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2024 DIGILAW 1656 (GUJ)

Alkaben Merabhai Gelot (Mali) v. State Of Gujarat

2024-08-05

GITA GOPI

body2024
ORDER : GITA GOPI, J. 1. RULE returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent – State and learned Advocate Mr. Dipen Chowdhary waives service of notice of Rule on behalf of the respondents No.2 to 11. 2. By way of this application, the applicant – victim has made a prayer for cancellation of anticipatory bail granted to the respondents No.2 to 11 on 21.03.2024 by the learned 3rd Additional Sessions Judge, Banaskantha-Deodar in Criminal Miscellaneous No.72 of 2024 qua the First Information Report (FIR) registered on 13.02.2024 as C.R. No.11195050240083 with Tharad Police Station, Banaskantha for the offences punishable under Sections 365, 366, 342, 343, 354(A), 323, 506(2) and 114 of the Indian Penal Code (IPC). 3. Learned Advocate for the applicant Mr. V.C. Vaghela submitted that the learned Sessions Judge has failed to consider the gravity of the offence and arbitrarily and without any application of mind has granted anticipatory bail on the grounds that the sections invoked in the FIR does not provide for life imprisonment and death sentence and the maximum sentence which can be imposed is 10 years. It is further that this consideration cannot be basis for granting anticipatory bail where the facts of the case suggest that custodial interrogation would be necessary. The applicant-victim and her husband were continuously tortured and harassed by the accused and there is danger to the life and liberty of the applicant. It is also submitted that the applicant has given the details of the tortures and physical harassment meted at the hands of the accused individually. 4. Learned Advocate Mr. V.C. Vaghela submitted that the applicant’s husband – Pintu Raychandji Mali had filed a Special Criminal Application No.8217 of 2023 before the Co-ordinate Bench of this Court, praying the Court to issue direction to the respondent No.2, i.e. Police Inspector, Tharad Police Station to produce Alkaben, his wife before the Court. 4. Learned Advocate Mr. V.C. Vaghela submitted that the applicant’s husband – Pintu Raychandji Mali had filed a Special Criminal Application No.8217 of 2023 before the Co-ordinate Bench of this Court, praying the Court to issue direction to the respondent No.2, i.e. Police Inspector, Tharad Police Station to produce Alkaben, his wife before the Court. In support of his case, Pintu Mali had submitted that he had married the Corpus on 05.05.2023 at Jahu Mata Mandir, Near Court, Patan, Taluka, District Patan and thereafter, they had stayed together at different places; and they went to Jaipur early morning on 06.05.2023 purchased certain articles, check out from the Hotel at Jaipur on 08.05.2023 and they came to Patan as they decided to surrender themselves before the Police Station, under whose jurisdiction they had married. 5. It was also stated before the Co-ordinate Bench that after recording of the statement, both went to Radhanpur and they stayed together till 25.05.023 by taking on rent a room owned by one Chinukaka, near APMC Market Yard, Radhanpur. It was further claimed that during their stay at Radhanpur, the family members of present applicant threatened the couple with dire consequences and therefore, the applicant gave an application on 17.05.2023 to Tharad Police Station. Pintu Raychandji Mali gave an application to the Superintendent of Police, Banaskantha at Palanpur as also the PSI, Deodar Police Station. It was the case of Pintu Mali that on 24.06.2023, when he and the applicant herein visited Deodar for some social work, the in-laws quarreled with Pintu Mali and abducted the applicant herein. It was further submitted that though Pintu Mali tried to rescue his wife, he was thrashed and his in-laws went away with the applicant. It was further submitted that the in-laws took away one of the mobile phones of the applicant, as she was having two mobiles. With another mobile, Pintu Mali would talk with his wife and it is submitted that the applicant was beaten, given fist blows, beaten with a belt and she was compelled to get a divorce from Pintu Mali. It was further submitted that the applicant herein was illegally confined. 6. With another mobile, Pintu Mali would talk with his wife and it is submitted that the applicant was beaten, given fist blows, beaten with a belt and she was compelled to get a divorce from Pintu Mali. It was further submitted that the applicant herein was illegally confined. 6. In the proceedings of Special Criminal Application No.8217 of 2023, an Affidavit dated 17.07.2023 was produced on record on behalf of the respondents therein stating that Pintu Mali had already married one Kankuben and thus, it was shown to the Coordinate Bench about the veracity of claim of marriage with the applicant herein. After considering the facts and on enquiry by the Co-ordinate Bench, it was found that there was no abduction of the corpus (applicant) and there was no question of her illegal confinement. It was also found that Pintu Mali was not stating the true and correct facts. It was claimed that applications were made by Pintu Mali before the Superintendent of Police, Banaskantha at Palanpur as also the PSI, Deodar Police Station. On enquiry, it was found that the applicant left on her own volition on 24.06.2023 and she went to her parental home since Pintu Mali was harassing her and was staying with her parents. 7. After this order, the matter traveled upto the Hon’ble Apex Court and in pursuance of the order dated 25.08.2023 of the Hon’ble Apex Court, the learned Principal Judge of the learned Family Court at Palanpur, District Banaskantha recorded the Statement of Alkaben on 29.07.2023 in the presence of the Advocate of the Legal Aid Panel Committee. The two statements which had been recorded have been found to be relevant. The Hon’ble Apex Court has reflected the same in the order dated 11.09.2023 in Special Leave to Appeal (Criminal) No.10211 of 2023. It was noted that the applicant herein was held by her parents, contrary to her wishes and that she wants to reside with P.R. Mali. 8. Learned Advocate Mr. Dipen Chaudhary for the respondents No.2 to 11 submitted that the complaint has been given against 22 persons because of the political rivalry as the accused are the representatives of the community members. The grandmother of Pintu Mali – Gitaben Parkhaji Mali and the wife of accused No.8 – Mafaji Vaktaji Mali – Shardaben Mafaji Mali had contested an election, in which Shardaben had succeeded and hence, the enmity continued. The grandmother of Pintu Mali – Gitaben Parkhaji Mali and the wife of accused No.8 – Mafaji Vaktaji Mali – Shardaben Mafaji Mali had contested an election, in which Shardaben had succeeded and hence, the enmity continued. Thereafter, Parkhaji Keshaji Mali – grandfather of Pintu Mali, Premabhai Mali – brother of Mafaji Vaktaji Mali succeeded in the elections. It is alleged that Parkhaji Keshaji Mali misusing the power of law, raised wrong vouchers and took money, which came to the knowledge and therefore, on behalf of the village, Narsinhji Kalaji Mali who is shown as accused No.17 gave a complaint against the said Parkhaji Keshaji Mali with the Town Development Officer on 20.01.2024 which is still pending. It is therefore, urged that the present application may not be entertained. 9. Learned Additional Public Prosecutor has referred to the role of the individual persons which has been noted in the Report and submitted that the application may be allowed. 10. Heard the submissions canvassed and perused the records of the case. The Hon’ble Apex Court had passed the order in the SLP (Crl.) No.10211 of 2023 and Paragraph 3 is quoted herein below :- “3. Hence, we pass the following order : (i) Issue notice to the respondents. Liberty to serve the Standing Counsel for the State of Gujarat, in addition. Notice to the third, fourth, fifth and sixth respondents shall be served through the SHO of the police station concerned; (ii) We direct the Superintendent of Police of District Banaskantha in the State of Gujarat to take immediate steps to ensure that Ms Alkaben Merajibhai Mali is released from the custody of her parents and is escorted, if she so wishes, to reside with the petitioner; (iii) In the event that Ms Alkaben Merajibhai Mali seeks to reside with the petitioner, the Superintendent of Police of District Banaskantha shall ensure that adequate police protection is given to both the petitioner and Ms Alkaben Merajibhai Mali, pending further orders of this Court; and (iv) Pending further order, there shall be a stay of the operation of the impugned judgment and order dated 10 August 2023 of the Division Bench of the High Court of Gujarat in Special Criminal Application No.8217 of 2023.” 11. The FIR was registered on 13.02.2024 against 22 persons. The FIR was registered on 13.02.2024 against 22 persons. The applicant (victim) has given a complaint which details that on 24.06.2023, the applicant was taken to the house of the accused No.1 – Hiraji Venaji Mali, where she was detained for two days and was threatened and beaten. She has further stated that Shantibhai Bhikhabhai Mali and accused No.5 – Bharatbhai Premaji Mali, Court Clerk both had contacted a Notary Advocate and both of them took her in a Bolero Car, forcibly asked her to put her signature on the Divorce Deed. After her signature on the Divorce Deed was taken, the victim was brought back to the house of accused No.1 – Hiraji Venaji Mali and thereafter, the accused No.2 – Ramji Ravtaji Mali and accused No.3 – Udabhai Hiraji Mali both had beaten her and she was locked in a room for four days. Thereafter, she was taken to Rajasthan at the house of accused No.6 – Thanaji Talaji Mali, where she was confined again. The victim has further stated that the accused No.19 – Shantibhai Bhikhaji Mavaji Mali told her to consider accused No.6 – Thanaji Talaji Mali as her husband and if she failed to do so, she would be killed. The victim has also stated that the accused No.1, 2, 3, 4, 18, 19 and 20 told her to reside with the accused No.6 – Thanaji Talaji Mali as if a marriage had occurred with him and was her true husband and thereafter, the accused No.6 tried to forcibly establish relations with her. The victim was then again brought to Tharad and after giving threats, without allowing her to read, her signatures were obtained on some documents. After 10 days, she was taken to Deodar Police Station where the accused No.1, 2, 3, 4, 5, 8, 15, 18 and 21 threatened her, she was taken to the house of accused No.9, where she was tortured and threatened with her life. It is alleged that thereafter, the accused No.7, 8, 10, 11, 12, 13, 14, 15, 17 and 21 abducted the complainant and was taken to an undisclosed location at Palanpur and was forced to marry accused No.16 – Hiteshbhai Ashokji Mali and was kept in a room with the accused No.16 who tried to force himself on her and also molested her. The above accused again threatened the complainant. The above accused again threatened the complainant. It is alleged that the accused No.2, 3, 4, 5, 15, 18 and 20 again forcibly took the victim and these accused alongwith the accused No.2, 3, 15, 18, 22 to a canal where they tried to throw her in the canal and again she was taken to the house of accused No.2 and confined there. In this manner, the victim was abducted, kept at different places at various points of time, was administered threats and was forcibly married tried to marry her. 12. The victim has further stated that after three days, her husband P.R. Mali had filed a complaint before the High Court. On getting the information about the the complaint, she was brought back to Tharad, she was taken to Deodar Police Station where the police had enquired only about the primary details, the number of siblings etc. 13. As per the facts, Mali Mafabhai Vagtaji Vadiya, Mali Kanabhai Bhudarji Vadiya, Mali Maknabhai Gajaji Lunawa – Court Clerk, Shantibhai – Jamadar of Deodar Police, Mali Karshanbhai Behraji Valia, Mali Maknabhai Gajaji Lunawa all threatened the victim. Against her will, the statement was recorded and she was asked to put her signature by Jamadar of Deodar Police Station alongwith three persons, she was not allowed to read the statement but was forced to sign the same and thereafter, she was taken to the house of Ramjibhai Ravtaji and for three days, she was locked and tortured. 14. The statement of the victim was recorded in compliance of the order of the Hon’ble Apex Court by the learned Principal Judge, Family Court, Palanpur dated 29.08.2023 in the presence of the Legal Aid Panel Advocate. Two of the statements of the applicant have been recorded in the order of the Hon’ble Apex Court. The victim has also given the details about the physical torture and harassment by the other co-accused. The Report today produced by the police shows the individual role of all the ten accused in the present matter. 15. The learned Sessions Judge was required to deal with the complaint of the victim. The victim has given the details of fraud, physical harassment with mental torture and according to her, she was tried to be forcibly married at some other place and according to her, her marriage was scheduled to take place on 27/28/29th August. 15. The learned Sessions Judge was required to deal with the complaint of the victim. The victim has given the details of fraud, physical harassment with mental torture and according to her, she was tried to be forcibly married at some other place and according to her, her marriage was scheduled to take place on 27/28/29th August. The police should have enquired about the facts alleged by the complainant. The learned Sessions Judge was required to take note of the facts that in compliance of the order of the Hon’ble Apex Court, the statement was recorded on 29.08.2023 by the learned Principal Judge, Family Court, Palanpur in the presence of the panel Advocate of the Legal Aid Committee. The anticipatory bail granted by the learned Sessions Judge is not based on the case urged in the FIR. 16. The political rivalry complaint before the District Development Officer is dated 20.01.2024, while the Hon’ble Apex Court had directed the statement of the victim girl to be recorded by an order dated 25.08.2023, which was actually recorded by the learned Principal Judge, Family Court on 29.08.2023 thus the subsequent complaint of the District Development Officer would have no bearing on the present proceedings. 17. In view of the reasons given hereinabove, since the learned Sessions Judge has not given reasons for deciding the anticipatory bail, and the allegations against the accused has been reflected through the orders which also gets reflected by the statement recorded of the applicant, under the instructions of the Hon’ble Apex Court, this Court finds that further investigation is necessary. The complainant herein states of illegal detention at various places, forcibly getting the documents executed before the Notary and also of some of the accused forcibly trying to establish physical relations and also the act of threatening the complainant by taking her near the Narmada Canal. In addition, there is some facts of photographs in the complaint. 18. In view of the above, the order dated 21.03.2024 passed by the learned 3rd Additional Sessions Judge, Banaskantha-Deodar in Criminal Miscellaneous No.72 of 2024 is quashed and set aside. The anticipatory bail granted stands cancelled. 19. The application stands allowed in the aforesaid terms. Rule made absolute. Direct Service is permitted. 20. At this stage, after passing of the present order, learned Advocate Mr. The anticipatory bail granted stands cancelled. 19. The application stands allowed in the aforesaid terms. Rule made absolute. Direct Service is permitted. 20. At this stage, after passing of the present order, learned Advocate Mr. Dipen Chowdhary for the respondents No.2 to 11 makes a prayer for staying of the execution of the order for a period of four (4) weeks. 21. The accused proposes to challenge the present order before the Hon’ble Apex Court, thus the execution of the present order is stayed for a period of FOUR (4) WEEKS.