Second marriage,Section 482, S.498-A Quash

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 13562 of 2012

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of
the judgment ?

4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?

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KUNVERBEN BABALDAS PATEL & 2….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
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Appearance:
MR HARNISH V DARJI, ADVOCATE for the Applicant(s) No. 1 – 3
MR ABHAYKUMAR P SHAH, ADVOCATE for the Respondent(s) No. 2
MS RITA CHANDARANA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI

Date : 07/07/2016

ORAL JUDGMENT
JUDGMENT

1. This application is filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code’), wherein the applicants have prayed that the complaint being Miscellaneous Application No.531 of 2012 registered with 7th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat for the offences punishable under Sections 494, 504, 506(2) and 114 of Indian Penal Code and the process issued thereunder be quashed and set aside qua the applicants.

2. Heard learned advocate Mr.Harnish Darji for the applicants, learned APP Ms.Rita Chandarana for respondent no.1-State of Gujarat and learned advocate Mr.A.P.Shah for respondent no.2-original complainant.

3. Learned advocate Mr.Darji appearing for the applicants submitted that the applicant no.1 is mother-in-law, applicant nos.2 and 3 are brother-in-law and sister-in-law of the original complainant-present respondent no.2. It is submitted that complaint being Miscellaneous Application No.531 of 2012 came to be registered with learned Additional Chief Judicial Magistrate, Surat against the present applicants and others under Sections 494, 504, 506(2) and 114 of Indian Penal Code. The said complaint is filed on 13.6.2012 and learned Magistrate issued the summons on the said complaint on 3.7.2012. Learned advocate pointed out from the allegations made in the impugned complaint qua the present applicants that as per the said complaint, the original accused no.1-husband of the complainant got married to accused no.2 in the year 2005 and it is further alleged that the applicants were present on the event of the said marriage. It is further alleged in the impugned complaint that when the complainant came to know about the said marriage recently, she visited the house of the applicants and they used abusive language. Thus, it is alleged that the present applicants have abetted the accused no.1, and thereby committed the alleged offences.

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4. Learned advocate Mr.Darji thereafter submitted that from reading the complaint, ingredients of the alleged offences punishable under Sections 494, 504, 506(2) and 114 of Indian Penal Code are not made out and therefore the impugned complaint be quashed and set aside. It is further submitted that impugned complaint is nothing but a gross abuse of the process of the Court because though the alleged marriage with the accused no.2 has taken place in the year 2005, the complaint has been filed on 13.6.2012 and that too after the applicants and even the husband of the complainant-original accused no.1 came to be acquitted by the learned J.M.F.C.,Surat by order dated 1.5.2012. Thus, learned Magistrate had not believed the allegations made against the accused therein that they had committed the offences punishable under Sections 498A, 323, 506(2) and 114 of Indian Penal Code.

5. Learned advocate Mr.Darji further submitted that the present respondent no.2- original complainant has filed various proceedings against the present applicants only with a view to harass them though they are residing separately and therefore the impugned complaint be quashed and set aside qua the present applicants.

6. Learned advocate Mr.Shah appearing for the respondent no.2-original complainant has submitted that in the impugned complaint, specific allegations are levelled against the present applicants that they remained present when accused no.1 got married to accused no.2 in the year 2005. It is further submitted that there is specific allegation against the applicants that they used abusive language when the complainant visited their house and therefore when the ingredients of the alleged offences are made out, this Court may not quash and set aside the said complaint while exercising powers under Section 482 of the Code.

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7. Learned APP Ms.Chandarana has supported the submissions canvassed on behalf of learned advocate for respondent no.2.

8. I have considered the submissions canvassed on behalf of learned advocates appearing for the parties. I have also gone through the material produced on record. It is revealed that the respondent no.2-original complainant had filed FIR for the offences punishable under Sections 498A, 323, 506(2) and 114 of Indian Penal Code against her husband and her in-laws including the present applicants in the year 2006. The said case was tried by the learned Magistrate, Surat and if the order produced at page no.74 of the compilation is carefully seen, it is revealed that the learned Magistrate has observed that the applicant no.1- mother-in-law of the complainant was residing at her village separately and the present applicant no.2 and 3 i.e. the brother-in-law and sister-in- law were also residing separately, in spite of that, they have been falsely implicated in the said FIR with a view to pressurize her husband and therefore such allegations were not believed by the learned Magistrate. It is also observed by learned Magistrate that during the course of deposition, the complainant has stated that accused no.1-Mukesh got married to one Daksha and they are having a child aged about two years. Learned Magistrate, by an order dated 1.5.2012, acquitted all the accused including the present applicants for the offences punishable under Sections 498A, 323, 506(2) and 114 of Indian Penal Code. It is not pointed out by learned APP or learned advocate for respondent no.2-original complainant that any appeal is filed against the said order before any higher forum and thus, the said order has attained finality.

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9. It is pertinent to note at this stage that after the order of acquittal is passed by the learned Magistrate on 1.5.2012, the impugned complaint has been filed on 13.6.2012 i.e. within a period of less than two months. Even if the impugned complaint is carefully examined, the complainant has not at all stated on which date, she had visited the house of the applicants and how the applicants have used the abusive language. Thus, general allegations are levelled against the applicants in the impugned complaint. The complainant has not produced any material with a view to suggest that the applicants remained present when the accused no.1 got married with accused no.2 in the year 2005. Though complainant was aware about the fact that the accused no.1 got married with accused no.2 in the year 2005 and they are having a child aged about two years, till June, 2012, no complaint was filed with regard to the same and only after the order of acquittal is passed by learned Magistrate on 1.5.2012, the impugned complaint is filed. Even while reading the impugned complaint, the ingredients of the alleged offences are not made out.

10. In view of the aforesaid facts and circumstances of the present case, I am of the opinion that the complainant has abused the process of the Court and therefore in the interest of justice, I am inclined to exercise the powers vested under Section 482 of the Code.

11. In view of the aforesaid discussion, this application is allowed. The complaint being Miscellaneous Application No.531 of 2012 registered with 7th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat and the process issued thereunder are quashed and set aside qua the present applicants. Rule is made absolute.

(VIPUL M. PANCHOLI, J.) Srilatha

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