Ajaybhai Pravinbhai Pandya vs State Of Gujarat
2022 Latest Caselaw 618 Guj

     R/CR.A/1788/2021                                ORDER DATED: 19/01/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1788 of 2021

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                          AJAYBHAI PRAVINBHAI PANDYA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Appellant(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s)/Respondent(s) No. 2
MR. HARDIK C THAKKAR(7133) for the Opponent(s)/Respondent(s) No. 2
HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                 Date : 19/01/2022

                                  ORAL ORDER

1. Present appellant filed Criminal Misc. Application No. 530 of

2021 before the court of learned 3rd Additional Sessions Judge and

Special Judge (Atrocity), Amreli u/s 439 of the Code of Criminal

Procedure, 1973 requesting to enlarge him on regular bail on account

of offence being C.R. No. 11193003211106 of 2021 registered with

Amreli City Police Station, District: Amreli for the offence

punishable under Sections 376(2)(n), 376(2)(f), 376(c), 506(2), 509,

114 of the Indian Penal Code; Section 3(1)(w)(i), 3(1)(w)(ii) and

3(2)(V) of the Scheduled Caste and Scheduled Tribe (Prevention of

Atrocity) Act, 1989 (for short "the Atrocities Act") and Section

66(E) of the I. T. Act, wherein the learned 3 rd Additional Sessions

R/CR.A/1788/2021 ORDER DATED: 19/01/2022

Judge and Special Judge (Atrocity), Amreli rejected the said

application on 02.11.2021.

2. Feeling aggrieved by the said order, appellant has preferred

this appeal u/s 14A of the Atrocities Act.

3. Heard learned advocate for the appellant; learned advocate for

the respondent no.2 and learned APP for the respondent-State.

4. Learned advocate for the appellant has submitted that the

present appellant is wrongly involved in the offence by the

Investigating Agency. That, the appellant is absolutely innocent

person and has not committed any offences whatsoever much less as

enumerated in the FIR. It is further submitted that appellant is a

practicing government pleader in the Sessions Court, Amreli and

also appearing as public prosecutor in Atrocity Case No.5 of 2020

wherein the original complainant has submitted one application on

06.07.2021 with a prayer to add some name of the accused.

4.1 It is further submitted that appellant is public prosecutor on

behalf of State in the same case, complainant contacted the appellant

and going through the case papers, the appellant refused to file such

application as no such evidence was available as claimed by the

complainant. As the request of the complainant was not accepted by

R/CR.A/1788/2021 ORDER DATED: 19/01/2022

the appellant, straightway complainant has submitted an application

before the court, which was kept for hearing.

4.2 It is further submitted that in fact the complainant came into

the chamber of the appellant and in presence of junior advocate

administered threat to face serious consequences as the appellant did

not accept her request. That complainant had also filed an Inquiry

Case No.14 of 2021 against the advocates, practicing at Dhari Court

namely Mr. Dilipbhai and advocate Mr. Trivedibhai.

4.3 Learned advocate for the appellant has referred the relevant

documents produced by the appellant and submitted that

complainant has filed numerous FIRs for the rape against the group

of persons at different places. He has also referred copies of the FIRs

filed by the original complainant/respondent No.2 against the group

of persons.

4.4 It is further submitted by learned advocate for the appellant

that appellant, being a government pleader has occasionally received

the call/made the call with regard to the case with the complainant.

That there are five to six cases registered against the complainant

with Dhari police station. He has referred the documents showing

the details of these cases and also documentary list.

       R/CR.A/1788/2021                            ORDER DATED: 19/01/2022



4.5     It is further submitted by learned advocate for the appellant

that not only at Amreli but even at Rajkot and Ahmedabad, FIRs

were filed by the respondent No.2 against group of persons about

video clipping, and thereafter, by accepting huge amount, matter was

compromised as a whole or part for particular accused.

4.6 It is further submitted that one of the victim in connection with

the FIR registered with Amreli City police station had preferred

Criminal Misc. Application No.25771 of 2017 before this Court for

quashing of the FIR. It is further submitted that co-accused in the

present case namely Tosikbhai Rahimbhai Rathod is released on bail

by the learned Sessions Court, Amreli in Criminal Misc. Application

No.519 of 2021 vide order dated 02.11.2021. That in fact no offence

is committed by the present appellant and as he being a government

pleader, did not accept the request of the respondent No.2, false FIR

was filed. That detention of the appellant may not be required as

there is no criminal history in past. It is further submitted that one of

the co-accused namely Mayur, who is the earlier husband of the

original complainant, has also arraigned as co-accused in present

case. Hence, it was requested by learned advocate for the appellant

to quash and set aside the impugned judgment and order passed by

R/CR.A/1788/2021 ORDER DATED: 19/01/2022

the learned Additional Sessions Judge, Amreli and release the

present appellant on regular bail.

5. From the other side, learned APP appearing for the

respondent-State as well as learned advocate appearing for the

respondent No.2 have strongly objected the submissions made by

learned advocate for the appellant and argued that learned trial court

has rightly dismissed the prayer for granting bail to the present

appellant. That prima facie involvement of the present appellant is

clearly made out by the prosecution. That from the charge-sheet

papers produced on record, presence of the appellant and his junior

advocate was clearly established. It is further submitted that this was

the second occasion when second time rape was committed by the

present appellant by calling her to return the video clip of the earlier

incident dated 22.08.2021. That criminal conspiracy was hatched by

the accused persons with their common intention in abetment with

four friends and with the help of one lady and all of them have

recorded the video clip of her and robed from her sum of

Rs.50,000/-. That cloths were was sent to FSL for investigation.

That offence was committed on 22.08.2021. That FSL report clearly

involves the present appellant as the DNA test is matching with the

R/CR.A/1788/2021 ORDER DATED: 19/01/2022

present appellant. It is further submitted that no bail can be granted

to the present appellant as he is involved in the serious offence.

Hence, it was requested by learned APP for the respondent-State as

well as learned advocate appearing for the respondent No.2 to

dismiss the present appeal.

6. Having considered the facts of the case, submissions made by

learned advocate for the appellant; learned advocate for the

respondent no.2 and learned APP for the respondent-State as well as

documents produced on record, it appears that FIR was registered

against the present appellant with Amreli Police Station for the

offence punishable under Sections 376(2)(n), 376(2)(f), 376(c),

506(2), 509, 114 of the Indian Penal Code; Section 3(1)(w)(i), 3(1)

(w)(ii) and 3(2)(V)of the Scheduled Caste and Scheduled Tribe

(Prevention of Atrocity) Act, 1989 and Section 66(E) of the I. T.

Act. As per the complaint lodged by the respondent No.2 on

24.10.2021, she received a phone call from the present appellant

informing that he had video clip and if she was interested to take the

said clipping, she would come at the office. It is stated that for this

very clipping earlier on 22.08.2021, rape was committed and the

appellant asked her not to disclose the same to the police, hence it

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was not disclosed.

7. As per the allegations made in the complaint, complainant

agreed to collect the video clipping on the next date and at about

11:00 on next day, she made a call to the present appellant informing

that she will come there to collect the video clip. In the afternoon,

she again received a call from the appellant and when she went there

alongwith her son, her son was asked to wait outside at about 3:45

p.m. afternoon. She went to the office of the appellant where two

persons were sitting there and other one was not known to the

complainant. Thereafter the appellant shown video clipping of

earlier rape dated 22.08.2021, he closed the door and she was taken

inside the room, administered threat and was forcefully asked to

sleep and accordingly sexual intercourse was committed for about 10

seconds. As per the allegations, thereafter, she came down to the

office and went to civil hospital and FIR came to be filed.

8. Thereafter, it appears from the record that while opposing the

bail application preferred by the present appellant before the Special

Court at Amreli i.e. Criminal Misc. Application No.530 of 2021, she

has further developed her case stating that four persons had

committed gang rape with her and one lady accused has also aided

R/CR.A/1788/2021 ORDER DATED: 19/01/2022

them. It is further stated in the affidavit that five accused persons

made a video clip and by hatching conspiracy, there was a robbery

of Rs.50,000/-. On a second time also, the present appellant

committed the rape. Further it was added that in the office of the

present appellant, on 21.02.2021, the present appellant and his four

persons committed gang rape with her. This fact was never disclosed

by the present complainant in her complaint (Annexure- "A".).

Complainant tried to involve other three persons later on by

developing her story. Complaint itself appears to be doubtful

according to this case as she has not filed any complaint of the

alleged previous incident took place on 22.08.2021. There are no

ingredients to apply Atrocity Act in the complaint.

9. The original complaint was filed against the present appellant

and one unknown person. Later on, it appears that co-accused

namely Tosikbhai Rahimbhai Rathod (practicing advocate) was

released on bail by learned Sessions Court in Criminal Misc.

Application No.519 of 2021 vide order dated 02.11.2021. From the

record, it appears that complainant had also filed one Inquiry Case

No. 14 of 2021 at Dhari Court against the practicing advocate

namely Mr. Dilipbhai and Mr. Trivedibhai. It also appears from the

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record produced before this Court that numerous FIRs for rape

against the group of persons at different places were filed by the

original complainant. The document shows that thrice, after

investigation, police submitted "B" summary report against the

accused persons in three different FIRs filed by the complainant.

10. Statement of real mother of the original complainant namely

Dhanuben wife of Nanakdas Ramdas Maru was recorded on

02.03.2020 in connection with I-C.R. No. 146 of 2019 for the

offence punishable under Sections 323, 365, 376(D), 376(2)(N),

120(B), 506(2) and 114 of the Indian Penal Code as well as Section

67 (A) of I.T. Act as well as under Sections 3(2)(5-a), 3(1)(W) (1)

and 3 (1)(R) of the Prevention of Atrocity Act registered with City

"A" Division Police Station, Rajkot wherein "B" summary report

was sought. Mother of the complainant has stated in her statement

that her daughter namely Labhuben Nanakram Maru has filed false

complaint against the persons who are not known to her. She has

further stated that before this complaint, her daughter had also filed

false complaint before the Sihor, Karanj and Dhari police station. It

is further stated by the mother that by filing such a false complaint of

rape as well as under the Atrocity Act, she is involving unknown

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muslim persons with a view to get money. It is further stated that

frequently she was filing complaint of rape against the innocent

persons with whom they have no relation. In one of the application

i.e. Criminal Misc. Application No.25771 of 2017 filed in

connection with the similar offence under Sections 365, 376D, 143,

147, 149, 506(2), 294(b) and 507 of the Indian Penal Code; Sections

3(1)(w)(i)(ii), 3(2)(5), 3(2)(5a) of the Prevention of Atrocities Act;

Section 25(1)(b)(f) of the Arms Act and Section 135(1) of the G.P.

Act, wherein present complainant was the original complainant in

the said complaint, co-ordinate Bench of this Court observed as

under:

"11. A close scrutiny of the contents of the FIR, reveal that the narration of the entire incident appears to be highly improbable and dubious. It appears that the present complainant is in habit of making same allegations against the various persons. One of which is reflected in the judgment and order dated 24.07.2017 passed in Criminal Misc. Application No.16178 of 2017 wherein same allegations are made against one Ashraf Rafikbapu Kadri. This Court while exercising the powers under Section 439 of the Code of Criminal Procedure, has granted regular bail to the concerned accused. It appears that there are various offences registered against the present respondent No.2 also.

12. This Court has also perused the contents of the report filed by the Investigating Officer. A threadbare analysis of the report indicates that the respondent No.2 has lodged the present FIR with some oblique motive as the investigation reveals that the allegations levelled therein are in fact not supported by any evidence and appear to be inconceivable. There are no eye witnesses available and the location of her mobile phone also indicates that she

R/CR.A/1788/2021 ORDER DATED: 19/01/2022

was not present at the place where the alleged incident has occurred and in fact, her mobile location was found at various places except the place of incident as alleged.

13. Thus, in light of the report of the Investigating Officer as well as looking to the antecedents of the respondent No.2, this Court is of the opinion that the impugned FIR deserves to be quashed and set aside since the continuous of the prosecution would amount to the abuse of process of law. This is a case where the present case would be covered under the parameters laid down by the Apex Court in the case of Ch. Bhajan Lal & Ors (supra). The further continuation of the criminal proceedings in relation to the impugned F.I.R. against the original accused would be unnecessary harassment to the applicant and would amount to abuse of process of law and court and hence, to secure the ends of justice, the impugned F.I.R. is required to be quashed in exercise of power under Section 482 of the Code of Criminal Procedure, 1974."

11. It also appears from the record produced by the appellant that

five to six cases are registered against the of original complainant

with Dhari police station. She has also filed certain complaints at

Amreli, Rajkot and Ahmedabad against group of persons with the

very same story about video clipping.

12. Appellant appears to be a practicing Public Proseuctor and

Government Pleader working at District Court Amreli. Since he is in

judicial custody from 26.10.2021 and investigation is over and

charge-sheet is filed, his custody would not be required for further

period. There is no possibility to flee away by the present appellant

if he is released on bail as he is a government pleader working at

Amreli Court.

R/CR.A/1788/2021 ORDER DATED: 19/01/2022

13. Considering the peculiar facts and circumstances of the present

case and record produced before this Court, this Court is inclined to

accept the prayer of the present appellant, hence present appeal

deserves consideration.

14. In the result, present Criminal Appeal is allowed and the

impugned judgment and order dated 02.11.2021 passed by the

learned 3rd Additional Sessions Judge and Special Judge (Atrocity),

Amreli in Criminal Misc. Application No. 530 of 2021 is hereby

quashed and set aside. The appellant is ordered to be enlarged on

regular bail on furnishing a bond of Rs. 10,000/- with one surety of

like amount to the satisfaction of the trial Court and subject to the

conditions that appellant shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the concerned Trial Court;

[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

15. The authorities will release the appellant only if he is not

R/CR.A/1788/2021 ORDER DATED: 19/01/2022

required in connection with any other offence for the time being. If breach

of any of the above conditions is committed, the Sessions Judge concerned

will be free to issue warrant or take appropriate action in the matter. Bail

bond to be executed before the lower Court having jurisdiction to try the

case. It will be open for the concerned Court to delete, modify and/or relax

any of the above conditions, in accordance with law.

16. At the trial, the Trial Court shall not be influenced by the prima

facie observations made by this Court in the present order. Notice

stands discharged.

17. This order be communicated to the applicant through Jail

Authorities by the registry as well as learned Sessions Court concerned.

(B.N. KARIA, J) SUYASH