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CR.MA/6934/2005 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 6934 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE P.B.MAJMUDAR
======================================
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 ?
======================================
KANUBHAI
VALABHAI BHARWAD AND ANOTHER
Versus
THE
STATE OF GUJARAT AND OTHERS
======================================
Appearance
:
MR BS PATEL for Applicants. MRS
RANJAN B PATEL for Applicants. MR RADHAKRISHNAN V for Applicant
No. 1, MRS NISHA M PARIKH for Applicant No. 2.
MS MANISHA SHAH,
APP for Respondent No. 1.
RULE SERVED for Respondent Nos. 2 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE P.B.MAJMUDAR
Date
: 27/12/2005
ORAL
JUDGMENT
By
filing this application, the applicants have prayed that F.I.R.
registered with Dhansura Police Station being C.R.No. I 53 of 2004
filed by respondent No.3 namely, Hakubhai Dahyabhai Bharwad may be
quashed and set aside. Aforesaid complaint is filed under Sections
363, 366, 504, 506 (2) read with Section 114 of Indian Penal Code.
The case of the complainant before the police is that his daughter –
Jaluben is kidnapped by applicant No.1 and others, at the time when
she went for washing clothes near a well.
According
to the complainant, his daughter is aged about 16 years and since she
has been kidnapped by applicant No.1 and others, aforesaid complaint
has been filed by him against applicant No.1 and others, who are
family members of applicant No.1.
Applicant
No.1 is the original accused and applicant No.2 is the daughter of
respondent No.3 ? original complainant.
On
18-10-2004, learned Single Judge of this Court has passed the
following order :
?S1.
Pursuant to the orders passed by this Court on 20.09.2005 and
03.10.2005, the petitioner No. 2 is brought by Mrs. Madhuben Parmar,
In-charge Superintendent, Nari Sanrakshan
Gruh, Mehtapura, Himmatnagar. On being asked to the petitioner No.
2, she refused to go to her father’s place. She has reiterated that
she wants to stay with her husband i.e. petitioner No. 1 despite the
fact that he has married earlier and at present he is in jail.
2. In
the above view of the matter, since the petition is pending before
this Court, the Court deems it fit and proper to ask the petitioner
No. 2 to stay at Nari Sanrakshan Gruh, Mehtapura, Himmatnagar till
further order. Though the father of the petitioner No. 2 has stated
that petitioner No. 2 should be sent with him at Gandhigram, Rajkot.
However, looking to the facts of the case and since the petitioner
No. 2 does not want to go to Rajkot, the said request has not been
accepted. The matter is, therefore, adjourned for further hearing
on 20.10.2005.??
Today,
both the applicants are present before this Court. It is pointed out
by both the applicants that they have married and their marriage
certificate is also annexed along with this application at page
No.14. At the time of hearing of this application, both the
applicants No.1 and 2 have stated that they are living together
happily as husband and wife and that the applicant No.2 being major
is entitled to stay with her husband as per her own wish and she
cannot be compelled to go with respondent No.3 (her father).
Mr.B.S.Patel, learned advocate for the applicants submitted that the
applicant no.2 is aged about 20 years and she is major. The
investigating officer, who is present before the Court, has
submitted that ossification test of applicant No.2 was taken out and
as per the certificate of the Doctor, her age is between 19 to 20
years. Thereafter, applicant No.2 submitted that she would like to
stay with applicant No.1 (her husband) and, therefore, she may be
permitted to stay with the applicant No.1.
Respondent
No.3, who is also present before the Court, has submitted that if
applicant No.2 is not willing to stay with him and if she wants to
stay with applicant No.1, he has no objection. He, however, submitted
that he has incurred heavy expenditure for tracing out his daughter
by engaging transport vehicles etc., and some costs may be awarded to
him. This Court is not concerned about this aspect, however, it is
pointed out to the Court the applicant No.1 has paid adequate amount
towards expenditure to respondent No.3.
At
this stage, Mr.B.S.Patel, learned advocate for the applicants has
relied upon the decision of learned Single Judge of this Court
delivered in Criminal Misc. Application No.6264 of 2004. In paragraph
7 of the said judgement, learned Single Judge has observed as under :
?S7. Today both the petitioners are living as husband and wife and the victim girl is likely to deliver a child in a couple of days. If the complaint is permitted to be continued, both the petitioners are likely to face great hardship and inconvenience; especially the petitioner no.2, against whom the scope of success of prosecution is practically nill, in absence of any favourable evidence from the star witnesses, prosecution would not succeed. It also cannot be ignored that though the incident is of 12th April, 2004, the complaint was filed on 31st May, 2004, by the complainant. The ratio of the decision in the case of S.W. Palnitkar and others v. State of Bihar and another, reported in 2002 (1) SCC 241 and Madhavrao Scindia’s case, reported in AIR 1988 SC 709, whereby the Apex Court has held that where there are bleak chances of success of prosecution, it is no use of continuing the prosecution and such proceedings can be quashed. In the cited decision, the Apex Court has held that :
“7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”
Ms.
Manisha Shah, learned APP, submitted that in view of above facts and
circumstances of the case, appropriate order may be passed, as deemed
fit by this Court.
It
is required to be noted that both the applicants are major and as per
ossification test age of the applicant No.2 is found to be of 19 to
20 years. It is also pointed out by her to this Court that she is
willing to stay with her husband (applicant No.1). Considering the
fact that applicant No.2 is not willing to stay with respondent No.3
and considering the fact that both the applicants have married and
they are residing together happily, it would not be just and proper
to allow further investigation of the complaint in question. It is
apprehended by respondent No.3 that the applicants may take out some
proceedings against him as he has filed the present complaint,
however, it is assured by applicants No.1 and 2 that they will not
take out any proceedings against respondent No.3 as a counter-blast
to the present complaint. Respondent No.3 has also stated that he is
not interested in harassing the applicants and he will also not file
any complaint with regard to the issue in question.
Considering
aforesaid aspect of the matter, this application is allowed.
Complaint being C.R.No. I 53 of 2004 registered with Dhansura Police
Station is quashed and set aside. Charge sheet submitted on the basis
of aforesaid complaint as well as criminal case pending before the
concerned Court are also quashed. Rule is made absolute accordingly.
(P.B.MAJMUDAR,
J.)
/malek
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