Devendrasinh Lalitsinh Zala vs State Of Gujarat
2021 Latest Caselaw 13826 Guj

     R/CR.MA/17479/2018                       ORDER DATED: 13/09/2021




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

  R/CRIMINAL MISC. APPLICATION NO. 17479 of 2018
                       With
CRIMINAL MISC. APPLICATION (FOR STAY) NO. 1 of 2021
                        In
   R/CRIMINAL MISC. APPLICATION NO. 17479 of 2018
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             DEVENDRASINH LALITSINH ZALA & 1 other(s)
                            Versus
                  STATE OF GUJARAT & 1 other(s)
=============================================
Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1,2
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
=============================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                          Date : 13/09/2021

                            ORAL ORDER

1. RULE. Ms. Monali Bhatt, learned Additional Public Prosecutor waiveS service of notice of rule on behalf of respondent State.

2. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C.") seeking quashment of the FIR being C.R. No.I- 327 of 2017 registered with Limbayat Police Station, Surat for the offences punishable under Sections 365, 366 and 114 of Indian Penal Code and the proceedings initiated pursuant thereto.

3. Mr. Bhuvnesh Gahlot along with Mr. N.K. Majmudar, learned advocate for the applicants submitted

R/CR.MA/17479/2018 ORDER DATED: 13/09/2021

that, the FIR being C.R. No.I-327 of 2017 registered with Limbayat Police Station as well as Charge-sheet No.129/2018 in Sessions Case No.349/2018 before the Additional Sessions Judge, Surat, is totally abuse of process of law. He submits that though the order of Stay being granted against the proceedings of Sessions Case No.349/2018 before the Additional Sessions Judge, Surat, the Court has asked the applicants to remain present before the Court.

3.1 Mr. Gahlot further stated that applicant no.2 was arrested and thereafter released on bail by preferring Bail Application No.8286-2017 before the Sessions Court, Surat, while applicant no.1 had preferred anticipatory bail and was granted protection on 29.12.2017.

3.2 Mr. Gahlot further submitted that the stay was granted on all the proceedings by this Court on 01.10.2018 and the Court had observed the submissions made by the advocate for the applicants that by way of some misunderstanding the offence came to be registered, which fact has been ratified by victim - Priyankaben, who was present in the Court on that day to further affirm her statement before the investigating officer. Learend advocate submitted that the applicant had visited Surat to take the victim back to her parental house, as the dispute was on matrimonial issue, as during that period the victim Priyankaben was unable to contact

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her parents.

3.3 Advocate Mr. Galhot has referred to the Affidavit of the victim in the bail application produced by her in the Anticipatory Bail Application No.8287 of 2017, wherein she had referred to the facts of marriage, stating that on 23.11.2017, the marriage was solemnized at Rajasthan and thereafter had come on 04.12.2017 to stay at Surat and since then she was with the matrimonial family. She referred to the facts of mental and physical harassment by husband and the family members. She has called both the applicants and had informed them about the harassment meted out to her. She had informed them about the threat to her life and had called both the applicants, and therefore they had come from Rajasthan to take her back. She has also stated in the affidavit that the complaint of kidnapping registered at Limbayat Police Station is false.

4. Heard learned advocates appearing for the parties. As per the charge-sheet paper, the statement of the victim was recorded by the police on 19.12.2017. She had stated before the police of her marriage and about the harassment at the hands of the members of the matrimonial house. She has stated that earlier night twice and thrice the husband at the matrimonial home, tried to press her neck and had beaten her and therefore in the morning at about 7:30, she had called up her distant known brothers and had asked them to come to Surat to

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take her back. When present applicants had arrived, her husband had gone to his shop and her mother-in-law was in the room inside. She along with her brothers went out of the house, at that time, her mother-in-law followed her and tried to catch hold of her, despite that she had gone back to Rajasthan in the car with applicant no.1.

4.1 It is stated by Mr. Galhot that applicant no.2 was forcibly restrained at the place and therefore, came to be arrested and subsequently by bail order he was released.

5. The whole of the statement of the victim before the police dated 19.12.2017 itself suggests that there was matrimonial dispute. The contents of the statement of the victim before the police on 19.12.2017 suggests that it was the case to be filed under Section 498A and 114 of IPC and along with the provisions of Dowry Prohibition Act. The police ought to have inquired about the facts after recording the statement of the victim on 19.12.2017 of her having voluntarily gone with the applicant no.1 and she had on her own volition had called up the applicants to rescue her from her matrimonial house. The role of the applicants is of saver than to be culprits. The police ought to have filed a summary against the applicants and should have proceeded against in-laws of the victim girl. The victim girl has voluntarily stated that she on her volition had voluntarily gone with the applicants .

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6. In case of State of Haryana V. Bhajan Lal and others, reported in AIR 1992 SC 604, the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court in the said judgment made the following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide in myriad kinds of cases wherein such power should be exercised:

(a) 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

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accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) 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;

(d) 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 Section 155(2) of the Code;

(e) 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;

(f) where there is an express legal bar engrafted in any of the provisions of the Code

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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;

(g) 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."

7. Since it is the married woman who had disclosed the facts of cruelty at the hands of the matrimonial family members, there is no case made out against the present applicant to face the trial. Hence, in view of the discussions made hereinabove there exists no scope for any further proceeding in the matter. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised for securing the ends of justice.

8. In the result, the petition is allowed. The FIR being C.R. No.I-327 of 2017 registered with Limbayat Police Station, Surat, Charge-sheet No.129 of 2018 dated 07.07.2018, Sessions Case No.349 of 2018 and the

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proceedings initiated in pursuance thereof are quashed and set aside qua the present applicants. Rule is made absolute to the aforesaid extent. Direct service is permitted.

9. In view of the above order passed in the main matter, Criminal Misc. Application No.1 of 2021 stands disposed of accordingly.

(GITA GOPI, J.) Pankaj