Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 340 (GUJ)

ANAMIKABEN RAMESHCHANDRA SHAH v. STATE OF GUJARAT

2019-04-09

A.P.THAKER

body2019
ORDER : 1. By this application under Section 482 of the Criminal Procedure Code, 1973, the applicants – original accused seek to invoke the inherent powers of this Court praying for quashing of the First Information Report being C.R.No.I- 54 of 2017 dated 04.11.2017 registered with Mahila Police Station (West), District: Ahmedabad for the offence punishable under Sections 120(B), 376, 406, 420 and 114 of the Indian Penal Code. 2. The case made out by the respondent No.2 – original complainant in the First Information Report may be summarized as under: 2.1 That her father was residing at Delhi and she had married with one Shrinath Banerjee in the year 1991 and out of their wedlock, they have one daughter namely Srushti and earlier husband was expired in the year 2008. That due to persuasion of her family members, the complainant agreed to re-marry and after searching matrimonial website, she came in contact with Shyam Rameshchandra Shah (original accused No.1) in the year 2009 and they got married in February 2010. That Shyam Rameshchandra Shah was working with NITCO Company and was also doing land brokerage business with his brother Janakbhai Shah (original accused No.2). It is alleged in the impugned FIR that she had brought around 40-50 tolas ornaments of gold, silver and diamond and her savings of Rs.13.77 lakhs at her in-laws and in March, 2010, she along with her husband opened a bank account and locker at Shrinandnagar, Vejalpur and, thereafter, left for Delhi and both shifted Delhi. It is alleged that the complainant had given her ornaments to her husband and on one day when the complainant was cleaning drawer, she found many loan documents and she came to know that the loan has been taken from Muthoot Finance and her ornaments were mortgaged. Upon inquiry, her husband stated that his brother was in sudden difficulty and he has mortgaged her ornaments and given money to his brother. It is further alleged that in the year 2011, the complainant came to stay at Ahmedabad with her husband and at that time, her husband was serving in Grafitti. It is also alleged that in the year 2011, the complainant found that some gold ingot and ornaments were not there and, therefore, quarrel took place between herself and her husband and she left the house and was staying at one guest house at Kalupur. It is also alleged that in the year 2011, the complainant found that some gold ingot and ornaments were not there and, therefore, quarrel took place between herself and her husband and she left the house and was staying at one guest house at Kalupur. It is further alleged that she informed her mother and upon her persuasion, she returned to her home and she had also informed police and on intervention of family members, a settlement took place at the police station and she withdrawn the complaint given to the police. 2.2 It is alleged that thereafter, she, her husband and her daughter have shifted to Bopal and her husband had told her that the flat was purchased by him and she had arranged for down payment of Rs.15.00 lakhs paid in installments. It is alleged that one day, the complainant came to know that the house at Bopal, where they were residing, was not owned by them but the said property was rented property and they were paying rent of Rs.8,000/- per month. It is further alleged that upon inquiry with her husband about Rs.15.00 lakhs, her husband told that along with his brother, he has invested the amount in land and her husband has made to understand her that her brother Adip, Naranbhai and Amit Vaghela were partners in the business of buying and selling of the land. 2.3 It is alleged that she had married in 2010 and during the year 2012, she was not conceiving pregnancy and, therefore, she was examined by the gynecologists and her mother-in-law has stated that she was not conceiving pregnancy through her husband and mother-in-law wanted a son, therefore, the complainant may develop physical relationship with Janak (accused No.2). According to the complainant, after hearing this, she was shocked and informed her husband but her husband told her that she has no objection with such relation and, therefore, a quarrel took place between them and the complainant demanded her ornaments and rupees and also demanded for divorce. 2.4 It is alleged that thereafter, after two days, Janak (accused No.2) has come to Bopal and at that time, her husband and daughter were not present. It is alleged that he told her that as she was not delivering a baby, they will deserted her and against her will, he made physical relation. 2.4 It is alleged that thereafter, after two days, Janak (accused No.2) has come to Bopal and at that time, her husband and daughter were not present. It is alleged that he told her that as she was not delivering a baby, they will deserted her and against her will, he made physical relation. It is alleged that as her mother was expired and having a young daughter to save her reputation, she was also tolerating physical harassment. The complainant has alleged that during this period, Janak has stated that complainant’s husband and Janak’s wife are also in relationship. 2.5 It is alleged that she came to know that there was quarrel and due to relation with her husband, they were shifted to Vankaner where her husband was serving at NITCO Company. The complainant has alleged that she came to know that her husband had borrowed money and quarrel was going on between them. According to the complainant, she came to know that debit card of her daughter was used and Rs.2.00 lakhs was withdrawn from ATM. It is alleged that in the year 2015, Srushti went to Bombay for further study and she had gone to Vankaner. That during this period, her ornaments were taken away from locker of State Bank of India, Shrinandnagar Branch and mortgaged with Muthoot Finance. That she came to know this fact in the year 2016 and she had informed all the family members of her intention to lodge the case and at that time, Janak requested not to do such thing as marriage of Janak’s daughter was fixed in February 2017 and he has taken the responsibility to release her ornaments which were mortgaged. She has alleged that on the next day, when she told her husband for taking gold ornaments from locker, her aunt (original accused No.5) had given the ornaments from her locker and the dispute took place between them. 2.6 It is further alleged that her husband was having two mobile numbers and on 16th August 2017, he left the house and two mobile numbers were in possession with Janak and he had tried to tamper the same and tried to delete the data. 2.6 It is further alleged that her husband was having two mobile numbers and on 16th August 2017, he left the house and two mobile numbers were in possession with Janak and he had tried to tamper the same and tried to delete the data. On 18.08.2017, at around 23.30 hours, she received message that somebody was trying to link Adhar Card with Bank and Janak asked for OTP and she gave the same to Janak and it was not informed to her that as to for what purpose OTP was demanded. It is further alleged that her ornaments, cash amount and stridhan have been taken away and her in-laws have no right to mortgage the ornaments and amount has been invested in various lands and, therefore, the applicants have committed breach of trust and offence as alleged in the complaint. 3. It is submitted by the applicants that there is no prima facie ingredient of the alleged offence and the FIR is nothing but an abuse of process of process of law and it has been filed to pressurize the applicants and as counter-blast to the janvajog entry filed by the Janak for missing of his brother i.e. husband of respondent No.2. It is further submitted that none of the ingredients of the alleged offences are prima facie made out. It is further submitted that the vague allegations have been made against the entire family of the applicants. It is alleged that the applicant No.2 is separately residing and even not resided with complainant or other applicants and she has been roped in only with an intention to pressurize the applicants. It is also submitted that the applicants No.3 and 4 are husband and wife and they have two children namely Maithily and Abhishek and their daughter has married and son is pursuing his study. It is also submitted that the allegation against applicant No.4 is baseless and applicants No.3 and 4 are residing at Jivrajpark, Ahmedabad. It is alleged that there is dispute between the husband and with a view to pressurize the applicants, the false complaint has been lodged against all of them. It is submitted that none of the applicants have taken any amount of stridhan of the complainant and stridhan is given to her husband, who is missing and for that purpose, Janak has also lodged janvajog entry. It is submitted that none of the applicants have taken any amount of stridhan of the complainant and stridhan is given to her husband, who is missing and for that purpose, Janak has also lodged janvajog entry. It is also submitted that respondent No.2 has converted the civil dispute into criminal proceedings, which is nothing but an abuse process of law. It is also submitted that on reading of the entire FIR, it is found that respondent No.2 has dispute with her husband. It is also submitted that so far as the offence under Section 376 of the Indian Penal Code is concerned, the same is alleged to have been committed in the year 2012, however, for the first time, such allegation has been made in the impugned FIR filed on 04.11.2017 i.e. after lodging of janvajog entry on 22.08.2017 by applicant No.4 and it clearly shows that only with a view to save herself and to see that she was harassed by the applicants, such false allegation has been made in the complaint. On all these grounds, it is prayed to quash and set aside the impugned FIR filed against them. 4. Heard Mr.Rasesh Parikh, learned advocate for the applicants and Ms.Moxa Thakker, learned Additional Public Prosecutor for respondent No.1 – State. Nobody has appeared on behalf of respondent No.2. Perused the material placed on record and material made available by the prosecution. 5. Mr.Rasesh Parikh, learned advocate for the applicants has submitted the same facts which are narrated in the memo of application and has prayed to allow the present application. He has relied upon the decision of this Court in the case of Manishbhai Parsotambhai Savsani Vs. State of Gujarat reported in 2015 JX (Guj.) 377. 6. Per contra, Ms.Moxa Thakker, learned Additional Public Prosecutor for respondent No.1 – State has submitted that there are statements of victim and her daughter and there was previous complaint filed by the complainant, which was settled between the parties. She has also submitted that the applicants were residing nearby. She has referred to the documents showing statement of the State Bank of India and mortgaged with Muthoot Finance and has submitted that the loan has been taken from Finance and her ornaments were mortgaged with the said finance. She has also submitted that the applicants were residing nearby. She has referred to the documents showing statement of the State Bank of India and mortgaged with Muthoot Finance and has submitted that the loan has been taken from Finance and her ornaments were mortgaged with the said finance. She has also referred to the medical evidence and has submitted that all the applicants have played active role in the alleged offence and the offence under Section 376 if the Indian Penal Code. She has, therefore, prayed to dismiss the application. 7. It is settled law that for considering the petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 8. The High Court, in the exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, is required to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the Penal Code. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 9. The complaint must be examined as a whole, without evaluating the merits of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code. 9. A court exercising its inherent jurisdiction must examine if on their face, the averments made in the complaint constitute the ingredients necessary for the offence. 10. Considering the facts and circumstances of the present case, it appears that the applicants herein are near relatives of the husband of respondent No.2. It also appears from the record that the dispute is essentially between respondent No.2 and her husband. It also appears from the FIR itself that the husband and wife were residing separately and lastly, the wife was residing at Vankaner. On reading the entire FIR as it is, it clearly transpires that whatever allegations are made, are against the husband. So far as the allegations against applicants No.1 to 3 are concerned, they are vague and general in nature. 11. It also appears from the record that the allegations of socalled incident of rape is also general in nature and it is stated that it had happened in the year 2012, whereas, the present complaint is filed in the year 2017. There is no satisfactory explanation nor there is any exact date and place of occurrence of the alleged offence under Section 376 of the Indian Penal Code. Not only that but it reveals from the FIR that the complainant has also alleged regarding illicit relationship between her husband and applicant No.3 herein, that too, without any specific allegation about date and place of occurrence. It also appears from the FIR that, earlier, the complainant has immediately moved before the police station at the relevant time and according to her version, there was settlement between the parties and she withdrew the application from the concerned police station. Thus, the complainant is well aware that if any criminal incident is occurred, she can approach the concerned police station. However, so far as the alleged offence of rape is concerned, she has kept quite for almost five years. On overall consideration of the entire FIR, it clearly appears that she has made vague and general allegations against the applicants. It appears that the FIR is nothing but misuse of process of law. However, so far as the alleged offence of rape is concerned, she has kept quite for almost five years. On overall consideration of the entire FIR, it clearly appears that she has made vague and general allegations against the applicants. It appears that the FIR is nothing but misuse of process of law. Therefore, in view of the above facts and circumstances of the case, the impugned FIR is required to be quashed and set aside so far as the present applicants are concerned. 12. For the foregoing reasons, the application is allowed. The impugned FIR being C.R.No.I- 54 of 2017 dated 04.11.2017 registered with Mahila Police Station (West), District: Ahmedabad for the offence punishable under Sections 120(B), 376, 406, 420 and 114 of the Indian Penal Code and consequential proceedings thereof qua the present applicants are hereby quashed and set aside. The complaint may be proceeded further for the rest of the accused.