Ushaben W/O Chaudhari Vijaykumar ... vs State Of Gujarat
2023 Latest Caselaw 4873 Guj

     R/CR.MA/9406/2014                           JUDGMENT DATED: 23/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 9406 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE DIVYESH A. JOSHI                   Sd/-

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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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          USHABEN W/O CHAUDHARI VIJAYKUMAR D/O CHAUDHARI
                       MANSINGBHAI & 1 other(s)
                              Versus
                    STATE OF GUJARAT & 1 other(s)
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Appearance:
MR.KIRIT R CHAUDHARI(3745) for the Applicant(s) No. 1,2
MR HK PATEL, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                             Date : 23/06/2023
                             ORAL JUDGMENT

1. By filing this application under section 482 of the Code of Criminal Procedure, 1973 the applicants-original accused have invoked inherent powers of this Court praying for quashing of FIR bearing CR No.I-23 of 2014 registered with Satlasana

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Police Station, District-Mahesana, on 9.6.2014 for the offence punishable under Sections 380 and 114 of IPC.

2. The facts giving rise to this application may be summarized as under:-

2.1 Applicant No.1 is the daughter of responded No.2-original complainant and applicant No.2 is the husband of applicant No.1 and son-in-law of the complainant.

2.2 It is alleged in the complaint that applicant no.1 got married with applicant no.2 on 5th May 2013. It is alleged that they went to house of the complainant on 3.6.2014. It is also alleged that they stayed there and on the next morning i.e. on 4.6.2014 at about 8:00 a.m. when the complainant, his wife, son and daughter in law had gone to the field for doing their daily routine activities, both the applicant nos.1 and 2 were at home. It is alleged that when the complainant and his family members came back home at about 1:00 p.m. they could not find the applicants. It is also alleged that they found that the cupboard was open and in absence of their family members the applicants have taken away Rs.20000/- cash and golden and silver ornaments worth Rs.60000/-. Accordingly, the complaint is registered for aforesaid offences.

2.3 As soon as the accused persons came to know about registration of the complaint, they approached this Court by preferring present application. Considering the averments made in the application as well as the material produced on

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record, this Court thought it fit to grant interim relief and, accordingly, an order granting interim relief is passed on 27.6.2014. Such interim relief is continuing till today. It is an admitted fact that due to such order granted by this Court, investigation was not carried out by the investigating agency. It is also clear from the record that though the notice was duly served to private respondent no.2, he has chosen not to appear and contest the present application.

3. Mr.Chaudhary, learned advocate for the applicants has submitted that the applicants were studying together in the same class in Saraswati Gram Vidhyapith at Samoda-Ganwada, Taluka-Sidhpur and they have also studied the Master of Social Welfare together. He submitted that due to this, they got acquainted with each other and their relationship has developed, which ultimately converted in to love affair and both of them got married. Their marriage was solemnized on 5th May 2013 and it is registered on 8 th May 2013. Mr.Chaudhary further submitted that it is an admitted fact that parents of applicant no.1 were against this marriage and, due to this, they were having grudge against the applicants. It is also submitted that relation of the applicants with the parents of applicant no.1 were not cordial. He further submitted that since applicant no.1 had a serious apprehension that her father would try to break the relationship by hook or crook, on 26.5.2014, she has given written letter to Police Inspector, Visnagar Taluka Police Station, stating that they have married against the will of her parents. It is also stated that she left her parental home on 23rd April 2014 without informing anybody in

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the family and without taking any cash or ornaments. It is also stated that present applicant has serious apprehension that a false and fabricated complaint may be filed against her and her in laws.

3.1 Mr.Chaudhary, learned advocate for the applicants further submitted that the applicants are innocent and they have not committed any offence. He further submitted that they have never visited the house of the complainant after their marriage, even then they have been wrongly implicated in the alleged offence. He has submitted that a false complaint is filed against the applicants only because they have married against the wish of their parents. He has submitted that this complaint is filed only with a view to harass the applicants, who have married on their own will and wish. He further submitted that since there is no merit in the allegations levelled against the applicants, the impugned complaint may be quashed.

4. It appears from record that the rule issued by this Court is duly served upon respondent no.2-complainant long back, yet the complainant has chosen not to appear and oppose this application, either in person or through his advocate.

5. Learned APP, Mr.H.K.Patel appearing on behalf of the State has submitted that, on perusal of the complaint, it appears that ingredients of the offence are made out against present applicants. He has also submitted that immediately after registration of the complaint, the applicants have

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approached this Court and obtained stay order, therefore, the police could not collect any material or evidence against present applicants. He has submitted that the allegations made in the complaint constitute an offence of theft and, therefore, present application is required to be rejected.

6. Heard land advocate appearing for the applicants and learned APP appearing for the respondent-State and perused the material placed on record. It is found from the record that present complaint is filed on 9.6.2014 by the father of applicant no.1. Applicant nos.1 and 2 have married on 5 th May 2013 at the office of Registrar of Marriages. Out of the wedlock, they have been blessed with a baby girl, viz. Mayra on 31.3.2015 and since then, all the three are residing happily. Birth certificate of the baby girl is also produced and taken on record. It is also found that on 26.05.2014, applicant no.1 had addressed a letter to the Police Inspector, copy of which was also sent to the Superintendent of Police, Mehsana. A bare perusal of this letter shows that applicant no.1 was seriously apprehending filing of a false and fabricated complaint against them. It is also stated by the applicant that since they have married against the wish of her parents, their relations with her parents are not cordial. It is also stated that after their marriage, on two to three occasions, her parents visited the house of applicant no.2 and there was some verbal altercation between them. It is also clear that on the basis of this application, statement of applicant no.1 was recorded by ASI, Prahladbhai. In such statement also, applicant no.1 has categorically stated that there are all chances that a false and

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fabricated complaint will be filed against her and her in laws by her parents. It is also stated that at the time of leaving her parental home, applicant no.1 has not taken any cash or ornaments along with her.

7. At this stage, this Court may refer to the decision of the Honourable Apex Court in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. Reported in 1992 Supp. (1) SCC 335, wherein the Apex Court has considered in detail the scope of the High Court's powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and identified the following cases in which FIR/complaint can be quashed:

"102. (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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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.

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(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 Section 155(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 Act concerned (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 Act concerned, 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."

8. In view of above decision coupled with the facts of the case, and the fact that the respondent has chosen not to appear and contest this application, this Court finds substance in the argument put forward by the learned advocate, Mr.Chaudhary that the story put forward by the complainant in the complaint is not palatable one. It seems that due to

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inimical terms between the parties, a false and concocted complaint is filed against the applicants. Since the applicants have married against the will and wish of parents of applicant no.1, as held by the Apex Court, it can be said that in the present case complaint is filed with mala fide intention or with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge. Normally if a girl goes to her parental home after marriage, all the family members would not leave the newly-wed couple alone to attend their routine work. It seems that the story narrated in the complaint is imaginary and it is made solely with an intention to harass the present applicants.

9. Considering the above facts and circumstances of the case this is a fit case to exercise the powers under section 482 of Criminal Procedure Code. Accordingly, present application is allowed and the impugned complaint being CR No.I-23 of 2014 registered with Satlasana Police Station for the offences under Sections 380 and 114 of IPC is quashed along with all other consequential proceedings, if any, so far as present applicants are concerned. Rule is made absolute accordingly.

Sd/-

(DIVYESH A. JOSHI,J) R.S. MALEK