R/SCR.A/8941/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8941 of 2020
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AMIT CHANDUBHAI RAVAL THROUGH DINESHBHAI MELABHAI RAVAL
Versus
STATE OF GUJARAT
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Appearance:
MR. HARDIK P BAROT(6798) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR. MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 04/01/2021
ORAL ORDER
As the age of the prosecutrix is minor i.e. 12 years and 9 months, the applicant has requested to quash and set aside the FIR & all of its consequential proceedings arising out therefrom registered on 03.04.2020 with ICR/ FIR No.11216007200114 of 2020 at Sector21 Police Station, DistGandhinagar for the offence punishable under Sections 363, 366 and 376(2)(3) of the Indian Penal Code; Sections 4 and 6 of the POCSO Act and Section 3 (2) (5) and 3(1) W (1) of Atrocity Act along with all the proceedings pending in Special Pocso Case No.29 of 2020 before the learned Special Pocso Court, DistGandhinagar and requested to stay further proceedings thereof.
Rule to the respondent No.1 returnable forthwith. Learned Page 1 of 7 Downloaded on : Tue Jan 11 17:23:58 IST 2022 R/SCR.A/8941/2020 ORDER APP wavies service of notice of rule for and on behalf of respondent No.1State.
Considering the facts of this case, minor age of the victim and seriousness of the offence, this Court deems it fit to dispose of this application without issuing any notice or rule to the respondent No.2, however, learned advocate for the applicant has requested to quash the impugned complaint.
Heard learned advocate for the applicant as well as learned APP for the respondentState.
It was submitted that in connection with the offence punishable under Sections 363, 366 and 376(2)(3) of the Indian Penal Code; Sections 4 and 6 of the POCSO Act and Section 3 (2) (5) and 3(1) W (1) of Atrocity Act, applicant was arrested on 09.04.2020. That after investigation, the chargesheet has been filed by the investigating officer. The statement of victim was also recorded on 09.04.2020. That she will not support the prosecution case in the trial as it was given under confusion and pressure. Learned advocate for the applicant has also referred medical certificate of the victim dated 13.05.2020 and argued that not a single abrasion mark was found on the body. Learned advocate for the applicant has also referred medical certificate dated 17.04.2020 Page 2 of 7 Downloaded on : Tue Jan 11 17:23:58 IST 2022 R/SCR.A/8941/2020 ORDER and argued that no injury was found, but radiological bone is around 1719 years. That FIR is delayed with 13 days without any explanation. That victim herself had pressurized and invited the present applicant by making a phone call to do the said, and therefore, there is no question of kidnapping minor under Sections 363 and 366 of the Indian Penal Code. That due to intervention of the elders and family members of both the sides, amicable settlement was arrived at between the parties and dispute has been resolved from its root cause having no other left out from any of the side, and therefore, the complainant and the victim have shown their will and wish to quash the impugned complaint. That no fruitful purpose would be served, if the trial would be commenced and applicant is no likely to be convicted at all. Hence, it was requested by learned advocate for the applicant to allow present application by quashing the impugned FIR registered against him.
Learned APP for the respondentState has strongly objected the submissions made by learned advocate for the applicant and submitted that however consent was given by the father of the victim present application cannot be entertained or allowed by this Court. While referring the contents of the complaint annexed at Page No.13 of the application, it is submitted that minor girl having Page 3 of 7 Downloaded on : Tue Jan 11 17:23:58 IST 2022 R/SCR.A/8941/2020 ORDER age of 12 years 9 months was kidnapped by the present applicant from the lawful guardianship of the father of the victim and rape was committed by the applicant. That applicant is bound to face the trial as the age of the victim is minor. That bail application preferred by the applicant was rejected by learned Sessions Court concerned and thereafter, applicant approached this Court by filing a Criminal Appeal No.9161 of 2020, which was withdrawn from this Court with a liberty on 21.10.2020. That bail Court has not exercised the powers in favour of the present applicant. That no case is made out by the present applicant to quash the impugned FIR. In support of his argument. Learned APP has relied upon the judgment in the case of Miss Xyz v. State of Gujarat reported in 2019 (0) AIJELSC 65055 arising from the judgment of the Gujarat High Court. It is submitted that in a consent quashing of the similar offence, this Court was pleased to allow the prayer, wherein the Hon'ble Apex Court has refused to quash the complaint and hence, it was requested by learned APP for the respondent State to dismiss the present application.
Having gone through the submissions made by learned advocate for the applicant and learned APP for the respondent State as well as chargesheet papers produced on record, it appears Page 4 of 7 Downloaded on : Tue Jan 11 17:23:58 IST 2022 R/SCR.A/8941/2020 ORDER that, father of the victim has lodged a complaint before the police authorities saying that his minor daugher having age of 12 years 9 months was kidnapped by the present applicant from her lawful guardianship with an intention to marry with her. The complainant was coming from SC/ST community. As per the contents of the complaint, birth date of the victim was 01.07.2007. It appears from the record that investigation was carried out after registration of the FIR by the investigating agency and thereafter, chargesheet was filed 03.04.2020. Statement of the victim was recorded, wherein it is clearly stated by the victim herself that rape was committed by the present applicant. At this juncture, consent, if any, granted by the father of the victim by filling affidavit in case of offence punishable under Sections 363, 366 and 376(2)(3) of the Indian Penal Code; Sections 4 and 6 of the POCSO Act and Section 3 (2)(5) and 3(1) W (1) of Atrocity Act may not be considered.
In the case of Miss Xyz v. State of Gujarat reported in 2019 (0) AIJELSC 65055, Hon'ble Apex Court has observed as under:
During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114A of the Indian Evidence Act, 1872. Section 114A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is Page 5 of 7 Downloaded on : Tue Jan 11 17:23:58 IST 2022 R/SCR.A/8941/2020 ORDER whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.
In the case of State of Madhya Pradesh v. Dhruv Gurjar and another reported in (2019) 5 SCC 570, Hon'ble Apex Court has observed as under:
In the case of Shiji v. Radhika, (2011) 10 SCC 705, this Court found that the case had its origin in the civil dispute between the parties, which dispute was resolved by them and therefore this Court observed that, 'that being so, continuance of the prosecution where the complainant is not ready to support the allegation will be a futile exercise that will serve no purpose'. In the aforesaid case, it was also further observed 'that even the alleged two eyewitnesses, however, closely related to the complainant, were not supporting the prosecution version', and to that this Court observed and held 'that the continuance of the proceedings is nothing but an empty formality and Section 482 Cr.P.C. can, in such circumstances, be justifiably invoked by the High Court to prevent abuse of the process of law and thereby preventing a wasteful exercise by the courts below. Even in the said decision, in paragraph 18, it is observed as under:
"18. Having said so, we must hasten to add that the plenitude of the power under Section 482 CrPC by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be Page 6 of 7 Downloaded on : Tue Jan 11 17:23:58 IST 2022 R/SCR.A/8941/2020 ORDER justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code.Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.
In view of the above, prayer made by the present applicant quashing the impinged FIR cannot be sustainable, however, it is said that consent was passed by the original complainant and he has no objection. Considering the seriousness of the offence, as allegedly committed by the present applicant, this Court would not exercise powers vested under Section 482 of Cr.P.C. by quashing the impugned complaint.
With this observation, present application stands rejected and accordingly, disposed of. Rule stands discharged.
(B.N. KARIA, J) K. S. DARJI Page 7 of 7 Downloaded on : Tue Jan 11 17:23:58 IST 2022