Harshadbhai Madhavlal Patel vs State Of Gujarat
2021 Latest Caselaw 6404 Guj

     R/SCR.A/5832/2019                                     ORDER DATED: 21/06/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 5832 of 2019
================================================================
                         HARSHADBHAI MADHAVLAL PATEL
                                    Versus
                              STATE OF GUJARAT
================================================================
Appearance:
MR PARTH D PATEL(9754) for the Applicant(s) No. 1
MS. MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
S A CHHABARIA(7740) for the Respondent(s) No. 2
================================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 21/06/2021

                                 ORAL ORDER

1. The application under Articles 226 and 227 of the

Constitution of India and Section 482 of Code of Criminal

Procedure, 1973 to quash and set aside the order and

judgment dated 20.4.2019 passed by the learned 3 rd

Additional Sessions Judge, Ahmedabad (Rural), Mirzapur in

Criminal Revision No. 108/2017 below Exh-20 as well as order

dated 24.8.2017 passed by the learned Chief Judicial

Magistrate, Ahmedabad (Rural), Mirzapur in Criminal

Miscellaneous Application (Inquiry) No. 1580/2016 below

Exh-1.

2. Heard Mr. Parth Patel, learned advocate for the

petitioner and Mr. Chhabaria, learned advocate for the

R/SCR.A/5832/2019 ORDER DATED: 21/06/2021

respondent No.2.

3. It is stated by Mr. Parth Patel, learned advocate for the

petitioner that the petitioner initially had married with

Gitaben Harshadbhai Patel, who died on 17.9.2009, who had

an Election Card being Card No. JNY1612977 issued by

Vijapur Election Department on 11.2.2003. It is stated by

learned advocate for the petitioner that the petitioner got

married with respondent No.2 on 20.1.2011. Mr. Parth,

learned advocate further submitted that misusing the Election

Card in the name of the first wife of the petitioner, the

respondent No.2 got a Mobile Sim Card of Reliance Company

in her name without the knowledge of the petitioner and was

using the same in some malafide activities, concealing the

material facts. He submitted that Rinaben Harshadbhai Patel -

respondent No.2 has confessed before the Police authority

about her using the Election Card of the deceased persons

and by forging her signature, had got the Mobile Sim Card of

Reliance Company issued in her name. Mr. Parth submitted

that the lower Court has not considered the facts on record

and had not taken into consideration the complaint of the

present petitioner, was prior in time to the registration of the

application under Domestic Violence Act.

R/SCR.A/5832/2019 ORDER DATED: 21/06/2021

4. Countering the arguments, Mr. Chhabaria, learned

advocate for the respondent No.2 submitted that the lower

Court in Criminal Misc. Application (Inquiry) No. 1580/2016

and in Criminal Revision Application No. 108/2017 have

categorically made observation regarding the domestic

disputes and has observed that the Mobile Sim Card which

came to be issued in the name of Respondent No.2 was with

prior consent of the husband and the documentary evidence of

the deceased first wife were provided by the husband to her

and no evidence has been produced in support of the

complaint to show that the Sim Card was used for immoral or

illegal activities.

5. As per the record, Criminal Misc. Application (Inquiry)

No. 1580/16 was filed under the verification of the

complainant along with the documents. The Police Report and

the documents produced were read by the Chief Judicial

Magistrate, Ahmedabad (Rural), Mirzapur and the facts of the

matrimonial relations between the parties were noted and the

learned Chief Judicial Magistrate, Ahmedabad (Rural),

Mirzapur also took into consideration the statement of

Respondent No.2 before the Police wherein she has stated

R/SCR.A/5832/2019 ORDER DATED: 21/06/2021

that she had no evidence in her name and the documents of

the first wife of the petitioner were available in the house and

she had used it under the consent of her husband, while she

was residing with him till March, 2016. It was the husband

who had advised her to used the Election Card of his previous

wife Gitaben and her photograph. The learned Chief Judicial

Magistrate, Ahmedabad (Rural), Mirzapur has observed that

the complainant and the accused-respondent No.2 were

staying in one house as husband and wife and there were no

dispute at the relevant time and the complainant himself

asked her to take the Sim Card in the name of his deceased

first wife and at the relevant time the complainant had not

taken any grievance and during the matrimonial relation

dispute arose, the complainant filed a case of divorce and

domestic violence case was filed. The learned Chief Judicial

Magistrate has very categorically observed that even if prima-

facie the case is believed then there is no mensrea on the part

of the respondent - wife. The said Mobile Sim Card was used

and the complainant himself had alleged that the Sim Card

was used to have conversation with the relatives. There is no

evidence of any criminal conspiracy nor any document being

produced to show that the Sim Card was used for any immoral

R/SCR.A/5832/2019 ORDER DATED: 21/06/2021

activity or beyond the knowledge of the complainant and thus

the learned Chief Judicial Magistrate, Ahmedabad (Rural),

Mirzapur did not found prima-facie any evidence under

Sections 406, 420, 465, 467, 468, 471 of the IPC and ordered

to dismiss the complaint filed by Harshadlal Madhavlal Patel

under Section 203 of the Criminal Procedure Code on

24.8.2017.

6. Aggrieved by the said order, the present petitioner

moved the 3rd Additional Sessions Judge, Ahmedabad (Rural),

Mirzapur by filing Criminal Revision Application No. 108/2017

under Section 397 of the Criminal Procedure Code. The 3 rd

Additional Sessions Judge, Ahmedabad (Rural), Mirzapur

raised the issue for his observation whether any interference

in the order of Chief Judicial Magistrate, Ahmedabad (Rural),

Mirzapur was necessary. Hearing the parties, referring to the

facts of the case and the case laws, had observed that there

were proceedings under the Domestic Violence Act and other

proceedings in the family Court and thereafter an attempt has

been made by the complainant invoking various provisions of

I.P.C to file criminal case. The learned 3 rd Additional Sessions

Judge, Ahmedabad (Rural), Mirzapur found no reason to

interfere with the order of the Chief Judicial Magistrate,

R/SCR.A/5832/2019 ORDER DATED: 21/06/2021

Ahmedabad (Rural), Mirzapur and found there was no error in

law and the order of dismissing the complaint under Section

203 of Cr.PC, the learned Judge did not found any reason of

any error committed by the Chief Judicial Magistrate,

Ahmedabad (Rural), Mirzapur by not taking cognizance of the

alleged offences.

7. This Court also finds no reason to interfere in the order

of both the Courts. The matrimonial disputes has taken

acrimonious turn, which as observed by the 3 rd Additional

Session Judge, Ahmedabad (Rural), Mirzapur an attempt to

file a criminal complaint invoking different Sections under

IPC, statement of respondent No.2 was before the Police and

according to her, it was only on consent of her husband that

she had got the Mobile Sim Card allotted in the name

deceased first wife of the petitioner, the Election Card and the

Photograph would definitely be in the possession of the

complainant. The respondent No.2 was residing with the

present petitioner till March, 2016, and no such grievance

was raised by the husband against the wife and the complaint

is after-thought and it cannot be denied that an attempt has

been made by the husband to give criminal turn to the

domestic dispute between the parties.

R/SCR.A/5832/2019 ORDER DATED: 21/06/2021

8. There is no reason to interfere with the Orders of both

the Courts below. There is no merits in the application and

hence stands rejected. Accordingly, the application is

rejected.

(GITA GOPI,J) SAJ GEORGE