1. Present petition under section 482 of the Code of Criminal Procedure has been preferred by the petitioners - original accused Nos.2 to 8 to quash and set aside the impugned complaint being Criminal Inquiry Case NO.1 of 2008 filed by the respondent No.2 herein - original complainant, for the offences punishable under sections 406, 420 and 114 of Indian Penal Code, pending in the Court of learned Judicial Magistrate (First Class), Keshod as well as consequential registration of the First Information Report being M.Case Case No.1 of 2008 registered with Keshod Police Station.
2. That the respondent No.2 herein - original complainant has married with the original accused No.1 in the year 1995. It appears that there was some dispute and as per the complainant subsequently she was deserted in the year 1998. It appears that according to the complainant, there was some settlement in the year 1998 however, the same was not acted upon by the original accused No.1 husband. It is the case on behalf of the complainant that thereafter as she was in need of her ornaments, she went to the house of the accused No.1 - husband on 25/12/2007. It is the case on behalf of the complainant that at that time, the petitioners were also residing at village Vedva, Taluka : Manavadar, and all accused persons pressurized her to give divorce and she was misbehaved and told that her ornaments shall not be returned to her. Therefore, with the aforesaid allegations, the respondent No.2 - original complainant filed the private complaint in the court of learned Judicial Magistrate (First Class), Keshod for the offences punishable under sections 406, 420 and 114 of Indian Penal Code, which was registered as Inquiry Case No.1 of 2008. It appears that the learned Judicial Magistrate (First Class), Keshod passed an order to send the said complaint for police investigation under section 156(3) of the Code of Criminal Procedure and sent the complaint to Keshod Police Station for investigation and the same complaint has been registered as M.Case No.1 of 2008. Being aggrieved by and dissatisfied with the impugned criminal proceedings and registration of complaint being M.Case No.1 of 2008, the petitioners herein - original accused Nos.2 to 8 have preferred the present petition under section 482 of the Code of Criminal Procedure.
3. Mr.Dagli, learned advocate appearing on behalf of the petitioners has stated at the bar that he does not press the present petition QUA petitioner No.1 - original accused No.2 and he seeks permission to withdraw the present petition QUA him.
4. Permission as prayed for is granted. Present petition is dismissed as withdrawn QUA petitioner No.1 -
original accused No.1.
5. Under the circumstances, this Court is required to consider the present petition QUA petitioner Nos.2 to 7 - original accused Nos. 3 to 8.
6. Mr.Dagli, learned advocate appearing on behalf of the petitioner Nos.2 to 7 has vehemently submitted that as such the petitioners have not committed the offences punishable under sections 406, 420 and 114 of Indian Penal Code, as alleged. It is submitted that as such all the petitioners are residing at Junagadh and Rajkot respectively since many years and as such nothing is alleged in the complaint that the ornaments were entrusted by the complainant to them and/or they made a representation that the said ornaments will be returned to her. It is further submitted that in absence of such averments and allegations in the complaint, it cannot be said that the petitioners have committed any offence punishable under sections 406, 420 and 114 of Indian Penal Code, as alleged.
7. Mr.Dagli, learned advocate appearing on behalf of the petitioner Nos.2 to 7 have further submitted that in the impugned complaint all the family members are falsely implicated with a malafide intention to harass them. Therefore, it is requested to allow the present petition and quash and set aside the impugned complaint and criminal proceedings QUA petitioner Nos.2 to 7 herein.
8. Though served nobody appears on behalf of the respondent No.2 - original complainant.
9. Mr.K.L.
Pandya, learned Additional Public Prosecutor has appeared on behalf of the State. He has submitted that as such there are necessary averments and allegations in the complaint that the petitioners have refused to return the ornaments to the complainant and a prima facie case is made against the petitioner Nos.2 to 7 also and the averments and allegations made in the complaint are further required to be investigated. It is submitted that on investigation, it has been found that though the respective petitioner Nos.2 to 7 are residing separately at Junagadh and Rajkot, respectively they are all having a joint family. Therefore, it is requested to dismiss the present petition.
10. Heard Mr.Dagli, learned advocate appearing on behalf of the petitioners and Mr.K.L. Pandya, learned Additional Public Prosecutor for the State and perused the investigation papers.
11. At the outset, it is required to be noted that so far as the respondent NO.2 - original complainant is concerned, she was residing separately at her parental house since 1998 and/or prior thereto. It is also required to be noted that so far as the petitioner Nos.2 and 3 are concerned, they are residing separately at Junagadh and petitioner Nos.4 to 7 are residing separately at Rajkot. Nothing is on record and even it is not alleged in the complaint that the ornaments were entrusted and/or given to the petitioner Nos.2 to 7 and/or the petitioner Nos.2 to 7 made any representation to the complainant - respondent NO.2. Under the circumstances, when there was no entrustment to the ornaments to the petitioner Nos.2 to 7 herein and/or there was no representation made by the petitioner Nos.2 to 7 herein, to the original complainant that the ornaments will be returned to the complainant and as the petitioner Nos.2 to 7 are residing separately at Junagadh and Rajkot since long, it cannot be said that the petitioners have committed any offence as alleged. It appears that for malafide intention all the family members are implicated in the case. Therefore, it appears that this is a fit case to exercise powers under section 482 of the Code of Criminal Procedure to quash and set aside the impugned criminal proceedings.
12. In view of the above and for the reasons stated above, present petition is allowed so far as the petitioner Nos.2 to 7 herein - original accused Nos.3 to 8 are concerned, and the impugned Criminal Inquiry Case NO.1 of 2008, pending in the Court of learned Judicial Magistrate (First Class), Keshod as well as consequential First Information Report being M.Case Case No.1 of 2008 registered with Keshod Police Station are hereby quashed and set aside QUA petitioner Nos.2 to 7 - original accused No.3 to 8. However, the same shall be without prejudice to the rights and contentions of the original complainant / prosecution and other accused persons and they shall be tried in accordance with law and on merits, without in any way being influenced by the present judgement and order. Rule is made absolute QUA petitioner Nos.2 to 7 - original accused Nos.3 to 8 and present petition is dismissed as withdrawn QUA petitioner No.1 - original accused No.2 and Rule is discharged qua petitioner No.1 - original accused No.2.
[M.R.
SHAH, J.] rafik