Gujarat High Court
Amit Chandubhai Raval Through ... vs State Of Gujarat on 4 January, 2021
Bench: B.N. Karia
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
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
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
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
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
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
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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
