Gujarat High Court
Vaibhav Rameshbhai Tokle vs State Of Gujarat on 5 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DOMESTIC VIOLANCE ) NO. 451
of 2025
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VAIBHAV RAMESHBHAI TOKLE & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS ANJALIBEN P PARMAR(11989) for the Applicant(s) No. 1,2,3
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1 - State
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 05/02/2025
ORAL ORDER
1. The present petition is filed for seeking the following
reliefs:
"(a) To admit and allow this petition.
(b) YOUR LORDSHIPS be pleased to quash and set aside
the compliant being CRMA. No. 17825 of 2024 pending
before the JMFC, Surat, filed by the respondent No. 2
under Domestic Violence Act 2005 and further proceedings
thereto, qua the petitioners, in the interest of justice;
(c) Pending admission, final hearing and disposal of this
petition, YOUR LORDSHIPS be pleased to stay the further
CRMA. No. 17825 of 2024 pending before the JMFC, Surat,
filed by the respondent No. 2 under Domestic Violence Act
2005 and further proceedings thereto, qua the petitioners;;
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(d) To grant any other just and proper reliefs as deemed
fit, in the interest of justice."
2. Heard Mr. Jucky Lucky Chan, learned advocate
appearing for Ms. Anjaliben Parmar, learned advocate for the
petitioners and Mr. Chintan Dave, learned APP for the
respondent - State.
3. Mr. Jucky Lucky Chan, learned advocate appearing for
Ms. Anjaliben Parmar, learned advocate for the petitioners
has at the outset does not pass this petition qua the
petitioner No.1 - husband as, as per his submissions, there
is serious allegations against the present petitioner, but he is
pressing this petition qua the petitioner Nos.2 and 3 i.e.
mother in law and father in law. Hence, the present petition
is disposed of as not pressed qua the petitioner No.1 only.
4. In view of the above, the present petition is considered
qua the petitioner Nos.2 and 3 only.
5. Mr. Jucky Lucky Chan, learned advocate appearing for
Ms. Anjaliben Parmar, learned advocate for the petitioners
has submitted that the present petitioner Nos.2 and 3 i.e.
mother-in-law and father-in-law are residing separately at
Bhavnagar and they are forcefully dragged into the litigation
by making false averments in the complaint. Furthermore, he
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has submitted that looking to the prayers made in the
present petition, no role is played by the present petitioner
Nos.2 and 3 and, therefore also, the proceedings initiated
pursuant to the Protection of Women from Domestic Violence
Act, 2005 (for short "the Domestic Violence Act") are not
maintainable against the present petitioner Nos.2 and 3. He
has further submitted that even assuming everything against
the father-in-law and mother-in-law, then also the present
petitioner Nos.2 and 3 are ready to give undertaking before
this Court that they will not cause any harassment; mental
as well as physical to the complainant in any manner and
they will not contact the complainant and, therefore, he has
submitted that the complaint is filed against father-in-law
and mother-in-law, who are aged persons, with ill intention,
the same is required to be interfered with and the prayers
made in the present petition is required to be granted.
6. Learned APP for the respondent - State has strongly
opposed the submissions made at the bar and has submitted
that on bare reading of the complaint, prima facie, case is
made out against the present petitioner Nos.2 and 3, and,
therefore, the Court may not interfere at this stage as such
powers should be exercised very sparingly.
7.1 I have considered the rival submissions made at the
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bar. At this stage, it is fruitful to refer the provisions of
Sections 12, 18 to 23 of the Domestic Violence Act, which
reads as follows:
"Section 12 in The Protection of Women from Domestic
Violence Act, 2005:-
12. Application to Magistrate
(1) An aggrieved person or a Protection Officer or any other
person on behalf of the aggrieved person may present an
application to the Magistrate seeking one or more reliefs
under this Act:
Provided that before passing any order on such application,
the Magistrate shall take into consideration any domestic
incident report received by him from the Protection Officer
or the service provider.
(2) The relief sought for under sub-section (1) may include
a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of
such person to institute a suit for compensation or damages
for the injuries caused by the acts of domestic violence
committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by any Court in
favour of the aggrieved person, the amount, if any, paid or
payable in pursuance of the order made by the Magistrate
under this Act shall be set off against the amount payable
under such decree and the decree shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5
of 1908), or any other law for the time being in force, be
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executable for the balance amount, if any, left after such
set off.
(3) Every application under sub-section (1) shall be in such
form and contain such particulars as may be prescribed or
as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which
shall not ordinarily be beyond three days from the date of
receipt of the application by the Court.
(5) The Magistrate shall endeavour to dispose of every
application made under sub-section (1) within a period of
sixty days from the date of its first hearing.
Section 18 in The Protection of Women from Domestic
Violence Act, 2005:-
18. Protection orders
.The Magistrate may, after giving the aggrieved person and
the respondent an opportunity of being heard and on being
prima facie satisfied that domestic violence has taken place
or is likely to take place, pass a protection order in favour
of the aggrieved person and prohibit the respondent from
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic
violence;
(c) entering the place of employment of the aggrieved person
or, if the person aggrieved is a child, its school or any
other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever,
with the aggrieved person, including personal, oral or
written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank
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accounts used or held or enjoyed by both the parties, jointly
by the aggrieved person and the respondent or singly by
the respondent, including her stridhan or any other property
held either jointly by the parties or separately by them
without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or any
person who give the aggrieved person assistance from
domestic violence;
(g) committing any other act as specified in the protection
order.
Section 19 in The Protection of Women from Domestic
Violence Act, 2005:-
19. Residence orders
(1) While disposing of an application under sub-section (1)
of section 12, the Magistrate may, on being satisfied that
domestic violence has taken place, pass a residence order
(a) restraining the respondent from dispossessing or in any
other manner disturbing the possession of the aggrieved
person from the shared household, whether or not the
respondent has a legal or equitable interest in the shared
household;
(b) directing the respondent to remove himself from the
shared household;
(c) restraining the respondent or any of his relatives from
entering any portion of the shared household in which the
aggrieved person resides;
(d) restraining the respondent from alienating or disposing
off the shared household or encumbering the same;
(e) restraining the respondent from renouncing his rights in
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the shared household except with the leave of the
Magistrate; or
(f) directing the respondent to secure same level of alternate
accommodation for the aggrieved person as enjoyed by her
in the shared household or to pay rent for the same, if the
circumstances so require:
Provided that no order under clause (b) shall be passed
against any person who is a woman.
(2) The Magistrate may impose any additional conditions or
pass any other direction which he may deem reasonably
necessary to protect or to provide for the safety of the
aggrieved person or any child of such aggrieved person.
(3) The Magistrate may require from the respondent to
execute a bond, with or without sureties, for preventing the
commission of domestic violence.
(4) An order under sub-section (3) shall be deemed to be an
order under Chapter VIII of the Code of Criminal
Procedure, 1973 (2 of 1974) and shall be dealt with
accordingly.
(5) While passing an order under sub-section (1), sub-section
(2) or sub-section (3), the Court may also pass an order
directing the officer in-charge of the nearest police station
to give protection to the aggrieved person or to assist her
or the person making an application on her behalf in the
implementation of the order.
(6) While making an order under sub-section (1), the
Magistrate may impose on the respondent obligations
relating to the discharge of rent and other payments,
having regard to the financial needs and resources of the
parties.
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(7) The Magistrate may direct the officer in-charge of the
police station in whose jurisdiction the Magistrate has been
approached to assist in the implementation of the protection
order.
(8) The Magistrate may direct the respondent to return to
the possession of the aggrieved person her stridhan or any
other property or valuable security to which she is entitled
to.
Section 20 in The Protection of Women from Domestic
Violence Act, 2005:-
20. Monetary reliefs
(1) While disposing of an application under sub-section (1)
of section 12, the Magistrate may direct the respondent to
pay monetary relief to meet the expenses incurred and
losses suffered by the aggrieved person and any child of the
aggrieved person as a result of the domestic violence and
such relief may include, but not limited to,
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or
removal of any property from the control of the aggrieved
person; and
(d) the maintenance for the aggrieved person as well as her
children, if any, including an order under or in addition to
an order of maintenance under section 125 of the Code of
Criminal Procedure, 1973 (2 of 1974) or any other law for
the time being in force.
(2) The monetary relief granted under this section shall be
adequate, fair and reasonable and consistent with the
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standard of living to which the aggrieved person is
accustomed.
(3) The Magistrate shall have the power to order an
appropriate lump sum payment or monthly payments of
maintenance, as the nature and circumstances of the case
may require.
(4) The Magistrate shall send a copy of the order for
monetary relief made under sub-section (1) to the parties to
the application and to the in charge of the police station
within the local limits of whose jurisdiction the respondent
resides.
(5) The respondent shall pay the monetary relief granted to
the aggrieved person within the period specified in the
order under sub-section (1).
(6) Upon the failure on the part of the respondent to make
payment in terms of the order under sub-section (1), the
Magistrate may direct the employer or a debtor of the
respondent, to directly pay to the aggrieved person or to
deposit with the Court a portion of the wages or salaries or
debt due to or accrued to the credit of the respondent,
which amount may be adjusted towards the monetary relief
payable by the respondent.
Section 21 in The Protection of Women from Domestic
Violence Act, 2005:-
21. Custody orders.
Notwithstanding anything contained in any other law for
the time being in force, the Magistrate may, at any stage
of hearing of the application for protection order or for any
other relief under this Act grant temporary custody of any
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child or children to the aggrieved person or the person
making an application on her behalf and specify, if
necessary, the arrangements for visit of such child or
children by the respondent:
Provided that if the Magistrate is of the opinion that any
visit of the respondent may be harmful to the interests of
the child or children, the Magistrate shall refuse to allow
such visit.
Section 22 in The Protection of Women from Domestic
Violence Act, 2005:-
22. Compensation orders
.In addition to other reliefs as may be granted under this
Act, the Magistrate may on an application being made by
the aggrieved person, pass an order directing the respondent
to pay compensation and damages for the injuries, including
mental torture and emotional distress, caused by the acts of
domestic violence committed by that respondent.
Section 23 in The Protection of Women from Domestic
Violence Act, 2005:-
23. Power to grant interim and ex parte orders
(1) In any proceeding before him under this Act, the
Magistrate may pass such interim order as he deems just
and proper.
(2) If the Magistrate is satisfied that an application prima
facie discloses that the respondent is committing, or has
committed an act of domestic violence or that there is a
likelihood that the respondent may commit an act of
domestic violence, he may grant an ex parte order on the
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basis of the affidavit in such form, as may be prescribed, of
the aggrieved person under section 18, section 19, section
20, section 21 or, as the case may be, section 22 against
the respondent."
7.2 Considering the averments made in the complaint, more
particularly, averments made in paragraph No.2, it cannot be
said that the present petitioner Nos.2 and 3 are not residing
at Ahmedabad and the say of the learned advocate for the
petitioners that they are having the property at Bhavnagar
and they are residing at Bhavnagar, it can be considered as
good defence, but the Court has to consider the averments
made in the complaint while considering the proceeding for
quashing of such complaint. From the averments, more
particularly, the averments made in the complaint in
paragraph No.3 and onwards, and considering the averments
made in the complaint in paragraph Nos.11 and 12 also, it
cannot be said that from the bare reading of the averments
made in the complaint, no offence is made out against the
present petitioner Nos.2 and 3 though they are being old
aged persons; and being father-in-law and mother-in-law of
the complainant, they have played active role in the offences
as alleged under the provisions of Domestic Violence Act.
7.3 The provisions of Domestic Violence Act are enacted by
the legislature with a view to giving protection to the
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married women, who are residing in her matrimonial house
from any kind of atrocious act or any kind of mental as well
as physical harassment and the object of Domestic Violence
Act is also having some more purpose i.e. to give proper
protection to the married women like the present
complainant. When the complainant has approached the Court
by narrating the chain of incidents in the complaint, whereby
some active participation of the present petitioner Nos.2 and
3 are also mentioned, such allegations cannot be brushed
aside by exercising powers under Article 226/227 of the
Constitution of India or under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita 2023. Such powers should be
exercised very sparingly and by keeping in mind not to
frustrate the object of provisions of Domestic Violence Act,
and more particularly, in the present case on bare reading of
the complaint, when the offence is made out and, therefore,
the trial is required to be proceeded in accordance with law.
Hence, all the contentions raised by the present petitioners
may be considered as good defence at the time of trial, but
by relying on such contentions, more particularly, regarding
the present petitioner Nos.2 and 3 are residing at Bhavnagar,
this is not helpful at this stage to the present petitioners, as
there are certain averments in the complaint, which indicates
that the present petitioner Nos.2 and 3 are residing at
Ahmedabad and against that, the present petitioner Nos.2
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and 3 are claiming that they are residing at Bhavnagar. This
factum is required to be tested and established at the time
of trial. Therefore, considering this aspect also, this is not a
fit case where the Court should exercise the powers under
Article 226/227 of the Constitution of India or under Section
528 of the Bharatiya Nagarik Suraksha Sanhita 2023 for
quashing of the complaint filed under the provisions of
Domestic Violence Act.
7.4 At this stage, it would be fruitful to refer to
the recent decision of the Hon'ble Apex Court in the
case of Somjeet Mallick versus State of Jharkhand and
others reported in (2024) 10 SCC 527, more particularly
Paras : 15, 17and 18 thereof, which read as under :
" 15. Before we proceed to test the
correctness of the impugned order, we must
bear in mind that at the stage of deciding
whether a criminal proceeding or FIR, as the
case may be, is to be quashed at the
threshold or not, the allegations in the FIR
or the police report or the complaint,
including the materials collected during
investigation or inquiry, as the case may be,
are to be taken at their face value so as to
determine whether a prima facie case for
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investigation or proceeding against the
accused, as the case may be, is made out.
The correctness of the allegations is not to
be tested at this stage.
17. It is trite law that FIR is not an
encyclopaedia of all imputations. Therefore, to
test whether an FIR discloses commission of
a cognizable offence what is to be looked at
is not any omission in the accusations but
the gravamen of the accusations contained
therein to find out whether, prima facie,
some cognizable offence has been committed
or not. At this stage, the Court is not
required to ascertain as to which specific
offence has been committed.
18. It is only after investigation, at the
time of framing charge, when materials
collected during investigation are before the
Court, the Court has to draw an opinion as
to for commission of which offence the
accused should be tried. Prior to that, if
satisfied, the Court may even discharge the
accused. Thus, when the FIR alleges a
dishonest conduct on the part of the accused
which, if supported by materials, would
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disclose commission of a cognizable offence,
investigation should not be thwarted by
quashing the FIR."
7.5 Furthermore, in the judgment of the Hon'ble Apex
Court in the case of Neeharika Infrastructure Pvt. Ltd.
versus State of Maharashtra and Others reported in
2021 SCC OnLine SC 315, and more particularly para
80 is relevant, which is as under:
"80. In view of the above and for the reasons stated
above, our final conclusions on the principal/core
issue, whether the High Court would be justified in
passing an interim order of stay of investigation and/
or "no coercive steps to be adopted", during the
pendency of the quashing petition under Section 482
Cr.P.C and/or under Article 226 of the Constitution of
India and in what circumstances and whether the
High Court would be justified in passing the order of
not to arrest the accused or "no coercive steps to be
adopted" during the investigation or till the final
report/chargesheet is filed under Section 173 Cr.P.C.,
while dismissing/disposing of/not entertaining/not
quashing the criminal proceedings/complaint/FIR in
exercise of powers under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India, our
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final conclusions are as under:
i) Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate
into a cognizable offence;
ii) Courts would not thwart any investigation into the
cognizable offences;
iii) It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first
information report that the Court will not permit an
investigation to go on;
iv) The power of quashing should be exercised
sparingly with circumspection, as it has been
observed, in the 'rarest of rare cases (not to be
confused with the formation in the context of death
penalty).
v) While examining an FIR/complaint, quashing of
which is sought, the court cannot embark upon an
enquiry as to the reliability or genuineness or
otherwise of the allegations made in the
FIR/complaint;
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vi) Criminal proceedings ought not to be scuttled at
the initial stage;
vii) Quashing of a complaint/FIR should be an
exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping
the jurisdiction of the police, since the two organs of
the State operate in two specific spheres of activities
and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) Save in exceptional cases where non-interference
would result in miscarriage of justice, the Court and
the judicial process should not interfere at the stage
of investigation of offences;
xi) Extraordinary and inherent powers of the Court
do not confer an arbitrary jurisdiction on the Court
to act according to its whims or caprice;
xii) The first information report is not an
encyclopaedia which must disclose all facts and
details relating to the offence reported. Therefore,
when the investigation by the police is in progress,
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the court should not go into the merits of the
allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature to
pronounce the conclusion based on hazy facts that the
complaint/FIR does not deserve to be investigated or
that it amounts to abuse of process of law. After
investigation, if the investigating officer finds that
there is no substance in the application made by the
complainant, the investigating officer may file an
appropriate report/summary before the learned
Magistrate which may be considered by the learned
Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very
wide, but conferment of wide power requires the
court to be more cautious. It casts an onerous and
more diligent duty on the court;
xiv) However, at the same time, the court, if it
thinks fit, regard being had to the parameters of
quashing and the self-restraint imposed by law, more
particularly the parameters laid down by this Court
in the cases of R.P. Kapur (supra) and Bhajan Lal
(supra), has the jurisdiction to quash the
FIR/complaint;
xv) When a prayer for quashing the FIR is made by
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the alleged accused and the court when it exercises
the power under Section 482 Cr.P.C., only has to
consider whether the allegations in the FIR disclose
commission of a cognizable offence or not. The court
is not required to consider on merits whether or not
the merits of the allegations make out a cognizable
offence and the court has to permit the investigating
agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable
and/or the aforesaid aspects are required to be
considered by the High Court while passing an
interim order in a quashing petition in exercise of
powers under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India. However, an interim
order of stay of investigation during the pendency of
the quashing petition can be passed with
circumspection. Such an interim order should not
require to be passed routinely, casually and/or
mechanically. Normally, when the investigation is in
progress and the facts are hazy and the entire
evidence/material is not before the High Court, the
High Court should restrain itself from passing the
interim order of not to arrest or "no coercive steps to
be adopted" and the accused should be relegated to
apply for anticipatory bail under Section 438 Cr.P.C.
before the competent court. The High Court shall not
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and as such is not justified in passing the order of
not to arrest and/or "no coercive steps" either during
the investigation or till the investigation is completed
and/or till the final report/chargesheet is filed under
Section 173 Cr.P.C., while dismissing/disposing of the
quashing petition under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India. xvii)
Even in a case where the High Court is prima facie
of the opinion that an exceptional case is made out
for grant of interim stay of further investigation,
after considering the broad parameters while
exercising the powers under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution of India
referred to hereinabove, the High Court has to give
brief reasons why such an interim order is warranted
and/or is required to be passed so that it can
demonstrate the application of mind by the Court and
the higher forum can consider what was weighed
with the High Court while passing such an interim
order.
xviii) Whenever an interim order is passed by the
High Court of "no coercive steps to be adopted"
within the aforesaid parameters, the High Court must
clarify what does it mean by "no coercive steps to be
adopted" as the term "no coercive steps to be
adopted" can be said to be too vague and/or broad
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which can be misunderstood and/or misapplied."
7.6 In light of the overall facts and circumstances of the
case and in view of the above decision, this Court is not
inclined to exercise its discretion in favour of the present
petitioner Nos.2 and 3 as the present petition is found merit-
less and is required to be dismissed.
8. Accordingly, the present petition is dismissed.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
