Gujarat High Court
Mariyam Saeedahmed Gulati vs State Of Gujarat on 28 January, 2025
NEUTRAL CITATION
R/CR.MA/25159/2024 ORDER DATED: 28/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR DOMESTIC VIOLENCE) NO.
25159 of 2024
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MARIYAM SAEEDAHMED GULATI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS. DIPA B ZALA(6937) for the Applicant(s) No. 1,2,3
MS. MAITHILI MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 28/01/2025
ORAL ORDER
1. The present application is filed for seeking the following
reliefs:
“A. Your lordships be pleased to Quash and set aside the
Criminal Misc. Application No 1156 of 2024 Pending Before
The Learned Judicial Magistrate Godhra At Godhra filed
under section 12 of protection of woman from domestic
violence act 2005 on 07.10.2024, in interest of Justice,.
B. Your lordships be pleased to by way of interim/ad
interim relief stay further proceedings of the Criminal Misc.
Application No 1156 of 2024 Pending Before The Learned
Judicial Magistrate Godhra At Godhra filed under section
12 of protection of woman from domestic violence act 2005
on 07.10.2024 and not arrest to the present petitioners and
not to proceed further without consent this Hon’ble to court
till the final disposal present application in interest ofPage 1 of 17
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justice.
C. Grant any other and further relief/s as may deem fit in
the interest of justice.”
2. Heard Ms. Dipa Zala, learned advocate for the3
applicants and Ms. Maithili Mehta, learned APP for the
respondent.
3. Ms. Dipa Zala, learned advocate for applicants has
submitted that entire family is roped in the complaint filed
under The Protection of Women From Domestic Violence Act,
2005 (for short “the Domestic Violence Act“) on the basis of
general allegations. She has submitted that continuation of
the proceeding pursuant to the impugned complaint would
amount to abuse of process of law. She has further submitted
that on bare perusal of the complaint, no specific allegation
against the family members of the husband has been made
and even the allegations made in the complaint are general
in nature. It is required to note that the applicant Nos.1, 2
and 3 are mother-in-law, father-in-law and sister-in-law
respectively of the complainant. She has also submitted that
sister-in-law is residing separately on her matrimonial house
even also she is dragged into the alleged complaint and,
therefore, she has submitted that on bare reading of the
complaint, no offence is made out under any of the provisions
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of the Domestic Violence Act. In support of his submissions,
she has relied upon the decision in the case of Natubhai
Somabhai Rohit vs. State of Gujarat reported in 2017 (2)
Crimes (HC) 199, and (ii) Neelu Chopra and Anr. vs. Bharti
reported 2009 (10) SCC 184. Furthermore, she has submitted
that the present position may be entertained and proper
relief may be granted by this Court.
3. Learned APP has submitted that on bare reading of the
complaint, prime facie, case is made out under the provisions
of Domestic Violence Act and, therefore, no relief can be
granted at this stage. She has also submitted that
considering the fact that husband is B.E. Mechanical
Engineer and serving in Canada and the complainant is
cardio physiotherapist and the applicants are harassing the
complainant by demanding an amount of Rs.20,00,000/- and,
therefore, considering the same, allegations made in the
complaint by the complainant are required to be tested at
the time of trial as prima facie, case is made out and,
therefore, he plays to dismiss this petition.
4.1 I have considered the rival submissions made at the
bar. It is fruitful to refer the provisions of Sections 12, 18,
19(1)(f), 19(8), 20, and 22 of the Domestic Violence Act, as
under:
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“12. Application to Magistrate
(1) An aggrieved person or a Protection Officer or any other
person on behalf of the aggrieved person may present an
application to the Magistrate seeking one or more reliefs
under this Act:
Provided that before passing any order on such application,
the Magistrate shall take into consideration any domestic
incident report received by him from the Protection Officer
or the service provider.
(2) The relief sought for under sub-section (1) may include
a relief for issuance of an order for payment of
compensation or damages without prejudice to the right of
such person to institute a suit for compensation or damages
for the injuries caused by the acts of domestic violence
committed by the respondent:
Provided that where a decree for any amount as
compensation or damages has been passed by any Court in
favour of the aggrieved person, the amount, if any, paid or
payable in pursuance of the order made by the Magistrate
under this Act shall be set off against the amount payable
under such decree and the decree shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5
of 1908), or any other law for the time being in force, be
executable for the balance amount, if any, left after such
set off.
(3) Every application under sub-section (1) shall be in such
form and contain such particulars as may be prescribed or
as nearly as possible thereto.
(4) The Magistrate shall fix the first date of hearing, which
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shall not ordinarily be beyond three days from the date of
receipt of the application by the Court.
(5) The Magistrate shall endeavour to dispose of every
application made under sub-section (1) within a period of
sixty days from the date of its first hearing.
18. Protection orders
The Magistrate may, after giving the aggrieved person and
the respondent an opportunity of being heard and on being
prima facie satisfied that domestic violence has taken place
or is likely to take place, pass a protection order in favour
of the aggrieved person and prohibit the respondent from
(a) committing any act of domestic violence;
(b) aiding or abetting in the commission of acts of domestic
violence;
(c) entering the place of employment of the aggrieved
person or, if the person aggrieved is a child, its school or
any other place frequented by the aggrieved person;
(d) attempting to communicate in any form, whatsoever,
with the aggrieved person, including personal, oral or
written or electronic or telephonic contact;
(e) alienating any assets, operating bank lockers or bank
accounts used or held or enjoyed by both the parties, jointly
by the aggrieved person and the respondent or singly by
the respondent, including her stridhan or any other property
held either jointly by the parties or separately by them
without the leave of the Magistrate;
(f) causing violence to the dependants, other relatives or
any person who give the aggrieved person assistance from
domestic violence;
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(g) committing any other act as specified in the protection
order.
19(1)(f) directing the respondent to secure same level of
alternate accommodation for the aggrieved person as enjoyed
by her in the shared household or to pay rent for the
same, if the circumstances so require:
Provided that no order under clause (b) shall be passed
against any person who is a woman.
19(8) The Magistrate may direct the respondent to return to
the possession of the aggrieved person her stridhan or any
other property or valuable security to which she is entitled
to.
20. Monetary reliefs
(1) While disposing of an application under sub-section (1)
of section 12, the Magistrate may direct the respondent to
pay monetary relief to meet the expenses incurred and
losses suffered by the aggrieved person and any child of the
aggrieved person as a result of the domestic violence and
such relief may include, but not limited to,
(a) the loss of earnings;
(b) the medical expenses;
(c) the loss caused due to the destruction, damage or
removal of any property from the control of the aggrieved
person; and
(d) the maintenance for the aggrieved person as well as her
children, if any, including an order under or in addition to
an order of maintenance under section 125 of the Code of
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Criminal Procedure, 1973 (2 of 1974) or any other law for
the time being in force.
(2) The monetary relief granted under this section shall be
adequate, fair and reasonable and consistent with the
standard of living to which the aggrieved person is
accustomed.
(3) The Magistrate shall have the power to order an
appropriate lump sum payment or monthly payments of
maintenance, as the nature and circumstances of the case
may require.
(4) The Magistrate shall send a copy of the order for
monetary relief made under sub-section (1) to the parties to
the application and to the in charge of the police station
within the local limits of whose jurisdiction the respondent
resides.
(5) The respondent shall pay the monetary relief granted to
the aggrieved person within the period specified in the
order under sub-section (1).
(6) Upon the failure on the part of the respondent to make
payment in terms of the order under sub-section (1), the
Magistrate may direct the employer or a debtor of the
respondent, to directly pay to the aggrieved person or to
deposit with the Court a portion of the wages or salaries or
debt due to or accrued to the credit of the respondent,
which amount may be adjusted towards the monetary relief
payable by the respondent.
22. Compensation orders:-
.In addition to other reliefs as may be granted under this
Act, the Magistrate may on an application being made byPage 7 of 17
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the aggrieved person, pass an order directing the respondent
to pay compensation and damages for the injuries, including
mental torture and emotional distress, caused by the acts of
domestic violence committed by that respondent.”
4.2 I have also gone through the complaint, more
particularly, allegations made in paragraph Nos.3 to 9
whereby it clearly transpires that there is persistent demand
of Rs.20,00,000/- by the present applicants from the
complainant so that the present applicants can go to Canada.
It also clearly stated in the complaint that accused Nos.2, 3
and 5 have given fist and kick blows to the complainant and
there is consistent mental as well as physical torture that
happened with complainant when the complainant was
staying with the present applicants and, therefore, the
provisions of Domestic Violence Act are attracted, moreover,
the conduct of the applicants also indicates that father of the
complainant has to give written apology by registered post ad
on 8
th
July, 2024 to the present applicants and this speaks
about the volume of the harassment caused to the
complainant. Considering the allegations of the repeated
demand of the amount coupled with the physical as well as
mental torture and also considering the fact that father of
the complainant is compelled to give written apology and
pray to the applicants that they will allow the complainant
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to stay with them, this itself indicates that there is
substance in the complaint made by the complainant.
4.3 It cannot be said that there is no prime facie case
made out on bare reading of the complaint nor it can be
said that after considering the allegations made in the
compliant, continuation of the proceeding pursuant to the
impugned complaint will amount to abuse of process of law.
Hence, the matter is required to be tested at the time of
trial after giving opportunity to the parties to lead the
evidence and after examination and cross-examination of the
witnesses and, therefore, I found no reason to exercise my
powers.
4.4 At this stage, it would be fruitful to refer to the recent
decision of the Hon’ble Apex Court in the case of Somjeet
Mallick versus State of Jharkhand and others reported in
(2024) 10 SCC 527, more particularly Paras : 15, 17 and 18
thereof, which read as under :
” 15. Before we proceed to test the
correctness of the impugned order, we must
bear in mind that at the stage of deciding
whether a criminal proceeding or FIR, as the
case may be, is to be quashed at the
threshold or not, the allegations in the FIRPage 9 of 17
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or the police report or the complaint,
including the materials collected during
investigation or inquiry, as the case may be,
are to be taken at their face value so as to
determine whether a prima facie case for
investigation or proceeding against the
accused, as the case may be, is made out.
The correctness of the allegations is not to
be tested at this stage.
17. It is trite law that FIR is not an
encyclopaedia of all imputations. Therefore, to
test whether an FIR discloses commission of
a cognizable offence what is to be looked at
is not any omission in the accusations but
the gravamen of the accusations contained
therein to find out whether, prima facie,
some cognizable offence has been committed
or not. At this stage, the Court is not
required to ascertain as to which specific
offence has been committed.
18. It is only after investigation, at the
time of framing charge, when materials
collected during investigation are before the
Court, the Court has to draw an opinion as
to for commission of which offence thePage 10 of 17
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accused should be tried. Prior to that, if
satisfied, the Court may even discharge the
accused. Thus, when the FIR alleges a
dishonest conduct on the part of the accused
which, if supported by materials, would
disclose commission of a cognizable offence,
investigation should not be thwarted by
quashing the FIR.”
4.5 Further, in the judgment of the Hon’ble Apex Court
in the case of Neeharika Infrastructure Pvt. Ltd. versus
State of Maharashtra and Others reported in 2021 SCC
OnLine SC 315, and more particularly para 80 is
relevant, which is as under:
“80. In view of the above and for the reasons stated
above, our final conclusions on the principal/core
issue, whether the High Court would be justified in
passing an interim order of stay of investigation and/
or “no coercive steps to be adopted”, during the
pendency of the quashing petition under Section 482
Cr.P.C and/or under Article 226 of the Constitution of
India and in what circumstances and whether the
High Court would be justified in passing the order of
not to arrest the accused or “no coercive steps to be
adopted” during the investigation or till the finalPage 11 of 17
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report/chargesheet is filed under Section 173 Cr.P.C.,
while dismissing/disposing of/not entertaining/not
quashing the criminal proceedings/complaint/FIR in
exercise of powers under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India, our
final conclusions are as under:
i) Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate
into a cognizable offence;
ii) Courts would not thwart any investigation into the
cognizable offences;
iii) It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first
information report that the Court will not permit an
investigation to go on;
iv) The power of quashing should be exercised
sparingly with circumspection, as it has been
observed, in the ‘rarest of rare cases (not to be
confused with the formation in the context of death
penalty).
v) While examining an FIR/complaint, quashing of
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which is sought, the court cannot embark upon an
enquiry as to the reliability or genuineness or
otherwise of the allegations made in the
FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at
the initial stage;
vii) Quashing of a complaint/FIR should be an
exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping
the jurisdiction of the police, since the two organs of
the State operate in two specific spheres of activities
and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) Save in exceptional cases where non-interference
would result in miscarriage of justice, the Court and
the judicial process should not interfere at the stage
of investigation of offences;
xi) Extraordinary and inherent powers of the Court
do not confer an arbitrary jurisdiction on the Court
to act according to its whims or caprice;
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xii) The first information report is not an
encyclopaedia which must disclose all facts and
details relating to the offence reported. Therefore,
when the investigation by the police is in progress,
the court should not go into the merits of the
allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature to
pronounce the conclusion based on hazy facts that the
complaint/FIR does not deserve to be investigated or
that it amounts to abuse of process of law. After
investigation, if the investigating officer finds that
there is no substance in the application made by the
complainant, the investigating officer may file an
appropriate report/summary before the learned
Magistrate which may be considered by the learned
Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very
wide, but conferment of wide power requires the
court to be more cautious. It casts an onerous and
more diligent duty on the court;
xiv) However, at the same time, the court, if it
thinks fit, regard being had to the parameters of
quashing and the self-restraint imposed by law, more
particularly the parameters laid down by this Court
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in the cases of R.P. Kapur (supra) and Bhajan Lal
(supra), has the jurisdiction to quash the
FIR/complaint;
xv) When a prayer for quashing the FIR is made by
the alleged accused and the court when it exercises
the power under Section 482 Cr.P.C., only has to
consider whether the allegations in the FIR disclose
commission of a cognizable offence or not. The court
is not required to consider on merits whether or not
the merits of the allegations make out a cognizable
offence and the court has to permit the investigating
agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable
and/or the aforesaid aspects are required to be
considered by the High Court while passing an
interim order in a quashing petition in exercise of
powers under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India. However, an interim
order of stay of investigation during the pendency of
the quashing petition can be passed with
circumspection. Such an interim order should not
require to be passed routinely, casually and/or
mechanically. Normally, when the investigation is in
progress and the facts are hazy and the entire
evidence/material is not before the High Court, the
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High Court should restrain itself from passing the
interim order of not to arrest or “no coercive steps to
be adopted” and the accused should be relegated to
apply for anticipatory bail under Section 438 Cr.P.C.
before the competent court. The High Court shall not
and as such is not justified in passing the order of
not to arrest and/or “no coercive steps” either during
the investigation or till the investigation is completed
and/or till the final report/chargesheet is filed under
Section 173 Cr.P.C., while dismissing/disposing of the
quashing petition under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India. xvii)
Even in a case where the High Court is prima facie
of the opinion that an exceptional case is made out
for grant of interim stay of further investigation,
after considering the broad parameters while
exercising the powers under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution of India
referred to hereinabove, the High Court has to give
brief reasons why such an interim order is warranted
and/or is required to be passed so that it can
demonstrate the application of mind by the Court and
the higher forum can consider what was weighed
with the High Court while passing such an interim
order.
xviii) Whenever an interim order is passed by the
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High Court of “no coercive steps to be adopted”
within the aforesaid parameters, the High Court must
clarify what does it mean by “no coercive steps to be
adopted” as the term “no coercive steps to be
adopted” can be said to be too vague and/or broad
which can be misunderstood and/or misapplied.”
5. In view of above observations as well as facts and and
circumstances of the case and the stage of investigation, this
Court does not find any merit at this stage to quash the
impugned complaint. This petition, therefore, needs to be
dismissed and is dismissed accordingly.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
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