Gujarat High Court

Shivani Milap Dhanesha vs State Of Gujarat on 25 August, 2023

Bench: Sandeep N. Bhatt

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     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.

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(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

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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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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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