Mariyam Saeedahmed Gulati vs State Of Gujarat
2025 Latest Caselaw 2137 Guj

Gujarat High Court

Mariyam Saeedahmed Gulati vs State Of Gujarat on 28 January, 2025

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                           R/CR.MA/25159/2024                                    ORDER DATED: 28/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/CRIMINAL MISC.APPLICATION (FOR DOMESTIC VIOLENCE) NO.
                                                 25159 of 2024

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                                            MARIYAM SAEEDAHMED GULATI & ORS.
                                                          Versus
                                                 STATE OF GUJARAT & ANR.
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                      Appearance:
                      MS. DIPA B ZALA(6937) for the Applicant(s) No. 1,2,3
                      MS. MAITHILI MEHTA, APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 28/01/2025
                                                              ORAL ORDER

1. The present application is filed for seeking the following

reliefs:

"A. Your lordships be pleased to Quash and set aside the Criminal Misc. Application No 1156 of 2024 Pending Before The Learned Judicial Magistrate Godhra At Godhra filed under section 12 of protection of woman from domestic violence act 2005 on 07.10.2024, in interest of Justice,.

B. Your lordships be pleased to by way of interim/ad interim relief stay further proceedings of the Criminal Misc. Application No 1156 of 2024 Pending Before The Learned Judicial Magistrate Godhra At Godhra filed under section 12 of protection of woman from domestic violence act 2005 on 07.10.2024 and not arrest to the present petitioners and not to proceed further without consent this Hon'ble to court till the final disposal present application in interest of

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justice.

C. Grant any other and further relief/s as may deem fit in the interest of justice."

2. Heard Ms. Dipa Zala, learned advocate for the3

applicants and Ms. Maithili Mehta, learned APP for the

respondent.

3. Ms. Dipa Zala, learned advocate for applicants has

submitted that entire family is roped in the complaint filed

under The Protection of Women From Domestic Violence Act,

2005 (for short "the Domestic Violence Act") on the basis of

general allegations. She has submitted that continuation of

the proceeding pursuant to the impugned complaint would

amount to abuse of process of law. She has further submitted

that on bare perusal of the complaint, no specific allegation

against the family members of the husband has been made

and even the allegations made in the complaint are general

in nature. It is required to note that the applicant Nos.1, 2

and 3 are mother-in-law, father-in-law and sister-in-law

respectively of the complainant. She has also submitted that

sister-in-law is residing separately on her matrimonial house

even also she is dragged into the alleged complaint and,

therefore, she has submitted that on bare reading of the

complaint, no offence is made out under any of the provisions

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of the Domestic Violence Act. In support of his submissions,

she has relied upon the decision in the case of Natubhai

Somabhai Rohit vs. State of Gujarat reported in 2017 (2)

Crimes (HC) 199, and (ii) Neelu Chopra and Anr. vs. Bharti

reported 2009 (10) SCC 184. Furthermore, she has submitted

that the present position may be entertained and proper

relief may be granted by this Court.

3. Learned APP has submitted that on bare reading of the

complaint, prime facie, case is made out under the provisions

of Domestic Violence Act and, therefore, no relief can be

granted at this stage. She has also submitted that

considering the fact that husband is B.E. Mechanical

Engineer and serving in Canada and the complainant is

cardio physiotherapist and the applicants are harassing the

complainant by demanding an amount of Rs.20,00,000/- and,

therefore, considering the same, allegations made in the

complaint by the complainant are required to be tested at

the time of trial as prima facie, case is made out and,

therefore, he plays to dismiss this petition.

4.1 I have considered the rival submissions made at the

bar. It is fruitful to refer the provisions of Sections 12, 18,

19(1)(f), 19(8), 20, and 22 of the Domestic Violence Act, as

under:

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"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 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

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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.

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 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;

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(g) committing any other act as specified in the protection order.

19(1)(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.

19(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.

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

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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 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.

22. Compensation orders:-

.In addition to other reliefs as may be granted under this Act, the Magistrate may on an application being made by

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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."

4.2 I have also gone through the complaint, more

particularly, allegations made in paragraph Nos.3 to 9

whereby it clearly transpires that there is persistent demand

of Rs.20,00,000/- by the present applicants from the

complainant so that the present applicants can go to Canada.

It also clearly stated in the complaint that accused Nos.2, 3

and 5 have given fist and kick blows to the complainant and

there is consistent mental as well as physical torture that

happened with complainant when the complainant was

staying with the present applicants and, therefore, the

provisions of Domestic Violence Act are attracted, moreover,

the conduct of the applicants also indicates that father of the

complainant has to give written apology by registered post ad

on 8 th July, 2024 to the present applicants and this speaks

about the volume of the harassment caused to the

complainant. Considering the allegations of the repeated

demand of the amount coupled with the physical as well as

mental torture and also considering the fact that father of

the complainant is compelled to give written apology and

pray to the applicants that they will allow the complainant

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to stay with them, this itself indicates that there is

substance in the complaint made by the complainant.

4.3 It cannot be said that there is no prime facie case

made out on bare reading of the complaint nor it can be

said that after considering the allegations made in the

compliant, continuation of the proceeding pursuant to the

impugned complaint will amount to abuse of process of law.

Hence, the matter is required to be tested at the time of

trial after giving opportunity to the parties to lead the

evidence and after examination and cross-examination of the

witnesses and, therefore, I found no reason to exercise my

powers.

4.4 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, 17 and 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

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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 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

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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 disclose commission of a cognizable offence, investigation should not be thwarted by quashing the FIR."

4.5 Further, 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

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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 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

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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;

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;

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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, 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

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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 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

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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 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

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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 which can be misunderstood and/or misapplied."

5. In view of above observations as well as facts and and

circumstances of the case and the stage of investigation, this

Court does not find any merit at this stage to quash the

impugned complaint. This petition, therefore, needs to be

dismissed and is dismissed accordingly.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA