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…

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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,
ADVOCATE for the Applicant(s) No. 1 – 6
MR SATYAM Y CHHAYA, ADVOCATE for the Respondent(s) No. 2
MR. RAKESH PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1

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,

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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.

4. Brief facts of the case of impugned FIR, which was lodged

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on 25.04.2015, 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

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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

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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.

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

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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.

11. I have heard learned advocates appearing for the

parties. The following facts are undisputed that the

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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.

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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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(A.J.DESAI, J.)
PALLAVI

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