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2023 DIGILAW 1036 (GUJ)

Vineetaben Balkrishna Agarwal v. State Of Gujarat

2023-09-01

SANDEEP N.BHATT

body2023
ORDER : 1. The present petition is filed for seeking following reliefs: “a. To admit and allow this petition. b. To quash and set aside Criminal Case No. 6338 of 2015 pending before Learned 6th Additional Civil Judge, Ahmedabad (Rural) arising out of F.I.R being I- CR No. 58 of 2015 registered with Vastrapur Police Station, Ahmedabad, filed by the respondent No. 2 and subsequent proceedings thereto, qua the petitioner, c. Pending admission, final hearing and disposal of this petition, to stay Criminal Case No. 6338 of 2015 pending before Learned 6th Additional Civil Judge. Ahmedabad (Rural) arising out of F.I.R being 1-CR No. 58 of 2015 registered with Vastrapur Police Station, Ahmedabad, filed by the respondent No. 2 and subsequent proceedings;” 2.1 Brief facts of the case as per the case of the petitioner in this petition are as such that the petitioner is filing this petition Article 227 of Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 to Criminal Case No. 6338 of 2015 pending before Learned 6th Additional Civil Judge, Ahmedabad (Rural) arising out of F.I.R being I-CR No. 58 of 2015 registered with Vastrapur Police Station, Ahmedabad, under section 494, 495, 406, 420, 498 (A), 323 and 114 of I.P.C and section 3 and 7 of Dowry Prohibition Act, and subsequent proceedings thereto, qua the petitioner. It is further the case of the petitioner in this petition are as such that earlier the petitioner has preferred an application being SC.R.A. No. 2489 of 2015 before this Hon'ble Court for quashing of the present F.I.R and by order dated: 13/07/2016 the same came to be withdrawn by the present petitioner. 2.2 It is further the case of the petitioner in this petition are as such that that the petitioner is the mother-in-law of the respondent No. 2 and after the trial was started the deposition of the respondent No. 2 is taken by the trial court and if the deposition of the respondent NO. 2 is perused then no case is made out against the present petitioner as alleged in the F.I.R. It is further submitted that there is a huge contradiction between the F.I.R and the testimony given by the respondent No. 2 and hence the prayer of the petitioner may be allowed in the interest of justice. 2 is perused then no case is made out against the present petitioner as alleged in the F.I.R. It is further submitted that there is a huge contradiction between the F.I.R and the testimony given by the respondent No. 2 and hence the prayer of the petitioner may be allowed in the interest of justice. 2.3 It is further the case of the petitioner in this petition are as such that if the deposition of the respondent NO. 2 is perused then it is not coming out that the petitioner was ever reside with the respondent No. 2 or given any mental or physical torture to the respondent No. 2 on the contrary it is coming out that the petitioner was residing at U.S.A after and before the marriage of the respondent No. 2 with the son of the petitioner and therefore the petitioner is wrongly and falsely implicated in the present case and therefore the prayer of the petitioner may be allowed in the interest of justice. Hence, this petition is preferred. 3. Heard learned advocate Mr. Jucky Lucky Chan for the petitioner and Mr. Chintan Dave, learned Additional Public Prosecutor (APP) for the respondent – State. 4.1 Learned advocate Mr. Jucky Lucky Chan for the petitioner has fairly submitted before arguing the matter that now, the trial is proceeded in the matter and recording of evidence is concluded. However, on insistence of the person, who is briefing on behalf of petitioner, he is making further submissions in the matter. 4.2 He has drawn the attention of this Court to the examination of the original complainant and has submitted that there is material contradiction between the F.I.R. and the evidence of the complainant, which is recorded before this Court. Therefore, he has submitted that though the earlier petition i.e. Special Criminal Application (Quashing) No.2489 of 2015 is withdrawn by the present petitioner vide order dated 13.7.2016, the present petition is filed in view of the change of circumstances. Therefore, he has submitted that prima facie, the case, which is narrated in the F.I.R., is with a view to harass the present petitioner and the ingredients as alleged in the impugned F.I.R. by way of offence in the impugned F.I.R. are not satisfied. Therefore, he has submitted that prima facie, the case, which is narrated in the F.I.R., is with a view to harass the present petitioner and the ingredients as alleged in the impugned F.I.R. by way of offence in the impugned F.I.R. are not satisfied. Therefore, he prays to quash the proceeding by considering the judgment of the Hon’ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604 . 5.1 Per contra, Mr. Chintan Dave, learned Additional Public Prosecutor (APP) for the respondent – State has strongly opposed the prayers made in the present petition and has submitted that there is no change in circumstances after the order dated 13.7.2016 by this Court in Special Criminal Application (Quashing) No.2489 of 2015, as the Court was not inclined to consider the prayers for quashing of the complaint, at that point of time, the petitioner has withdrawn the petition unconditionally. Though there is no bar but such repeated petitions without any substantial change in circumstances cannot be filed and entertained by this Court. 5.2 He has also submitted that the trial is already commenced and it is at the stage of recording of further statement of accused persons. He has also drawn my attention to the proceeding and acknowledgment dated 1.6.2021 of the receipt for the asylum, whereby the order passed by the learned 11th Addl. Sessions Court, Ahmedabad Rural, at Mirzapur, Ahmedabad in Criminal Misc. Application No.3936 of 2019 stipulates condition of the present petitioner, more particularly, the condition No.2 that “the applicant herein shall not utilize her passport for travelling abroad without the permission of the trial court”. 5.3 He has also submitted that it also transpires that the applicant has filed the application before the trail court in Criminal Case No.1683 of 2015 dated 2.6.2023 for cancellation of warrant, whereby the Court has passed the order on 21.6.2023 with a condition to present herself through the video conference before the Court concerned wherever her presence would be required. The Court has further observed that since the complainant has gone abroad without taking prior permission of the Court, it is open for the prosecution to take necessary action pursuant to the same. The Court has further observed that since the complainant has gone abroad without taking prior permission of the Court, it is open for the prosecution to take necessary action pursuant to the same. Therefore, he has submitted that considering the conduct of the petitioner and considering the fact that there is no change in the circumstances, once the Court has already expressed opinion that prima facie, case is made out and pursuant to that the proceedings for quashing of the F.I.R., that petition is already withdrawn unconditionally by the present petitioner, therefore, the present petition is nothing but an abuse of process of law. Therefore, he has submitted that no case is made out for quashing of the F.I.R. On the contrary, considering the conduct of the petitioner, the Court should pass appropriate order for imposing some exemplary cost on the learned advocate for the petitioner by referring to 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. Hence, he has prayed that this Court should not exercise the powers under Section 482 of the Criminal Procedure Code. 6. Learned advocate Mr. Anoop Trivedi for the respondent No.2 – complainant has supported the submissions made by the learned APP and has also submitted that the Court should exercise the powers very sparingly under Section 482, and when prima facie, case is made out in the present case, not only that now it is at the stage of recording of further statement, it is not appropriate to even consider the prayers made in the present petition by consuming the precious time of the Court. Therefore, he prays to dismiss this petition. 7.1 I have considered the rival submissions made at the bar. I have perused the materials available on record. Therefore, he prays to dismiss this petition. 7.1 I have considered the rival submissions made at the bar. I have perused the materials available on record. I have also considered the contentions raised by the learned advocate for the petitioner, which is mainly on the basis of the fact that the during the course of the deposition, the petitioner, in his deposition before the trial court, has made some contradictory statement in reference to allegations made in the F.I.R. Consequently, this petition has been filed with the intention of quashing the F.I.R. However, it is worth noting that the earlier petition has been unconditionally withdrawn, and the current trial has progressed to the stage of recording further statements. The petitioner's counsel has also fairly submitted that the petitioner is not currently in India and is residing abroad. These aspects require serious consideration, as the petitioner has applied before the Session Court, Mirzapur, Ahmedabad, through Cr.M.A. No.3936 of 2019. In this application, a condition has been imposed, notably Condition No. 2, which states that “the applicant herein shall not utilize her passport for travelling abroad without the permission of the trial court”, even that condition is imposed upon the petitioner. 7.2 Further, it is revealed from further order passed by the trial court pursuant to the application filed for cancellation of bail at Exh.118 on 21.6.2023, whereby the concerned trial court has taken note of this aspect by observing that “the separate proceeding or appropriate proceeding can be initiated pursuant to the said breach of condition”. Additionally, it should be noted that a previous petition for the quashing of proceedings, through Special Criminal Application No. 2489 of 2015, was unconditionally withdrawn by the petitioner by order dated 13.7.2016. 7.3 Furthermore, taking into account the contentions raised in the petition and the arguments made during the proceedings, it is evident that there are no compelling grounds to warrant the quashing of the complaint. Moreover, the trial has already been concluded and is nearing its conclusion, currently at the stage of recording further statements. In light of these circumstances, it would be inappropriate to entertain the requests made in the present petition. Moreover, the trial has already been concluded and is nearing its conclusion, currently at the stage of recording further statements. In light of these circumstances, it would be inappropriate to entertain the requests made in the present petition. 7.4 Furthermore, the conduct of the petitioner is also not appropriate and the petitioner herein has shown highhandedness, though the competent court has passed the order not to leave India by utilizing passport without prior permission of the Court, yet the petitioner has gone abroad. Considering this aspect, I am of the opinion that filing of this petition is nothing but an abuse of process of law by the petitioner. Therefore, no case is made out to exercise my powers under Section 482 of the Criminal Procedure Code. 7.5 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. 7.5 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 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 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; 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 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 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 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.” 7.6 In light of the above and considering the petitioner's conduct, as well as the fact that a previous petition was unconditionally withdrawn, the present petition lacks merit. It is therefore dismissed, and the petitioner is directed to pay an exemplary cost of Rs.50,000/- for the unwarranted use of the court's precious time with such frivolous litigation. This amount shall be deposited with the Gujarat High Court Legal Service Authority within two weeks from today, and receipt of the deposit shall be submitted to this Court's Registry. Failure to comply with this direction will result in further orders by this Court for non-compliance. 8. The present petition is dismissed with a cost of Rs.50,000/.