Gujarat High Court

Amitbhai Jayantibhai Padariya vs State Of Gujarat on 6 December, 2023

                                                                                    NEUTRAL CITATION




    R/CR.MA/19594/2023                              JUDGMENT DATED: 06/12/2023

                                                                                     undefined




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE

                          FIR/ORDER) NO. 19594 of 2023

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
==========================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                         AMITBHAI JAYANTIBHAI PADARIYA
                                     Versus
                               STATE OF GUJARAT
==========================================================
Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 2
MS M H BHATT, APP for the Respondent(s) No. 1
==========================================================
    CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                Date : 06/12/2023

                               ORAL JUDGMENT

1. Rule. Learned APP waives service of notice of Rule for the respondent-State.

2. Present application is filed by the applicants under Section

482 of the Code of Criminal Procedure, 1973 (hereinafter

NEUTRAL CITATION

R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023

undefined

referred to as "CrPC") seeking to quash and set aside the FIR

being CR No.11213026200041 of 2020 registered with

Kotadasangani Police Station, Rajkot (Rural) for the offences

punishable under Sections 363 376(D), 376(2)(N), 504, 506(2)

and 114 of the Indian Penal Code, 1860 and Sections 3(1)w,

3(2)(v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act and Sections 37(1), 135(3) of the

Gujarat Police Act and Section 25(1)(B)(A) of the Arms Act.

3. Heard learned advocates for the respective parties.

4. Learned advocate for the applicants submits that the

applicants are have nothing to do with the offence alleged and

they are falsely implicated in the offence. It is submitted that

the facts of the case are that on 26.02.2020, applicant No.1

was at home around 09:30 in the morning. Subsequently,

applicant No.1 visited a friend at Gondal, where he stayed for

20 minutes. Afterward, he went to console another friend,

Dilipsinh Parmar, whose mother had passed away. applicant

No.1 spent approximately one hour there and t 11 a.m., he

returned home on his Jupiter Scooter. It is further submitted by

the learned advocate for the applicant that, at around 11:45

a.m. the applicant No.1 answered a phone call from his friend,

Manojbhai Akbari, and proceeded to the office at

Kotadasangani Taluka Panchayat. Subsequently, at about 12

NEUTRAL CITATION

R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023

undefined

p.m., applicant No.1 picked up his friend from Classic Pan

House and departed for Ramod in a white-coloured Brezza Car.

Around 12:35 p.m., applicant No.1 reached near the office of

his party at Sattapar Crossroads, where villagers had gathered

for some work. applicant No.1 waited there for about 15

minutes. CCTV cameras installed at the party office recorded

that applicant No.1 left the office at around 12:47 p.m. heading

towards Kotadasangani Taluka Panchayat.

4.1 It is further submitted that between 01:00 to 01:05 p.m.,

applicant No.1 arrived at the shop called Raj Traders, opposite

Kotadasangani Bus Stand, owned by his friend

Dharmendrasinh Jadeja. CCTV footage from the shop confirmed

applicant No.1's presence between 01:00 to 01:15 p.m. during

this time, applicant No.1 received a phone call from Kishore

Damabhai Gajera, who informed them that Dilipbhai

Dahyabhai Rathod, the complainant's father, was causing

trouble near Ramod Bus Stand in a drunken state. In response,

at around 01:40 p.m., applicant No.1 contacted PSI of

Kotadasangani Police Station to address the situation. The

applicant No.1 contacted the DSP since the PSI was on leave,

as the applicant No.1 did not have the telephone number of

the officer in charge of Kotadasangani Police Station. After

completing all the tasks, applicant No.1 arrived at their home

around 03:30 p.m. This information is verifiable through CCTV

NEUTRAL CITATION

R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023

undefined

footage from the residence of applicant No.1.

4.2 It is further submitted that applicant No.2, at the alleged

time and date of the offense, was not in proximity to the

complainant's location, as evidenced by CCTV footage. On the

specified date, at around 11 a.m., applicant No.2 visited at

village Sandhwaya, specifically at the residence of Hareshbhai

Ramoliya, for lunch related to a marriage function, where he

stayed for about an hour. Notably, applicant No.2 is

documented in video footage from the marriage event on the

alleged date of the offense. Additionally, applicant No.2 visited

the Gram Panchayat Office on the same date, which is also

established from the CCTV Footage. Consequently, applicant

No.2 did not have any interaction with applicant Nos.1 and 3 at

the alleged date and time of the offense.

4.3 It is further submitted that applicant No. 3 reached Ramod

Patel Samaj at around 1:00 pm. On the date of the alleged

offence, which is evidenced by the CCTV footage. Thereafter,

he returned to his residence and went to sleep at about 02:00

am. As a result, applicant No. 3 was not present at the time

and date of the alleged offence. The learned advocate for the

applicants submits that the applicants have nothing to do with

the alleged offence. In support of this claim, the plea of alibi

has been raised. Subsequently, after gathering CCTV footages,

NEUTRAL CITATION

R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023

undefined

they filed Special Criminal Application No.1781 of 2020 before

this Court, which was withdrawn by the applicants on

16.06.2020. The Investigation Officer was then instructed to

thoroughly examine the plea of alibi presented by the current

applicants.

4.4 Considering the aforesaid fact, the learned advocate for

the applicants asserts that this Court specifically directed the

Investigating Officer to consider the plea of alibi raised by the

applicant. However, the chargesheet has been filed without

taking into account the alibi defence. Therefore, relying on

their alibi defence and considering the NARCO Test, the

learned advocate requests to allow the present application.

5. Learned APP has vehemently opposed the current

application, asserting that the offense in question is against a

woman. The defenses raised by the applicants should be

considered integral part to the evidentiary process and

subjects for trial. Furthermore, the Narco test report is not on

record, and a charge-sheet has been filed. Consequently, the

learned APP argues that the Court should refrain from

exercising jurisdiction at this stage. Additionally, attention is

drawn to Criminal Misc. Application No. 1214 of 2022, filed by

the applicant under Section 482 CrPC before this Court, which

was withdrawn on 04.07.2023. Therefore, the learned APP

NEUTRAL CITATION

R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023

undefined

submits that the application may be dismissed.

6. Having heard the learned advocates for the respective

parties and having gone through the documents on record, it is

worth to mention that present application is a successive

application and main defence raised by the present applicants

qua their alibi and they are not involved in the offence. The

offense was committed on 26.02.2020, with the time of

commission being around noon, between 01:00 to 01:30.

According to the complaint, the victim was alone at her house

when the applicants arrived in a white-colored Brezza Car.

applicant No.1 is accused of forcibly restraining her, placing

her in the car, and subsequently forcefully engaging in sexual

intercourse with her at the back seat of the moving vehicle. It

is further claimed that applicant No.1 brandished a revolver,

threatening the victim not to disclose the incident, warning of

dire consequences if she did. Subsequently, both accused No.2

and No.3 are accused of engaging in sexual intercourse with

her. It is also alleged that accused No.1 holds a leadership

position within the ruling BJP Party, serving as the General

Secretary of Kotadasangani Taluka. Additionally, the mother of

applicant No.1 was a Village Sarpanch of Ramod.

7. It is important to note at this stage that the alibi plea is

solely based on CCTV footage, which, according to the

NEUTRAL CITATION

R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023

undefined

prosecution, should not be considered. The investigating

officer, after recording statements under Section 164 of the

CrPC, along with the doctor's evidence and sufficient material

collection, has filed a chargesheet against the accused

persons. Although CCTV footage was collected, it did not

provide conclusive opinions regarding the allegations made by

the complainant. The evidence gathered during the

investigation indicates the time of the offense as between

12:30 p.m. to 13:00 p.m. However, the opinion of the Forensic

Science Laboratory (FSL) is still pending, and the verification of

the alibi and CCTV footage is underway as per this court's

earlier order dated 16.06.2020 passed in Special Criminal Misc.

Application No.1781 of 2020. The chargesheet against the

accused persons has been filed based on the collected

material. It is asserted that there is sufficient evidence from

the statement of the prosecutrix under Section 164 of the

CrPC, and hence the chargesheet has been submitted. The

investigating papers indicate that the chargesheet was filed

after the collection of adequate material.

8. It is worth to mention that learned advocate relied on the

evidence of Narco analysis and Polygraph test, but report is yet

to be received from the DESF Gandhinagar which is mute part

of compilation. Assuming for a moment that, the Narco

Analysis Test is conducted, but both Narco analysis and

NEUTRAL CITATION

R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023

undefined

Polygraph tests are not conclusive proof. Regarding the plea of

alibi raised by the applicants, it is clarified that it needs to be

substantiated during the trial. The defense of alibi itself is a

disputed question of fact which prima facie, indicates the

involvement of accused in an offence. The admissibility and

relevance of the Narco Analysis and Polygraph test need to be

assessed during the trial. The disputed questions raised by the

applicants also require adjudication and appreciation during

the trial, with evidence being presented absence of the

accused at the place of occurrence was within the special

knowledge of the accused persons, and they would have to

prove this by presenting cogent evidence.

9. In view of the above, while exercising the powers under

Section 482 of the CrPC, such an exercise is not permissible,

and this Court is not obliged to undertake any exercise to hold

a mini-trial. Regarding the allegations levelled against the

present applicants and that too qua defence of alibi, they are

deemed serious and prima facie, after collecting evidence, a

chargesheet has been filed. Hence, this Court is not inclined to

examine the correctness of the complaint, and nothing

suggests that the allegations in the complaint are patently

frivolous or do not disclose any offense.

10. In this regard reference is made to judgment passed by

NEUTRAL CITATION

R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023

undefined

the Apex Court in the case of Amit Kapoor v. Ramesh

Chander, reported in 2012 9 SCC 460 online wherein the

Apex Court had held as under:

"27(9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

(10) It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

(11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

(12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

(13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

11. Further reference is made to the judgment of the Apex

NEUTRAL CITATION

R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023

undefined

Court in the case of Supriya Jain v. State of Haryana,

reported AIR 2023 SC(Criminal) 1101.

12. As the allegations under Section 376 of the IPC, the Court

has also relied upon the judgments passed by the Apex Court

in the case of Shimbhu v. State of Haryana, reported in

(2014) 13 SCC 318, the State Of A.P vs Gourishetty

Mahesh & Ors, reported in (2010) 6 SCC 588. Further in the

case of Neeharika Infrastruecture Pvt. Ltd. vs. State of

Maharshtra, reported in 2021 SCC Online SC 315 wherein,

the Apex Court has observed that:

"iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;