Gujarat High Court
Komal Bhikhabhai Prajapati vs State Of Gujarat on 8 October, 2021
Bench: B.N. Karia
R/SCR.A/2664/2014 CAV JUDGMENT DATED: 08/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2664 of 2014
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2019
In R/SPECIAL CRIMINAL APPLICATION NO. 2664 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 - NO -
to see the judgment ?
2 To be referred to the Reporter or not ? - NO -
3 Whether their Lordships wish to see the fair copy - NO -
of the judgment ?
4 Whether this case involves a substantial question - NO -
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KOMAL BHIKHABHAI PRAJAPATI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MS JIGNASA B TRIVEDI(3090) for the Applicant(s) No. 1
MS KHUSHBU P VYAS(7040) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 08/10/2021
CAV JUDGMENT
1. Present petitioner, who is the original accused no.2 in
Criminal Case No. 32748 of 2013 pending before the court of
learned Additional Chief Judicial Magistrate, Vadodara, has
filed present petition under Section 482 of the Code of
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Criminal Procedure, 1973 ( In short "the Code") and Section
407 of the Code and sought following reliefs:
[a] to allow this petition and quash the proceedings of Criminal
Case No. 32748 of 2013, pending in the Court of the learned
Additional Chief Judicial Magistrate, Vadodara, which criminal
case has arisen out of F. I. R. II 268 of 2013 with Panigate Police
Station, Vadodara, registered on 25-062013, or in the alternative,
to transfer the proceedings of Criminal Case No. 32748 of 2013,
pending in the Court of the learned Additional Chief Judicial
Magistrate, Vadodara, to the Court of the learned Judicial
Magistrate [I irst Class], Jhalod, District Dahod;
[b] to stay the proceedings of Criminal Case No. 32748 of 2013,
pending in the Court of the learned Additional Chief Judicial
Magistrate, Vadodara, which criminal case has arisen out of F. I.
R. II 268 of 2013 with Panigate Police Station, Vadodara.
2. Short facts of the present case may be referred as under:
2.1 The petitioner is the wife of the respondent no.2 and
married him on 12.02.2011. After wedding, as per the
averments made in the petition, she was being harassed and ill
treated. At present, she is living with her parents at Jhalod,
Dist: Dahod. That, the petitioner has also filed Misc. Criminal
Application No. 108 of 2012 before the court of learned JMFC
Jhalod claiming maintenance under Section 125 of the Code of
Criminal Procedure (Herein after referred to as "the Code")
wherein the respondent no.2 was served with the notice and
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therefore, he was appeared before the court below wherein his
evidence was recorded. That, the petitioner has also filed
Criminal Case No. 1058 of 2012 before the court of learned
JMFC, Jhalod for the offence punishable under Section 498-A,
500, 504, 506, 114 of the Indian Penal Code and Sections 3
and 4 of the Dowry Prohibition Act against the respondent
no.2. It is averred in the petition that as a result of the same,
respondent no.2 has filed the impugned complaint being FIR
No. II-268 of 2013 with Panigate Police Station, Vadodara on
25th June 2013 under Sections 506(2), 507, 504, 114 of the
Indian Penal Code against Gaurang Becharbhai Prajapati, who
happens to be the first cousin of the petitioner and also against
the petitioner alleging that they gave threat of killing the
complainant on telephone with an intention that the earlier
threat of supari killing was given on 15 th May 2013 through
managed accident.
3. Heard learned advocate for the petitioner and learned
APP for the respondent no.1-State.
4. However, notice was issued time to time to respondent
no.2 and initially he engaged his advocate to represent him in
the present petition, advocate appearing for the respondent
no.2 declared that she does not have any instructions in the
matter as respondent no.2 was not in her contact. This Court
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issued fresh notice again and again and secured the service of
notice to him through Police Inspector, Panigate Police Station,
Vadodara. Thereafter, detailed order was passed by this court
on 25th August 2021 observing the conduct of the respondent
no.2. However, served with the notice issued by this Court time
to time, none was present for and on behalf of the respondent
no.2 to contest this matter.
5. Learned advocate appearing for the petitioner has
submitted in his arguments that complaint filed by the
respondent no.2 against the petitioner is a counter blast of the
proceedings filed by the petitioner with a view to causing
harassment to to her, who will never dream of any kind of
Supari killing of her husband. That, on previous occasion,
Special Criminal Application No. 2849 of 2013 was filed by
the petitioner wherein notice was issued and in terms of order
dated 20.09.2013, interim relief to the effect that no coercive
steps would be taken against the petitioners. That, interim
relief was continued. However, the investigation was not
stayed, the charge sheet was filed before the court and
summons was issued returnable on 21st June 2014. That,
when the charge sheet was filed, Special Criminal Application
No. 2849 of 2013 filed by the petitioner become infructuous,
and therefore, the second petition for quashing the said charge
sheet and proceedings of Criminal Case No. 32748 of 2013
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pending before the learned Additional Chief Judicial
Magistrate, Vadodara was filed. That, filing of the complaint by
the respondent no. 2 as well charge sheet is a clear abuse of the
process of law. That, two proceedings under Section 125 of the
Code of Criminal Procedure as well as under Section 48 of the
Indian Penal Code are pending before the court at Jhalod,
District: Dahod, as a counter blast, by managing the police
authorities, false complaint was filed by the respondent no.2.
That, concocted story of threatening on telephone was created
by the respondent no.2 and police has falsely registered the
complaint. That, the respondent no.2 is facing two cases in
Jhalod Court and false accusation of criminal intimidation is
initiated as a counter blast of the previous two proceedings
with a view to pressurize the petitioner. That, this is a fit case
to exercise of the wholesome jurisdiction under Section 482 of
the Code for quashing the complaint as gross abuse of process
of law. That, Jhalod is the place having distances of 150
kilometers from Vadodara and allegedly through her cousin,
the petitioner had no reason to intimidate the respondent no.2,
who is her husband and despite marital discord, petitioner
would not even dream of killing him or give threat, as alleged
in the complaint. That, divorce deed was executed between the
parties under their signatures in presence of witness wherein
it was undertaken by both the parties that in pending
R/SCR.A/2664/2014 CAV JUDGMENT DATED: 08/10/2021
litigations, they would cooperate for the withdrawal and
divorce petition would be filed before the competent court.
That, in Criminal Case No. 1058 of 2012 filed by the present
petitioner, settlement purshish was also produced specifically
declaring that all the court proceedings initiated by the either
side including the present proceedings would be withdrawn by
the respective parties. That, petitioner has cooperated in
Criminal Case No. 1058 of 2012 as per the agreement of
compromise before the court of learned Additional Chief
Judicial Magistrate, Jhalod. That, the respondent no.2 is
harassing the present petitioner.
6. Criminal Misc. Application No. 1 of 2019 in the present
proceedings was filed joining 16th Additional Chief Judicial
Magistrate, Vadodara with a prayer to stay the proceedings of
Criminal Case No. 32748 of 2013 qua the present petitioner.
That, interim relief was granted by the court in favour of the
present petitioner. That, respondent no.3- Judicial Magistrate
ignoring the order of this Court issued non bailable warrant
against the petitioner. That, another non-bailable warrant was
issued by the respondent no.3 without considering the fact
that Special Criminal Application No. 2664 of 2014 was
pending and there was no interim relief operating qua the
proceedings of trial court. That, stringent action is required to
be initiated against the respondent no.3, as prayed in the
R/SCR.A/2664/2014 CAV JUDGMENT DATED: 08/10/2021
application. Hence, it was requested by learned advocate for
the petitioner to quash and set aside the proceedings of
Criminal Case No. 32748 of 2013, pending in the Court of the
learned Additional Chief Judicial Magistrate, Vadodara, which
criminal case has arisen out of F. I. R. II 268 of 2013 with
Panigate Police Station, Vadodara, registered on 25-062013, or
in the alternative, to transfer the proceedings of Criminal Case
No. 32748 of 2013, pending in the Court of the learned
Additional Chief Judicial Magistrate, Vadodara, to the Court of
the learned Judicial Magistrate [First Class], Jhalod, District
Dahod.
7. Learned APP appearing for the respondent no.1-State has
strongly objected the submissions made by learned advocate
for the petitioner and submitted that without examination of
the allegations made by the respondent no.2 in his complaint
about giving threat and kill him and previously, supari was
given to him at the instance of the present petitioner, this court
may not exercise the inherent powers under Section 482 of the
Code without recording the evidence of the complainant. That,
on previous occasion also, present petitioner has approached
this court by filing Special Criminal Application No. 2849 of
2013 for quashing of the complaint which was withdrawn by
her. That, the petitioner has once again approached this court
seeking same relief for quashing of the complaint and with an
R/SCR.A/2664/2014 CAV JUDGMENT DATED: 08/10/2021
alternative prayer to transfer Criminal Case pending before the
court of learned Chief Judicial Magistrate, Vadodara to the
court of learned Judicial Magistrate First Class, Jhalod, which is
not proper and legal. That, offence was committed by accused
no.1 at the behest of the accused no.2-present petitioner. That,
investigation was completed by the Investigating Agency and
after completion of the investigation, sufficient material is
available, and therefore, charge sheet was filed. That, both the
accused had planned to kill the respondent no.2 by managing
accident and from the investigation papers, it is clear that both
the accused persons are involved in the criminal conspiracy to
kill the respondent no.2. That, accused no.1 had threatened to
kill the complainant on telephone which has been recorded,
and therefore, it is clear case that the petitioner and accused
no.1 have hatched the conspiracy to kill the respondent no.2
and they are involved in serious offence. That, there is no
reason to transfer the Criminal Case registered against the
petitioner as the complainant himself is staying at Vadodara
and two witnesses are also from Vadodara. Hence, it was
requested by learned APP for the respondent no.1-State to
dismiss present petition.
8. At earlier stage, the respondent no.2 has also filed his
affidavit in reply denying the contents of the petition. That,
Special Criminal Application No. 2849 of 2013 for quashing
R/SCR.A/2664/2014 CAV JUDGMENT DATED: 08/10/2021
the complaint was filed by the petitioner which was
withdrawn on 4th July 2014. It was further contented that
present petitioner has filed once again for seeking the same
relief for quashing of the complaint with an alternative prayer
to transfer Criminal Case pending before the court of learned
Chief Judicial Magistrate, Vadodara to the court of learned
Judicial Magistrate First Class, Jhalod District Dahod. It was
further contented that there is no ground for transferring the
case as the offence took place at Vadodara and the accused
no.1 namely Gaurang Prajapati is residing at Vadodara as well
as two witnesses are also from Vadodara. It is further
submitted that initially FIR was not lodged by the Police, but
thereafter the respondent no.2 contacted the Police
Commissioner and convinced him by showing him all the
documents and evidences including recording and apology
tendered by the accused no.1 stating that he had done all these
things at the behest of the petitioner. It was further contented
that there are clear evidence that accused no.1 and present
petitioner had planned to kill the respondent no.2 by
managing accident and looking to the recording evidence of
the Facebook it is clear that both of them are involved in the
criminal conspiracy to kill the respondent no.2. If the case
would be transferred to Jhalod Court, there would be risk to
the life of the respondent no.2. That, petitioner was living at
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Vadodara for more than one year and she was working as
Teacher in Vadodara. She had travelled many times from
Vadodara to Jhalod and offence was made out in Vadodara
itself, this Court may not accept the prayer for transferring the
case from Vadodara to Jhalod. Hence, it was requested by the
respondent no.2 in the affidavit in reply to dismiss present
petition as well as prayer for transferring Criminal Case from
the court at Vadodara to Jhalod.
9. Having heard learned advocate for the petitioner and
learned APP for the respondent No.1-State and contents of the
affidavit in reply filed by the respondent no.2 at page No. 51 of
the petition, it is not in dispute that petitioner was married
with the respondent no.2 on 12th February 2011 and presently
staying at Jhalod with her parents. It is not in dipuste that
petitioner had filed Criminal Misc. Application No. 108 of
2012 claiming maintenance under Section 125 of the Code.
She has also Criminal Case No. 1058 of 2012 before the court
of learned Judicial Magistrate First Class, Jhalod for the offence
punishable under Sections 406, 498-A, 500, 504, 506, 114 of
the Indian Penal Code and Section 3 and 4 of the Dowry
Prohibition Act against the respondent no.2, his parents and
his sister. It also appears that after initiating two different
proceedings before the Jhalod Court by the present petitioner,
impugned complaint was filed by the respondent no.2 against
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the present petitioner and accused no.1, which was registered
as FIR No. II-268 of 2013 with Panigate Police Station,
Vadodara on 25th June 2013 for the offence punishable under
Sections 506(2), 507, 504, 114 of the Indian Penal Code. As
per the allegations made in the complaint by the respondent
no.2, accused gave threat of killing the complainant on
telephone and in connection with earlier threat of Supari
killing given on 15th May 2013 through managed accident
etc,. It is also not in dispute that present petitioner previously
filed Special Criminal Application No. 2849 of 2013 wherein
this court was pleased to issue notice returnable on 22nd
October 2013 in terms of an order passed on 20 th September
2013. Interim relief to the effect that no coercive steps would
be taken against the petitioner and such interim relief was
continued. However, as the investigation was not stayed,
charge sheet came to be filed before the court of learned
Additional Chief Judicial Magistrate, Vadodara, who issued
summons against the petitioner. As the charge sheet was filed,
Special Criminal Application No. 2849 of 2013 became
infructuous, and therefore, it was withdrawn. The petitioner
again approached this court with a prayer to quash the
charge-sheet as well as proceedings of Criminal Case No.
32748 of 2013 pending before the court of learned Chief
Judicial Magistrate, Vadodara and in alternative to transfer the
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proceedings of Criminal Case No. 32748 of 2013.
10. If we consider the averments made by the respondent
no.2 in his complaint dated 25th June 2013 giving threat to
him on telephone on his mobile phone No. 9904820831 at
about 12.00 o'clock in noon and previous threat given on 15 th
May 2013 would be a matter of evidence in a trial. Such kind
of factual aspect of giving threat on telephone by the present
petitioner to the respondent no.2 cannot be examined in a
petition under Section 482 of the Code or under Article 226 of
the Constitution of India as prayed.
11. The factual aspect can be considered by the court below
after recording evidence of the prosecution witnesses.
Therefore, allegations made by the petitioner against the
respondent no.2 and respondent no.3 in Criminal Misc.
Application (Direction) No. 1 of 2019 and observations made
by this Court on 29th January 2019, there appears some
substance in the submissions made by learned advocate for the
petitioner to accept an alternative prayer to transfer the
proceedings of Criminal Case No. 32748 of 2013 pending
before the court of learned Additional Chief Judicial Magistrate
(First Class), Jhalod, District: Dahod for further proceedings.
12. Hon'ble Supreme Court in case of State of M. P. Versus
Dhruv Gurjar reported in (2019)5 SCC 570, has held in para
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19 that:
19. In the case of Shiji verus Radhika reported in (2011)10
SCC 705, this Court found that the case had its origin in the civil
dispute between the parties, which dispute was resolved by them
and therefore this Court observed that, 'that being so, continuance
of the prosecution where the complainant is not ready to support
the allegations...will be a futile exercise that will serve no
purpose'. In the aforesaid case, it was also further observed 'that
even the alleged two eyewitnesses, however, closely related to the
complainant, were not supporting the prosecution version', and to
that this Court observed and held 'that the continuance of the
proceedings is nothing but an empty formality and Section 482
Cr.P.C. can, in such circumstances, be justifiably invoked by the
High Court to prevent abuse of the process of law and thereby
preventing a wasteful exercise by the courts below. Even in the
said decision, in paragraph 18, it is observed as under:
"18. Having said so, we must hasten to add that the
plenitude of the power under Section 482 CrPC by itself,
makes it obligatory for the High Court to exercise the same
with utmost care and caution. The width and the nature of
the power itself demands that its exercise is sparing and
only in cases where the High Court is, for reasons to be
recorded, of the clear view that continuance of the
prosecution would be nothing but an abuse of the process
of law. It is neither necessary nor proper for us to
enumerate the situations in which the exercise of power
under Section 482 may be justified. All that we need to say
is that the exercise of power must be for securing the ends
of justice and only in cases where refusal to exercise that
power may result in the abuse of the process of law. The
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High Court may be justified in declining interference if it is
called upon to appreciate evidence for it cannot assume the
role of an appellate court while dealing with a petition
under Section 482 of the Criminal Procedure Code."
13. Considering the submissions and record, present petition
is hereby partly allowed and accordingly, disposed of.
14. Criminal Case No. 32748 of 2013 pending before the
court of learned Additional Chief Judicial Magistrate (First
Class), Vadodara, District: Vadodara shall be transferred to the
court of learned Judicial Magistrate First Class, Jhalod, District:
Dahod for further proceedings in accordance with law.
15. Registry to place the order passed by this court dated 29 th
January 2019 in Criminal Misc. Application (Direction) No.1
of 2019 in Special Criminal Application No. 2664 of 2014 and
the report dated 8th February 2019 submitted by the
respondent no.3 in the said application addressing to this court
before the Hon'ble Chief Justice/Acting Chief Justice, High
Court of Gujarat, Sola, Ahmedabad for necessary action on
administrative side if found fit.
Notice stands discharged.
(B.N. KARIA, J)
Order in Criminal Misc. Application (Direction) No. 1 of 2019:
In view of disposal of the main matter being Special
R/SCR.A/2664/2014 CAV JUDGMENT DATED: 08/10/2021
Criminal Application No. 2664 of 2014, present application
does not survive and accordingly stands disposed of.
(B.N. KARIA, J)
K. S. DARJI
