Gujarat High Court
Ritesh Gunvantbhai Jikadra vs State Of Gujarat on 13 December, 2023
NEUTRAL CITATION
R/SCR.A/13624/2023 JUDGMENT DATED: 13/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 13624 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RITESH GUNVANTBHAI JIKADRA
Versus
STATE OF GUJARAT
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Appearance:
MS SHIVANGI D MADHAD(13116) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DP JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 13/12/2023
ORAL JUDGMENT
1. Rule. Learned APP waives service of notice of Rule for the respondent-State.
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2. Present application is filed by the applicant under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") seeking to quash and set aside the FIR being CR No.11208001230062 of 2023 registered with Mahila Police Station, Rajkot for the offences punishable under Sections 376(2)(n) of the Indian Penal Code, 1860 and all the consequential proceedings arising therefrom.
3. Heard learned advocates for the respective parties.
4. Learned advocate for the applicant submits that the applicant has nothing to do with the offence alleged and he is falsely implicated in the offence. It is submitted that present petitioner is facing the charge under Section 376(2)(n) of the Indian Penal Code, 1860. It is alleged in the complaint that the complainant- was working as a nurse in Desai Children Hospital, whereas the present petitioner is a Doctor. They met with each other, when the present petitioner came to hospital for the training purpose. Thereafter, they exchanged their contact number and they used to talk daily bases. Thereafter, physical relationship has been developed between them from the year 2020 upto three years. Then, due to some indifferences, in the year 2022, complaint came to be registered and thereafter, settlement took place. Page 2 of 10 Downloaded on : Tue Dec 19 20:33:43 IST 2023
NEUTRAL CITATION R/SCR.A/13624/2023 JUDGMENT DATED: 13/12/2023 undefined Subsequently dispute was amicably settled and then no any untoward incident took place. Though, in the month of January, 2023, present petitioner, came to Rajkot and called the complainant and told that he wants to meet with her, if she denies for the same, he will viral her photographs. Thereafter, the complainant went to a resort, where present petitioner forcefully got physically involved with the complainant. Thus, in the pretext of promise to marry, though present petitioner is also having kids, he developed the physical relationship. Nonetheless, he blackmailed her and threatened to viral her photographs and video. In this regard complaint came to be filed. Thereafter, anticipatory bail is also granted. 4.1 Considering the aforesaid fact, the learned advocate for the applicant asserts that there was a consensual relationship and no any offence being made out. Hence, learned advocate has requested to quash and set aside the present complaint as present complaint is nothing but an abuse of process of Court. Even on the alleged date of January, 2023, the present accused never visited Rajkot as he was elsewhere in Hospital. Page 3 of 10 Downloaded on : Tue Dec 19 20:33:43 IST 2023
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5. Learned APP has vehemently opposed the present application, asserting that the offense in question is against a woman. The defenses raised by the applicant should be considered integral part to the evidentiary process and subjects for trial. Learned APP has stated that investigation is at preliminary stage and even charge-sheet is filed and the allegation clearly reveals that though petitioner was married and is having kids. Though he asked and leave the complainant in the pretext of the false marriage and he not only, developed physical relations but also in the pretext of blackmailing, he threatened to viral her photographs. Frequently he has taken undue advantage. As the charge-sheet is filed, this is not a case, where the Court should exercise the jurisdiction under Section 482 of the Code of Criminal Procedure. Therefore, the learned APP submits that the application may be dismissed.
6. However, learned advocate for the petitioner has submitted that merely filing of the charge-sheet is not a ground to deny any relief under Section 482 of Cr.P.C and this Court should not deny to exercise the jurisdiction under Section 482 of the Cr.P.C. and there is no bar to exercise jurisdiction under Section 482 of the Code of Criminal Procedure. Page 4 of 10 Downloaded on : Tue Dec 19 20:33:43 IST 2023
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7. Having heard the learned advocates for the respective parties and having gone through the materials available on record, it appears that there is no dispute about the proposition of law and after filing of the charge-sheet, under Section 482 of the Code of Criminal Procedure, powers cannot exercise. However, considering the allegations levelled in the present case, the present accused is facing charge under Section 376 of IPC. Investigation was at preliminary stage, during the pendency of the present application, charge-sheet is filed. On bare perusal of the complaint, it appears that in the pretext of the marriage, physical relationship was developed.
8. Even, in the year 2022, one complaint came to be filed and matter was settled. In this regard one undertaking before the Notary came to be executed and settlement took place between the parties. The same is placed on record. Considering the fact that the said settlement took place in the month of December, 2022. On perusal of the complaint, it further appears that subsequently the said fact is also revealed from the complaint itself. But, in January, 2022, once again, present applicant has taken the undue advantage and forcefully called the complainant Page 5 of 10 Downloaded on : Tue Dec 19 20:33:43 IST 2023 NEUTRAL CITATION R/SCR.A/13624/2023 JUDGMENT DATED: 13/12/2023 undefined and then against her will, he developed physical relations with the complainant. Nonetheless, threaten to viral her photograph and blackmailed her.
9. Considering the aforesaid fact, it emerged that after the settlement took place, the second episode mentioned in the complaint and even in the complaint, it appears that, offence is committed and nothing is on record to suggest, that the said second incident took place in the month of January, 2023 and the same was not consensual. The every ground of settlement may be considered for first episode and consensual relationship not for the second part.
10. Hence, in view of above, merely based on the findings of the anticipatory bail, this Court cannot come to conclusion that the complaint is merely abuse of process of Court and nothing is clearly revealed from the bail order also. Considering the aforesaid fact as finding in the bail applications are tentative in nature. After conducting the investigation as charge-sheet is filed then, prima facie, this Court is of the considered opinion that, once charge-sheet is filed after collecting the sufficient evidence against the accused, which supports the allegations levelled against the petitioner in the complaint.
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NEUTRAL CITATION R/SCR.A/13624/2023 JUDGMENT DATED: 13/12/2023 undefined In so far as allegation of absence of petitioner on fateful day in Rajkot is itself a defence of alibi and itself question of disputed fact, which cannot be gone into at this stage.
11. In this regard reference is required to be made to the decision delivered by the Apex Court in the case of Amit Kapoor v. Ramesh Chander, reported in 2012 9 SCC 460 online, wherein the Apex Court had held as under:
"27(2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
(3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
(9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
(10) It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by Page 7 of 10 Downloaded on : Tue Dec 19 20:33:43 IST 2023 NEUTRAL CITATION R/SCR.A/13624/2023 JUDGMENT DATED: 13/12/2023 undefined the investigating agencies to find out whether it is a case of acquittal or conviction."
12. It is also worthwhile to refer to the decision of Hon'ble Supreme Court in the case of Supriya Jain vs. State of Haryana reported in 2023 LiveLaw (SC) 494 wherein it is held as under:
"...It is no part of the business of any of the courts to ascertain what the outcome of the trial could be, ~ conviction or acquittal of the accused. The small window that the law, through judicial precedents, provides is to look at the allegations in the FIR and the materials collected in course of investigation, without a rebuttal thereof by the accused, and to form an opinion upon consideration thereof that an offence is indeed not disclosed from it. Unless the prosecution is shown to be illegitimate so as to result in an abuse of the process of law, it would not be proper to scuttle it. The principles to be borne in mind with regard to quashing of a charge / proceedings either in exercise of jurisdiction under section 397, Cr. PC or section 482, Cr. PC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarized by this Court succinctly."
13. Further, in the case of Ramveer Upadhyay and Anr. vs. State of U.P. and Anr. reported in 2022 OnLine SC 484, it is observed and held by the Apex Court that the High Court, while exercising jurisdiction under Section 482 of the Cr.P.C, would not ordinarily embark upon an enquiry into whether the evidence is reliable or not or whether there is reasonable possibility that the accusation Page 8 of 10 Downloaded on : Tue Dec 19 20:33:43 IST 2023 NEUTRAL CITATION R/SCR.A/13624/2023 JUDGMENT DATED: 13/12/2023 undefined would not be sustained.
14. In view of the above, while exercising the powers under Section 482 of the CrPC, such an exercise is not permissible, and this Court is not obliged to undertake any exercise to hold a mini- trial or to examine the material collected by the Investigating Officer. Even as discussed above, question of alibi is also disputed question of fact. Hence, considering the aforesaid as charge-sheet is filed, it would be appropriate to relegate the parties to the learned Trial Court, if applicant wants to file if any available alternate appropriate proceedings in this regard.
15. It would be apposite to refer the decision of the Apex Court rendered in case of Iqbal Alia Bala and Others vs. State of Uttar Pradesh and Others reported in (2023) 8 SCC 734, it is observed that prayer for quashment of FIR -In the meantime investigation completed and charge-sheet ready to be filed - Proper remedy of accused in such a case - Relegation to discharge application under Section 227 of Cr.P.C. - when warranted.
16. Considering the aforesaid facts, the application stands dismissed.
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17. The observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial. Learned Trial Court shall have to decide the allegations levelled in the complaint on its own merits without being influenced by any of the observations made in the order.
18. Rule is discharged. Direct service is permitted.
Sd/-
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 10 of 10 Downloaded on : Tue Dec 19 20:33:43 IST 2023