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Subhashbhai Haribhai Shihora vs State Of Gujarat & on 2 March, 2017

                 R/SCR.A/5374/2015                                              ORDER




                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5374 of 2015
                                            With
                     CRIMINAL MISC.APPLICATION NO. 8428 of 2015

         ==========================================================
                     SUBHASHBHAI HARIBHAI SHIHORA....Applicant(s)
                                      Versus
                        STATE OF GUJARAT  1....Respondent(s)
         ==========================================================
         Appearance:
         MR IH SYED with MR CHIRAG B UPADHYAY, ADVOCATE for the
         Applicant(s) No. 1
         MR YV VAGHELA, ADVOCATE for the Respondent(s) No. 2
         MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
         ==========================================================

          CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                     Date : 02/03/2017


                                      ORAL ORDER

Leave is granted to implead Hitesh Haribhai Shihora as
the applicant no.4 in the Criminal Misc. Application No.8428 of
2015. The cause-title be amended forthwith.

Since the issues raised in both the captioned applications
are the same and the challenge is also to a selfsame FIR, those
were heard analogously and are being disposed of by this
common judgment and order.

RULE returnable forthwith. Ms.Pathak, the learned APP
waives service of notice of rule for and on behalf of the

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respondent no.1. Mr.Ankit Pandya, the learned advocate
waives service of notice of rule for and on behalf of the
respondent no.2.

The registry shall accept the Vakalatnama of Mr.Ankit
Pandya, who has replaced Mr.Y.V.Waghela, who was earlier
appearing for the first informant.

The applicants before me are the original accused
persons named in the FIR bearing CR No.I-36 of 2015
registered at the Bopal Police Station, Ahmedabad (Rural), for
the offence punishable under Sections 498A, 323, 504, 354(A)
(1) read with Section 114 of the Indian Penal Code as well as
Sections 3 and 7 of the Dowry Prohibition Act. At a later stage,
Sections 376 and 506(2) of the Indian Penal Code came to be
added.

The applicant of the Special Criminal Application and the
applicant no.1 of the Criminal Misc. Application happens to be
the brother-in-law of the first informant. The applicant no.2 is
the wife of the brother-in-law, the applicant no.3 is the mother-
in-law and the applicant no.4 is the husband of the first
informant.

It appears from the materials on record that the first
informant got married to one Hiteshbhai Haribhai Shihora on
15th May 2009. In the wedlock, two children were born. It also
appears that matrimonial disputes cropped up, which led to
filing of the first information report. Initially, the FIR was filed
for the offence of cruelty punishable under Section 498A of the
Indian Penal Code and other sections including Section 354(A)

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R/SCR.A/5374/2015 ORDER

of the Indian Penal Code. In such circumstances, the accused
persons came before this Court by filing the Criminal Misc.
Application No.8428 of 2015 for quashing of the FIR. Later on,
the statement of the first informant under Section 164 of the
Code of Criminal Procedure came to be recorded, and on the
strength of the same, Sections 376 and 506(2) of the Indian
Penal Code came to be added. In such circumstances, the
Special Criminal Application No.5374 of 2015 came to be filed
with the following prayers :

“(a) Issue a writ of mandamus or any other writ or order
or directions to the Inspector General of Police,
Ahmedabad Range, Ahmedabad for conduct of a fair and
impartial investigation into the present FIR including the
issues raised in the applications dated 04.07.2015 given
to the IGP, Ahmedabad Range on behalf of the applicant;

(b)Direct the Inspector General of Police, Ahmedabad
Range, Ahmedabad, to personally supervise the
investigations of this case, including investigations into
the issues raised by the applicant in the application
dated 04.07.2015 and submit a report to this Hon’ble
Court;

(c) Pending admission and till final disposal of the present
application and till investigations into the issues raised in
the applications dated 04.07.2015 are investigated, no
coercive steps be taken against the applicant;

(d) Pass any such other orders as may be deemed fit,
proper and just in the interest of justice pending
admission, hearing and final disposal of the present
Application.”

The parties are personally present today in the court. The
first informant is also very much there along with her two
children and husband. The brother-in-law against whom she
has levelled allegations is also present along with his wife and
two children. The mother-in-law is also very much present.


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                  R/SCR.A/5374/2015                                            ORDER




The picture that emerges from the materials on record is
that the matrimonial dispute went to such an extent that the
first informant levelled serious allegations of offence under
Section 376 of the Indian Penal Code. Such allegations have
been levelled against the brother-in-law, viz. Subhash Haribhai
Shihora.

I need not adjudicate the two matters before me because
the parties have amicably settled the dispute. Since serious
allegations have been levelled, I requested Ms.Pathak, the
learned APP, to speak to the first informant personally.

It appears that in the heat of the moment and being tired
of the matrimonial problems, she went to the extent of
levelling false allegations against the brother-in-law. She has
reconciled with her family. They decided to live separately.

Having regard to the relations of the parties and the
settlement arrived at, the investigation at the end of the police
is not warranted.

The first informant has also filed an affidavit, inter alia,
stating as under :

“I, Sejalben Hitesh Kumar Shihora, the Original
Complainant in the FIR bearing No.I-36/2015 of Bopal
Police Station, Ahmedabad Rural District, and
Respondent No. 2 herein, do hereby state on oath that:

1) That I am a housewife and a mother of two children
aged about 6 years and about 2 years. I state that I am
the first informant in case registered at Bopal Police
Station, Ahmedabad Rural District vide Cr.No.I-36/2015
under Sections 498A, 323, 504, 114, 354(A)(1)(1), 376
and 506(2) of the IPC and Under Sections 3 7 of the
Dowry Prohibition Act.

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2) I state that due to the life threatening disease of my
husband, Shri Hitesh Kumar Shihora, I used to be irritable
and in a confused and disoriented state of mind. My
husband was suffering from cancer and the responsibility
of two children had caused me great mental distress and
trauma, which was the reason for me being in a state of
great mental confusion and disorientation.

3) On 21.04.2015, I had an altercation with my mother-
in-law over a very petty issue, which is very common in
any family in a day-to-day living. In the mental state that
I was, I had lost my cool of mind and had thrown some
crockery/articles on my husband as well as on my
mother-in-law. My mother-in-law was injured and had to
be taken to the hospital in an “108” ambulance, which
had come with “181 Mahila Helpline” police. I was under
great mental stress and also apprehensive of police
action against me.

4) It is out of this frustration that I had registered the
aforesaid offence on 21.04.2015 against my husband as
well as the rest of my in-laws. I humbly submit that the
local police, which was supporting a builder, against my
brother-in-law and others, had sensed my mental
confusion and disorientation and had convinced me into
falsely making allegations of rape, even when there was
none. And in my confused mental state and
disorientation, I could not realise the nefarious designs of
the local police and consequently, out of error and
confusion, had falsely alleged the offence of rape against
me on 17.04.2015, by my brother-in-law, which led to the
addition of Section 376 of the IPC. This section was not
present in the original complaint given by me on
21.04.2015.

5) I submit that I realised the monumental mistake
committed by me in getting influenced by local police.
For the sake of justice and truth, on 22.08.2016, I
submitted a sworn affidavit to the Inspector General of
Police, Ahmedabad Range and the Investigating Officer,
retracting from the aforesaid charges I had made against
my husband and in-laws. A copy of the aforesaid affidavit
is annexed to this affidavit and marked herewith as
ANNEXURE ‘A’.



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                 R/SCR.A/5374/2015                                            ORDER



6) I had also approached the Mahila Aayog, Gandhinagar,
and had sought an apology for my mis-judgment and
indiscretion in getting the aforesaid FIR registered
against my husband and his family members, which, as
has been mentioned above, was filed under a great state
of mental confusion and disorientation.

7) I submit that neither rape, as mentioned in the
aforesaid FIR, was committed on me nor has there been
any cruelty perpetrated on me by my in-laws. My
brother-in-law has always treated me with great respect
and care and has not done any criminal act on me, as
had been alleged by me under great mental
disorientation and confusion. My in-laws have treated me
very affectionately and have been very supportive all
through my marital life and I have not been subjected to
any cruelty. My in-laws have forgiven me for making such
a baseless complaint to the police.

8) I submit that I have no complaint against any of the
accused on any count. The complaint given by me to the
police was under great mental stress and disorientation
and was done without my free conscious knowledge. I am
happy in my family life and firmly believe that it will
continue to be so in future also. My husband has also
recovered from cancer and this had considerably reduced
the stress on me. I am conscious that if the aforesaid
complaint is allowed to survive, it will adversely impact
my family life and happiness.

9) In view of the above, I pray before this Hon’ble Court
to quash and set aside the aforesaid FIR bearing CR. No. I
36/2015 of Bopal Police Station to secure the ends of
justice.”

The same is ordered to be taken on record.

The first informant wants to live a happy and a peaceful
marital life with her husband and children. She would also like
to reconcile with the other family members of the husband and
that is the reason why I have accepted the settlement. The
accused persons have assured that they shall give no

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opportunity to the first informant to complain in future.

In the result, both the applications are allowed. The First
Information Report bearing CR No.I-36 of 2015 registered at
the Bopal Police Station, Ahmedabad (Rural), is hereby ordered
to be quashed. All consequential proceedings pursuant thereto
stand terminated. Rule made absolute. Direct service is
permitted.

(J.B.PARDIWALA, J.)
MOIN

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