Gujarat High Court
Astitva S/O Sushil Bhanuram Kachihar ... vs State Of Gujarat on 17 April, 2025
NEUTRAL CITATION
R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED
BY SUBORDINATE COURT) NO. 44 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE PRANAV TRIVEDI Sd/-
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Approved for Reporting Yes No
✔
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ASTITVA S/O SUSHIL BHANURAM KACHIHAR (PETITION DISPOSED OF
AS WITHDRAWN) & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KARTIK V PANDYA(2435) for the Applicant(s) No. 2
PETITION/APPEAL WITHDRAWN/DISMISSED for the Applicant(s) No. 1
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 17/04/2025
ORAL JUDGMENT
[1] The present revision application is filed under Section 397 read with Section 401 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") assailing the correctness Page 1 of 9 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 10 03:14:06 IST 2025 NEUTRAL CITATION R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025 undefined and validity of order dated 03.10.2021 passed by the learned 11th Additional Chief Judicial Magistrate, Gandhinagar (hereinafter referred to as "the learned Trial Court") in Criminal Case No.1279 of 2017 below Exhibit '8'.
[2] The brief facts leading to the filing of the present revision application are that a First Information Report came to be filed by respondent No.2 (hereinafter referred to as "the respondent") being C.R.No.I-178 of 2016 for offence punishable under Sections 354 and 114 of the Indian Penal Code (hereinafter referred to as "the IPC"). Applicant No.1 is the brother of applicant No.2. It was alleged that the brother of applicant No.2, the applicant and the respondent went to watch a movie. After completion of the movie, all three of them went to the house of the applicant. It was further alleged that applicant No.1, who happens to be the brother of the revisionist
- applicant made an attempt to outrage the modesty of the respondent in front of present revisionist - applicant. Pursuant to the lodgement of the first information report, applicant No.1 as well as applicant No.2 challenged the validity of the first Page 2 of 9 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 10 03:14:06 IST 2025 NEUTRAL CITATION R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025 undefined information report and preferred a quashing petition before this Court by way of filing Misc. Criminal Application No. 33632 of 2016 under Section 482 of the Code. However, the said petition was not pressed and was withdrawn with liberty to file a discharge application before the Trial Court. Pursuant to withdrawal of the quashing petition on 19.12.2016, the revisionist - applicant No.2 preferred an anticipatory bail application under Section 438 of the Code by way of Criminal Misc. Application No.1034 of 2016, which came to be allowed on 28.11.2016 by the learned Sessions Judge, Gandhinagar. [3] Pursuant to the grant of anticipatory bail to the revisionist
- applicant No.2, both the accused, i.e., revisionists - applicant Nos. 1 and 2 preferred a discharge application under Section 239 below Exhibit '8' in Criminal Case No.1279 of 2017. The learned Trial Court, by way of impugned order dated 03.10.2021, was pleased to reject the said application filed by both the applicants, which has resulted into filing of the present revision application.
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NEUTRAL CITATION R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025 undefined [4] At the outset, it is pertinent to note that, while preferring the present revision application, by way of order dated 07.01.2022, the application qua revisionist - applicant No.1, i.e., brother of revisionist - applicant No.2 has already been withdrawn. Therefore, the present controversy now remains only qua revisionist - applicant No.2, who happens to be the sister of the main accused and the friend of the respondent. [5] Heard Mr. Kartik V. Pandya, learned advocate appearing for the applicant and Mr. Soaham Joshi, learned Additional Public Prosecutor appearing for the respondent - State. Though rule is served no one has put appearance for respondent No.2. [6] It was contended by Mr. Kartik V. Pandya, learned advocate appearing for the applicant that the main allegations of committing offence under Section 354 of the IPC are against the brother of the present revisionist - applicant. The only role attributed to present applicant is that she was a friend of the respondent and was present along with the main accused and the respondent at the time of occurrence of alleged incident. Page 4 of 9 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 10 03:14:06 IST 2025
NEUTRAL CITATION R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025 undefined The ingredient of Section 354 of the IPC, which pertain to an attempt to outrage the modesty of a woman is absent qua the present applicant. She has not assaulted or used any criminal force against any woman. Apart from that, she has not intimidated the respondent. Mere presence at the scene of offence cannot bring her within the parameters of Sections 354 and 114 of the IPC. In view of the same, it was submitted by Mr. Pandya, learned advocate appearing for the applicant that the order passed by the learned trial court dismissing the discharge application qua applicant No.2 is bad in law and against said parameters.
[7] Per contra, Mr. Soaham Joshi, learned Additional Public Prosecutor appearing for the respondent - State has submitted that present applicant was present at the alleged scene of offence. She was a friend of respondent and sister of applicant No.1, who is alleged to be involved for offence under Section 354 of the IPC. Therefore, the present revisionist - applicant was the link for occurrence of the offence and when the offence took place, she was merely a mute spectator. She had not made Page 5 of 9 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 10 03:14:06 IST 2025 NEUTRAL CITATION R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025 undefined any attempt to stop the incident and therefore, the trial qua the applicant No.2 for offence under Section 114 of the IPC would be necessarily and her innocence can be provided only by leading of evidence. In wake of such submissions, it was prayed by Mr. Soaham Joshi, learned Additional Public Prosecutor appearing for the respondent - State to reject the present revision application.
[8] Having gone through the impugned order and the statements shown by Mr. Soaham Joshi, learned Additional Public Prosecutor appearing for the respondent - State, it is not in dispute that applicant No.2 was not involved in the alleged incident. The role attributed to her is that she was a friend of respondent and sister of the main accused. Further allegation against her is that she remained present when the incident occurred and she helped her brother in the incident which had taken place. Even, according to learned advocate for both the sides, present revisionist - application No.2 has not played any active role in the alleged offence under Section 354 of the IPC is concerned. Therefore, it would be necessary to see the role of Page 6 of 9 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 10 03:14:06 IST 2025 NEUTRAL CITATION R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025 undefined the present applicant for being a mute spectator and abettor to the alleged crime in question. For the same, the testimony of two witnesses being Dushyant Brahmin and Shekhar Dharma are very necessary. It is alleged that after 2:00 p.m., all three people, i.e., applicant Nos. 1, 2 and the respondent went to house of the revisionist - applicant where the alleged offence had occurred. Thereafter, respondent called her friend Dushyant Brahmin and went back with him after narrating the incident. This fact can be corroborated from the statement given by Dushyant Brahmin. However, looking the the statement of Dushyant Brahmin, it categorically transpires that when the respondent narrated the incident to her friend, i.e., Dushyant Brahmin, she did not make a single allegations against present applicant No.2. If the revisionist - applicant was an abettor to the alleged crime then the respondent would have been aggrieved by her and would have narrated the same to his friend who was called by the respondent after the incident. Further, the observation made in the impugned order is that the applicant was a mute spectator. However, merely being a mute spectator would not in any way entail her for becoming an Page 7 of 9 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 10 03:14:06 IST 2025 NEUTRAL CITATION R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025 undefined abettor. A bare perusal of Section 354 of the IPC, reveals that for it to apply, the offence must be committed against a woman; criminal force must be applied against her; and such application of force must be with the intent to outrage her modesty. Definitely such ingredients are lacking in the statement making allegation made qua applicant No.2. Moreover, the statements and testimonies of the witness would reveal that present applicant has not transpired or conspired against the respondent and helped her brother and became an abettor to the crime. The record is silent with respect to the use of any force or any act of abatement of crime qua the present applicant No.2. Therefore, keeping in view the contents of the first information report, the statement in the final report of the Investigating Officer and the sum total of the circumstances, this Court is of the considered view that they do not point to revisionist - applicant No.2 of having committed any offence against the respondent.
[9] In view of the same, the impugned order dated 03.10.2021 passed by the learned 11th Additional Chief Judicial Magistrate, Page 8 of 9 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 10 03:14:06 IST 2025 NEUTRAL CITATION R/CR.RA/44/2022 JUDGMENT DATED: 17/04/2025 undefined Gandhinagar in Criminal Case No.1279 of 2017 below Exhibit '8' qua present revisionist - applicant No.2 is hereby quashed and set aside. The revisionist - applicant No.2 is discharged from the offence being C.R.No.I-178 of 2016 for offence punishable under Sections 354 and 114 of the IPC. Present revision application is allowed. Rule is made absolute qua applicant No.2.
Sd/-
(PRANAV TRIVEDI, J.) DHARMENDRA KUMAR Page 9 of 9 Uploaded by DHARMENDRA KUMAR(HC01071) on Mon May 05 2025 Downloaded on : Sat May 10 03:14:06 IST 2025