The Hon HC says ".... From the record, it appears that the marriage span of petitioner and the deceased was more than 32 years. The petitioner is having two daughters aged about 29 years and 27 years. Son is also aged 24 years. So, there are three children born out of the wedlock of the petitioner and the deceased. During these 32 years, there is no complaint given by the complainant or the deceased against the petitioner. Thus, petitioner is having good case on merits,....." !!!!!!!!!!
The Learned advocate (for husband) submitted that
* the impugned FIR is gross abuse of process of the Court.
* gross delay of 15 days in filing the said FIR.
.....
* that deceased Anandiben has expired because of accident and .. not committed suicide as alleged in the FIR !!!!
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1519 of 2014
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SURESHBHAI MANGALDAS PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR. HARDIK J JANI, ADVOCATE for the Applicant(s) No. 1
MR. HARDIK K RAVAL, ADVOCATE for the Applicant(s) No. 1
NIMISHA J PAREKH, ADVOCATE for the Respondent(s) No. 2
MS.H.B.PUNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 28/01/2015
ORAL ORDER
1. This petition is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, wherein, the petitioner has prayed to quash and set aside the FIR bearing C.R.No.I25/2014, registered with Pethapur Police Station, filed for the offenses punishable under Section 498(A) and 306 of the Indian Penal Code.
2. RULE. Learned APP Ms.Punani waives service of notice of Rule on behalf of respondent No.1State of Gujarat. Learned advocate Ms.Nimisha J. Parekh waives service of notice of Rule on behalf of respondent No.2the Original Complainant.
3. With the consent of learned advocates for the respective parties, this petition is taken up for final hearing.
4. Learned advocate Shri Hardik Jani appearing for the petitioner submitted that FIR bearing C.R.No.I25/2014, registered with Pethapur Police Station on 19.03.2014 filed for the offenses punishable under Section 498A and 306 of the Indian Penal Code and in the said FIR, it has been alleged that marriage of the sister of the respondent No.2 complainant was solemnized with the petitioner before 25 years and out of the said wedlock, three children were born. It is alleged that the petitionerhusband was giving physical and mental torture to the deceased, as a result of which, she has committed suicide on 04.03.2014. Learned advocate submitted that the impugned FIR is nothing but a gross abuse of process of the Court. There is a gross delay of 15 days in filing the said FIR. Learned advocate further submitted that marriage span of the petitioner and the deceased was more than 32 years and therefore presumption as envisaged under Section 113A of the Evidence Act would not be applicable in the facts of the case. Learned advocate further pointed out that deceased Anandiben has expired because of the accident and she has not committed suicide as alleged in the FIR. Learned advocate further submitted that now the matter is settled out of the Court and therefore, complainant has filed an affidavit before this Court on 22.01.2015. Learned advocate further relied upon the decision of the Hon'ble Supreme Court rendered in the case of Velmurugan Versus State Represented By The Deputy Superintendent of Police, reported in AIR 2011 (SC) 1238. Learned advocate further relied upon the decision of this Court given in the case of Mehul Yogeshbhai Vyas Versus State of Gujarat given in Special Criminal Application No.13602 of 2010 and another decision in the case of Bhupatbhai Vaghjibhai Makwana & 4 Versus delivered on 06.05.2013 in Criminal Misc. Application No.13732 of 2007. He further relied upon the decision of Punjab and Harayana High Court given in the case of Gurchet Singh Versus State of Punjab. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
5. Learned advocate Ms.Nimisha Parekh appearing for respondent No.2 submitted that matter is settled out of the Court and therefore, if the FIR and the consequential proceedings pursuant to the said FIR is quashed and set aside, the complainant is not having any objection. The affidavit in reply filed by the respondent No.2 reads as under:
"3. I state that I had lodged the said FIR against the petitioner (Brotherinlaw) on the surmise of presumption of circumstances as also on account of spur of moment at the relevant point of time. I further state that I filed the complaint in undue haste without verifying the true facts and at the time of lodging the complaint, my mental condition was not proper. I state that later on, I come to know about the innocence of the petitioner as also he had not played role in the alleged incident. I therefore, realized the aforesaid fact before the petitioner. However, considering our relationship and on account of the interference of the elderly relatives of my family, the matter is amicably settled between the parties.
4. I state that I have no objection if the FIR vide IC.R.No.25/2014 register with Pethapur Police Station, Dist.Gandhinagar by me for the offence punishable under Sections 498A, 306 of Indian Penal Code against the petitioner and the consequential proceeding pursuant to the said FIR is quashed and set aside by this Hon'ble Court in view of the aforesaid facts of amicable settlement arrived at between the parties. I also state that if the FIR is quashed and set aside by this Hon'ble Court, then the family relationship between the parties may attain continuity. Hence, the FIR may be quashed and set aside in the interest of justice."
4. I state that I have no objection if the FIR vide IC.R.No.25/2014 register with Pethapur Police Station, Dist.Gandhinagar by me for the offence punishable under Sections 498A, 306 of Indian Penal Code against the petitioner and the consequential proceeding pursuant to the said FIR is quashed and set aside by this Hon'ble Court in view of the aforesaid facts of amicable settlement arrived at between the parties. I also state that if the FIR is quashed and set aside by this Hon'ble Court, then the family relationship between the parties may attain continuity. Hence, the FIR may be quashed and set aside in the interest of justice."
6. Learned APP Ms.Punani submitted that in the facts and circumstances of the case, this Court may pass appropriate order.
7. I have heard the rival submissions canvassed on behalf of the learned advocates. From the record, it appears that the marriage span of petitioner and the deceased was more than 32 years. The petitioner is having two daughters aged about 29 years and 27 years. Son is also aged 24 years. So, there are three children born out of the wedlock of the petitioner and the deceased. During these 32 years, there is no complaint given by the complainant or the deceased against the petitioner. Thus, petitioner is having good case on merits, however, now when the matter is settled out of the Court, now no useful purpose would be served in continuing the proceedings against the present petitioner and in view of the decisions relied upon by the learned advocate for the petitioner, FIR bearing C.R.No.I25/2014, registered with Pethapur Police Station, and all the consequential proceedings pursuant thereto are hereby quashed and set aside. Rule made absolute. Direct service is permitted.
(VIPUL M. PANCHOLI, J.)
ANKIT
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