Gujarat High Court

Ritesh Gunvantbhai Jikadra vs State Of Gujarat on 13 December, 2023

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    R/SCR.A/13624/2023                             JUDGMENT DATED: 13/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 13624 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

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

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

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                         RITESH GUNVANTBHAI JIKADRA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MS SHIVANGI D MADHAD(13116) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS DP JHALA, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                               Date : 13/12/2023

                              ORAL JUDGMENT

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

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2. Present application is filed by the applicant under Section 482

of the Code of Criminal Procedure, 1973 (hereinafter referred to

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

No.11208001230062 of 2023 registered with Mahila Police

Station, Rajkot for the offences punishable under Sections

376(2)(n) of the Indian Penal Code, 1860 and all the

consequential proceedings arising therefrom.

3. Heard learned advocates for the respective parties.

4. Learned advocate for the applicant submits that the applicant

has nothing to do with the offence alleged and he is falsely

implicated in the offence. It is submitted that present petitioner

is facing the charge under Section 376(2)(n) of the Indian Penal

Code, 1860. It is alleged in the complaint that the complainant-

was working as a nurse in Desai Children Hospital, whereas the

present petitioner is a Doctor. They met with each other, when

the present petitioner came to hospital for the training purpose.

Thereafter, they exchanged their contact number and they used

to talk daily bases. Thereafter, physical relationship has been

developed between them from the year 2020 upto three years.

Then, due to some indifferences, in the year 2022, complaint

came to be registered and thereafter, settlement took place.

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Subsequently dispute was amicably settled and then no any

untoward incident took place. Though, in the month of January,

2023, present petitioner, came to Rajkot and called the

complainant and told that he wants to meet with her, if she

denies for the same, he will viral her photographs. Thereafter,

the complainant went to a resort, where present petitioner

forcefully got physically involved with the complainant. Thus, in

the pretext of promise to marry, though present petitioner is

also having kids, he developed the physical relationship.

Nonetheless, he blackmailed her and threatened to viral her

photographs and video. In this regard complaint came to be filed.

Thereafter, anticipatory bail is also granted.

4.1 Considering the aforesaid fact, the learned advocate for the

applicant asserts that there was a consensual relationship and no

any offence being made out. Hence, learned advocate has

requested to quash and set aside the present complaint as

present complaint is nothing but an abuse of process of Court.

Even on the alleged date of January, 2023, the present accused

never visited Rajkot as he was elsewhere in Hospital.

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5. Learned APP has vehemently opposed the present application,

asserting that the offense in question is against a woman. The

defenses raised by the applicant should be considered integral

part to the evidentiary process and subjects for trial. Learned

APP has stated that investigation is at preliminary stage and even

charge-sheet is filed and the allegation clearly reveals that

though petitioner was married and is having kids. Though he

asked and leave the complainant in the pretext of the false

marriage and he not only, developed physical relations but also in

the pretext of blackmailing, he threatened to viral her

photographs. Frequently he has taken undue advantage. As the

charge-sheet is filed, this is not a case, where the Court should

exercise the jurisdiction under Section 482 of the Code of

Criminal Procedure. Therefore, the learned APP submits that the

application may be dismissed.

6. However, learned advocate for the petitioner has

submitted that merely filing of the charge-sheet is not a ground

to deny any relief under Section 482 of Cr.P.C and this Court

should not deny to exercise the jurisdiction under Section 482 of

the Cr.P.C. and there is no bar to exercise jurisdiction under

Section 482 of the Code of Criminal Procedure.

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7. Having heard the learned advocates for the respective parties

and having gone through the materials available on record, it

appears that there is no dispute about the proposition of law

and after filing of the charge-sheet, under Section 482 of the

Code of Criminal Procedure, powers cannot exercise. However,

considering the allegations levelled in the present case, the

present accused is facing charge under Section 376 of IPC.

Investigation was at preliminary stage, during the pendency of

the present application, charge-sheet is filed. On bare perusal of

the complaint, it appears that in the pretext of the marriage,

physical relationship was developed.

8. Even, in the year 2022, one complaint came to be filed and

matter was settled. In this regard one undertaking before the

Notary came to be executed and settlement took place between

the parties. The same is placed on record. Considering the fact

that the said settlement took place in the month of December,

2022. On perusal of the complaint, it further appears that

subsequently the said fact is also revealed from the complaint

itself. But, in January, 2022, once again, present applicant has

taken the undue advantage and forcefully called the complainant

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and then against her will, he developed physical relations with

the complainant. Nonetheless, threaten to viral her photograph

and blackmailed her.

9. Considering the aforesaid fact, it emerged that after the

settlement took place, the second episode mentioned in the

complaint and even in the complaint, it appears that, offence is

committed and nothing is on record to suggest, that the said

second incident took place in the month of January, 2023 and the

same was not consensual. The every ground of settlement may

be considered for first episode and consensual relationship not

for the second part.

10. Hence, in view of above, merely based on the findings of the

anticipatory bail, this Court cannot come to conclusion that the

complaint is merely abuse of process of Court and nothing is

clearly revealed from the bail order also. Considering the

aforesaid fact as finding in the bail applications are tentative in

nature. After conducting the investigation as charge-sheet is filed

then, prima facie, this Court is of the considered opinion that,

once charge-sheet is filed after collecting the sufficient evidence

against the accused, which supports the allegations levelled

against the petitioner in the complaint.

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In so far as allegation of absence of petitioner on fateful

day in Rajkot is itself a defence of alibi and itself question of

disputed fact, which cannot be gone into at this stage.

11. In this regard reference is required to be made to the

decision delivered by 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(2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

(3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

(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

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the investigating agencies to find out whether it is a case of acquittal or conviction."

12. It is also worthwhile to refer to the decision of Hon'ble

Supreme Court in the case of Supriya Jain vs. State of Haryana

reported in 2023 LiveLaw (SC) 494 wherein it is held as under:

"...It is no part of the business of any of the courts to ascertain what the outcome of the trial could be, ~ conviction or acquittal of the accused. The small window that the law, through judicial precedents, provides is to look at the allegations in the FIR and the materials collected in course of investigation, without a rebuttal thereof by the accused, and to form an opinion upon consideration thereof that an offence is indeed not disclosed from it. Unless the prosecution is shown to be illegitimate so as to result in an abuse of the process of law, it would not be proper to scuttle it. The principles to be borne in mind with regard to quashing of a charge / proceedings either in exercise of jurisdiction under section 397, Cr. PC or section 482, Cr. PC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarized by this Court succinctly."

13. Further, in the case of Ramveer Upadhyay and Anr. vs. State

of U.P. and Anr. reported in 2022 OnLine SC 484, it is observed

and held by the Apex Court that the High Court, while exercising

jurisdiction under Section 482 of the Cr.P.C, would not ordinarily

embark upon an enquiry into whether the evidence is reliable or

not or whether there is reasonable possibility that the accusation

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would not be sustained.

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

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