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Gujarat High Court · body

2019 DIGILAW 386 (GUJ)

Shirishbhai Chandbubhai Barot v. State Of Gujarat

2019-04-11

A.P.THAKER

body2019
ORDER : 1. RULE. Ms. Monali Bhatt, learned Additional Public Prosecutor waives service of notice of rule for respondent No.1 and Ms. Khyati Chuk, learned advocate waives service of notice of rule for respondent No.2. 2. With the consent of learned advocates for both the parties, the matter has been heard finally. 3. By filing this application under Section 482 of the Criminal Procedure Code, the applicants seek to quash and set aside the FIR being C.R.No.I-39 of 2017 registered with Vejalpur Police Station for the offences punishable under Sections 143, 452, 506(2) read with Section 114 of the Indian Penal Code. 4. Brief fact of the prosecution case is made out in the complaint is that on 10.02.2017, the applicants herein have entered into the premises where respondent No.2 – original complainant was staying with his wife and taken away their grandson with them after threatening them. 4.1 It is submitted by the applicants that applicant No.1’s daughter got married with son of respondent No.2 and out of such wedlock, they had a minor child namely Trijal, who is at present aged about four years. That since there was marital discord between the applicant No.1’s daughter and respondent No.2’s son, the daughter had filed proceedings against respondent No.2’s son. That subsequently, a settlement was arrived at between both the sides and pursuant thereto a quashing petition being Criminal Misc. Application No.3170 of 2017 came to be filed by son of respondent No.2 and the same was allowed by this Court vide order dated 06.02.2017 whereby the applicant No.1’s daughter was supposed to join the matrimonial house on 10.02.2017. That with the intervention of this Court, the applicants were hopeful of reunion between the applicant No.1’s daughter and her husband. It is further submitted that to the shock and surprise of the applicants herein, the applicants were ill-treated, insulted and threatened with dire consequences if the daughter of applicant No.1 would continue to live at in-laws’ place. It is also submitted that unable to bear such ill-treatment in spite of directions of this Court to join the matrimonial house, the applicant No.1’s daughter left the house with son Trijal and rest of the applicants left the premises. It is also submitted that unable to bear such ill-treatment in spite of directions of this Court to join the matrimonial house, the applicant No.1’s daughter left the house with son Trijal and rest of the applicants left the premises. It is further submitted that after the said incident, applicant No.1’s daughter was missing and, therefore, on the same day, applicants went to the concerned police station to have the complaint registered against respondent No.2 herein and other family members as well as to file a missing person’s about his daughter. It is submitted that since the daughter of applicant No.1 was not traceable in spite of various efforts, a janvajog entry came to be given to the Police Inspector, Kalol. 4.2 It is submitted by the applicants that no complaint was registered pursuant to the complaint given by the applicants on 10.02.2017. They approached higher authority by making various representations and even they filed application under the Right to Information Act seeking CCTV footage of the camera installed in Vejalpur Police Station sensing mala fide actions on the part of the police authority in not registering the complaint given by the applicants. It is also submitted that thereafter, the applicant No.1 filed petition being Special Criminal Application No.1939 of 2017 seeking direction to have the complaint dated 10.02.2017 registered and investigated. It is submitted that this Court had been pleased to direct the police authority to have the complaint dated 10.02.2017 registered as FIR and pursuant to the same, the complaint came to be registered on 25.03.2017. 4.3 It is submitted by the applicants that the allegations made in the impugned complaint even if they are taken on its face value and accepted in its entirety do not prima facie constitute any offence or make out any case against them. It is also submitted that the allegations are absurd and inherently improbable on the basis of which no prudent person can ever reach to a conclusion that there is sufficient ground to proceed against the accused. It is also submitted that the criminal complaint is nothing but creation of mind of legal experts to hook the applicants in a bogus and false criminal complaint dated 16.02.2017 in anticipation to cover up and counter the criminal complaint being filed by the applicants dated 10.02.2017. It is also submitted that the criminal complaint is nothing but creation of mind of legal experts to hook the applicants in a bogus and false criminal complaint dated 16.02.2017 in anticipation to cover up and counter the criminal complaint being filed by the applicants dated 10.02.2017. It is submitted that the alleged incident took place on 10.02.2017, whereas, the complaint came to be filed only on 16.02.2017 and there is clear unexplained delay of six days in filing the complaint. That it nothing but an afterthought and being created with the help of legal experts. 4.4 It is submitted by the applicants that no ingredient of Section 143 of the Indian Penal Code is made out. It is also submitted that pursuant to the direction of this Court, applicant No.1 and other relatives as panch had visited the place to drop applicant No.2 as per the settlement before the Court, where, respondent No.2 was residing and the purpose of such visit was to have the daughter of applicant No.1 safely drop at the place where respondent No.2 was residing and there was no question of unlawful assembly as settlement had arrived at between the parties. 4.5 Regarding Section 452 of the Indian Penal Code, it is submitted by the applicants that such offence of house trespass cannot be leveled against the applicants since the premises, whereof, the applicant had gone to drop the daughter, belonged to the applicant No.1 and applicant No.1 is owner of such premises and the same premises was given by applicant No.1 to the daughter of applicant No.,1 and son-in- law i.e. son of respondent No.2 in good faith to stay till they find a proper accommodation in Ahmedabad. According to them, therefore, there is no question of leveling the charge punishable under Section 452 of the Indian Penal Code. Regarding Section 506(1) of the Indian Penal Code is concerned, it is submitted that the same is not attracted at all. According to them, it was respondent No.2 and his family members who were the aggressors and the applicants and others had merely went to the premises where the respondent No.2 was staying only to drop the daughter safely home and to see her well-being. On all these grounds, it is prayed to quash and set aside the impugned FIR being C.R.No.I-39 of 2017 registered with Vejalpur Police Station for the alleged offence. 5. On all these grounds, it is prayed to quash and set aside the impugned FIR being C.R.No.I-39 of 2017 registered with Vejalpur Police Station for the alleged offence. 5. The respondent No.2 has filed affidavit-in-reply wherein he has denied all the allegations made by the applicants and stated that the applicant No.3 has tendency of filing complaints on minor disputes against respondent No.2 and his son. It is also stated that applicant No.3 with other co-accused have made wrong story and have treated respondent No.2 with great danger and shock and wanted to falsely implicate him. It is further stated that there was matrimonial discord between his son and his daughter-in-law and there were several other cases filed by his daughter-in-law including seeking custody of his grandson Trijal. It is further stated that as there was amicable settlement, the complaint came to be quashed and set aside by this Court. 5.1 It is stated in the affidavit-in-reply that on the date of incident, he along with his wife and his grandson were present in the house, at around 12.30 p.m. - 1.30. p.m., the applicants came to the residence of the respondent No.2 and in the house pushed him and his wife aside. It is further stated that by entering the house, they took his grandson away. It is stated that he had fallen down on the floor and before he could comprehend the situation and gather himself, they had already taken Trijal away. It is further stated that he tried calling up his son Jignesh, however, applicant no.7 snatched the phone from him and prevented him from either calling the police or his son. It is stated that his wife also lying on the floor and his grandson was being taken away right before his eyes by the present accused and, thereafter, he was able to call up his son and inform him about the incident. It is stated that his son is a doctor and he was at his clinic at that time, when the incident took place. That applicants No.4 and 5 informed his son that they were here to bring the situation in control and they wished to broker another settlement for which they took his son to the Family Court to affirm the new settlement. That applicants No.4 and 5 informed his son that they were here to bring the situation in control and they wished to broker another settlement for which they took his son to the Family Court to affirm the new settlement. It is further stated that since on that day, his daughter-in-law and his grandson are not traceable and, therefore, it has been reported to the police. It is stated that he has tried to find whereabouts of his daughter-in-law and his grandson, as it was their immediate concern at that point of time and having failed to locate either of them he approached the concerned police station. 5.2 It is stated in the affidavit-in-reply that from the modus operandi of the applicants, it is crystal clear that they did not bring his daughter-in-law to her matrimonial home on 10.02.2017 with the objective of resuming her conjugal life. But the applicants accompanied her with the sole intention of taking his grandson Trijal away. It is stated that mere presence of all the applicants speaks for itself and lays bare their intention. It is further stated that there were no clothes or any sort of baggage with his daughter-in-law when she arrived and they all had come in different cars and there was another car ready and in ignition mode, when they all entered in his house. According to him, it clearly indicates common prior intention and meeting of minds to take his grandson away before they purportedly came to drop his daughter-in-law. It is further stated that applicants No.1 and 2 deliberately pushed him and his wife and threw them on the floor so that they cannot come in the way to prevent them from taking his grandson away. According to him, the applicants knew that his grandson Trijal would not voluntarily go with his daughter-in-law and her parents. It is stated that the applicants were also aware of the fact that his grandson Trijal had, regarding claim of custody of his grandson filed by his daughter-in-law, stated before the learned Judge that he wished to stay with his father and not with his mother. It is further stated that later on, the matter was withdrawn by his daughter-in-law. 5.3 It is stated in the affidavit-in-reply that for this precise reason that immediately after taking the child, applicant No.1 reported before the police that his daughter-in-law nad her child are missing. It is further stated that later on, the matter was withdrawn by his daughter-in-law. 5.3 It is stated in the affidavit-in-reply that for this precise reason that immediately after taking the child, applicant No.1 reported before the police that his daughter-in-law nad her child are missing. It is stated that even as on today, he and his son are not aware of whereabouts of his daughter-in-law and his grandson. According to him, this entire facade is concocted with the sole intention to circumvent the order of the Court and to take illegal custody of his grandson Trijal. 5.4 It is stated in the affidavit-in-reply that when the incident took place, he was resting in his bed as he have acute inferior wall MI (heart attack) and he was hospitalized from 30.12.2016 to 03.01.2017 and thereafter, again he was hospitalized in Sterling Hospital on 01.02.2017 for corollary angiography and again he was hospitalized from 03.02.2017 to 06.02.2017 for angioplasty. It is further stated that he is running 79 years of age and cannot walk without help of walking stick. It is further stated that the applicants have canvassed false fact that he had tried to harm his grandson by holding him in the air with one hand, threatening to release him if applicants do not apologize. According to him, the FIR filed by the applicants against him and his wife and family is nothing but a counter-blast and an attempt to harass and humiliate them. On all these grounds, the complainant has prayed to dismiss the present application. 6. Heard Mr. Alak Pandya, learned advocate for the applicants, Ms. Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 – State and Ms. Khyati Chuk, learned advocate with Mr. Parth Bhatt, learned advocate for respondent No.2 at length. Perused the materials placed with the matter and police papers 7. Mr. Alak Pandya, learned advocate for the applicants has stated the same facts which are narrated in the application and has stated that no ingredients of the alleged offence are made out from the complaint itself. He has stated that there is delay of six days in lodging the complaint and in column No.8 of the FIR, no reason for delay has been mentioned. He has stated that there is delay of six days in lodging the complaint and in column No.8 of the FIR, no reason for delay has been mentioned. While referring to the document at page No.48, he has stated that it is in the name of the applicant No.1 and the premises has been given to the daughter and son-in-law for residence and, therefore, there is no question of any trespass in the said premises which is of the ownership of applicant No.1 himself. He has contended that there cannot be any trespass to enter into the house of legally wedded daughter. While referring to the order dated 06.02.2017 passed in Criminal Misc. Application No.3170 of 2017, he has contended that due to passing of the order in the said matter, the applicants have gone to the said premises to drop their daughter. He has contended that cross complaint was lodged by the applicants for the alleged incident regarding threat given by respondent No.2 and their family members, the police did not record the same till the order passed by this Court and it was recorded on 25.03.2017. It is contended by the learned advocate for the applicants that the complainant herein is strong headed person and has influence with the police. He has also contended that the applicants No.4 and 5 are the advocates and the complainant did not spare legal advisor. He has contended that there is no prima facie material to substantiate say of the complainant that the alleged offence has been committed by the present applicants. He has contended that the applicant No.1’s daughter is missing from the same day and, therefore, they have also filed janvajog entry for missing before the police and the police have yet not found her out. He has, therefore, prayed to quash the impugned FIR as the same is nothing but misuse of the process of law. 8. Per contra, Ms. Monali Bhatt, learned Additional Public Prosecutor for respondent No.1 – State has submitted that the investigation is still going on and there are eye witnesses, who have witnessed the occurrence of the event in the house of the complainant which supports the version of the complainant in the impugned complaint. She has prayed to dismiss the present application. 9. Ms. Khyati Chuk, learned advocate for learned counsel Mr. She has prayed to dismiss the present application. 9. Ms. Khyati Chuk, learned advocate for learned counsel Mr. Parth Bhatt for respondent No.2 has submitted that the dispute between the husband and wife was going on and initially, the wife has filed an application for custody of the child Trijal wherein the child has given statement before the Court below to the effect that he wants to go with his father and not to go with his mother. She has submitted that thereafter, the wife has withdrawn that application. She has also submitted that due to consent of the other side, the FIR lodged by the wife was quashed and it was amicably settled that on 10.12.2017 wife will go to her matrimonial home and live with her husband. She has further submitted that on the date of the incident, the present applicants have come in the house of the complainant and have taken away child Trijal and snatched away from the grandfather and, thereafter, applicant No.3 is missing since then. She has also submitted that at the time of incident, the complainant was bedridden and yet the present applicants have pushed him and his wife and they did not permit to call either to his son or to the police. She has submitted that both the advocates are accused and that applicants No.4 and 5 have taken active role in taking away the child Trijal. According to her submission, the entire incident has been pre-planned to get the custody of the child in any manner. She has submitted that for the alleged offence, the complaint has given on 11.02.2017, but the police has registered the same on 16.02.2017. 9.1 According to her, the premises wherein the complainant and his son are residing is rented premises and one Jignesh is tenant of the said premises and, therefore, applicant No.1 is landlord thereof. That, therefore, the illegal entry in such rented premises may be termed as trespass and it is an illegal trespass. She has contended that this is a case of conspiracy and since then, the grandson as well as daughter-in- law are missing and police is not even trying to find out them. She has submitted to direct the police to take necessary action to find out the daughter-in-law and grandson. She has, therefore, prayed to dismiss the present application. 10. In response, Mr. She has submitted to direct the police to take necessary action to find out the daughter-in-law and grandson. She has, therefore, prayed to dismiss the present application. 10. In response, Mr. Alak Pandya,, learned advocate for the applicants has stated that all the prior litigations have come to an end and are settled and, therefore, that facts cannot be taken into consideration. He has prayed to allow the present application. 11. 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. 12. 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. 13. 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. 14. 13. 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. 14. On perusal of the material placed in the present matter and the police paper, it appears that for the alleged incident of 10.02.2017, the complainant herein has immediately given the complaint/report to the police on 11.02.2017. However, it appears from the complaint that it has been registered on 16.02.2017. It also appears that while quashing the earlier complaint, this Court has passed an order on 06.02.2017 wherein it was agreed between the parties to the term that both husband and wife will stay together along with child at Ahmedabad from date 10.02.2017. It appears that in view of the settlement along with the wife, the present applicants have also accompanied her in the premises of the complainant. 15. On perusal of the material placed on record, it appears that the wife has filed the application for custody of the child wherein the child has shown his willingness to go with his father and not to go with his mother. It also reveals from the police report and the police papers that the version of the complainant is duly supported by the eye witnesses, who are neighbours of the same building. It reveals from the statements of such witnesses that all present applicants have quarreled with the complainant. It is pertinent to note that the complainant in his affidavit-in-reply has specifically contended the fact that there were no clothes or any sort of baggage with his daughter-in-law when she arrived and they all had come in different cars and there was another car ready and in ignition mode, when they all entered in his house. This fact has not been denied by the applicants by filing rejoinder affidavit. It appears from the material collected by the police that there is prima facie substance in the version of the complainant regarding commission of the alleged offence by the present applicants. Though, the applicants No.4 and 5 are the advocates, they have intentionally and deliberately gone with the present applicants in the house of the complainant and they were party to an action by the wife of snatching away the grandson of the applicants. Their presence has been corroborated from the statements of the witnesses who are neighbours. 16. Though, the applicants No.4 and 5 are the advocates, they have intentionally and deliberately gone with the present applicants in the house of the complainant and they were party to an action by the wife of snatching away the grandson of the applicants. Their presence has been corroborated from the statements of the witnesses who are neighbours. 16. Further, so far as the contention of the application that the house wherein the complainant and his son-in-law are residing is the ownership of the applicant No.1 and, therefore, there is no question of trespass of his own house is concerned, the same is devoid of merits, as the same has been given to his son-in-law. It is not the case of applicant No.1 that he is residing in the premises as an owner. Therefore, even if at the time of entry in the premises, it may not be illegal but by doing an act is illegal, which may be termed as trespass. 17. Therefore, considering the entire facts and circumstances of the case, this Court is of the opinion that this is not a fit case wherein inherent discretion under Section 482 of the Criminal Procedure Code could be exercised for quashing of the impugned FIR. The present application is devoid of merits. 18. For the foregoing reasons, the present application is dismissed. Rule is discharged. Interim relief, if any, stands vacated forthwith.