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2016 DIGILAW 1810 (GUJ)

MUKESH BABULAL DESAI (RABARI) v. STATE OF GUJARAT

2016-08-24

B.N.KARIA

body2016
JUDGMENT : 1 The present application is preferred by original accused Nos.1 &2 of C.R. No.II12/2012, registered with Harij Police Station, District: Patan, for the offences punishable under Sections 323, 504, 506(2) and 114 of Indian Penal Code read with Section 135 of the Bombay Police Act, seeking quashment of the said complaint under the provisions of Section 482 of the Code of Criminal Procedure, 1973 [“Cr.P.C for brevity]. 2. Learned advocate for the applicant Mr. Rashesh Parekh, has argued that wife of the applicant NO.1 namely Ashaben is staying with the applicant since 6.12.2011 i.e. from the date of marriage. That, the application under Section 97 of the Cr.P.C for issuing a search warrant of his wife was made by the applicant before the learned JMFC Court at Deodar vide Criminal. Misc. Application NO. 6/2012 on 7.1.2012, and the learned JMFC, Deodar, was pleased to issue a search warrant against the opponent i.e. present respondents. However, as both of them are influential persons, they could not remain present before the Court and the applicant was compelled to file Habeascorpus, being Special Criminal Application No. 256/2012. That, pursuant to a notice issued by the Court wife of the applicant, namely, Ashaben Desai was produced before the Court and she being major and upon being asked, it was clearly stated that she want to go and live with the applicant as her legally wedded wife. Learned advocate Mr. Parekh has further invited attention of this Court in respect of the marriage certificate solemnised with Ashaben at page No. 19 and 20 on 06.12.2011. It is further argued that the respondent No.1 wanted to marry with the wife of the applicant and falsely he has created another marriage certificate after marriage of the applicant on 6.12.2011. That, his wife namely Ashaben is staying with the applicant at Ahmedabad, false complaint is lodged by respondent No.2 against the present applicants just to involve them in criminal proceedings. Therefore, it was requested by him to quash and set aside the FIR being CR No.II12/2012, registered with Harij Police Station, District: Patan, against the present applicant and further proceedings in connection with the main FIR. 3. Learned APP Ms. Therefore, it was requested by him to quash and set aside the FIR being CR No.II12/2012, registered with Harij Police Station, District: Patan, against the present applicant and further proceedings in connection with the main FIR. 3. Learned APP Ms. Moxa Thakker, has argued that it is a dispute between husband and wife and as per the statement of the learned advocate for the applicant, the wife Ashaben is staying with the applicant at Ahmedabad and it is an interse dispute between husband and wife. The father of Ashaben is supporting the respondent No. 2. But, looking to the facts and circumstances of this case, necessary order, as may be deemed fit by the Court, may be passed. 4. Learned advocate Ms. Yogini Upadhyay for respondent No.2 has requested to produce a copy of the affidavit executed by Ashaben Desai wife of applicant No.1 Mukesh Babulal Desai (Rabari) executed on 6.12.2011 before the notary. Permission, as prayed for, is hereby granted. Learned advocate Ms. Yogini Upadhyay has submitted that Ashaben-wife of the applicant No.1 is staying with the applicant and she has also filed her affidavit supporting her contention. That, she was married to the applicant NO.1, as per the Hindu rites and customs on 6.12.2011, without any influence or coercion. She has further argued that considering the facts of the case, necessary order may be passed, as deemed fit, by the Court. 5. Having considered the facts of the case, submissions made by the learned advocates, documentary evidences produced on the record by the parties, it appears that the present applicants are arraigned as accused in Criminal complaint No.II12/2012 registered with Harij Police Station, District: Patan (“impugned FIR” for short) dated 29.1.2012 lodged by the respondent NO.2 herein. It appears that applicant NO.1 married Ms. Ashaben Desai(Rabari), daughter of Mooljibhai Desai on 6.12.2011. Copy of registration of marriage dated 10.12.2011 and copy of marriage certificate in respect of registration of marriage of applicant No.1 with Ashaben Desai are produced on record. After getting married with applicant No.1, his wife Ashaben Desai went to Bhuj and stayed there for certain days. After returning from Bhuj, again she went to her matrimonial place, as per the rites in the community. Thereafter, applicant No.1 did not receive any message from her side for some period, and therefore, in order to make an inquiry he visited the house of his in laws. After returning from Bhuj, again she went to her matrimonial place, as per the rites in the community. Thereafter, applicant No.1 did not receive any message from her side for some period, and therefore, in order to make an inquiry he visited the house of his in laws. At that time, he came to know that his wife was not in custody of her father. Therefore, Criminal Miscellaneous Application No. 6/2012 was filed before the learned Judicial Magistrate First Class at Deodar to ascertain the whereabouts of his wife Ashaben Desai. The learned JMFC, Deodar, by an order dated 7.1.2012, issued a search warrant for production of wife of the applicant No.1. However, as per the averments made in the application, police did not produce Ashaben Desai. Therefore, applicant No.1 approached the Police Inspector at Deodar about the physical abuse of his wife by respondent No.2 and others vide his information dated 23.1.2012. The police did not support the applicant by producing his wife before the learned JMFC at Deodar, and therefore, he preferred an application under Article 226 of the Constitution of India before this Court being Special Criminal Application No. 256/2012. On 31.1.2012, notice was issued to the respondent and respondent No.2 contested the application, wherein, an affidavit was filed by the father of Ashaben opposing the said application is produced on record. It reveals from the said affidavit that it runs counter to the contents of the impugned FIR. It is stated in the affidavit that respondent NO.2 and Ashaben Desai were not traceable, and therefore, they were not produced before the learned JMFC, First Class at Deodar. In the FIR dated 21.1.2012, it is stated that the present applicants have threatened respondent NO.2. There are two different statements made by respondent No.2 contrary to each other i.e. affidavit filed before this Court in connection with the application under Article 226 of the Constitution of India being Special Criminal Application No. 256/2012 and the impugned FIR. It appears that in the said Special Criminal Application the police did not produce the wife of applicant No.1, who was believed to be in custody of respondent No.2. And therefore, the applicant No.1 filed one criminal case against respondent No.2 and others including the Police Officers at Harij and Deodar Police Station. The complaint was investigated by D.S.P, Banaskantha. It appears that in the said Special Criminal Application the police did not produce the wife of applicant No.1, who was believed to be in custody of respondent No.2. And therefore, the applicant No.1 filed one criminal case against respondent No.2 and others including the Police Officers at Harij and Deodar Police Station. The complaint was investigated by D.S.P, Banaskantha. The said FIR was produced on record in Special Criminal Application preferred by applicant No.1 by way of an affidavit. Vide order dated 14.2.2012, this Court was pleased to allow the aforesaid application and ordered to hand over custody of Ashaben Desai to applicant No.1. In the impugned FIR lodged by respondent No.2, it is stated that on 29.1.2012, when he was seating at a bus stand looking for vehicle towards Harij, at about 3:00 p.m, both the applicants descended from a jeep coming from Chanasma with sticks in their hands and the applicant No.1, thereafter, threatened respondent No.2 saying that he is the lover of Ashaben with whom respondent No.2 was married a month before. Thereafter, both the applicants verbally abused respondent No.2, pulled out a knife and threatened him with dire consequences and also gave fist blows. It is further averred in the impugned FIR that Lagdheerbhai K Desai and Himmatbhai V Desai intervened on behalf of respondent No.2, and thereafter, both the applicants went away from there. It is in this context that Criminal Case No. II2/2012 was registered before Harij Police Station for the offences punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. It appears that in Special Criminal Application No. 256/2012, father of Ashaben Desai has stated on oath that the respondent No.2 and Ashaben had married on 25.12.2011 and they were not traceable, and therefore, his daughter Ashaben could not be produced before the learned Judicial Magistrate, First Class, Deodar. The statement made before this Court is contrary to the averments and allegations made in the impugned FIR, wherein, it is alleged that respondent No.2 was at Harij on 29.1.2012, because, as per the contention of father of Ashaben Desai, respondent No.2 and Ashaben were not traceable on 29.1.2012, and therefore, she could not be produced before the Court. The statement made before this Court is contrary to the averments and allegations made in the impugned FIR, wherein, it is alleged that respondent No.2 was at Harij on 29.1.2012, because, as per the contention of father of Ashaben Desai, respondent No.2 and Ashaben were not traceable on 29.1.2012, and therefore, she could not be produced before the Court. As per the certificate issued by Marriage Registrar, Ahmedabad Municipal Corporation, applicant No.1 was married with Ashaben Desai residing at Bechraji on 6.12.2011 at Shahpur. Another marriage certificate is also produced, wherein, it is stated that respondent No.2 got married with Ashaben-daughter of Mooljibhai Desai on 25.12.2011. Prima facie, the certificate produced showing marriage of respondent No.2 with Ashaben Desai appears to be forged and got up, as the previous marriage certificate with applicant No.1 shows his marriage, was solemnized with Ashaben Desai-daughter of Mooljibhai Desai 6.12.2011 prior in time of the second certificate dated 13.1.2012. In Special Criminal Application No. 256/2012, Ashaben Desai was produced before the Court and she being major and upon being asked, she has clearly and categorically stated that she want to go and live with the applicant as his legally wedded wife. The same applicant Mukeshbhai Babulal Desai was the applicant in the aforesaid Special Criminal Miscellaneous Application No. 256/2012. Statement of Ashaben was recorded in presence of the parties and father of the Corpus. She was permitted to live with the applicant who was present in the Court and took the custody and care of the corpus. 6. In the case of K Karunakaran vs. State of Kerala, reported in 1997, Cri.LJ, 3618 (Kerala), the Apex Court has held and observed as under: “The exercise of power under Section 482 CrPC is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of CrPC. The inherent powers have been conferred, apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon it by law. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (I) to give effect to an order under CrPC,(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (I) to give effect to an order under CrPC,(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. (para 8) While exercising the powers under the Section 482 CrPC, the High Court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. In exercise of the powers the court would be justified in quashing any proceedings if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.” 7. For the foregoing reasons, the criminal complaint being C.R. No. II12/2012, registered with Harij Police Station, District: Patan, for the offences punishable under Sections 323, 504, 506(2) and 114 of Indian Penal Code read with Section 135 of the Bombay Police Act, falsely lodged against the petitioner herein by respondent No.2, is hereby quashed and set aside. Rule is made absolute, accordingly.