"Kidnapped" by BKs after suffering 5 miscarriages

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"Kidnapped" by BKs after suffering 5 miscarriages

Post30 Sep 2013

More crap, more denials, another family broken apart ... another vulnerable individual enculted. In this case, a wife who had suffered from five consecutive miscarriages and was emotionally disturbed.

This matter dates back to 2005 but is still ongoing.

As of 22 January, 2013 and BRAHMAKUMARI SARLABEN SOMAIYA VERSUS STATE OF GUJARAT, the BKWSU are still trying to get their center-in-charge off the hook for meddling in another family's affairs.

The case was transferred to the Crime Investigation Department by the Court.
Man accuses spiritual sect of abducting wife

Man accuses spiritual sect of abducting wife
Vikram Rautela, TNN Sep 27, 2005

AHMEDABAD: Haresh Lilani has not seen his wife Sudha for nearly a year now. This 45-year old resident of Adipur in Kutch, has moved court against a prominent spiritual sect, alleging that his wife is 'captive' in one of their centres here.

Lilani has appealed to the metropolitan court, accusing three members of the sect under sections 365, 509 and 114 of the IPC, of kidnapping his wife. He claims that after suffering from five consecutive miscarriages during past 10 years of their married life, Sudha was emotionally disturbed and had started seeking solace by frequenting religious places.

"She became quiet and often complained that she did not like Kutch. She wanted to go to her parents' place at Sardarnagar in Ahmedabad, therefore, I rented a house in the same locality and shifted her here two years back. Since I used to work as a chief technician at IFFCO, I visited Ahmedabad only during vacations," Lilani said.

Religiously-inclined Sudha had reportedly started visiting the sect's centre here. While Lilani was unaware that his wife spent long hours at the sect's centre, Sudha's Father Arjan Motwani objected to this and asked his son-inlaw to intervene in the matter.

Lilani reached Ahmedabad on September 9, 2004 and asked Sudha to stop going to such places. "We had a tiff that night and when I woke up next morning, she was missing. I started searching for her, but no one knew of her whereabouts. Following a tip off from a friend, I started keeping an eye on the sect centre.

I saw Sudha at the Lotus home at Sardarnagar on October 5, 2004 and called out to her. Though she responded and tried to look out for me, she was forcibly dragged into the centre by some members of the sect. Later, when I approached them, they denied that Sudha was there and threw me out of the centre," Lilani said.

Lilani claimed that he was not entertained at the Sardarnagar police station when he approached them to file an FIR against the sect.

After consulting some advocates, Lilani moved the Gujarat High Court on January 5 this year,which issued notices to the police on January 11 and directed the then additional police commissioner of Shahibaug police station, Parixita Gurjar, to investigate the case.

Lilani alleged that the police officials succumbed to pressure from the well-connected sect, and refused to take action against the centre. Gurjar, however, said, "We were not able to find Sudha at any of the sect centres."

In his 14-page appeal, Lilani has mentioned that his friend Prem Kumar Dangar from Gandhidham, saw a whitesari-clad-Sudha at the sect's Maninagar centre on August 22, when he was in the city for some work. "I went to the centre the next day, but was thrown out," said Lilani.

When contacted, the zonal head of the sect, whose name figures in the FIR, told TOI, "You can come and check all our centres to know that this man is lying."
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Re: "Kidnapped" by BKs after suffering 5 miscarriages

Post22 Aug 2016

Spent 6 years going through the courts.

Gujarat High Court
Brahmakumari Sarlaben vs State Of Gujarat & on 22 January, 2013

BRAHMAKUMARI SARLABEN SOMAIYAV/SSTATE OF GUJARAT R/CR.MA/14210/2007

ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION NO. 14210 of 2007

================================================================

BRAHMAKUMARI SARLABEN
SOMAIYA & 1....Applicant(s)

Versus

STATE OF GUJARAT &
1....Respondent(s)

================================================================

Appearance:

MR GT DAYANI, ADVOCATE for the Applicant(s) No. 1 - 2

MR RUSHABH R SHAH, ADVOCATE for the Respondent(s) No. 2

MR.R.C.KODEKAR,

ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. 1
================================================================

CORAM: HONOURABLE MS JUSTICE SONIA GOKANI

Date : 22/01/2013

ORAL ORDER

1. This application is preferred under Section 482 of the Code of Criminal Procedure seeking quashment of Criminal Case No.5119 of 2007 pending before the Chief Judicial Magistrate, Gandhidham. A complaint came to be lodged by respondent no.2 (witness to the original complaint) against the present applicants, who were also arraigned as accused, in a complaint being Inquiry Case No.8 of 2005. By preferring this petition, it is alleged interalia that one Haresh Khubchand Lilani filed a complaint against the present applicants which is numbered as Inquiry Case No.8/05 alleging that his wife has been abducted by these applicants, who were followers of Brahmkumari .

It would be necessary to make a mention at this stage that in the month of August-2005, Inquiry Case No.8 of 2005 was filed before the Metropolitan Magistrate, Court No.17, Ahmedabad. In the said case, A Summary was filed on 10.07.2006 and additional report was sought from Assistant Commissioner of Police on 24.07.2006. After hearing both the sides, on 20.09.2009, A Summary was not accepted. The Court transferred the investigation to the C.I.D. Crime. The C.I.D. Crime, after thorough investigation, filed its Report of A Summary and the order of rejection came to be passed on 02.02.2009. The applicants herein have also challenged such order of rejection before this Court by preferring Criminal Misc.Application No.9415 of 2010 under Section 482 of the Code of Criminal Procedure and this Court (Coram:M.R.Shah,J.) vide its order dated 14.07.2011 dismissed the petition by giving detailed order confirming the order of rejection of A Summary Report submitted by the Investigating Officer before the Metropolitan Magistrate.

The Court having found prima-facie case against the applicants did not deem it fit to interfere with the order of rejection. This inquiry came to be initiated by virtue of incident dated 10.09.2007. It is alleged that the witness of the original complaint was approached by the present applicants who attempted to threaten him and he chose to file a complaint on 21.09.2007 before the Judicial Magistrate First Class, Gandhidham.

The Court, after directing to register the complaint, had sent it for necessary police inquiry under the provisions of Code of Criminal Procedure seeking Report within 30 days. It appears that on receipt of such Report of inquiry initiated under Section 202 of the Code of Criminal Procedure, the Court chose to issue process under Section 506 and 114 of the Indian Penal Code. By way of this complaint, allegations are made to the effect that the present applicants, who are both ladies, came and threatened the respondent no.2 in the presence of another adult male and the respondent no.2 was so frightened that he rushed to the Police Station to lodge a complaint. However, he was directed to settle the dispute with the accused and the complaint could not be lodged.

Mr.Ramnani, learned advocate appearing for Mr.G.T.Dayani, learned advocate for the applicants, has vehemently urged that there was no imminent cause for the applicants to approach the respondent no.2 herein. He further urged that it is completely unbelivable that two women traveling from Ahmedabad to Gandhidham can commit such kind of an act resulting into a complaint. He further urged that the Court needs to examine the case of the respondent no.2 herein as the incident has occurred eight days prior to the lodging of the complaint. It is also difficult to believe that a person, who is in transit, would travel without knowing the identity or the place of the residence of the respondent, would dare to threaten him. He relied upon the decision of the Apex Court in the case of Baijnath Jha Versus Sita Ram And Another, reported in (2008) 8 SCC 77 and urged that this is a malafide criminal proceeding instituted on vague complaint, and therefore, the Court may quash the said proceedings in order to prevent the abuse of process of Court.

Mr.Rushabh Shah, learned advocate for the respondent no.2, has urged before this Court that when the trial Court has issued process after seeking Report of the Police, the High Court in petition under Section 482 of the Code of Criminal Procedure need not go into a detailed inquiry. It is also urged that in wake of availability of sufficient material with the trial Court for issuance of the process, the Court may not interfere with the order of rejection. He replied upon the case of 2009(2)SCC 147. He urged that in this petition, the applicants also urged for quashing of the earlier complaint, which has been rejected by the Court since it was at the time when the complaint was to be investigated by the CID Crime that respondent no.2 had been approached. Therefore, on merits also, strongly the case is made out for the Court not to interfere.

Upon hearing both the sides & on close perusal of the record, this petition has been decided herein as under:-

A.

At the outset, it is to be noted that this is a petition under Section 482 of the Code of Criminal Procedure. The Court requires to consider whether there exists a prima-facie case against the applicants or not. Details of inquiry need not be gone into to examine whether the allegations made in the complaint, if proved, would ultimately result into conviction. The decision of the Apex Court in the case of Uttar Pradesh Pollution Control board Versus Bhupendra Kumar Mode, reported in 2008(0) GLHEL-SC 42611 is sought to be relied upon in that case, the Court while exercising the jurisdiction under Section 482 of the Code of Criminal Procedure held that the High Court could not ordinarily embark upon an enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusations would not be sustained. Relevant observations of the said judgment reads as under:-

14. It is settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima-facie satisfied whether there are sufficient grounds for proceeding against the accused. In Smt.Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, 1976 (3) SCC 736, this Court has held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that once the Magistrate has exercised his discretion, it is not for the High Court or even this Court to substitute its own discretion for that of the Magistrate or to examine their case on merits with a view to find out whether or not the allegations in complaint, if proved, would ultimately end in conviction of the accused. This Court has held that in the following cases, an order of the Magistrate issuing process against the accused can be quashed.

Whether the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused.

Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible ; and where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally authority and the like .

No doubt the grounds mentioned above are purely illustrative and it provides only guidelines to indicate contingencies where the High court can quash the proceedings. Though arguments was advanced based on the decision in State of Karnataka Vs. Pratap Chand and Others, 1981 2 SCC 335, it was decided in a case relating conviction under Drug and Cosmetics Act, 1940 and not quashing of a complaint based merely on a petition or an affidavit. Hence, the said decision is not applicable t the case on hand.

The Court of course, in this judgment, has held that if no case is made out against the accused from the statements of the witness or the complaint does not have any essential ingredients of the offence & the Court can interfere even in the event of the complaint being absolutely absurd and inherently improbable.

B. The Court also requires to consider whether the discretion exercised by the Magistrate in issuing process was capricious or arbitrary in nature and whether any fundamental defect exists in the complaint itself and if it is legally incompetent to sustain such complaint, the Court can quash the order of the Magistrate of issuing process. Likewise, in the decision of the Baijnath Jha Versus Sita Ram and Another, reported in (2008) 8 SCC 77, the Court has summarized law on inherent powers of the High Court and some of the categories of cases where the power under Section 482 of Code of the Criminal Procedure can be exercised for quashing the proceedings.

7. 6.

Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

7. In R.P. Kapur v. State of Punjab 1 this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings: (AIR para 6)

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

8. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal 2.

A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102)

102. 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.

Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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.

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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fides 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.

9. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S.

Chowdhary 3 and Raghubir Saran (Dr.) v. State of Bihar 4.] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive.

Thus, it can be noted that powers of this Court are very wide under Section 482 of the Code of the Criminal Procedure & it has not to ordinarily embark upon an inquiry while exercising power under this provision to ascertain whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the accusations can be sustained or not. It is also not to stifle the prosecution which is otherwise legitimate. At the same time, the Court shall have to consider whether the allegations made in the complaint are so absurd that no prudent man can be arraigned as accused in absence of sufficient grounds.

C. Applying these tests, it can be noted that, in the instant case, without issuing process, the Magistrate had undertaken the inquiry and also called for the Report of the police. After receiving such Report within the period stipulated in the order, the Court has chosen to issue the process. It can be safely said that the complaint does not suffer from any fundamental defect nor can it be said that the discretion exercised by the Magistrate is either capricious or arbitrary. On perusal of the statements recorded by the ASI pursuant to the order of the Court, it would not be possible for the Court to conclude that no case is made out against the accused or that those statements do not disclose essential ingredients of the offence.

D. In such circumstances, the only aspect that requires close scrutiny is as to whether the complaint is so absurd and improbable as is sought to be made by the learned advocate, that sustaining of the order would not be possible for the Court.

E. It is emphasized before this Court that since there existed no ground at the time when the alleged incident is said to have occurred, it is impossible for the applicants to travel all the way from Ahmedabad to Gandhidham to administer such threat.

F. The Court cannot disregard the fact that earlier case being Inquiry Case No.8 of 2005 was transferred to the C.I.D. Crime by the Court concerned by not accepting the A summary report. It was after such transfer of investigation to the C.I.D. (Crime) that the said incident is alleged to have been committed. Therefore, it will not be possible for this Court to say that without there being any cause and despite trial having not begun, the alleged incident is impossible to have occurred. Moreover, the sufficiency of evidence or the probability that such evidence would lead to conviction of person which is on the basis of inquiry for the Court is not sufficient to exercise jurisdiction under Section 482 of the Code of Criminal Procedure. When none of those grounds which are enumerated in the provision as well as in the settled legal position exists, and when the process has been issued by the learned Magistrate, by way of this petition legitimate prosecution does not require any interference under Section 482 of the Code of Criminal Procedure.

G. In view of the above discussion and for the reasons given herein above, this petition is dismissed. Needless to say that none of the observations made in this application would come in the way of any of the applicants either while deciding any application for discharge as that may be preferred by the present applicants or otherwise deciding their case on merits. Rule is discharge, thus.

(MS SONIA GOKANI, J.)
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Re: "Kidnapped" by BKs after suffering 5 miscarriages

Post23 Aug 2016

weird people

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