R/CR.MA/5060/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 5060 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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 ?
KAJI WASIMAKRAM M….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR HEMANT B RAVAL, ADVOCATE for the Applicant(s) No. 1
MR CHIRAG A. PRAJAPATI for MR VAIBHAV A VYAS, ADVOCATE for the
Respondent(s) No. 2
MR KL PANDYA, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 28/08/2017
CAV JUDGMENT
1. This application has been filed by the
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applicant/accused under Section 482 of the Code of
Criminal Procedure (for brevity “CrPC”) praying to
quash and set aside the complaint, being C.R.No. II-
3007 of 2013 registered with Karanj Police Station,
Ahmedabad for the offence punishable under
Sections 506(1), 509 of the Indian Penal Code.
2. Brief facts of the impugned complaint are that
on 10.09.2012, when the complainant was present
on his table at the court compound, one person
aged about 22 to 25 years had taken his
photograph in his mobile phone and therefore, the
complainant himself and other 2-3 colleague
advocates tried to catch him, however, he escaped
by running away. On the same day, earlier on point
of time, the complainant had received threat calls
on his mobile phone and asked not to take case of
Azizbhai and was also intimidated that if she will be
continued as an advocate of her client, she will be
put to trouble in no time. Thus, the complainant
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inquired from her client Azizuraheman Pirji that
whether he know any such person and provide any
information, if he had knowledge. Thereafter, as the
said incident was serious and was concerning her
safety and security, the complainant has lodged the
impugned complaint.
3. Heard learned advocate Mr. Hemant B. Raval
appearing on behalf of the applicant, learned
advocate Mr. Chirag A. Prajapati for Mr. Vaibhav A.
Vyas appearing on behalf of the respondent no.2
and learned APP Mr. KL Pandya appearing on behalf
of the respondent no.1.
4. Learned advocate Mr. Hemant B. Raval
appearing on behalf of the applicant has submitted
that the applicant is doing service in Vodaphone
Company at Sarkhej, Ahmedabad and marriage of
the applicant’s sister was solemnized with on Mr.
Ajizoorrehman Mohammadumar Pirji on 21.04.2012
and thereafter, her sister went to the house of her
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husband but, later on, the applicant realized that
her husband had some relation with one lady
advocate and because of that, the husband of her
sister was not behaving with her sister properly as
well as harassing her sister. Sister of the applicant
filed maintenance application, being Criminal Misc.
Application no. 259/2012 under Section 125 of the
Code of Criminal Procedure before the court of
learned JMFC, Viramgam. Not only that, the sister of
the complainant lodged complaint against her
husband and other relatives under Sections 498(A),
323, 504, 506(2) of the Indian Penal Code and
Section 3 and 7 of the Dowry Prohibition Act.
Moreover, sister of the applicant has also lodged
another complaint under the provisions of Domestic
Violence Act before the court of learned
Metropolitan Magistrate, Ahmedabad. That, earlier
complainant/respondent no.2 was pressurizing to
the sister of the present applicant and telling her to
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take back all the cases filed against her husband
and on 21.01.2013, the respondent no.2 has filed
false and fabricated complaint against the present
applicant with a view to harass him and his sister
Salmaben. Thereafter, police started investigation
and the applicant shocked when police reached at
the house of the applicant to arrest him. This is
nothing but subterfuge on the part of the
respondent no.2. This is a clear case of the counter
blast. The impugned complaint is the clear case of
the abuse of the law and malafide intention of the
respondent no.2. Even on the face value of the
allegation, no case is made out. In support of his
arguments, learned advocate Mr. Raval has placed
reliance upon the decision in the case of Madhavrao
Jiwajirao Scindia Anr. v. Sambhajirao Chandrojirao
Ahgre Ors.. Ultimately, it was requested by him to
quash the present complaint and allow this
application.
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5. Per contra, learned advocate Mr. Chirag A.
Prajapati for Mr. Vaibhav A. Vyas appearing on
behalf of the respondent no.2 has opposed the
submissions made by the learned advocate for the
applicant and submitted that after police inquiry, at
the instance of the police authorities, client of the
respondent no.2 had shown photographs of his
engagement ceremony, wherein one of the
photograph, respondent no.2 and her colleague
advocates could identify the person who had taken
photograph and client of the respondent no.2, he
stated the name of that person as Vasim Mohmmad
Kaji -applicant and respondent no.2 apprehended
that he would misuse his photograph hence, she
lodged the impugned complaint. Though,
commission of cognizable offence was disclosed, no
FIR was registered by the policy at the relevant
point of time and therefore, complainant gave
written application to the Commissioner of Police on
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08.01.2013 as well as orally made request to the
policy authorities to register complaint and
ultimately, on 21.01.2013, FIR came to be
registered by police authority. That, applicant is
resident of Viramgam and one Salmaben Kaji who
has filed the case against client of the respondent
no.2 namely Azizuraheman Pirji and it is clear that
the applicant has taken photograph of the
respondent no.2 for malafide intention. As per
knowledge and information of the respondent no.2,
the Investigating Officer has recorded the
statements of various witnesses, which clearly
discloses the fact that respondent no.2 was
intimidated on mobile phone and his photograph
was taken by the applicant. Hence, a conspiracy is
hatched by the applicant in connivance with
Salmaben, who has raised matrimonial dispute with
her husband ie., client of the respondent no.2. That,
inherent powers vested with this Court under
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Section 482 CrPC may not be exercised in favour of
the applicant. Ultimately, it was requested by him to
dismiss this application.
6. Learned APP Mr. KL Pandya appearing on behalf
of the respondent no.1-State has supported the
arguments advanced by learned advocate for the
respondent no.2 and has submitted that the
applicant has appropriate remedy at an appropriate
stage, if aggrieved after investigation and therefore,
since the applicant is left with other remedy at
appropriate stage, this is not the stage where the
Court may hamper process of investigation, and
therefore, ultimately urged not to interfere with the
present proceedings and to dismiss the same.
7. Heard learned advocates appearing on behalf
of the respective parties.
8. Having considered the facts of the case,
submissions made by learned advocates for the
respective parties, evidence on record as well as
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averments made by the respondent no.2 in her
complaint, it appears that the same complaint was
registered under Section 506(1) and 509 of the
Indian Penal Code, therefore, first of all let we
examine whether any of the ingredients has been
invited in both the provisions are applicable in the
present facts of the case. Section 506 IPC provides
for committing the offence of criminal intimidation
and such an act, if made by any person, shall be
punished with imprisonment of either description for
a term, which may extend to two years, or with fine,
or with both. Section 509 provides to insult to the
modesty of women or uttering any word or making
any sound or gesture or exhibiting any object with
an intention that such word or sound shall be heard,
or that such gesture or object shall be seen, by such
woman or intrusion upon the privacy of such
woman. The word ‘modesty’ has not been defined
anywhere in the Indian Penal Code nor in Section
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354 and 509 IPC. What the legislature had in mind
when it used the word modesty in Sections 354 and
509 IPC was protection of an attribute which is
peculiar to woman, as a virtue which attaches to a
female on account of her sex and she possesses it
irrespective of her age. No particular yardstick of
universal application can be made for measuring
the amplitude of modesty of woman, as may vary
from country to country or society to society. Mere
insult will not attract Section 509 IPC. For a
prosecution under Section 509 IPC, there must be a
definite allegation of insult to the modesty of
woman or intrusion into the privacy of woman.
Thus, the allegation must involve modesty of
woman or privacy of woman. Mere insult or false
allegation will not attract a prosecution under
Section 509 IPC.
9. Considering the aforesaid provisions of Indian
Penal Code, let we examine the averments made by
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the respondent no.2 in her complaint. In the
complaint, it is stated that on 10th September 2012,
when the complaint was working on her table,
somebody took photograph of the complainant in
his mobile phone. It is further stated that previously
also from the different phone numbers, she was
threatened by such person that the complainant
would not defend the case of her client
Ajizoorrehman Mohammadumar Pirji, otherwise dire
consequences would be faced by her. The
complainant tried to catch that person alongwith
her advocate friends. But, the person was escaped
from the place of offence. While making inquiry, it
was found that the applicant was the person, who
had taken photographs in his mobile phone, and
therefore, she informed to Karanj Police Station in
writing in the very same day. It is apprehended by
her that such photograph would be misused by that
person/accused, and therefore, this complaint was
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lodged. Now, the background of lodging the
complaint would also require to be considered by
this Court. It is alleged by the applicant that
marriage of the sister of the applicant was
solemnized with Mr. Ajizoorrehman
Mohammadumar Pirji on 21st April 2012. Thereafter,
his sister went at her husband’s house at
Ahmedabad. The sister of the applicant realized that
her husband had some relation with one advocate-
respondent no.2 and due to such type of relation of
brother-in-law of the applicant, her sister was not
treated properly and her husband started harassing
her as well as beaten on any point of time. It is
further averred by the applicant that her sister had
filed application for maintenance under Section 125
CrPC before the court of learned JMFC at Viramgam,
Dist: Ahmedabad as well as one complaint was
lodged against her husband and relatives before the
same court under Sections 498(A), 323, 504, 506(2)
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of the Indian Penal Code and Sections 3 and 7 of the
Dowry Prohibition Act. Copy of the application filed
by the sister of the present applicant under Section
125 CrPC, being Criminal Misc. Application No. 259
of 2012 has been produced at page no. 13 as well
as other complaint filed by her under Section 506(2)
of the Indian Penal Code against her husband and
complainant no.2 has been produced at page no.
31. It appears from the aforesaid complaint also
that sister of the present applicant has made
serious allegations against complainant/respondent
no.2. It also appears that sister of the applicant filed
complaint before the court of the learned
Metropolitan Magistrate, Ahmedabad under Section
9(B) and 37(2)(C) of the Domestic Violence Act and
copy thereof has been produced at Exhibit 15. As
per say of the applicant, respondent no.2 was
pressurizing the sister of the applicant to withdraw
the cases filed against her husband, and therefore,
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on 21st January 2013, respondent no.2 filed a false
and frivolous complaint against the present
applicant with a view to harass him, which was
registered with the Karanj Police Station being C.R.
No. II-3007 of 2013 for the offence punishable under
Sections 506(1), 509 of the Indian Penal Code. From
this averments and background of this complaint, it
appears that there is an old dispute with the
respondent no.2 and the present applicant, as sister
of the present applicant was married with one
Ajizoorrehman Mohammadumar Pirji. Sister of the
present applicant has made certain allegations
against the respondent no.2-complainant as well as
her husband. This Court is not concerned with the
aforesaid allegations made by the sister of the
present applicant in her complaint, but this aspect
cannot be ignored by this Court while considering
the facts of this case.
10. Averments made by the respondent no.2 in her
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complaint, there is complete absence of threatening
the respondent no.2/complainant by the present
applicant with an injury to reputation or property, in
whom, she is interested. It is nowhere averred in
the complaint that the present applicant had
threatened with an intention to cause alarm to the
complainant or to cause the complainant to do any
act which she is not legally bound to do as the
means of avoiding the execution of such threat or to
cause her to omit to do any act which she is legally
entitled to do as the means of avoiding the
execution of such threat. There is no definite
allegation of such insult to the modesty of the
complainant or intrusion her privacy. Merely, taking
a photograph by the present applicant in his mobile
found or apprehending by the complainant that the
photograph would be misused by the applicant
cannot take place any ingredients under Section
506(1) or 509 IPC. Further, at the time of alleged
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offence committed by the present applicant,
complainant has never identified the present
applicant nor by her colleagues. Later on, after
making some inquiry to her client and some
photographs of engagements were shown to her,
the present applicant was identified by her client.
From the record, it transpires that sister of the
present applicant was married with one Mr.
Ajizoorrehman Mohammadumar Pirji and was a
client of respondent no.2, against whom, serious
allegations were made by the sister of the present
applicant as well as the respondent no.2-
complainant. She has filed three different
complaints against her husband before different
authorities/Court, in which also, serious allegations
are made against her husband and present
complainant. Looking to the facts and
circumstances of this case, this Court is of the view
that the complaint is an abuse of process of law and
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with malafide intention. On face value of
allegations, the complaint does not make out any
offence, as there is no substance worth the name.
11. In case of Rashmi Kumar (Smt) v. Mahesh
Kumar Bhada reported in (1997) 2 SCC 397, it is
held by Apex Court that High Court would be loath
and circumspect to exercise its extraordinary power
under Section 482 CrPC. Court would have to
consider that whether exercise of power would
advance cause of justice or would tantamount to
abuse of process of Court. Social stability and order
require to be regulated by proceedings against
offender as it is offence against society as whole.
This cardinal principle should always be kept in
mind before embarking upon exercise of inherent
power vested in Court.
12. This court is of the opinion that it would be
unfair and/or contrary to continue criminal
proceedings and/or continuation of the criminal
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would cause abuse the process of law. To secure
the ends of justice, it would be appropriate to put to
end to the impugned criminal proceedings.
13. In view of the above, Criminal Misc. Application
is hereby allowed. Complaint, being C.R.No. II-3007
of 2013 registered with Karanj Police Station,
Ahmedabad is hereby quashed and set aside with
all consequential proceedings.
14. Rule nisi made absolute to the aforestated
extent. However, there shall be no order as to costs.
{B. N. Karia, J}
ksdarji
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