Guj. HC: 498A/DP/Adultery FIR Quash against Husband & Entire Family Members

Gujarat High Court
Prataprai Chhaganlal Joshi & 5 vs State Of Gujarat & on 6 September, 2017
R/CR.MA/17092/2015 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET
ASIDE FIR/ORDER) NO. 17092 of 2015

[On note for speaking to minutes of order dated 11/08/2017
in R/CR.MA/17092/2015 ]

With
CRIMINAL MISC.APPLICATION NO. 19359 of 2017
In
CRIMINAL MISC.APPLICATION NO. 17092 of 2015
=============================================
PRATAPRAI CHHAGANLAL JOSHI & 5….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
=============================================
Appearance:
MR. HARDIK J JANI, ADVOCATE for the Applicant(s) No. 1 – 6
MR SATYAM Y CHHAYA, ADVOCATE for the Respondent(s) No. 2
MR RAKESH PATEL, APP for the Respondent(s) No. 1
=============================================

CORAM: HONOURABLE MR.JUSTICE A.J.DESAI

Date : 06/09/2017

ORAL ORDER
1. Speaking to Minutes is allowed.

2. In Para No. – 15 of the order dated 11.08.2017, Criminal Misc. Application No. 4351 of 2017 mentioned stands corrected and to be read as “Criminal Misc. Application No. 19359 of 2017”.

3. Remaining part of the order stands as it is. Office is directed to issue a fresh writ of the order accordingly.

4. Speaking to Minutes stands disposed of accordingly. Direct Service is permitted.

(A.J.DESAI, J.) *Kazi…

 

R/CR.MA/17092/2015
ORDER

 

 

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 17092 of 2015 With CRIMINAL MISC.APPLICATION NO. 19359 of 2017 In CRIMINAL MISC.APPLICATION NO. 17092 of 2015 ================================================================
PRATAPRAI CHHAGANLAL JOSHI & 5….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
================================================================
Appearance:

MR. ANSHIN DESHAI, SENIOR ADVOCATE WITH MR. HARDIK J JANI, M
R SATYAM Y CHHAYA, ADVOCATE for the Respondent(s) No. 2
MR. RAKESH PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
================================================================
CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 11/08/2017 COMMON ORAL ORDER

1. By way of Criminal Misc. Application No.17092 of 2015 under Article 482 of the Code of Criminal Procedure, 1973, the applicants who are close in-laws of the respondent-complainant including grand father of the husband of the complainant have requested to quashed and set-aside the FIR bearing registration No. C.R. No.I- 110 of 2015 registered with Sector 7 Police Station, Gandhinagar for the offence punishable under Sections 498A, 323, 506(2), 497, 114 and 120B of the Indian Penal Code read with Sections 3 and 7 of the Dowry Prohibition Act.

2. The Co-ordinate bench (Coram: Honourable Mr. Justice J.B. Pardiwala) passed oral order dated 14.09.2015. which reads as under :

“Rule returnable after Diwali holidays. Mr. Pandya, learned APP waives service of notice of rule for and on behalf of the respondent No.1. Since the respondent No.2 is in Australia, the applicants shall serve the notice of rule through Registered Speed Post. In the meantime, let there be ad-interim order in terms of para 12(c).”
3. During the pendency of the present application, the applicants No.4 and 5, who are brother-in-law and wife of the brother-in-law, have filed an application being Criminal Misc. Application No.19359 of 2017 and has prayed for direction to the Police Authorities to issue Police clearance Certificate as they have applied for immigrant visa before National Visa Center, United States. In view of the above, the present application taken up for final hearing.

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4. Brief facts of the case of impugned FIR, which was lodged, are that it is alleged by the complainant that she entered into marriage with one Maulik Jayantkumar Joshi, (who is not applicant in the present petition) on 12.02.2011. It is alleged that after few days subsequent to marriage, her husband left for Australia, since, he was residing Australia prior to the date of his marriage. The complainant continued to stay with her grandfather-in-law, mother-in-law, brother-in-law and wife of the brother-in-law at her matrimonial place. During that period, it is alleged that demand of dowry were made by them and mental torture was given to her. It is also alleged that the applicant No.6, who is uncle of the complainant and resident of Rajkot used to visit her matrimonial home and had also demanded dowry.

5. It is also alleged that after about three months period of marriage, she left Australia on 17.05.2011 and started living with her husband at Melbourne City, Australia. It is also alleged that the articles given to her by her parents were not handed over to the present applicants. There were some dispute between husband and wife and therefore, she came back to India on 06.04.2015. She tried to live with her in-laws but they did not permit her to enter in the house and therefore, the present FIR is lodged on 25.04.2015. Hence, this petition.

6. Mr. Anshin H. Desai, learned Senior advocate with Mr. Hardik Jani for the applicants vehemently submitted that it is a case of an abuse of process of law by the complainant wherein allegations were made against aged parents of the husband and allegations have been made against the grandfather, who is aged about 87 years of old. He would submit that she had left for Australia to reside with her husband and within a period of three months from the date of marriage, she got the viza for Melbourne City, Australia. He would further submit that they resided only for three months and during that period she was also residing with her parents. He would further submit that divorce decree was filed by the husband in Australia on 04.09.2015. Upon coming to know about the petition, she returned and lodged an FIR against all the family members including husband on 25.04.2015 and left India on the next date i.e. on 26.04.2015. He further submitted that after 26.04.2015, she has never returned till today. He further submits that the Australian Court has passed divorce decree by order dated 01.11.2015, and the said documents are part of the materials produced alongwith the present application. He would further submit that the except allegations, there is no material available to establish the case alleged against the present applicants. He would submit that by relying upon the decision of Rajesh sharma and others versus State of Uttar Pradesh and Another passed in Criminal Appeal No.1265 of 2017, wherein the Hon’ble Supreme Court has held after considering reported decisions that number of false cases have been filed either under the dowry death or under the provisions of under Section 498A of Indian Penal Code.

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7. On similar facts, Mr. Desai, relied upon another decision in the case of Dipakbhai Ratilal Patel and Others versus State of Gujarat and Another reported in 2014 (3) GLH 788 and unreported decision dated 06.04.2017 in Criminal Misc. Application No.20679 of 2013, wherein these terms adopted by the wife and involved all the relatives and the crime is deprecated. He therefore, submits that the petition may be allowed and FIR qua petitioners may be quashed and set aside.

8. Learned advocate, Mr. Chaaya, appearing for the complainant has taken me through the FIR and would submit that prima-facie case has been made out against the petitioners. He would submit that there is no investigation carried out in the matter since, the stay was granted by the Court in the month of September, 2015. He would submit that the complainant is ill-treated by applicants when she was with them for a period of three months. He would submit that the allegations made against the present petitioners are serious in nature and hence at this stage the FIR cannot be quashed and set aside.

9. Mr. Chhaya, learned advocate would submit that the decree passed by the Australian Court is not binding since the marriage has taken place at India. It is also an undisputed fact that the decree of divorce has been passed by the Federal Circuit Court of Australia on 01.11.2015, by which the marriage is declared as terminated.

10. Learned Additional Public Prosecutor, Mr. Rakesh Patel, has also opposed this petition and submitted that the statement of the relatives have been recorded and they have supported the case of the prosecution.

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11. I have heard learned advocates appearing for the parties. The following facts are undisputed that the marriage took place on 12.02.2011. She left for Australia on 17.05.2011 i.e. within a period of three months after her marriage. It is also an undisputed fact that after lodgment of FIR on 25.04.2015, she left for Australia on 26.04.2015 i.e. on the next date immediately after lodgment of FIR in question.

12. From the above facts, it appears that she had resided with the present petitioner particularly Nos. 1 to 5 only for a period of three months i.e. in the year 2011. She stayed at Australia from 17.05.2011 till 2015 when she returned for the first time in April 2015, she was residing with her husband in Australia whereas the petitioners are residing in India. It is also an undisputed fact that after lodgment of an FIR dated 25.04.2015 making allegations against all the family members, she left on 26.04.2015 to Australia and never returned in India. The divorce decree has also been passed by Federal Circuit Court of Australia on 1.11.2015 about which the legality can be examined by the competent Court if some proceedings are filed by the complainant. Even otherwise, the applicants are not concerned with the said judgment.

 

13. I am of the opinion that in the present case, the intention of wife in filing the impugned complaint are doubtful and after filing the complaint, she returned to Australia and then never came back and visited India. The only intention of the wife to file criminal complaint against all the relatives is to harass them. The FIR is lodged in the month of April, whereas stay is granted by this Court in the month of April, whereas stay is granted by this Court in the month of September, and there is no material available to establish prima-facie case against the applicants. Hence, the present petition requires consideration and the same is allowed.

14. FIR bearing I C.R. No.110 of 2015 registered with Sector 7 Police Station, Gandhinagar is hereby quashed and set aside qua the applicants. Consequently, all other proceedings arising out of the aforesaid FIR are also quashed and set aside qua the applicants. Rule is made absolute to the above extent.

15. In view of quashment of FIR, Criminal Misc. Application No.4351 of 2017 does not survive and it is accordingly disposed of. Direct service is permitted.

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