Whether Reporters Of Local Papers … vs State Of Gujarat & on 28 August, 2017

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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