1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for the sake of brevity), the petitioner, who is residing at United State of America (U.S.A) being accused no. 5 in M. Case No. 1 of 2012 which was registered with Rajkot City Mahila Police Station filed by respondent No.2 in the Court of Judicial Magistrate, First Class, Rajkot for the offences punishable under Sections 420 and 114 of the Indian Penal Code, 1860 (IPC) as well as under Sections 3 and 7 of the Dowry Prohibition Act wherein the Court of Judicial Magistrate, First Class passed an order of investigation.
2. The facts which are relevant for the present petition are enumerated as under :
2.1 Respondent No.2 is sister-in-law of the present petitioner. The petitioner married in the year 1979 and was residing at Dhoraji in Rajkot district with her husband and other family members. It further appears from the record of the petition that on 27.3.2008 the petitioner has migrated to U.S.A. and is now permanent resident of U.S.A.
3. It further emerges from the record of the petition that respondent No.2 married the brother of the petitioner on 26.11.2000. On reading the FIR, it further transpires that respondent No.2 filed written complaint before the Police Commissioner, Rajkot on 12.1.2012 and has also filed a complaint with the concerned Police Station i.e. Mahila Police Station which has now been registered as M. Case No. 1 of 2012. It is averred in the FIR in general terms that the husband and the members of her in-laws residing at village Kolki, Taluka Upleta, District Rajkot have taken away the belongings of respondent No.2 as well as articles which forms part of ‘Streedhan’ of respondent No.2. It is further alleged in the FIR that after the birth of male child (Parth), respondent No. 2 was driven away to her parental house and has also taken custody of the child. It is further alleged that thereafter demand of Rs. 50,000/- was raised by all the accused and have refused to part with the articles of ‘Streedhan’. It is also found that it has been specifically alleged that accused No.3 - Vijayaben Karamshiben Kalaria, who happens to be the mother-in-law of respondent No.2, in absence of respondent No.2, took possession of the gold ornaments belongs to respondent No.2 which consists of one gold set, four Bangle and arm- bond. It is further alleged that the accused have sold those gold ornaments to the goldsmith and thereby cheated respondent No.2. In addition to this, general allegations are levelled as regards alleged offences.
4. It further appears that by order dated 9.4.2012 Judicial Magistrate, First Class, Rajkot passed an order of investigation as provided under Section 156(3) of the Code of Criminal Procedure and at that stage the present petition is filed by accused No. 5.
5. Mr. Pratik Jasani, learned Counsel appearing for the petitioner has submitted that the marriage between respondent No. 2 and accused No. 1, brother of the present petitioner took place in the year 2000, whereas the present complaint is filed in the year 2012. Mr Jasani further submitted that in fact, the present petitioner married in the year 1979 and thereafter has hardly visited the parental house and in fact has migrated to U.S.A. in the year 2008. Mr. Jasani has relied upon photocopy of the entry of the Passport of the present petitioner as well as permanent resident card issued by the authority of U.S.A. Mr. Jasani further submitted that there is no allegation against the present petitioner in the FIR except the allegation in general. Mr. Jasani further submitted that apart from the fact that the present complaint is lodged after a delay of almost 12 years, no role has been attributed qua the present petitioner. Mr. Jasani further submitted that no ingredients of Section 406 and/or Section 420 of IPC can be culled out from the bare reading of FIR qua the present petitioner and the present petitioner has been roped in present offence only with a malafide intention. Mr. Jasani further relied upon the ratio laid down in the case of Preeti Gupta And Another Vs. State of Jharkhand And Another, reported in fact that it is frivolous and vexatious, no offence is culled out against the present petitioner and therefore this Court may be pleased to allow the petition.
6. Ms. Moxa Thakkar, learned APP. has opposed the petition. Ms. Thakkar contended that the present petition is filed at a premature stage and the investigation is yet to start. Ms. Thakkar further submitted that the complaint does disclose offence even against the present petitioner and therefore it is not a fit case to exercise inherent jurisdiction under Section 482 of the Code as prayed for. Ms. Thakkar further submitted that the judgment relied upon by the learned Counsel for the petitioner is a judgment after the investigation was made and the facts of that particular case have been considered by the Hon’ble Apex Court. Ms. Thakkar therefore submitted that the petition is devoid of any merits and same deserves to be dismissed.
7. Considering the submissions made by both the learned Counsels appearing on behalf of the respective parties and upon perusing the FIR as well as the private complaint which was filed before the police authorities, it transpires that respondent No.
2 married the brother of the present petitioner on 26.11.2000. It further appears that after the birth of the child, respondent No.2 has not stayed at her matrimonial house. However, on further examining the contents of the complaint it is found that what is narrated is an incident which took place after the marriage of petitioner and except general allegations, whereby the present petitioner is mentioned as sister-in-law and the allegation that all the accused including present petitioner have jointly connived and have committed the present offence, no role is attributed qua the present petitioner. It further transpires from the record of this petition that the present petitioner has migrated to U.S.A. on immigrant VISA on 27.3.2008 and has also been granted permanent card by the authority of U.S.A. wherein it is mentioned that she is resident since 27.3.2008. Considering the ratio laid down by the Hon’ble Apex Court in the case of Preeti Gupta (supra) even if the FIR as well as the private complaint filed by respondent No.2 is taken at its face value which is admittedly filed after ten years does not disclose any offence as alleged against the present petitioner.
7.1 As observed hereinabove, even if the complaint filed before the Commissioner of Police, Rajkot is considered, similar allegations are levelled and no specific role is attributed even at that stage qua the present petitioner. Ms. Thakkar, ld. APP has not been able to point out that the petitioner has not migrated to U.S.A. in the year 2008 and hence, this Court is of the opinion that the complaint qua the present petitioner (accused No.5) deserves to be quashed as the same would be unnecessary harassment to the petitioner and abuse of process of law and court qua the present petitioner.
8. It is further made clear that these observations are made only qua the present petitioner and more particularly considering the fact that there are general allegations against the present petitioner who has migrated out of country since more than four years before filing of the complaint and considering the facts of this case qua the petitioner this conclusion is arrived at and it is made clear that same would not apply to the other accused.
9. In view of the above, the petition is allowed and the impugned FIR being M Case No. 1 of 2012 registered with Rajkot City Mahila Police Station, qua petitioner (original accused no.5) only is hereby quashed. Rule is made absolute accordingly. Ad- interim relief granted earlier stands vacated.
M.M.BHATT Sd/-
(R.M.CHHAYA, J.)