Gujarat High Court

Harvinder Singh Sandhu S/O ... vs State Of Gujarat on 12 February, 2021

Bench: B.N. Karia

       R/CR.MA/2141/2021                                   ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION NO. 2141 of 2021

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     HARVINDER SINGH SANDHU S/O KULWANT SINGH SANDHU
                           Versus
                     STATE OF GUJARAT
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Appearance:
MANAN V PATEL(8059) for the Applicant(s) No. 1
ROMESH C NIVEN(9064) 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 : 12/02/2021

                            ORAL ORDER

Notice to respondent No.1. Learned APP waives service of

notice for and on behalf of respondent No.1-State.

By way of present application, applicant has prayed to

quash and set aside the FIR being CR No.11216011210017 of

2021 registered with Infocity Police Station, Gandhinagar for

the offence punishable under Section 376 of Indian Penal Code

and further prayed to stay the further proceedings thereof till

final disposal of this application.

Brief facts of the present case are as under:

That, the original complainant and present applicant

were studying together in school and after 30 years, they have

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come into contact with each other through social media and

from the year 2018 and thereafter, they have met each other at

different places and present applicant by way of false promise

to complainant to marry with her after divorce with his wife,

intimate with her physically and raped her, therefore, the

present complaint was filed by the respondent No.2

Heard learned advocate for the applicant.

It was submitted by learned advocate for the applicant

that the applicant was a Wing Commander with the Indian Air

Force and at present he has retired from Indian Air Force. That,

both the applicant and respondent No.2 came into contact with

each other after 30 years of time through social media and by

talking to each other on phone and through whatsapp and

meeting each other frequently, they fell in love with each

other. That, the present applicant and respondent No.2 were

aware of the life facts of each other and both entered into a

consensual physical relationship. Thereafter, due to demand of

respondent No.2 that the present applicant has to live with her

at Gandhinagar for all the time and due to medical condition

of the applicant, differences between them were arisen and the

relationship of the applicant and respondent No.2 broke down.

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Thereafter, the respondent No.2 issued a legal notice to

applicant dated 23.7.2020 through advocate and thereafter, on

25.9.2020 impugned complaint was filed. That, police started

its investigation and sent a notice to the applicant to appear

before them and recorded his statement on 12.11.2020. That,

the police could not come to a conclusion that the consensual

relationship disclosed in the FIR amounted to the commission

of a cognizable offence, and therefore, to the best of the

knowledge of the applicant the police did not make out a case

of cognizable offence against the applicant. That, the contents

of the FIR cannot lead a prudent person to presume that the

story of the respondent no.2 is prima facie sound, reasonable

and indubitable or that the version of the complainant is of

sterling and impeccable quality. That, the essential ingredients

constituting the offence of rape under Section 375 of IPC are

missing from the allegations made in the complaint. That, the

respondent no.2 had full and complete knowledge of the

marital status of the present applicant and the applicant never

promised to marry respondent no.2. Even if the allegation of

the applicant's promise to marry the respondent no.2 after

divorce is presumed to be true, a reasonable man would

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conclude that there has been no deception, the respondent

no.2 has been overzealous and certainly no offence under

Section 376 of IPC has been committed with her by the

applicant. In support of his arguments, learned advocate for

the applicant has placed reliance in case of "Pramod

Suryabhanpawar v. State of Maharashtra & Anr" reported in

2019 AIR (SC) 4010. Lastly, it was submitted by learned

advocate for the applicant to admit present application for

quashing the impugned complaint.

Learned APP for the respondent-State has strongly

objected the submissions made by learned advocate for the

applicant and submitted that the offence registered against the

present applicant is serious in nature and without recording

evidence of the prosecution, this application is not

maintainable or entertained by this Court, and therefore, he

has requested to dismiss the present application at this stage.

However this matter was placed before this Court for

admission, looking to the contents of the file and nature of

offence committed by the applicants, this Court has deemed it

fit to dispose of this petition at the admission stage itself

without issuing notice to respondent No.2.

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Considering the contents of the FIR as well as averments

made in the application, it appears that this complaint was

lodged by the victim herself on 20 th January 2021 for the

alleged offence committed by the applicant/accused person

from 24.02.2017 to 19.03.2020 punishable under Section 376

of the Indian Penal Code. As per the allegations made in the

complaint, victim was Associate Professor whereas the

applicant-accused was married person having children. The

accused was studying with the complainant in the year 1990

and thereafter, passing of 29-30 years, both of them came into

contact and become face book friends. As per the allegations

made in the complaint, they met at Delhi on 3 rd July 2018 and

they discussed about their past marriage life and thereafter,

they came closure through whatsapp and facebook and they

were making chat frequently. The accused person started to

visit the place where the complainant was staying at

Gandhinagar. The accused informed the complainant that

marriage life with his wife was not satisfactory and his relation

with his wife was not good thus, he has decided to take divorce

from his wife. He further informed that after getting divorce,

he would marry with the complainant. He further requested to

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stay the victim by way of live-in-relationship, but it was denied

as no agreement was executed. The accused person was

frequented visiting the residence of the complainant at

Gandhinagar and had a sexual relations with the complainant

from the year 2018 to 2020. In the month of March 2020, he

informed the complainant that he had heart attack and was

admitted in the hospital and he was discharged on 10.03.2020

and angioplasty was applied on 18.03.2020. He further

informed that his remaining life would be five to ten years and

therefore, he would not marry with the complainant. As the

complainant felt that by adducing her to marry with the

accused person and as sexual relationships were developed by

him, he refused to marry with her and therefore, impugned

complaint was filed.

Present applicant-accused has approached this court

immediately within a week after registration of the complaint

by filing present application under Section 482 of the Code of

Criminal Procedure on 27.01.2021 alleging that false

complaint was filed, as he had never forced for physical

relations and whatever physical relations between the

applicant and respondent no.2 was consensual as they were in

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love with each other.

Undisputedly, criminal complaint is filed against the

present applicant under Section 376 of the Indian Penal Code

alleging serious allegations of committing rape with the

complainant of adducing her by the applicant stating that

however he was married and his relation with her wife was not

satisfactory and tense and therefore, he would get marry with

the complainant. Thereafter, on the ground of heart attack

suffered by applicant in the month of March 2020, he refused

to marry with the complainant saying that he would not live

further more than 5-10 years. In the present case, investigation

might have started by the police machinery against the present

applicant on the basis of the complaint lodged on 20 th January

2021.

It appears that the investigation must be in progress and

even the statements of the witnesses are to be recorded and

medical evidence also. Here looking to the contents of the

complainant, conduct on the part of the accused would also

require to be considered by this Court while quashing the

impugned complaint in exercise of its inherent powers under

Section 482 of the Code of Criminal Procedure and more

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particularly, when the offences as alleged are against the

society at large, namely, rape committed by him, which is non-

compoundable offence.

Hon'ble Apex Court in case of State of Madhya Pradesh v.

Laxmi Narayan and others, reported in (2019) 5 SCC 688, has

observed as under:

At the outset, it is required to be noted that in the present appeals, the High Court in exercise of its powers under Section 482 of the Cr.P.C. has quashed the FIR for the offences under Sections 307 and 34 of the IPC solely on the basis of a compromise between the complainant and the accused. That in view of the compromise and the stand taken by the complainant, considering the decision of this Court in the case of Shiji (supra), the High Court has observed that there is no chance of recording conviction against the accused persons and the entire exercise of a trial would be exercise in futility, the High Court has quashed the FIR.

9.1 However, the High Court has not at all considered the fact that the offences alleged were non-compoundable offences as per Section 320 of the Cr.P.C. From the impugned judgment and order, it appears that the High Court has not at all considered the relevant facts and circumstances of the case, more particularly the seriousness of the offences and its social impact. From the impugned judgment and order passed by the High Court, it appears that the High Court has mechanically quashed the FIR, in exercise of its powers under Section 482 Cr.P.C. The High Court has not at all considered the distinction between a personal or

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private wrong and a social wrong and the social impact. As observed by this Court in the case of State of Maharashtra vs. Vikram Anantrai Doshi, (2014) 15 SCC 29, the Court's principal duty, while exercising the powers under Section 482 Cr.P.C. to quash the criminal proceedings, should be to scan the entire facts to find out the thrust of the allegations and the crux of the settlement. As observed, it is the experience of the Judge that comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence. In the case at hand, the High Court has not at all taken pains to scrutinise the entire conspectus of facts in proper perspective and has quashed the criminal proceedings mechanically. Even, the quashing of the FIR by the High Court in the present case for the offences under Sections 307 and 34 of the IPC, and that too in exercise of powers under Section 482 of the Cr.P.C. is just contrary to the law laid down by this Court in a catena of decisions.

This Court 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 this Court to enumerate the situations in which the exercise of power under Section 482 may be justified. All that this Court 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.

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29.3 Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender

15.2 Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

Here, in the present case, allegations made by the complainant against the present applicant are serious in nature because the applicant/accused gave assurance/promise to the complainant that he will give divorce to his wife as his relation with his wife were not good and will ready to marry with her. On giving such assurance/promise to the complainant, he started physical relations with her and thereafter, he refused to marry with her on the ground that it was not possible for him as he was suffering heart disease and would not live for more than 5 to 10 years. Therefore, the gravity of the offence and the conduct of the accused would require to be considered by this Court and solely on the ground that he had never forced the complainant for physical relation and it was a consensual as they were in love with each other cannot be sole ground to quash the complaint, at this juncture without recording evidence before the trial Court.

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At this stage, this Court is of the considered view that

such a power is not to be exercised in the peculiar facts of the

case as the applicant is alleged to have committed the offence,

which is not private in nature but have a serious impact on

society. At present, investigation is under progress and

therefore, no conclusion can be arrived at by the Court that

applicant is not involved in the offence or he has not

committed any offence as alleged. Similarly such powers is not

to be exercised for the offence under the Act wherein the

applicant is involved. Hence, at this juncture, present

application requires to be dismissed.