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2023 DIGILAW 1120 (RAJ)

Mohammed Khalid v. State Of Rajasthan

2023-05-16

CHANDRA KUMAR SONGARA

body2023
ORDER : Chandra Kumar Songara, J. Matter has come up on misc. application No.2/2020 filed by learned counsel for the complainant/respondent No.2 under Section 482 of Cr.P.C. for vacating the stay order dated 22.04.2020 passed by the Co-ordinate Bench of this Court. 2. It is submitted by learned counsel for the complainant-respondent No.2 that vide order dated 22.04.2020, the Co- ordinate Bench of this Court had passed an interim stay in favour of the petitioner. It is further submitted that due to interim stay there has been no progress in the investigation and the complainant is facing great hardships. It is further submitted that looking to the facts & circumstances of the case, the interim stay order dated 22.04.2020 passed by the Co-ordinate Bench of this Court deserves to be vacated. 3. During the course of arguments, learned Public Prosecutor has produced copy of the factual report dated 03.05.2023 before this Court for perusal, which is taken on record and supported the contentions made by learned counsel for the complainant/respondent No.2. 4. Learned counsel for the accused-petitioner has strongly opposed the application filed by the learned counsel for the complainant and has submitted that neither demand of dowry has been made by the petitioner nor there is any specific entrustment as alleged in the FIR. It is further submitted that the complainant left her matrimonial home way back in the year 2016. It is further submitted that the petitioner has given divorce to the complainant on 26.08.2018 from Kuwait and the "Talaq" was sent to her on the same day. It is further submitted that SHO, Police Station Kotwali, Sikar has completed the enquiry and recorded the statements of the complainant and in her statements she has not levelled any allegation of demand of dowry or harassment against the petitioner. It is further submitted that after conducting a detailed enquiry, the Police submitted its report to the S.P. Sikar and in that report allegations of demand of dowry, harassment or throwing her out from the matrimonial home were found to be incorrect. It is further submitted that the complainant has lodged second report against the petitioner with the same allegations. During the course of arguments, learned counsel for the petitioner has placed reliance upon the judgment passed by the Apex Court in the case of Tarak Dash Mukharjee & Ors. v. Stte of Uttar Pradesh & Ors. It is further submitted that the complainant has lodged second report against the petitioner with the same allegations. During the course of arguments, learned counsel for the petitioner has placed reliance upon the judgment passed by the Apex Court in the case of Tarak Dash Mukharjee & Ors. v. Stte of Uttar Pradesh & Ors. reported in [2022 LiveLaw (SC) 731]. Therefore, looking to the facts and circumstances of the case, the application filed by learned counsel for the complainant/respondent No.2 for vacation of stay order dated 22.04.2020 may kindly be rejected. 5. Heard learned counsel and perused the material available on record as well as the judgment cited by learned counsel for the petitioner. 6. Co-ordinate Bench of this Court vide its order dated 22.04.2020 passed interim order, which reads as under:- "In the meanwhile, no coercive steps shall be taken against the petitioner." 7. In the case of M/s. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021 CRILJ 2419, Hon'ble Apex Court, on scope of exercise of powers under Section 482 of Cr.P.C., in Para 23 of (xii) & (xvi), has observed as under:- "(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; (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. 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/charge-sheet 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." 8. In the case of Siddharth Mukesh Bhandari v. The State of Gujarat and Another, reported in A.I.R. 2022 SC 3930, Hon'ble Apex Court, has observed as under:- "6. It appears from the impugned order passed by the High Court that the learned Single Judge has not properly appreciated and/or considered our earlier judgment and order passed in M/s. Neeharika Infrastructure Pvt. Ltd. (supra). Even the learned Single Judge has also not properly understood the ratio of the decision of this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra). It appears that the learned Single Judge seems to be of the opinion that after giving reasons, the High Court can grant an interim stay of further investigation in a petition seeking quashing of the criminal complaint filed under Article 226 of the Constitution read with Section 482 Cr.P.C. The High Court has not properly appreciated the principles and the law laid down by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra). What is emphasized by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra) is that grant of any stay of investigation and/or any interim relief while exercising powers under Section 482 Cr.P.C. would be only in the rarest of rare cases. This Court has also emphasized the right of the Investigating Officer to investigate the criminal proceedings. What is emphasized by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra) is that grant of any stay of investigation and/or any interim relief while exercising powers under Section 482 Cr.P.C. would be only in the rarest of rare cases. This Court has also emphasized the right of the Investigating Officer to investigate the criminal proceedings. In our earlier judgment and order, in fact, we abstracted the principles laid down by this Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra) in paragraph 4." 9. As per the factual report submitted by learned counsel for the State, no alleged offence has been found against the accused persons except Mohd. Khalid, against whom investigation is pending and as per the investigation conducted till date, it is found that the complainant was only harassed/aggrieved by her husband and instead of co-operating with the investigation, the petitioner went abroad and as per the information given by the complainant, Mohd. Khalid entered into second marriage. It is also mentioned therein that the complainant's husband Mohd. Khalid is residing abroad and investigation is yet to be done. 10. In view of the aforesaid judgment of the Apex Court as well as factual report, no ground for extension of interim stay is made out and the aforesaid application filed by the learned counsel for the complainant-respondent No.2 is allowed. The interim stay order dated 22.04.2020 passed by the Co-ordinate Bench of this Court is, hereby, vacated. 11. List after four weeks.