Gujarat High Court

Dipak Alias Dinesh Khimji Roshiya vs State Of Gujarat on 8 June, 2023

Bench: Sandeep N. Bhatt

     R/CR.MA/4063/2017                              JUDGMENT DATED: 08/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 4063 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                DIPAK ALIAS DINESH KHIMJI ROSHIYA & 2 other(s)
                                   Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR JEET J BHATT(6154) for the Applicant(s) No. 1,2,3
MR MAHESH BHAVSAR(1781) 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 : 08/06/2023

                              ORAL JUDGMENT

1. The present application is filed with the

following prayers:

R/CR.MA/4063/2017 JUDGMENT DATED: 08/06/2023

"6(A) Your Lordship may be pleased to admit and allow this petition;

(B) Your Lordships may be pleased to quash and set aside the impugned FIR dt.25.01.2017 being CR-I-009 of 2017 before the Mundra Police Station for the alleged offence punishable u/s 366, 506(2) and 114 of the IPC, at Annexure- A'

(C) During the pendency and final disposal of this application, Your Lordships may be pleased to stay further proceeding in connection with the FIR dt.25.01.2017 being CR-I-009 of 2017 before the Mundra Police Station for the alleged offence punishable u/s 366, 506(2) and 114 of the IPC, at Annexure-A;

(D) Your Lordships may be pleased to pass such other order as may be deemed just and proper in the circumstances of the case."

2. The facts as stated in the application are as

under:

2.1 The complainant alleged that on 11.1.2017 at

13.00 p.m., her parents had went to labour work and

she left her uncle's place in Magar Nagari, when two

persons-applicant nos.2 and 3 herein, came on motorcycle

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from Bhuj and asked her to show the way to her uncle's

place and as she was going to her uncle's place, she

asked them to follow her. Thereafter, both of them

grabbed her by her mouth and make her sit in the

middle of the motorcycle and took her from Patri to

Gundala village, where applicant no.1 was present, whom

she knew as she had visited Manjal village. She stated

that from there, all three of them took her from

Gundala village to Adipur in toofan jeep, from there, the

applicant no.1 took the complainant to Ahmedabad in

luxury vehicle and from there to Surat and stayed there

for 7-8 hours and then went to Mumbai. At that time,

the applicant no.1 told that he wanted to marry the

complainant, but as the complainant refused to marry, they came back from Mumbai in the luxury bus and

took the complainant to the resident of one Manjal

Pravin Jikhu and they stayed there and threatened the

complainant that if she informed to anyone, they would

kill her and her brother. That, from there, they took the

complainant to the police station, however, as the

complainant was in shock at that time, she did not

disclose the facts to the police and at that time, on her

own volition, the complainant went to Women Protection

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Centre, Bhuj. Afterwards, her parents took her from the

Women Protection Centre and afterwards, as she

recovered she came to file the complaint on 25.1.2017.

She specifically stated that none of the accused has had

any physical relation with the complainant. It is this

complaint which is prayed to be quashed by way of

filing this application.

3. Heard learned advocate Mr.Jeet Bhatt for the

applicants, learned APP Mr.Dhawan Jayswal for the

respondent no.1-state and learned advocate Mr.Mahesh

Bhavsar for the respondent no.2.

3.1 Learned advocate Mr.Bhatt for the applicants submits that from the impugned FIR itself it transpires

that no offence is made out against the applicants which

satisfies the ingredients of Sections 366 or 506(2) of

Indian Penal Code. He further submitted that the

conduct of the complainant is required to be seen as

she has accompanied the present applicants in sharing

jeep from Gundala village to Adipur, thereafter they

went from Adipur to Ahmedabad and further from

Ahmedabad to Surat in public transport in luxury bus

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and stayed in Surat guest house and thereafter they

went to Bombay from Surat and thereafter, after three

days she returned back to Kutch. Moreover, the

respondent no.2 is more than 19 years and the applicant

no.1 is aged 20 years and they had a love affair and on

the insistence of complainant-the respondent no.2, the

applicant no.1 has decided to marry with the present

complainant, as the complainant does not want to marry

with one Ramesh with whom her parents are trying to

get her married and therefore no case can be made out

under Section 366 of the Indian Penal Code when the

complainant herself has left her home willingly and there

is no ingredients satisfied under Section 506(2) of the

Indian Penal Code and therefore the present complaint is filed with a view to harass the present applicants under

the pressure of the parents of the complainant. He has,

relied on the judgment in the case of State of Haryana

V/s Bhajan Lal reported in AIR 1992 SC 604 and has submitted that this Court should exercise the powers

under Section 482 of the Code to prevent the abuse of

the process of law.

3.2 Per Contra, learned advocate Mr.Bhavsar for

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the complainant has submitted that now the investigation

is proceeded further and chargesheet is required to be

filed as the incident has occurred in the year 2017. He

has submitted, by relying on the earlier order passed by

this Court dated 16.3.2017 whereby the Court has

observed something in the order pertaining to lacuna in

the investigation, that the ingredients of Sections 366

and 506(2) of the Indian Penal Code is also satisfied

looking to the nature of the allegation made in the FIR

and therefore this Court should not exercise discretion

under Section 482 of Code which should be exercised

from sparingly.

3.3 Learned APP has also submitted that, in fact,

the draft chargesheet papers are ready and the office of

the learned APP has filed application to vacate the

interim relief or modify the interim relief with a view to

permit them to file the chargesheet and also considering

the FIR, prima facie the case is made out against the

applicants. However, when the Court has asked learned

APP to produce the papers of chargeshet for perusal, the

same are handed over and on perusal of such papers,

the statement of victim is record on 25.1.2017 which

clearly transpires that victim herself has submitted

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before the parents that she has left her home voluntarily

as she did not want to marry one Ramesh with whom

her parents wanted her to marry. Therefore, she went

with Dinesh-applicant no.1-and stayed at various places.

Considering this aspect and also considering the FIR in

question, on the face of it, and the statement of the

complainant, it does not constitute any offence under

Section 366 as well as Section 506(2) of the Indian

Penal Code and no case is made out under Section 366

and 506(2) of Indian Penal Code and it seems that the

present complaint is filed under the pressure of the

family members by the complainant. In fact, the

complainant is aged 19 years and left her parental house

with the accused no.1-Dinesh to accompany him with a view to marry and thereafter she visited various places

along with him and other accused at her will and

therefore the continuation of the present proceedings

under the present FIR will amount to abuse of process

of law and therefore this is a fit case to exercise the

powers under Section 482 of the Code.

4.1 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

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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 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

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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 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

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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."

4.2 It is also relevant to refer to the judgment of

the Hon'ble Apex Court in the case of Inder Mohan

Goswami and Anotehr versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23

& 24 thereof, which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;]

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[(ii) to prevent abuse of the process of court, and]

[(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

5. In view of above settled position of law and

after considering the facts as alleged in the FIR and

circumstances of the present case, it transpires that

continuation of further proceedings pursuant to the said

FIR will cause greater hardships to the petitioners and

no fruitful purpose would be served if such further

proceedings are allowed to be continued. The Court must

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ensure that criminal prosecution is not used as

instrument of harassment or for seeking private vendetta

or with ulterior motive to pressurise accused or to settle

the score.