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2019 DIGILAW 602 (GUJ)

Anas Farukbhai Andhi v. State of Gujarat

2019-06-20

A.S.SUPEHIA

body2019
JUDGMENT : A.S. SUPEHIA, J. 1. The present application has been filed seeking quashing of the F.I.R. registered at Dahod Mahila Police Station, District Dahod, being C.R.No.II-103 of 2014 for the offence punishable under Sections 498-A, 504, 506(2) and 114 of the Indian Penal Code, 1860 ('the IPC' for short) and under Sections 3 and 7 of the Prevention of Domestic Violence Act, 2005 ('the D.V. Act' for short) 2. At the outset, learned advocate Mr.Umarfaruk Kharadi has submitted that the impugned F.I.R. was lodged with deliberate delay and with oblique motive and the same is required to be quashed and set aside. He has submitted that the impugned F.I.R. came to be lodged complaining the demand of dowry after the pronouncement of Talaq (divorce). He has also submitted that the respondent no.2-complainant has also filed the proceedings under the D.V.Act and application for maintenance as provided under Section 125 of the Code of Criminal Procedure Code, 1973 (for short “the Cr.P.C.”) before the court of Judicial Magistrate First Class, Dahod. He has further submitted that the impugned F.I.R. is nothing but abuse of the process of law. It is further submitted that as per the say of the complainant, she was divorced on 01.11.2014 in column No.6 of the F.I.R. her name is mentioned and she is wife of the applicant no.1. Thus, he has submitted that the impugned F.I.R. is required to be quashed and set aside. 3. Learned advocate Mr.Kharadi for the applicants has submitted that as per the F.I.R., the incident happened at Dahod. He has submitted that no such alleged incident as mentioned in the impugned F.I.R. has occurred since the F.I.R. was sent through Registered Post A.D. from Godhra to Dahod, which was received by the father of the respondent no.2 on 03.11.2014. He has further submitted that looking to the conduct of the complainant, no incident has been lacking in the domestic violence application filed under the D.V. Act though the same was allegedly happened in the year 2014. He has further placed reliance on the order passed in Criminal Misc. Application No.427 of 2014 filed by the complainant before the Additional Chief Judicial Magistrate First Class, Dahod wherein the present complainant has specifically stated that the complaint is filed for claiming the maintenance only. He has further placed reliance on the order passed in Criminal Misc. Application No.427 of 2014 filed by the complainant before the Additional Chief Judicial Magistrate First Class, Dahod wherein the present complainant has specifically stated that the complaint is filed for claiming the maintenance only. He has submitted that as per the said order, no cruelty is proved against the present applicants and hence, the impugned F.I.R. is required to be quashed and set aside. 4. Learned advocate Mr.Vijay Nangesh appearing for the respondent no.2-complainant has submitted that within short span of marriage, the present applicants committed cruelty on the complainant since she was suffering from illness and instead of medically treating her, she was divorced. He has submitted that the impugned F.I.R. specifically reveals the roles of the present applicants and at this stage, when the investigation is not yet completed, the impugned F.I.R. may not be quashed and set aside. 5. Learned APP Mr.Hardik Soni has submitted that at this stage no interference may be required since the investigation is not proceeded and charge-sheet is not yet filed. He has submitted that the Investigating Officers have recorded statements of some of the witnesses, who have supported the case of the complainant. It is submitted that the applicant nos.1 to 4 were residing with the complainant, whereas the applicant nos.5 and 6 were residing adjacent to the matrimonial home of the complainant. It is further submitted by learned APP Mr.Soni that the statements of the witnesses, which were recorded by the Investigating Officer, reveal that the incident had occurred and the same support the say of the complainant that she was subjected to cruelty by the present applicants. He has further submitted that the investigation uptill now reveals that the complainant was harassed for demanding of dowry and she was given Talak (divorce) in view of her illness and because of her illness, the applicants time and again verbally abused the complainant and hence, in view of the judgment of the Supreme Court in case of Dineshbhai Chandubhai Patel V/s. State of Gujarat, reported in (2018) 3 SCC 104 , at this stage, the impugned F.I.R. may not be quashed and set aside. 6. I have heard the learned advocates appearing for the respective parties. I have also perused the papers of the investigation, which is undertaken till today. 7. 6. I have heard the learned advocates appearing for the respective parties. I have also perused the papers of the investigation, which is undertaken till today. 7. It is not in dispute that the charge-sheet is yet to be filed. The contents of the F.I.R. reveal that the complainant has specifically alleged that the impugned F.I.R. has been lodged on 01.12.2014 for the offence punishable under Sections 498-A, 504, 506(2) and 114 of the Indian Penal Code, 1860 and under Sections 3 and 7 of the D.V. Act. The marriage of the applicant no.1 was solemnized with the complainant on 02.05.2014 and within short span of 7 months, it is alleged by the respondent no.2-complainant that the applicants were used to harass her because of her illness. A specific statement has been made by her that she was well treated only for one month by the husband and after six months, the applicants used to demand dowry of Rs.20,00,000/- and also gave her mental as well as physical harassment. It is further alleged that she was being driven out by the present applicants and the roles of the applicants are also specifically mentioned therein. It is specifically mentioned by her that on 01.11.2014 all the accused visited at her father's place and started abusing her father and demanded the files of her illness as well as had thrown chit of giving her Talak. 8. This Court has perused the statements of the witnesses, which are uptill now recorded by the Investigating Officer. Prima facie the same reveal complicity of the accused as well as support the allegations made by the complainant in the impugned F.I.R. At this stage, it would be apposite to refer to the observations made by the Apex Court in the case of Dineshbhai Chandubhai Patel (supra), which read as under: “(25). Having heard the learned counsel for the parties at length and on perusal of the record of the case, we are inclined to accept the submissions of the learned counsel appearing for the Complainants finding force therein whereas we do not find any merit in the submissions urged by the learned counsel appearing for the accused persons. Having heard the learned counsel for the parties at length and on perusal of the record of the case, we are inclined to accept the submissions of the learned counsel appearing for the Complainants finding force therein whereas we do not find any merit in the submissions urged by the learned counsel appearing for the accused persons. (26) The law on the question as to when a registration of the FIR is challenged seeking its quashing by the accused under Article 226 of the Constitution or Section 482 of the Code and what are the powers of the High Court and how the High Court should deal with such question is fairly well settled. (27) This Court in State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors. ( AIR 1982 SC 949 ) had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking 14 for Three Judge Bench laid down the following principle: “Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence. The condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.” 28…….. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.” 28…….. (29) In doing so, the High Court, in our view, virtually decided all the issues arising out of the case like an investigating authority or/and appellate authority decides, by little realizing that it was exercising its inherent jurisdiction under Section 482 of the Code at this stage. (30) The High Court, in our view, failed to see the extent of its jurisdiction, which it possess to exercise while examining the legality of any First Information Report complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof. (31)At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the 17 Complainants and visaseversa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.” 9. In the considered opinion of this Court, at this stage, as per the law enunciated by the Apex Court, this Court cannot act as an investigating authority or the appellate authority and appreciate the evidence nor could draw its own inferences from the contents of the F.I.R. and the material. 10. In the light of the foregoing reasons and analysis of the contents of the F.I.R., this Court is of the considered opinion that no interference is required by this Court by exercising its inherent power under Section 482 of the Code of Criminal Procedure, 1973. 11. Resultantly, the writ application fails and the same is hereby rejected. 10. In the light of the foregoing reasons and analysis of the contents of the F.I.R., this Court is of the considered opinion that no interference is required by this Court by exercising its inherent power under Section 482 of the Code of Criminal Procedure, 1973. 11. Resultantly, the writ application fails and the same is hereby rejected. Rule is discharged. Interim relief, if any, granted earlier shall stand vacated. FURTHER ORDER After the judgment was dictated, learned advocate Mr.Umarfaruk Kharadi for the applicants has requested for extension of the interim relief, the same is objected to by the learned Additional Public Prosecutor by placing reliance on the judgment of the Apex Court rendered in the case of State of Telangana Vs. Habib Abdullah Jeelani And Ors., reported in AIR 2017 SC 373 and has submitted that if a petition has been dismissed under Section 482 of the Cr.P.C., further direction to the investigating agency not to arrest the accused person(s) would amount to an order under Section 438 of the Cr.P.C., albeit without satisfaction of the conditions of the said provisions and the same is legally unacceptable. Thus, as per the law enunciated by the Apex Court in the case of Jabib Habib Abdullah Jeelani (supra) and in view of the aforesaid objection raised by the learned Additional Public Prosecutor, the request is made on behalf of the learned advocate for the applicants is not acceded to. The prayer is, accordingly, hereby declined.