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SCR.A/865/2011 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 865 of 2011
WITH
SPECIAL CRIMINAL APPLICATION No. 1408 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
No
2.
To
be referred to the Reporter or not ?
No
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
No
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 ?
No
5.
Whether
it is to be circulated to the civil judge ?
No
=========================================
GHANSHYAM
BHAILALBHAI SOLANKI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance
:
MR PP
MAJMUDAR for
Applicant(s) : 1,
MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 2,
MR.
HARDIK J JANI for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 30/08/2011
COMMON
ORAL JUDGMENT
[1.0] RULE.
Shri K.P. Raval, learned
Additional Public Prosecutor waives service of notice of Rule on
behalf of respondent No.1 – State and Shri Hardik Jani, learned
advocate appearing on behalf of respondent No.2 – original
complainant waives service of notice of Rule on behalf of respondent
No.2 in each of the petitions.
In the facts and
circumstances of the case and with the consent of learned advocates
appearing for respective parties, both the petitions are taken up for
final hearing today.
[2.0] Special
Criminal Application No.865/2011 has been preferred by the petitioner
– original accused No.1 viz. Ghanshyambhai Bhailalbhai Solanki
to quash and set aside the impugned complaint/FIR being C.R.
No.I-9/2010 registered with Antarsuba Police Station, District Kheda
as well as all further consequential proceedings thereto pursuant to
the aforesaid criminal complaint.
[2.1] Special
Criminal Application No.1408/2011 has been preferred by the
petitioner – original accused No.2 viz. Kesharben Bhailalbhai
Solanki to quash and set aside the impugned complaint/FIR being C.R.
No.I-9/2010 registered with Antarsuba Police Station, District Kheda
as well as all further consequential proceedings thereto pursuant to
the aforesaid criminal complaint.
[3.0] Respondent
No.2 herein – original complainant has lodged FIR being C.R.
No.I-9/2010 with Antarsuba Police Station, District Kheda against the
respective petitioners – original accused for the offences
punishable under Sections 363, 366 and 114 of the Indian Penal Code,
1860 (hereinafter referred to as “IPC”) alleging
inter-alia that her daughter
Ankita has been kidnapped and/or abducted by the petitioners –
original accused for the purpose of marriage and with mala fide
intention. It is also alleged in the said complaint that accused
persons have also withdrawn an amount of Rs.90,000/- which was in the
bank account of her daughter Ankita which
was his amount, which was given to her daughter only for the purpose
of depositing the same in her bank account.
[3.1] Being
aggrieved and dissatisfied with the aforesaid FIR, the respective
petitioners have preferred present Special Criminal Applications
under Article 226 of Constitution of India read with Section 482 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
“CrPC”) to quash and set aside the impugned FIR by
submitting that as such petitioners have not committed any offence as
alleged.
[4.0] Shri P.P.
Majmudar, learned advocate appearing on behal of the respective
petitioners has vehemently submitted that as such the petitioners
have not committed any offence as alleged. It is submitted that in
fact the daughter of the original complainant, Ankita who is now the
wife of original accused No.1 had gone voluntarily with original
accused No.1 as she wanted to marry him and she was apprehending that
their parents will marry her elsewhere against her wish. It is
submitted that at present the original complainant is residing with
the petitioners happily.
[4.1] So
far as the allegation with respect to the withdrawal of Rs.90,000/-
from the bank account of Ankita, which according to the original
complainant belongs to him is concerned, Shri Majmudar, learned
advocate appearing on behalf of the respective petitioners has stated
at the Bar that original accused No.1 is ready and willing to return
the said amount to the original complainant. He has stated at the
Bar that out of the aforesaid amount of Rs.90,000/-, Rs.20,000/- is
already paid today to the original complainant
by cash and the balance amount of Rs.70,000/- shall be returned by
original accused No.1 to the original complainant within a period of
two months by two equal monthly installments to be paid on or before
30.10.2011. Shri Majmudar, learned advocate appearing on behalf of
the petitioners has also stated at the Bar that original accused No.1
shall file an undertaking to the aforesaid effect to return the
balance amount of Rs.70,000/- on or before 30.10.2011 by two monthly
installments of Rs.35,000/- each with this Court within a period of
one week from today. Therefore, it is requested to allow the present
petitions.
[5.0] Shri Hardik
Jani, learned advocate appearing on behalf of the original
complainant has submitted that original complainant is a very poor
person and he has deposited his hard earned money in the bank account
of his daughter Ankita, which has been withdrawn by original accused
No.1. It is submitted that if the aforesaid amount of Rs.90,000/- is
returned to the original complainant and in view of the stand taken
by his daughter now that she has married with original accused No.1,
he has no objection if the impugned FIR is quashed and set aside.
[5.1] Shri K.P.
Raval, learned Additional Public Prosecutor has requested to pass
appropriate order in the facts and circumstances of the case, more
particularly, the statement of the daughter of the complainant viz.
Ankita which is a zerox copy, which is produced on record.
[6.0] Heard
the learned advocates appearing for respective parties at length. At
the outset, it is required to be noted that respondent
No.2 herein – original complainant has lodged the FIR being
I-C.R. No.9/2010 with Antarsuba Police Station, District Kheda
against the petitioners for offences punishable under Sections 363,
366 and 114 of the IPC alleging inter-alia that
his daughter has been abducted/kidnapped by them. It is also alleged
in the complaint that original accused No.1 has withdrawn the amount
of Rs.90,000/- from the bank account of Ankita – daughter of
the original complainant which actually belongs to the original
complainant.
[6.1] During
the course of the investigation, statement of Ankita – daughter
of the original complainant who is now wife of original accused No.1
– Ghanshaymbhai Bhailalbhai Solanki has been recorded on
29.08.2011 and she has categorically stated that petitioners have not
committed any offence as alleged and that she has gone voluntarily
with original accused No.1 as she wanted to marry him. She has also
stated that now she has married with original accused No.1 –
Ghanshyambhai Bhailalbhai Solanki and their marriage has also been
registered before the Registrar of Marriages. Shri Majmudar, learned
advocate appearing on behalf of the petitioners has also stated at
the Bar that the petitioners are ready and willing to return the
amount of Rs.90,000/- to the original complainant out of which
Rs.20,000/- is already paid to the original complainant in cash today
and that the balance amount of Rs.70,000/- shall be returned to the
original complainant on or before 30.10.2011 by two equal monthly
installments. Under the circumstances and in view of the above, it
appears to the Court that this is a fit case to exercise powers under
Section 482 of the CrPC and
to quash and set aside the impugned FIR as, to continue the criminal
proceedings against the petitioners shall be abuse of process of law
and Court. Even considering the statement of Ankita – daughter
of the original complainant, the criminal proceedings against the
petitioners cannot be continued.
[7.0] In view of
the above and for the reasons stated above, both the petitions
succeed. Impugned FIR being I-C.R. No.9/2010 registered with
Antarsuba Police Station, District Kheda against the respective
petitioners for offence punishable under Sections 363, 366 and 114 of
the IPC is hereby quashed and set aside so far as the respective
petitioners are concerned. Original accused No.1 –
Ghanshyambhai Bhailalbhai Solanki to return the balance amount of
Rs.70,000/- to the original complainant on or before 30.10.2011 by
two monthly installments of Rs.35,000/- each as stated by Shri
Majmudar, learned advocate appearing on behalf of the respective
petitioners. Original accused No.1 – Ghanshyambhai Bhailalbhai
Solanki to file undertaking to the aforesaid effect within a period
of one week from today. Rule is made absolute to the aforesaid
extent in each of the petitions. Liberty to submit appropriate
application by the original complainant in present proceeding in case
the aforesaid amount of Rs.70,000/- is not returned to the original
complainant within the stipulated time stated herein above.
(M.R.
Shah, J.)
*menon
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