NEUTRAL CITATION
R/CR.MA/1928/2017 ORDER DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1928 of 2017
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SHIVANI MILAP DHANESHA & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2
MR KRUNAL L SHAHI(6519) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 25/08/2023
ORAL ORDER
1. The present application is filed under Section 482 of the Code of Criminal Procedure, 1973 (`Code' for short) with the following prayers:
"17(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 complaint filed as CR No.I-14 of 2017 filed before Mahila Police Station, Rajkot by respondent No.2 and the proceedings arising out of the complaint qua present petitioners in the interest of justice.Page 1 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023
NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined (C) Pending admission, hearing and till final disposal of this petition, this Hon'ble Court may be pleased to grant stay as to execution, implementation and operation of the complaint and further proceedings of CR No.I-14 of 2017 filed before Mahila Police Station, Rajkot by respondent no.2 qua present petitioners in the interest of justice.
(D) xxxxx"
2. At the outset, a reference deserves to be made to the order dated 4.8.2023 passed by this Court which reads as under:
1. By way of present application, under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek following prayers :
" 17(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 complaint filed as CR No.I - 14 of 2017 filed before Mahila Police Station, Rajkot by respondent No.2 and the proceedings arising out of the complaint Page 2 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined qua present petitioners 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 execution, implementation and operation of the complaint and further proceedings of CR No.I-14 of 2017 filed before Mahila Police Station, Rajkot by respondent No.2 qua present petitioners in the interest of justice.
(D) Grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice."
2. While issuing notice, this Court has, on 20.01.2017, passed the following order :
"Let Notice be issued to the respondents, returnable on 28th March 2017. Ms. Pathak, the learned Additional Public Prosecutor waives service of notice for and on behalf of the respondent No.1 - State of Gujarat. The respondent No.2 be served directly through the Investigating Officer of the concerned police station. Direct service is permitted.
Let there be an ad-interim order in
terms of para 17[C]."
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NEUTRAL CITATION
R/CR.MA/1928/2017 ORDER DATED: 25/08/2023
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3. Learned advocate for the applicants submits that despite having interim relief being granted in captioned application, the Investigating Officer has filed the charge-sheet before the learned trial Court in the month of May, 2018, Criminal Case No.5685 of 2018 is registered and the trial is commenced.
4. Learned advocate for the applicants has moved draft amendment stating the above development, which is taken on record. The same shall be carried out forthwith.
5. Therefore, the following prayers are added in the original prayers, as noted above.
"17(BB). This Hon'ble Court may be pleased to quash and set aside the proceedings pending before the learned JMFC, Rajkot of Criminal Case No.5685 of 2018 qua applicants, in the interest of justice.
17(CC). Pending final hearing and disposal, this Hon'ble Court may be pleased to grant stay as to further proceedings of Criminal Case No.5685 of 2018 pending before the learned JMFC, Rajkot qua the applicants, in the interest of justice."
6.1 Considering the entire chronology of the proceedings noted above, this is nothing but a glaring case of over-reaching the process of the Court by the police authority - the concerned Investigating Officer. Though this Court has stayed the execution, implementation, operation and further proceedings of the impugned Page 4 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined complaint by way of ad-interim relief vide order dated 20.01.2017, this Court fails to understand the enthusiasm and the promptness of the police authority to investigate the impugned complaint and file the charge-sheet before the concerned trial Court in the month of May, 2018.
6.2 Learned Additional Public Prosecutor shall communicate this order to the concerned Officer, forthwith.
7. Under the circumstances, the concerned Investigating Officer, who was in-charge of the impugned complaint at the relevant point of time, shall explain on affidavit as to why the charge-sheet is filed qua the impugned complaint inspite of the stay granted by this Court, within a period of two weeks from today.
8. The proceedings of Criminal Case No.5685 of 2018 pending before the concerned trial Court is hereby stayed till further orders, qua the applicants only.
9. It is expected from the trial Courts that whenever the final report / charge-sheet files by the concerned Investigating Officer before it, the trial Courts should verify that whether there is any stay or not.
10. Re-list this matter for further orders on 25.08.2023 on the top of the board.
Direct service is permitted."
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3. When the matter is called out today, learned APP Mr.Jayswal has submitted that the concerned Police Inspector, Mahila Police Station, Rajkot City - Ms. P.B. Sapra, has now retired and therefore, he could not file affidavit of that officer. This Court, has time and again found that in many cases where the Court has ordered not to file charge-sheet without prior permission of this Court, when the matters are taken up for hearing, it is reported that charge-sheets are already filed. This itself shows that no regards are shown by the concerned investigating officer towards the orders passed by this Court which is the highest Court of the State. Such disregard can be considered as contempt of the Court and an apparent attempt to overreach the process of administration of justice. This cannot be permitted. It is also found that in many cases where this Court has passed orders that the investigation can be proceeded during the pendency of the petitions/applications but no coercive action shall be taken against the petitioner/applicant, when the matter comes up for hearing after four-five years, it is found that no investigation is carried out further. This also amounts to Page 6 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined creating hindrance in the administration of justice. This can also not be permitted.
4. This Court is taking a serious note of this and the Director General of Police, Gujarat State and the Deputy Inspector General, Law and Order, Gujarat State as well as the Secretary, Home Department shall look into the matter immediately and take immediate steps to correct the system at the earliest, so that the orders passed by this Court shall be complied with in its true letter and spirit. The Registry of this Court as well as the office of the learned Public Prosecutor shall forward a copy of this order to the authorities mentioned above within a period of two working days by email or fax. It is expected that the said authorities shall take serious note of the observations made by this Court from time to time and come with certain action plan with corrective measures, as early as possible, preferably within a period of four weeks from the date of receipt of the copy of this order and shall file detailed report about the same within a period of four weeks thereafter, which shall be placed by the Registry before this Court. Page 7 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023
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5. The facts leading to filing of this application are such that a complaint is filed by the respondent no.2 contending that she is residing at her parental home since 17.6.2012 and serving as a teacher; that she married Foram Tulsidas who is a doctor by profession and staying at Rajkot on 1.3.2005; that harassment was meted out by in laws and on instigation by other family members, her husband used to harass her physically and mentally; that the applicant no.1-Shivani got married with applicant no.2-Milap in 2007 and now they are residing at Australia. This complaint is prayed to be quashed by way of filing this application.
6. Heard learned advocate Mr.Darshit Kamdar for learned advocate Mr.Dagli for the applicants, learned APP Mr.Jayswal for respondent no.1 and learned advocate Mr.Krunal Shahi for respondent no.2.
7. Learned advocate Mr.Kamdar for the applicants has submitted that prima facie, the applicants who happen to be the sister-in-law of the complainant and her husband were residing with the complainant during the period from 2005-07 and thereafter shifted to Page 8 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined Australia and residing there since then. He submitted that periodically they visit India and are falsely implicated in the complaint with a view to harass them due to some grievance with the husband. Therefore, this is nothing but an abuse of process of law and no ingredients of Sections 406, 498A, 494, 323, 504 and 114 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act are satisfied. He, therefore, prayed to allow this application which is filed at a very belated stage with a view to harass the applicants.
8. Per Contra, learned advocate Mr.Shahi for respondent no.2 has strongly opposed the same and submitted that for the period of 2005-07, they were residing together and thereafter the stridhan is still with the family members of the husband and it cannot be said that merely they shifted to Australia, they are not liable to face the trial under the impugned FIR when prima facie offence is made out against the present applicants. He invited attention of this Court to the affidavit filed by respondent no.2 and submitted that in view of the judgment in the case of State of Karnataka V/s Pastor P Raju reported in 2006 AIR SC 2825 and Page 9 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined Supriya Jain V/s State of Haryana reported in 2023(7) Laws (SC) 9, the applicants shall have to face trial and more particularly, when now the chargesheet is filed in this case. He, therefore, prayed not to exercise powers under Section 482 of the Code and dismiss this application.
9. Learned APP for respondent no.1 has also supported the submissions made by learned advocate for the respondent no.2-complainant and submitted that this Court should not exercise powers under Section 482 of the Code which should be exercised sparingly as prima facie case is made out against the applicant. He, therefore, prayed to dismiss this application.
10. I have considered the rival submissions of the parties and also the FIR and other documents produced on record. Prima facie, it transpires that this is essentially a dispute between husband and wife and thereafter due to some relationship with other person, the complainant wife has resorted to filing this complaint by alleging that the present applicants and other family members are responsible for harassing the present Page 10 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined complainant. There are allegations regarding cruelty as well as non-returning the stridhan to the complainant, however, it transpires that the applicants have shifted to Australia and visiting India rarely. During the visit to India, they may have contact with the present complainant being husband's sister and her husband but it is not sufficient to connect the present applicants in the alleged offence. The FIR is registered in the year 2017 and prima facie, the allegations made in the complaint do not constitute offences under Sections 406, 498A, 494, 323, 504 and 114 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act.
11. In the case of Preeti Gupta & Anr. V/s. State of Jharkhand & Anr., reported in (2017) 7 SCC 667, it is observed in paragraph 33 thus:-
"33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely Page 11 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."
12. In the case of Thesima Begam and Another V/ s State of Tamil Nadu reported in (2020)14 SCC 580, it is held by the Hon'ble Apex Court in paragraphs 2,3 and 6 as under:
"2. Brief facts leading to the filing of this appeal are that the marriage between de facto complainant i.e. Rafeek Nisa (Respondent 2 herein), and Shajahan was solemnised on 23-
4-2000. It appears that they could not put on well and Page 12 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined some matrimonial disputes arose between the parties which ruptured the matrimonial relationship. Respondent 2 made a complaint to the Inspector of Police against her husband Shajahan under Section 498-A and Section 406 of the Penal Code, 1860 ("IPC") read with Section 4 of the Dowry Prohibition Act, 1961. In this complaint, she implicated her mother-in-law, brother-in-law as well as the appellants herein who are sister-in-law and husband of the sister-in- law.
3. After investigation, charge-sheet was filed and in this charge-sheet, names of the appellants were also included. The appellants at that stage filed petition under Section 482 of the Code of Criminal Procedure, 1973 ('CrPC') for quashing of the charge-sheet against them. The High Court rejected this petition vide order dated 22-4-2016 only on the ground that trial in the case was begun and, therefore, the High Court would not interfere with the said process.
6. In view of the aforesaid stand taken by the complainant herself, we see no justifiable reason for the investigating officer to rope in the appellants as well as in the charge- sheet. Interestingly, even in the charge-sheet submitted by the investigating officer, she has very categorically stated that insofar as appellants are concerned, they were living in foreign country. In spite thereof, the investigating officer filed charge-sheet against all the persons including the Page 13 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined appellants, mechanically and without application of mind."
13. Further, it will also be fruitful to mention the judgment of 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 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 Page 14 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined 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 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 Page 15 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined 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."
14. In view of the above and on perusing the contents of the FIR and the applicants are sister-in-law and her husband of the respondent no.2-complainant and are residing at Australia since last ten years, no offences can be believed and no offences as alleged in the FIR can be said to be made out against the present applicants and therefore continuation of the proceedings against them is nothing but an abuse of process of law and continuation of further proceedings pursuant to the said FIR will cause greater hardships to the applicants and no fruitful purpose would be served if such further proceedings are allowed to be continued. The Court must Page 16 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023 NEUTRAL CITATION R/CR.MA/1928/2017 ORDER DATED: 25/08/2023 undefined ensure that criminal prosecution is not used as instrument of harassment or for seeking private vendetta or with ulterior motive to pressurise accused or to settle the score.
15. In this view of the matter, this is a fit case to exercise the inherent powers under Section 482 of the Code. Accordingly, this application is allowed. The impugned FIR being CR No.I-14 of 2017 registered with Mahila Police Station, Rajkot, as well as subsequent proceedings, if any, arising out of the same FIR are hereby quashed and set aside qua the applicants. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 17 of 17 Downloaded on : Sun Sep 17 02:35:33 IST 2023