Gujarat High Court

Maganlal Meghjibhai Kavar vs State Of Gujarat on 26 June, 2023

Bench: Sandeep N. Bhatt

     R/CR.MA/2798/2018                             JUDGMENT DATED: 26/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 2798 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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

2      To be referred to the Reporter or not ?                         Yes

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 ?

==========================================================
                    MAGANLAL MEGHJIBHAI KAVAR & 1 other(s)
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR. KALRAV R PATEL(7041) for the Applicant(s) No. 1,2
MS. NILI K PATEL(7043) for the Applicant(s) No. 1,2
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MS NILAM N CHAUHAN(6635) for the Respondent(s) No. 2
MR. DHAVAN JAISWAL, APP for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 26/06/2023
                               ORAL JUDGMENT

1. Rule. The present application is filed by seeking

following reliefs:

"(A) To allow this application.

R/CR.MA/2798/2018 JUDGMENT DATED: 26/06/2023

(B) To quash and set aside the FIR being I-C.R.No.

04/2018 registered with Maliya Mi. Police Station, Dist:

Morbi.

(C) Pending admission final hearing and disposal of

this application to stay further investigation of the FIR

being I-C.R.No. 04/2018 registered with Maliya Mi.

Police Station, Dist: Morbi.

(D) To pass any other and further orders as may be

deemed fit and proper.

2. Brief facts as per the case of the applicants in this

application are as such that the applicants are having

three sons namely Amit, Hiren and Nishant. Amit is the eldest son and is married to Divya and is having a

minor son and daughter out of the said wedlock. It is

further the case of the applicants in this application that

it is alleged in the impugned F.I.R. that the son of the

applicants namely Amit used to ask for the mobile

number of the complainant and hence in contact with

the respondent no. 2. It is alleged that the son of the

petitioners lured her that he will marry her and will

also accept his son and thereafter by winning trust of

R/CR.MA/2798/2018 JUDGMENT DATED: 26/06/2023

the complainant, raped the respondent no. 2 against her

wish and will, several times at different places including

at one Krishna Waterpark at Rajkot. It is further alleged

that the son of the applicant - Amit also rented a house

for the complainant at Morbi for some time and

thereafter since 12.01.2018 Amit left the complainant and

was not returning her calls. Therefore, the complainant

went to the house of the applicants and since Amit was

not present therefore the applicants being parents asked

her to leave and she was subjected to physical assault.

It is further the case of the applicants in this

application that brothers of the Amit namely Hiren,

Maulik, Prashant, Nishant met the resp. no. 2 at

Pipaliya Cross roads and abused her and also stated words against her caste and told her that Amit will not

marry her as she belongs to lower caste. Hence, the

offence of rape and atrocity was lodged.

3. Heard learned advocate Mr. Zubin Bharda with Mr.

Kalrav Patel, learned advocate for the applicants, learned

advocate Ms. Nilam Chauhan for the respondent No.2

and learned APP Mr. Dhavan Jaiswal for the respondent

No.1 - State.

R/CR.MA/2798/2018 JUDGMENT DATED: 26/06/2023

4. Learned advocate Mr. Zubin Bharda has submitted

that the complaint is filed with mala fied intention with

a view to harassing the applicants, who happen to father

and mother of the accused No.1. He has drawn my

attention towards the tenor of complaint wherealso it is

fund that there is general allegation made against the

present applicants, who are accused Nos.5 and 6 in the

complaint. He has also drawn my attention towards the

earlier complaint, which is given before the Mahila Police

Station, Morbi on 23.1.2018, much prior to the present

complaint which is given on 27.1.2018, whereby in that

complaint she has not uttered any word against the

applicants herein, and therefore, he has submitted that even looking to the conduct of the complainant, it seems

that she had some affair with the son of the applicants

and therefore, as there is some dispute between the son

of the applicant and complaint, the F.I.R. is filed with a

view to harass all the family members of the son of the

applicants. Originally, they are not named in the F.I.R.

but only relationship of the applicants herein with the

accused No.1 are mentioned. He has further submitted

that on the bare reading of F.I.R., it cannot be said that

R/CR.MA/2798/2018 JUDGMENT DATED: 26/06/2023

offences punishable under Sections 376(2)(I), 323 and 143

of the Indian Penal Code and Section 3(1)(r)(s) and 3(2)

(5) of the Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1989 are made out against

the applicants herein as prima facie, the allegations are

made against the son of the applicants and no

ingredients of provisions of Section 3(1)(r)(s) and 3(2)(5)

of the Scheduled Caste and Scheduled Tribe (Prevention

of Atrocities) Act, 1989 is invoked in the present

compliant, are satisfied. Hence, he has submitted that

further continuation of the proceeding pursuant to the

said F.I.R. will amount to abuse of process of law in

view of the judgment of the Hon'ble Apex Court in the

case of State of Haryana versus Bhajan Lal and Others reported in AIR (1992) SC 604 and other judgments of

the Hon'ble Apex Court and therefore, he has prayed to

allow this application.

5. Per contra, learned advocate Ms. Nilam Chauhan for the respondent No.2 - original complainant has

strongly opposed the prayers made in the present

application and has countered the submissions made at

the bar by the learned advocate for the applicants. She

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has submitted that it cannot be said that merely she -

complainant shas not disclosed anything in the complaint

qua the applicants which is lodged before the Mahila

Police Station, Morbi and therefore, ingredients of present

F.I.R. has not been made out. She has also submitted

that there is serious allegation and also serious charges

were levelled against all the accused persons and

thereafter, the investigation is also progressed further.

She has further submitted that considering the totality of

facts and circumstances of the case, prima facie, the

offence is made out against the applicants and therefore,

she has submitted that this Court should not exercise

discretion under Section 482 of the Criminal Procedure

Code, 1973 by granting any relief, as prayed for, in the present application which should be exercised very

sparingly where no case is made out and here, the

prima facie. offence is made out against the applicants.

Therefore, she has prayed to dismiss the present petition.

6. Learned APP Mr. Dhavan Jaiswal for the

respondent No.1 - State has also supported the

submissions made by the learned advocate for the

complainant and has further submitted that looking to

R/CR.MA/2798/2018 JUDGMENT DATED: 26/06/2023

the averments made in the F.I.R., it cannot be said that

there is no case made out against the applicants and

defence of the present applicants is required to be tested

at the trial. This is not a fit case where the Court

should exercise its discretion under Section 482 of the

Criminal Procedure Code by interfering in the proceeding

initiated pursuant to the said complaint, and therefore,

he has prayed to dismiss this application.

7.1 I have considered rival submissions made at the

bar. I have also considered the fact that in the first

complaint which is given before Mahila Police Station,

Morbi by the very complainant, no visper, about any

incident occurred which is now alleged in the impugned F.I.R. is found. There is only reference regarding the fact

that the accused No.1 with whom the complainant was

having some affair and was staying with him, and he

was missing since last few days. Now looking to the

averments made in the present F.I.R., the complainant

has improvised the earlier version by falsely implicating

the applicants and other persons in the said incident by

making some further allegation which was not stated in

earlier complaint with a view to falsely implicate the

R/CR.MA/2798/2018 JUDGMENT DATED: 26/06/2023

applicants who happen to aged parents of the accused

No.1. Since the alleged incident is occurred at the

residential premises, even if it is believed as per the

compliant, then also the ingredients of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities) Act,

1989 are in applicable in the facts and circumstances of

the present case, and the tenor of the complaint itself is

doubtful qua the applicants considering the earlier

complaint dated 23.1.2018, which is given by way of

Application No.33 of 2018 before the Mahila Police

Station, Morbi, where there is no whisper about such

incident and thereafter, after four days, all of a sudden,

second compliant is filed, which itself shows some mala

fide intention on the part of the complainant to harass the aged parents of the accused No.1 by implicating

them in the case. Even on bare reading of F.I.R., no

offence can be made out against aged parents under

Section 376(2)(I) and other sections of the Indian Penal

Code and the F.I.R. prima facie found untenable in the

eyes of law.

7.2 Further, it will also be fruitful to mention the

judgment of Hon'ble Supreme Court in the case of State

of Haryana V/s Bhajan Lal reported in AIR 1992 SC

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604, wherein the Hon'ble Supreme Court has observed

thus -

"In the backdrop of the interpretation of the

various relevant provisions of the Code under

Ch.XIV and of the principles of law

enunciated by this court in a series of

decisions relating to the exercise of the

extraordinary power under Art.226 or the

inherent powers under sec.482 of the Code

which we have extracted and reproduced

above, we give the following categories of

cases by way of illustration wherein such

power could be exercised either to prevent

abuse of the process of any court or

otherwise to secure the ends of justice,

though it may not be possible to lay down

any precise, clearly defined and sufficiently

channelised and inflexible guidelines or rigid

formulae and to give an exhaustive list of

myriad kinds of cases wherein such power

should be exercised.

(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

R/CR.MA/2798/2018 JUDGMENT DATED: 26/06/2023

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 sec.156(1) of the Code

except under an order of a Magistrate within

the purview of sec.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 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

sec.156(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