CR.MA/2872/2002 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2872 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================= = 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = KAILASHBEN PUNJABHAI PATEL & 1 Versus STATE OF GUJARAT & 1 ========================================= = Appearance : MR KAMLESH B MEHTA for Petitioners MR DEVENDRA K RATHOD for Petitioners MR MR MENGDEY APP for Respondent No.1 MR RAMNANDAN SINGH for Respondent No.2 ========================================= = CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : 24/07/2008 CR.MA/2872/2002 2/6 JUDGMENT ORAL JUDGMENT 1. The present respondent No.2 in capacity of Power of Attorney of Mandakiniben wife of Mukeshbhai Rambhai Patel filed a private complaint in the Court of learned Judicial Magistrate, First Class, at Vadodara for the offences punishable under Sections 504, 506(2) and under Sections 188 and 114 of the Indian Penal Code against present petitioners and her husband. Accused No.1 was the husband of the complainant. He is not the petitioner herein. The petitioner No.1 herein happened to be second wife of the accused No.1. She was accused No.2. It was alleged that Mandakiniben was married to accused No.1 and, thereafter, she was taken to U.S.A. by accused No.1 and there, accused No.1 was missing. Thereafter, the complainant came to know that accused No.1 had returned to India on 23.04.2002. It was learnt by the complainant that though the marriage of her sister Mandakiniben was subsisting with accused No.1, he was to marry with accused No.2 and accused No.3, petitioner No.2 herein abetted the said act. It was the allegation that ultimately, on 30.04.2002, without consent and beside, the marriage of accused No.1 subsisting with Mandakiniben, accused Nos.1 and 2 got married. Therefore, to restrain this marriage, a Regular Civil Suit was also filed by the wife being Regular Civil Suit No.411 of 2002 and temporary injunction CR.MA/2872/2002 3/6 JUDGMENT was also obtained. It was also alleged that on 30.04.2002, the accused were threatening to kill the complainant and also gave abuses. This complaint came to be filed on 01.05.2002. Learned Magistrate, First Class, Vadodara forwarded this complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure, where the police recorded the complaint under Sections 494, 497, 188, 506(2), 504 and 114 of the Indian Penal Code against the present petitioners and accused No.1 and, therefore, this petition by the original accused Nos.2 and 3 for quashing of the said Inquiry Case No.20 of 2002. The respondent No.2 has preferred affidavit-in- reply at page-22 which is taken into consideration. 2. Learned advocate Mr.Devendra K Rathod for the petitioners submitted that in fact marriage between the accused No.1 and Mandakiniben came to an end by decree of divorce in the Court of Common Pleas of Allegheny County, Pennsylvania Family Division on 24th day of January, 2001 and, therefore, the question of committing the offences under Sections 494 and 497 of the Indian Penal Code would not arise. So far as other offences under Sections 506(2) and 504 of the Indian Penal Code is concerned, learned advocate Mr.Rathod submitted on record the invitation card of the marriage took place between the accused Nos.1 and 2. It is submitted that the ceremonies to be taken place at a distant place than the complained of, necessarily denotes that those allegations are CR.MA/2872/2002 4/6 JUDGMENT vexatious and utterly false on the face of it. It is, therefore, submitted that when the complaint does not disclose any offence, prima facie, there is no question of investigation and hence this is an abuse of process of law and the complaint be quashed. 3. As against that learned advocate Mr.Ramnandan Singh for the respondent No.2 submitted that the decree of divorce was obtained by fraud and, therefore, a Regular Civil Suit and the complaint came to be filed against the accused at the relevant juncture and temporary injunction was granted in the said Regular Civil Suit and, thereafter, was vacated, though the suit is still pending. It is submitted that the alibi is a matter of trial and could not be decided in quashing petition. 4. Learned APP Mr.M.R.Mengdey for the respondent No.1 – State was also heard. 5. In the facts and circumstances of the case, though inherent powers of the Courts under Section 482 of the Code of Criminal Procedure must be exercised sparingly and in rarest of rare cases, but the facts and circumstances of this case warrants a deep probe in the matter. Undoubtedly, till decree of divorce as passed by U.S.A. Court which is placed on record, is set aside. It must be presumed that the marriage between the accused No.1 and the complainant came to an end on 24.01.2001. Nowhere on record, it has been stated that any attempt has been made to get this decree of divorce set CR.MA/2872/2002 5/6 JUDGMENT aside. Merely filing of a suit on the ground of fraud to set aside the decree of divorce of Foreign Court, would not affect the decree of divorce duly pronounced by the Foreign Court. Necessary it is to notice that in the certified copy of the complaint produced on record, wherever offences under Section 494 and 497 are referred, the same have been erased in preamble of the complaint as well as in para-5 of the complaint and interpolating, instead of Indian Penal Code under Section 494 and 497, the offences which are mentioned to have been committed by the accused are under Sections 504 and 506(2) of the Indian Penal Code and handwritten script in this regard is added afterwards in para-5 of the complaint. It appears that the complaint came to be filed for the offences punishable under Sections 504 and 506(2) of the Indian Penal Code and not for the offences punshable under Sections 494 and 497 of the Indian Penal Code as has been recorded by the police. In fact, the learned Magistrate ought to have taken care to record that for what offences, the complaint came to be filed, but the order of learned Magistrate is silent in this respect. 6. In view of the above, when prima facie the complaint does not disclose ingredients of any offences punishable under Sections 494 and 497 of the Indian Penal Code, the complaint is nothing but abuse of process of law. It is also true that alibi is a matter of trial, but when prima facie facts placed on record, CR.MA/2872/2002 6/6 JUDGMENT disclose that the complainant himself admits that the marriage of accused Nos.1 and 2 took place on 30.04.2002 at Village : Koyali, the question of giving threats by accused Nos.1 and 2 to the complainant as has been alleged is an impossibility, and on that ground also, the complaint is required to be quashed. 7. In above view of the matter, this application is allowed. The Inquiry Case No.20/2002 and FIR recorded upon that inquiry i.e. FIR No.5/2002 before Javaharnagar Police Station, Vadodara is hereby quashed and set aside. Rule is made absolute to the above extent. [J. R. VORA,J.] vijay