Vijeshbhai Ramsinhbhai Bhuriya vs State Of Gujarat
2023 Latest Caselaw 6077 Guj

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     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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"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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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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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