Pravinbhai Dhulabhai Prajapati vs State Of Gujarat
2023 Latest Caselaw 5367 Guj

     R/SCR.A/7252/2023                               ORDER DATED: 10/07/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 7252 of 2023

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                         PRAVINBHAI DHULABHAI PRAJAPATI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR NIRAD D BUCH(4000) for the Applicant(s) No. 1
MRS. BHAVINI N. BUCH(5403) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS CHETNABEN SHAH, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                 Date : 10/07/2023

                                  ORAL ORDER

1. By way of present application, applicant has requested to quash and set aside the FIR being CR No. I-11191015230249 of 2023 registered with Nikol Police Station, District Ahmedabad Rural for the offence punishable under Sections 376(2)(n), 506(1) of the Indian Penal Code.

2. Short facts of the present case are as under: 2.1 That, the applicant is married and having two children and after her marriage, she was residing at her marital home and the husband of the complainant is working as a labourer in Diamond company at Ahmedabad whereas the complainant was also working as such with a different company. That, the applicant herein was the colleague of the husband of the

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complainant and on account of working together, the husband of the complainant had got the applicant a house adjacent to the house of the complainant and thereby, the petitioner started to reside in the neighbourhood of the complainant and thereafter, the applicant developed his relations with the complainant thereafter they both were entered into the physical relationship. Thereafter, the husband of the complainant suspected the relationship between the applicant and the complainant, therefore, they shifted the house though applicant used to pressurize the complainant to develop physical relationship. Thereafter, the complainant shifted to Surat wherein also the applicant made phone to the husband of the complainant and thereby, the applicant is issuing threats to the complainant by showing her clip with the applicant taken in the mobile of the applicant and that is how, the complainant has lodged impugned complaint against the present applicant.

3. Heard learned advocate for the applicant.

4. It was submitted by learned advocate for the applicant that applicant is innocent and falsely booked as an accused though the applicant has not played any role in the commission of the offence. That, the contents of the FIR are frivolous, vague and vexatious. That, the case on hand is nothing but an arm twisting technique, abuse of process of

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court and of law, malafide and that the same is filed with an ulterior motive of wrecking vengeance on the present applicant and with a view to spite him due to private and personal grudge for the not having succumbed to illegal, innocent, unjust and improper demands made.

5. It was further submitted by learned advocate for the applicant that the impugned complaint is counterblast to the FIR registered by the applicant against the husband of the complainant on 18.03.2023. That, soon after the husband of the first informant was released on bail by the learned trial court on 01.04.2023, the impugned FIR has been lodged on 06.04.2023. That, a bare reading of the impugned FIR would show that the same is registered after an unreasonable and unexplained delay of 15 years from the date on which it is said to have commenced, nine years from the year 2014 when the first informant and her husband shifted to another place, five years from their shifting to Surat. Even if the FIR is rad as it is for the sake of arguments, the very fact that the first informant, a mother of two major children, remained silent for more than 15 years, itself is suggestive of the fact that the allegations levelled in the FIR is not probable at all. Ultimately, it was submitted by learned advocate for the applicant to allow present application. In support of his arguments, learned

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advocate for the applicant has placed his reliance on the judgment passed in Criminal Appeal No. 442 of 2022 by Hon'ble Supreme Court of India as well as judgment passed by Hon'ble Supreme Court of India in the case of Shambhu Kharwar v. State of Uttar Pradesh reported in 2022(0) AIJEL- SC-69704.

6.. Having heard learned advocate for the applicant and considering the averments made by the applicant in the present petition, it appears that the allegation against the present petition is about giving threats by the applicant on the basis of the photographs taken by the applicant during the relations developed by the applicant with the original complainant even if the complainant had shifted his residential premises.

7. In the case of Prashant Bharti v. State of NCT of Delhi reported in (2013) 9 SCC 293, it is held that in order to determine the veracity of a prayer for quashing the criminal proceedings raised by an accused under Section 482 of the CrPC, the following questions have to be analyzed by the High Court:

1. Whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

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2. Whether the material relied upon by the accused is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

3. Whether the material relied upon by the accused, has not been refuted by the prosecution / complainant; and / or the material is such, that it cannot be justifiably refuted by the prosecution / complainant?

4. Whether proceeding with the trial would result in an abuse of process of the court and hence, would not serve the ends of justice?

If the answer to all the questions is in affirmative, the Court should quash the proceedings by exercising its power under Section 482 of CrPC. But, in the present case, while considering the role attributed to the petitioner, this court deems it not fit to exercise its power under Section 482 of the CrPC because this petition has been filed before filing of the charge sheet and it is very early to decide such kind of quashing petition.

8. In the recent decision of the Hon'ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., reported in 2021 (19) SCC 401, is required to be referred to. After taking into consideration the earlier decision on exercising the powers under Section 482 of the Code of Criminal Procedure including the decision of State

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of Haryana V. Bhanaj Lal, reported in 1992 Supp (1) SCC 335 . The Hon'ble Surpreme Court has observed in Para 37 and 80, which are as under:

"37. Then comes the celebrated decision of this Court in the case of Bhajan Lal (supra). In the said decision, this Court considered in detail the scope of the High Court powers under section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:

"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case

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against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

9. In view of the above finding given by the Apex Court in case of Neeharika Infrastructure Pvt. Ltd. (Supra), it transpires that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an inquiry as to the reliability or

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genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies.

"It is well settled that at the stage when the High Court considers a petition for quashing criminal proceedings under section 482 of the Cr.P.C, the allegations in the FIR must be read as they stand and it is only if on the face of the allegations that no cognizable offence, as alleged has been made out, that the Court may be justified in exercising its jurisdiction to quash."

10. In case of State of Punjab Vs. Davinder Pal Singh Bhullar and Anr. reported in (2011) 14 SCC 770, the Apex Court has determined thus:

"51. The inherent power of the Court under Section 482 of the CrPC is saved only where an order has been passed by the criminal Court which is required to be set aside to secure the ends of justice or where the proceeding pending before a Court, amounts to abuse of the process of Court. Therefore, such powers cannot be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the Court under Cr.P.C. Inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. (Vide Kurushetra

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University V. State of Haryana and State of W.B. Vs. Sujit Kumar Rana)"

11. The ratio laid down by the Hon'ble Apex Court is binding to this Court, but at the same time, investigation is pending so after completion of investigation, it is open for the applicant to agitate all the points before this Court.

12. It appears that at this stage, this court has not to evaluate the evidence produced before the court and accordingly, applying to the law laid down by the Hon'ble Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. (Supra) to the facts of the case in hand, this Court is of the firm opinion that this is not a fit case to entertain present application and to quash the criminal proceedings in exercising the powers under Section 482 of the Code of Criminal Procedure at the threshold. The submissions made on behalf of the applicant that the applicant is innocent and/or he has not committed any offence alleged is premature and too early to opine on the same without investigation of the allegations made in the FIR.

13. For the reasons stated above, present application fails and the same deserves to be rejected and accordingly, it stands dismissed at the admission stage without issuing any notice to the otherside.

(SAMIR J. DAVE,J) K. S. DARJI