Rahim Jumma Kumbhar & 3 Other(S) vs State Of Gujarat & 1 Other(s)

Dr. A. P. Thaker, J

Heard learned advocate Mr.Sikander Saiyed for the petitioners and Mr.D.M.Devnani, learned APP for respondent no.1-State. Though served,

nobody appears on behalf of respondent no.2.

By filing this petition, the petitioners have sought for the following prayers:-

“15. …

(A) Your Lordships may be pleased to admit and allow this petition.

(B) Your Lordships may be pleased to quash and set aside the FIR being C.R.No.I-46/2013 registered with Rapar Police Station.

(C) During the pendency and final disposal of this application, Your Lordships may be pleased to stay further proceedings in connection with

C.R.No.I-46/2013 registered with Rapar Police Station.

(D) Your Lordships may be pleased to kindly direct the Superintendent or concerned Police authorities to give protection to the petitioner no.1, his

wife Smt.Hansaben @ Sofiya and their infant child.

(E) Your Lordships may be pleased to pass such other order as may be deemed just and proper in the circumstances of the case.â€​

It is the submission of the petitioner that the complainant has lodged the complaint before Rapar Police Station being C.R.No.I-46/2013 for the

alleged offences. It is submitted on behalf of the petitioners that the complainant has lodged FIR

on 12th May 2013, whereas the incident has happened on 4th May 2013. He has also drawn the attention of the Court to the affidavit filed by

Smt.Hansaben @ Sofiya, wherein it is stated that she has left her parental home voluntarily and she has not taken away anything. It is submitted at

bar on behalf of the petitioners that the complaint has been lodged only with an intention to harass the accused. It is submitted that it is nothing but an

abuse of process of law. The affidavit filed by Smt.Hansaben @ Sofiya, which is at page 19 of the present petition, reads as under:-

“1. I state on oath that the complaint which is under challenge and subject matter of the above mentioned petition is filed by my father i.e. Shri

Laljibhai Govindbhai Vaviya and I am the reason behind the aforesaid FIR being C.R.No.I-46/2013 registered with Rapar Police Station.

I further state on oath that I came in contact with Shri Rahim Jumma Khumbar who is also resident of the same area where I was residing and I

fell in love with the aforesaid Shri Rahim Jumma Khumbar.

I further state on Oath that as such Shri Rahim Jumma Khumbar was not liked by my family members & hence there was a strict oppose of my

marriage with Shri Rahim Jumma Khumbar hence I decided to leave my parental home and get married with Shir Rahim Jumma Khumbar. In this

context I submit that on 1.5.2013, I left my parental house with bare foot and the intimation was also given to the Police Authorities for the same.

I further state on oath that I left my parental house I did not carry any belongings such as ornaments either of gold silver or any other valuable thing

along with me 7 I left empty hand.

I further state that on 12.5.2013, my father i.e. Shri Laljibhai Govindbhai Vaviya lodged a complaint against my husband Shri Rahim Jumma

Khumbar, my brother in law Shri Hussain Jumma Khumbar, my mother in law Smt.Rehmaben Jumma Khumbar & my sister in law Smt.Khatunben

Ramzan Khumbara for the offences punishable under sections 365, 392, 452, 504, 506 (2) & 114 of Indian Penal Code. In this context I respectfully

submit that the aforementioned persons have not committed any offence as narrated in the F.I.R. but my father has dragged my in laws as a counter

blast to my marriaged with Shri Rahim Jumma Khumbar which was opposed by my father and family members.

I further respectfully submits that no such incident has taken place & since My 2013 I and my husband Shri Rahim Jumma Khumbar are away

from home and earning livelihood by doing labour work.

I further state on Oath that out of the wedlock, I have given birth to a child which is infant & 6 months Old & I have willfully of my own, without

any pressure of anyone & with sound mind have married to Shri Rahim Jumma Khumbar & hence I humbly request the Hon’ble Court to kindly

quash the FIR being C.R.No.I-46/2013 registered with Rapar Police Station lodged against my husband and in laws.â€​

3.1 Today, Smt.Hansaben @ Sofiya is present with her children and she reiterates the above narration.

It is pertinent to note that this fact has not been challenged by the complainant by remaining present. It also appears from record that at the time of

incident Hansaben was major. Considering the provisions of Section 482 powers vested with the Court in case of abuse of law to pass appropriate

order quashing the FIR. In the case of State of Haryana and Another v. Ch.Bhajanlal and Others reported in 1992 AIR 604, it is observed as under:-

 “8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure,

the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any

Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and

inflexible guide in myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety

do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose 265 the

commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.â€​

In view of above legal position and considering the peculiar fact of this case, this Court is of the considered opinion that the impugned FIR is liable

to be quashed and set aside. Accordingly, present petition is allowed. The impugned FIR being C.R.No.I-46/2013 registered with Rapar Police Station

is quashed and set aside so far as present applicants are concerned. Rule is made absolute accordingly. Direct service is permitted.