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Mali Moghiben W/O. Lalabhai … vs State Of Gujarat on 19 April, 2018

R/SCR.A/2408/2018 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CRIMINAL APPLICATION NO. 2408 of 2018

MALI MOGHIBEN W/O. LALABHAI VASHRAMBHAI
Versus
STATE OF GUJARAT

Appearance:
MR JIGAR G GADHAVI(5613) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2,3,6
NOTICE NOT RECD BACK(3) for the RESPONDENT(s) No. 4,5
MS MOXA THAKKAR, APP (2) for the RESPONDENT(s) No. 1

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 19/04/2018

ORAL ORDER

1. By this writ-application under Article 226 of the

Constitution of India, the writ-applicant has prayed for the

following reliefs:

“8(A) YOUR LORDSHIPS may be pleased to
issue a writ of mandamus or any other
appropriate writ, order or direction
directing the respondents no.2 and 3 to
take necessary and immediate steps with
regard to the complaint/ representation
made by the petitioner and on the basis of
the same to register the FIR against
respondent nos. 4 to 6 and further be
pleased to direct respondents no.2 and 3
to ensure just, fair, prompt and impartial

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R/SCR.A/2408/2018 ORDER

investigation with regard to the said FIR.

(B) YOUR LORDSHIPS may be pleased to
issue a writ of mandamus or any other
appropriate writ, order or direction
directing respondents no.3 to ensure just,
fair and impartial and prompt
investigation in connection with C.R.
No.I-17/2018 dated 11.03.2018 registered
with Bhabhar Police Station for the
offences under Sections 498(A), 323 and
114 of the Indian Penal Code and FIR being
C.R. No. II-16/2018 dated 04.03.2018
registered with Bhabhar Police Station for
the offences under Sections 294(b), 506(2)
and 114 of the Indian Penal Code to be
conducted by independent, impartial
investigating agency and/or by the police
officer not below the rank of District
Superintendent of Police.

(C) Pending admission, hearing and final
disposal of this petition, YOUR LORDSHIPS
may be pleased to direct respondents no.2
and 3 to submit the report as regards
steps taken and/or steps taken pursuant to
the complaint / representation made by the
petitioner dated 08.03.2018.

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R/SCR.A/2408/2018 ORDER

(D) YOUR LORDSHIPS may be pleased to
direct respondent no.2 to take strict
action against erring officers-
respondents no.4 to 6, and initiate

Departmental Inquiry against them.

(E) To pass such other further order as
deemed fit in the facts and circumstances
of the case.”

2. The case put up by the writ-applicant in her own words as

pleaded in her writ-application is as under:

“3.1 The present petitioner had got
married with one Lalabhai Vashrambhai Mali
and out of the said wedlock; they have got
two children namely Ajay and Milan. The
petitioner was being subjected to immense
physical and mental cruelty and she was
being harassed by her husband and in-laws
and she was being beaten. The petitioner
was barring aforesaid matrimonial atrocity
and physical as well as mental and
emotional cruelty only because she had got
two children to be taken care of and she
tried to continue with the marriage life
for 13 years. On 14.12.2017, the
petitioner was taken in a vehicle by her
husband and her in-laws having got her
thumb impression on the blank paper and

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R/SCR.A/2408/2018 ORDER

she was being dropped at her parental
home. She was told not to go back to her
husband. Further, to her misfortune, the
petitioner was found to be a burden even
by her brother and her mother and brother
also drove her out of her parental home
and she was being driven out by them only
with a view to ensure that she may not
claim any share in the ancestral property.

3.2 In this manner, the petitioner was
being driven out of her matrimonial home
as well as her parental home and she is
presently homeless. She is somehow trying
to lead her life by doing labour work and
she is trying to manage her life facing
severe trouble and taste of life. The
petitioner had approached the police
authority for registration of the FIR
against her husband and for taking
necessary steps in the case. However, from
December 2017 till recently, the FIR was
not being registered and she was being
insulted and subjected to physical, mental
and sexual harassment at the Bhabhar
Police Station at the hands of respondent
no.4. The copy of the complaint/
representation dated 26.02.2018 made by
the petitioner is marked and annexed as

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R/SCR.A/2408/2018 ORDER

ANNEXURE – A.

3.3 When the petitioner had approached
Bhabhar Police Station on 05.03.2018 at
11.00 a.m. and had explained her case, she
was told that the Police Sub Inspector was
not present and, therefore, the FIR was
not being registered. The petitioner was
asked to come again on 07.03.2018 at 11.00
a.m. The petitioner was being refused
again and, therefore, she went to the
office of the Deputy Superintendent of
Police at Diyodar, who has asked the
Police Sub Inspector, Bhabhar Police
Station to do the needful and she was sent
back to Bhabhar Police Station. The
petitioner was kept waiting till 4.00 p.m.
by one Somchandbhai Bhikhabhai Parmar who
is a PSO. The petitioner was told that she
may wait for Police Sub Inspector to come
and, therefore, till 8.00 p.m., she was
asked to sit in the police station. The
petitioner was being asked to come to
Police Chowki room and she was taken to
the said place by PSO Somchandbhai
Bhikhabhai Chaudhari. The said persons
misbehave with the petitioner and used bad
words. The Police Constable Rameshbhai
Ambabhai Chaudhari got the room locked and

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R/SCR.A/2408/2018 ORDER

she was locked in the said room with PSO
Somchandbhai. The said PSO Somchandbhai
Bhikhabhai Parmar sexually harassed her
and her private body parts were touched
and he also tried to commit rape. The
petitioner shouted loudly in the closed
room and, therefore, Police Constable
Rameshbhai Ambabhai Chaudhari opened the
door and, therefore, tried to run out of
the room, at that time, Police Sub
Inspector Jaswantkumar Veljibhai Chaudhary

– respondent no.4 dragged her into the
room and he also misbehave with her making
physical advances/ contacts and even
kissed her on her chicks against her will
and wish. She was thrown on the floor and
she made efforts to run out of the place
and she somehow managed to run out from
the place.

3.4 The respondent nos.4 to 6 instead of
registering the FIR molested the
petitioner and tried to commit rape on the
petitioner. The petitioner had, therefore,
made a complaint/ representation to the
higher police authority as well as to the
State Government including the Home
Ministry. The said complaint/
representation was made on 08.03.2018

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R/SCR.A/2408/2018 ORDER

explaining entire episode. The copy of the
complaint / representation made by the
petitioner on 08.03.2018 is marked and
annexed as ANNEXURE-B.

3.5 It may be noted that pursuant to the
complaint which was being made by the
petitioner dated 26.02.2018, the FIR was
registered against brother and mother of
the petitioner on 04.03.2018 under
Sections 294(b), 506(2) and 114 of the
Indian Penal Code referring to the
incident of 26.02.2018. However, the very
police station and the police officer
intentionally avoid the registration of
the FIR under Section 498(A) and other
offences against in-laws. This clearly
reflects that respondent nos.4 to 6 wanted
to protect the husband and in-laws of the
petitioner for reasons best known to them
and, therefore, no FIR was registered
against them. Unfortunately, respondent
nos.4 to 6, who are, in fact, duty bound
to register FIR in a case where there is
cognizable offence is being made out, they
subjected the petitioner to sexual
harassment and in fact, molested her and
tried to rape her. The said offence has
taken place at the Police Station / Police

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R/SCR.A/2408/2018 ORDER

Chowki by the police personnel and the
said act is a very serious offence against
the woman who is as such deserted by her
husband, her in-laws and even her mother
and brother. The copy of the FIR being
C.R. No. II-16/2018 dated 04.03.2018
registered with Bhabhar Police Station is
marked and annexed as ANNEXURE-C.

3.6 The petitioner, therefore, made
representation / complaint to the higher
police authority explaining the entire bad
episode which took place at the Police
Station / Chowki and detailed
representation / complaint was made to the
higher police authority including the
District Superintendent of Police. Upon
the same, FIR being C.R. No.I-17/2018 came
to be registered at Bhabhar Police Station
on 11.03.2018 referring to the incident of
14.02.2018 under Sections 498(A), 323 and
114 of the Indian Penal Code. The said
complaint does not reflect the complete
details pointed out by the petitioner as
regards physical and mental cruelty being
done to her by her husband and in-laws and
it seems that the said FIR is registered
only with a view to see that the
petitioner may not further raise any

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R/SCR.A/2408/2018 ORDER

grievance as regards non-registration of
the FIR and the bad incident which took
place with her at the hands of the police
personnel. The copy of the FIR being C.R.
No. I-17/2018 dated 11.03.2018 is marked
and annexed as ANNEXURE-D.

3.7 It may be noted that despite
detailed representation / complaint which
was being made to the higher police
authority, especially the incident which
took place at the Police Station / Chowki
at the hands of the police personnel till
date no steps are taken and no FIR is
registered against the said police
personnel. Therefore, the present
petitioner has constrained to prefer the
present petition.”

3. On 26.03.2018, this Court passed the following order:

“1. Notice returnable on 03.04.2018.
Ms. Moxa Thakkar learned APP waives
service of notice for and on behalf of the
respondents no.1,2 and 3. The respondents
no.4,5 and 6 be served through the Office
of the District Superintendent of Police,
at Palanpur, District: Banaskantha.

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R/SCR.A/2408/2018 ORDER

3. Having regard to the serious
allegations being made, an appropriate
report or reply shall be filed, by the
next date of hearing.

4. For the time being, on the returnable
date, notify the matter on top of the
board.”

4. The affidavit-in-reply has been filed duly affirmed by one

Shri Yogendrakumar Murarilal Mishra, Circle Police Inspector,

Shihori/ Tharad, Dist: Banaskantha inter-alia stating as under:

“4. The aforesaid petition is filed
praying to issue direction upon the
Respondent No.2 and 3 to take necessary
and immediate steps with regard to the
complaint/ representations made by the
petitioner and on the basis of the same to
register the FIR against the Respondent
No.4 to 6 and further be pleased to direct
the Respondent No.2 and 3 to ensure just,
fair, allowing and impartial investigation
with regard to the FIR.

5. It was further prayed for issuance
of the directions upon Respondent No.3 to
proper investigation in connection with
the CR No. I-17/2018 dated 11.03.2018

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R/SCR.A/2408/2018 ORDER

registered with Bhabhar Police Station for
the Offence punishable under Section 498A,
323, 114 of IPC and FIR being CR No. II-
16/18 dated 04.03.2018 registered with the
Bhabhar Police Station for the Offence
punishable under Section 294B, 506(2), 114
of IPC.

6. This affidavit is filed by the
deponent pursuant to the Order passed by
this Hon’ble Court dated 26.03.2018. It is
submitted that the deponent made inquiry
with regard to the allegation made by the
present applicant against the Police
Officer and the said Inquiry was monitor
by Mr. Nirajkumar Badgujar, Superintendent
of Police, Banaskantha.

7. It is submitted that it was alleged
by the present applicant that the Police
Officer namely Somchandbhai Bhikhabhai
Parmar who is serving at Bhabhar Police
Station as Police Station Officer, the
Police Inspector namely Rameshbhai
Ambabhai Chaudhary who is serving as
Constable at Bhabhar and Police Sub
Inspector namely Jashavantkumar Veljibhai
Chaudhary serving at Bhabhar Police
Station had try to outrage the modesty of

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R/SCR.A/2408/2018 ORDER

the Applicant and misbehave with her.

8. It is submitted that in this regard,
the statement of the applicant was taken
in presence of two ladies Police Officers
on 11.03.2018 by the deponent wherein, she
had mentioned that when she approached to
the concern Police Station for lodging the
FIR against her parents that FIR was
registered being II CR No. 16/2018 under
Section 323, 506(2).

9. It was further stated in the
aforesaid statement that she had further
insisted to lodge the FIR against her in
laws. At that time as the Police Station
Officer and Police Sub Inspector had tried
to make her understand that if unnecessary
the FIR would be lodged without any cause
against the in laws her matrimonial life
might be ruined therefore, she was make
understand that she may think again and
then approached to the Police Station.
However, since the FIR was not registered
by the officer, she approached to the
Typist (Sitting) in the Court premises for
the purpose of tying of the complaint. She
had also instructed the Typist to type the
complaint against the Police Officers. As

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R/SCR.A/2408/2018 ORDER

the Police Officer had not lodged the FIR
as per her wish and whims. It is further
stated in the Statement that as she was
angry because of not lodging of FIR, she
had instructed the Typist to type the
complaint against the Police Officer. The
typist make all this averments with regard
to the misbehave and with regard to the
outraging the modesty by the Police
Officer in the Complaint. However, she
said that she had never instructed to make
such type of allegation to typist in the
complaint. A copy of the Statement dated
11.03.2018 is annexed herewith and marked
as ANNEXURE-R1.

10. It is further revealed that
initially the complaint came to be lodge
against the parents being II CR No. 16/18
even prior to this incident, the complaint
against the in laws under Section 498A was
registered with Dasada Police Station
being I- CR No. 3036/06. However, she was
further instigating to lodge the FIR
against the in laws and other persons as
she has narrated the Number of persons in
the complaint. The Police Sub Inspector
had refused to register the FIR as
allegations were made against the

Page 13 of 16
R/SCR.A/2408/2018 ORDER

Neighbour also. The Police Sub Inspector
make her understand that she may file FIR
against the Husband and in laws but
unnecessary the other person may not rope
in this things. However, as she was angry
with the aforesaid stand of the Police Sub
Inspector, she appears to have filed the
complaint lodging the bald allegations
against the Police Officers. In fact, she
had also threatened to the concerned
officer with regard to the self emulation
and for that also the necessary steps were
taken by the concerned officers.

11. It is submitted that infact, the
CCTV footage, CD was also collected all
the concerned Police Station from their
also nothing was find out. Therefore,
appears that absolutely, false allegations
were made against the Police Officers.”

5. Ms. Thakkar, the learned APP appearing for the state

invited my attention to page 40 of the paper book. The

document at page 40, Annexure R-I is a statement of the writ-

applicant herein recorded by Yogendrakumar Murarilal Mishra,

CPI. In the said statement, the writ-applicant denied having

levelled any allegations of molestation by the three private

respondents herein. When the attention of Mr. Gadhavi, the

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R/SCR.A/2408/2018 ORDER

learned counsel appearing for the writ-applicant was drawn to

the said statement, it was submitted that the thumb

impression of the writ-applicant was obtained by Mahila Police

Station by making a false representation before the writ-

applicant that the same was required for the purpose of

registration of the FIR for the offence under Section 498A of

the IPC.

6. The writ-applicant has very emphatically asserted that

she was molested in the police station by the three private

respondents who are Police Officers. The writ-applicant

appears to be hailing from a very poor strata of the society.

She appears to be a tribal. There is no good reason, as such,

for the writ-applicant to level false allegations and that too,

against the Police Officers.

7. Prima facie, it appears that as the Police Officers are

involved in the matter, the superior officers are soft paddling

the whole issue and trying to protect the erring officers.

8. This Court expects a very fair, impartial and transparent

investigation in this regard. The allegations levelled are quite

serious, more particularly, when they are levelled against none

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R/SCR.A/2408/2018 ORDER

other than the Police Officers.

9. In such circumstances referred to above, I direct the

respondent No.3 – Director General of Police, Gandhinagar to

personally look into the matter and take appropriate decision

in this regard. I also direct the District Superintendent of Police

to personally look into the matter and take an appropriate

decision in this regard. In my view, a prima facie case for

registration of offence at the concerned police station has been

made out. I expect the authorities to act accordingly.

10. With the above, this writ-application is disposed of. Direct

service is permitted.

11. A copy of this order be provided to Ms. Thakkar, the

learned APP for its onward communication.

(J.B.PARDIWALA, J)
MAYA

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