Mayur Shantilal Parmar vs State Of Gujarat
2021 Latest Caselaw 3768 Guj

          R/SCR.A/7855/2020                                       JUDGMENT




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 7855 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1     Whether Reporters of Local Papers may be allowed to             no
      see the judgment ?

2     To be referred to the Reporter or not ?                         no

3     Whether their Lordships wish to see the fair copy of the        no
      judgment ?

4     Whether this case involves a substantial question of law        no
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

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                              MAYUR SHANTILAL PARMAR
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR GIRISH M DAS(2323) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR HK PATEL APP for the Respondent(s) No. 1
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    CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                  Date : 04/03/2021
                                  ORAL JUDGMENT

1. The matter is taken up through video conference.

2. The present petition is filed for quashing of FIR being

CR-NO. I- 11204047200816 of 2020 filed against the present

petitioner by the respondent no.2 before the Nadiad West

Police Station, Tal-Nadiad, Kheda under sections 376 and 323

of IPC.

R/SCR.A/7855/2020 JUDGMENT

3. Learned advocate Mr. Das for the petitioner has

contended that the alleged incident has taken place on

19.02.2020 and the complaint has been lodged on

26.07.2020. He vehemently argued that there is inordinate

delay in lodging the FIR, which clearly suggests that false

complaint has been filed against the petitioner. He further

submitted that the complainant is a divorcee and used to

threaten the petitioner to file rape case against him. He

further submitted that the narration in the FIR is false and

frivolous and the investigating officers has hastily registered

the FIR without any preliminary inquiry. Therefore, he has

requested to quash and set aside the aforesaid FIR.

4. Learned advocate Mr. Das has heavily placed reliance

upon the judgment of Anil Khadkiwala Vs. State

(Government of NC of Delhi) reported in 2019 AIR (SC)

3583 and vehemently argued that as per the judgment of the

Hon'ble Supreme Court the subsequent and second quashing

petition is maintainable.

5. Per Contra, learned APP Mr. HK Patel has heavily

opposed and submitted that pursuant to the earlier order

passed by this Court in Criminal Misc. Application No.12050

of 2020 on 27.08.2020 for quashing of same FIR, was

withdrawn and the liberty to approach before the appropriate

Court is granted and therefore, the present application is the

subsequent application for quashing the same FIR, is not

R/SCR.A/7855/2020 JUDGMENT

maintainable. Further, the allegations leveled against the

petitioner are serious in nature. Therefore, the petition may

not be entertained.

6. Learned advocate Mr. Das for the petitioner has placed

reliance on the detailed merits of the case. He has further

submitted that the earlier quashing petition was withdrawn

without entering into any merits of the case therefore the

decision as held by Hon'ble Apex Court in the case of Anil

Khadkiwala Vs. State (Government of NC of Delhi)

(Supra) is very much applicable to the present case.

7. Learned advocate Mr. Das has also placed reliance on

the extraordinary powers under section 482 of CrPC that to

meet with the ends of justice, this Court is empowered to

exercise such extraordinary discretion. Therefore, in the

greater interest of justice, the petitioner's constitutional

rights may be allowed.

8. This Court is fully agreed with the observations made

by the Hon'ble Apex Court that the second application for

quashing of FIR is maintainable, but the petitioner has

already approached before the Sessions Court for

anticipatory bail, and the sessions Court has disallowed the

same, therefore, under the CrPC, whenever such dismissal is

taken place, the petitioner is required to move before the

concerned forum as per the provisions of the CrPC.

Therefore, in the peculiar facts and circumstances of the

R/SCR.A/7855/2020 JUDGMENT

case, this Court is of the opinion that the second application

for quashing is not maintainable.

9. Having heard the rival submissions of both the sides,

and looking to the peculiar facts and circumstances of the

case, this Court has observed that on 27.08.2020 the

petitioner is permitted to withdraw the quashing petition

with a liberty to move before the appropriate court with

appropriate application, wherein, the petitioner has acceded

for anticipatory bail which was disallowed by the learned trial

Court. Though the right of discharge application was also

open but it appears that petitioner has not exercised. This

Court has also considered the directions passed by the

Hon'ble Apex Court in the case of Anil Khadkiwala Vs.

State (Government of NC of Delhi) (Supra) which, in the

opinion of this Court is not helpful to the petitioner.

Therefore, the Court is not inclined to exercise discretion

under Section 482 of CrPC, against the order of trial Court

and therefore, the petition is devoid of any merits.

Accordingly, the petition deserves to be dismissed.

10. The petition is "in limine" disposed of accordingly, at

the admission stage. No orders as to costs. The petitioner is

at liberty to file appropriate application before the learned

trial Court.

(A. C. JOSHI,J) Radhika