisfied.
9.3 Looking to the allegations made in the impugned First Information Report (F.I.R.) against the present applicants under Sections 323, 354(D)(1)(2), 504, 506(2), and 114 of the Indian Penal Code, and referring to several relevant legal precedents, it is evident that the essential prerequisites are not met. Moreover, it is important to take into account that this complaint was filed after a span of one year. In accordance with legal requirements, a complainant should express their grievance without undue delay and at the earliest available opportunity.
9.4 Therefore, considering the totality of the facts and circumstances of the case, I am of the view that Page 10 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined continuation of the proceedings pursuant to the complaint and charge-sheet is filed qua the present applicant Nos.2 & 3, who are original accused Nos.2 & 3 would amount to abuse of process of law and the complaint is filed with some intention to settle the personal revenge. 9.5 Further, it will also be fruitful to mention the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down Page 11 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute Page 12 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023 NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(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."
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NEUTRAL CITATION R/CR.MA/20338/2019 ORDER DATED: 19/08/2023 undefined 9.6 In light of the abovementioned, I am of the view that this is a fit case to exercise the inherent powers under Section 482 of the Criminal Procedure Code to prevent the abuse of process of law by granting the application in favour of applicant Nos.2 & 3.
10. Accordingly, the application is allowed qua the applicant Nos.2 and 3.
11. The impugned FIR being CR No. I-129 of 2019 registered with Makarpura Police station, Dist. Vadodara and consequential proceedings arising out the impugned F.I.R. are quashed and set aside qua the applicant Nos.2 and 3.
12. It is open for the applicant No.1 to proceed with the proceedings of trial in accordance with law.
Rule is made absolute.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 14 of 14 Downloaded on : Sun Sep 17 01:48:50 IST 2023