NEUTRAL CITATION
R/CR.MA/20217/2014 ORDER DATED: 22/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20217 of 2014
With
R/SPECIAL CRIMINAL APPLICATION NO. 903 of 2015
With
R/CRIMINAL MISC.APPLICATION NO. 16370 of 2015
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RAMESHBHAI NARSANGBHAI CHAUDHARY & ORS.
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR TUSHAR CHAUDHARY, MR TEJAS SATTA, MR PIYUSH TRIVEDI FOR
MR PRATIK BAROT, ADVOCATES for the Applicants
MR CHINTAN DAVE, APP for the Respondent(s) No. 1 - State
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR NEERAJ SONI(3433) for the Respondent(s) No. 2 - Ori. Complainant
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/09/2023
ORAL ORDER
1. By way of present application, under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek quashment of the impugned FIR being C.R.- I No.208 of 2014 registered with the Chandkheda Police Station, District : Ahmedabad for the offences punishable under Sections 376, 294B, 506(1) and 114 of the Indian Penal Code and Sections 66(E) and 67(A)(B) of the Information Technology Act.
2. The short facts of the prosecution case are that before about five years, in connivance with each other, the Page 1 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined accused persons have called the victim and asked her to keep love relationship, have given trust to the victim, taken the victim to various places individually on separate dates, forcefully raped on her, recorded video, threatened her to spoil her life by tarnishing her image in the society and viral the video and thereby committed an offence as alleged.
3. Heard learned advocates.
4. Rule. Learned advocates waive service of notice of rule forthwith for and on behalf of the respective respondents. With consent of all the learned advocates, these matters are taken up for hearing and final disposal today.
5. Learned advocates for the applicants have submitted that the applicants have not committed any offence as alleged in the impugned FIR. They have submitted that the complaint is lodged after about five years delay which is not explained by the complainant. They have submitted that the allegations levelled against the applicants are nothing but sheer abuse of process of law by the complainant. They have submitted that the complaint impugned is absolutely false, fabricated, concocted and far from the truth. They have further submitted that if such incident has happened actually, the normal reaction of anyone would be to approach the Page 2 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined police authority immediately. In the present case, there is no immediate reaction by the complainant. They have submitted that the impugned complaint is filed with oblique motive. They have submitted that the complainant has even not inform to her parents also about the alleged incident. They have submitted that these applications may be allowed by quashing the belated complaint impugned.
6. Learned advocate Mr.Neeraj Soni through High Court Legal Service Committee for respondent No.2 - original complainant has vehemently opposed these applications. He has submitted that the complainant is a victim and has lodged the complaint against the applicants. He has submitted that the applicants have committed an offence as alleged in the impugned complaint in planned manner. He has submitted that they all are known to each other. He has submitted that they have taken the benefits of the feelings of the victim, misused it, promised her to marry, raped her and left her in lurch. He has submitted that the accused have called the victim, harassed her and threatened her. He has submitted that they have taken the video recording and threaten to spread in the society. He has submitted that all the accused have used same modus operandi and thereby committed an offence. He has submitted that all these applications may be rejected.
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7. Learned APP Mr.Chintan Dave for the State has strongly opposed these applications. He has submitted that prima facie offence is made out against the applicants and therefore, all these applications may be dismissed. He has submitted that the applicants have, in connivance with each other, committed an offence. He has submitted that in such offence, this Court should not take lenient view in favour of the accused. He has submitted that it is true that the victim has not immediately reacted to the offence either by lodging the complaint or by telling the truth to her parents, but it is not denied that the offence has not happened. He has submitted that let the applicants face the trial. He has submitted that there are catena of decisions of the Hon'ble Apex Court that the Court should exercise the powers under Section 482 of the Code of Criminal Procedure, 1973 very sparingly. He has submitted that all these applications may be dismissed.
8. I have heard rival submissions made by learned advocates for the respective parties. I have also considered the material available on record. On bare perusal of the impugned FIR, the following aspects are emerged :
There is a huge delay of about five years in Page 4 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined lodging the impugned FIR.
There is no whisper about the explanation of the delayed complaint in the impugned FIR. The complaint is dated 21.10.2014. At the time of lodging the complaint, the age of the victim was about 29 years.
There are no specific dates in the FIR about the alleged various incidents with the applicants. It is not the case of the complainant that all the persons have forcefully taken the complainant from her house at various places. This is not a case of gang rape.
Every time, when anyone calls the victim by giving any promise, the complainant goes there on her own, spends time, returns to her home and does not tell to her parents or police authority.
All the places are not the applicants' personal properties. All places are public places. She got pregnant many times but was aborted thereafter.
There may be a money transaction between the complainant and one Mr. Jayendra @ Jignesh. There was a complaint against said Jayendra, in which there was a compromise.
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NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined There may be a case that the complainant has feelings for Jayendra.
There may be a love affair between the complainant and Jayendra.
It is specifically stated that she asked for money which is borrowed by Jayendra from her, Jayendra refused to give it back, it came to the knowledge of her father, her father scolded her and therefore, she felt bad and tried to commit suicide by consuming poison.
The complainant, on her own, took the poison with her, and went to the house of Jayendra. When Jayendra was not available at his house, she consumed poison in front of Jayendra's house and thereafter, she called 108 emergency medical services from her mobile.
She immediately shifted to the hospital and the police lodged the impugned FIR, where she imposed all the allegations against the applicants.
These are the points, which are emerged from the bare perusal of the impugned FIR, which this Court cannot ignore while considering these applications, at this stage. Page 6 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023
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9. At this stage, the affidavit filed by the complainant opposing these proceedings needs to be considered. Looking at the entire affidavit, there is no whisper about the delayed complaint by the complainant. Even in the affidavit, there is no explanation as to why she has lodged a delayed complaint. She has narrated an entire episode of the journey of her life from the year 2008 to 2014. The incident of consuming poison is of the year 2014. If we consider the impugned complaint as it is vis-à-vis the affidavit filed by the complainant, we can see that the complainant is harping on the relationship with Jayendra @ Jignesh. She might have a love affair with said Jayendra @ Jignesh. She got pregnant by Jayendra and with her consent, she aborted. Since there are no specific dates of various incidents in the impugned FIR, even in the affidavit, she has not stated the specific dates. When Jayendra refuses to marry her, the incident of consuming poison is happened. Therefore, the affidavit of the complainant does not help her any further.
10. Considering the impugned FIR vis-à-vis the affidavit of the complainant, at this stage, under Section 482 of the Code of Criminal Procedure, 1973, this Court has to only consider, whether there is a prima facie offence against the applicants or not. This Court has kept in mind the Page 7 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined following points while deciding these applications, which is very painful for this Court.
There is an unexplained delay in lodging the complaint.
The complainant is the victim, who is a major. There is no case of the complainant that the applicants have forcefully taken her with them. Every time, the complainant went on her own with the applicants at public places. There is no love affair by the complainant with the applicants except one Jayendra @ Jignesh. From the year 2008 to 2014, she has not made any complaint either to the police authority or to her parents.
There was a love affair between the complainant and Jayendra @ Jignesh.
She got pregnant many times and aborted the child with her consent and wish.
When Jayendra refused to marry her, she consumed poison.
There was a money transaction between the complainant and Jayendra.
Jayendra borrowed some money from the complainant and could not repay in time and Page 8 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined there was a disputed between them.
When Jayendra told the story about the complainant to her father and her father has scolded her, she took the poison, went to the house of Jayendra and consumed in front of his house.
At that time, Jayendra was not present. She has called 108 Emergency Medical Services from her mobile after consuming poison. From record, it transpires that, the complainant has no grievance against the applicants except Jayendra.
There may be an emotional attachment by her with Jayendra.
Except Jayendra, no one from the applicants was in continuous touch with her and she has no grievance about it.
It is a case of less criminality, more social disorder.
It is a case of over implication.
Under such circumstances, no prima facie case is made out against the applicants.
11. Further, it will also be fruitful to mention the judgment of Hon'ble Supreme Court in the case of State of Page 9 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) 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.
(2) 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 sec.156(1) of the Page 10 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.
(3) 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. (4) 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 sec.156(2) of the Code.
(5) 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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is Page 11 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023 NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined 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."
12. In view of above peculiar facts and circumstances of the case, this Court is of the opinion that no prima facie case is made out against the applicants. All these applications therefore need to be allowed by quashing the impugned complaint while exercising the powers under Section 482 of the Code of Criminal Procedure, 1973.
13. For the reasons recorded above, the following order is passed :
13.1 All these applications are allowed. 13.2 The impugned FIR being C.R.- I No.208 of 2014 registered with the Chandkheda Police Station, District : Ahmedabad, is hereby quashed and set aside, qua the applicants only.
13.3 Consequently, the proceedings arising out of the impugned complaint, if any, are also hereby quashed and set aside, qua the applicants only.
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NEUTRAL CITATION R/CR.MA/20217/2014 ORDER DATED: 22/09/2023 undefined 13.4 Rule is made absolute accordingly in all these applications.
Direct service is permitted.
(SANDEEP N. BHATT,J) M.H. DAVE Page 13 of 13 Downloaded on : Wed Sep 27 20:35:40 IST 2023