KAILASHBEN PUNJABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present respondent No.2 in capacity of Power of Attorney of Mandakiniben wife of Mukeshbhai Rambhai Patel filed a private complaint in the Court of learned Judicial Magistrate, First Class, at Vadodara for the offences punishable under Sections 504, 506(2) and under Sections 188 and 114 of the Indian Penal Code against present petitioners and her husband. Accused No.1 was the husband of the complainant. He is not the petitioner herein. The petitioner No.1 herein happened to be second wife of the accused No.1. She was accused No.2. It was alleged that Mandakiniben was married to accused No.1 and, thereafter, she was taken to U.S.A. by accused No.1 and there, accused No.1 was missing. Thereafter, the complainant came to know that accused No.1 had returned to India on 23.04.2002. It was learnt by the complainant that though the marriage of her sister Mandakiniben was subsisting with accused No.1, he was to marry with accused No.2 and accused No.3, petitioner No.2 herein abetted the said act. It was the allegation that ultimately, on 30.04.2002, without consent and beside, the marriage of accused No.1 subsisting with Mandakiniben, accused Nos.1 and 2 got married. Therefore, to restrain this marriage, a Regular Civil Suit was also filed by the wife being Regular Civil Suit No.411 of 2002 and temporary injunction was also obtained. It was also alleged that on 30.04.2002, the accused were threatening to kill the complainant and also gave abuses. This complaint came to be filed on 01.05.2002. Learned Magistrate, First Class, Vadodara forwarded this complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure, where the police recorded the complaint under Sections 494, 497, 188, 506(2), 504 and 114 of the Indian Penal Code against the present petitioners and accused No.1 and, therefore, this petition by the original accused Nos.2 and 3 for quashing of the said Inquiry Case No.20 of 2002. The respondent No.2 has preferred affidavit -in -reply at page -22 which is taken into consideration.

(2.) LEARNED advocate Mr.Devendra K Rathod for the petitioners submitted that in fact marriage between the accused No.1 and Mandakiniben came to an end by decree of divorce in the Court of Common Pleas of Allegheny County, Pennsylvania Family Division on 24th day of January, 2001 and, therefore, the question of committing the offences under Sections 494 and 497 of the Indian Penal Code would not arise. So far as other offences under Sections 506(2) and 504 of the Indian Penal Code is concerned, learned advocate Mr.Rathod submitted on record the invitation card of the marriage took place between the accused Nos.1 and 2. It is submitted that the ceremonies to be taken place at a distant place than the complained of, necessarily denotes that those allegations are vexatious and utterly false on the face of it. It is, therefore, submitted that when the complaint does not disclose any offence, prima facie, there is no question of investigation and hence this is an abuse of process of law and the complaint be quashed.

(3.) AS against that learned advocate Mr.Ramnandan Singh for the respondent No.2 submitted that the decree of divorce was obtained by fraud and, therefore, a Regular Civil Suit and the complaint came to be filed against the accused at the relevant juncture and temporary injunction was granted in the said Regular Civil Suit and, thereafter, was vacated, though the suit is still pending. It is submitted that the alibi is a matter of trial and could not be decided in quashing petition.