Gujarat High Court

Rameshbhai Narsangbhai ... vs State Of Gujarat on 22 September, 2023

Bench: Sandeep N. Bhatt

                                                                                     NEUTRAL CITATION




      R/CR.MA/20217/2014                                ORDER DATED: 22/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 20217 of 2014
                                  With
              R/SPECIAL CRIMINAL APPLICATION NO. 903 of 2015
                                  With
              R/CRIMINAL MISC.APPLICATION NO. 16370 of 2015

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              RAMESHBHAI NARSANGBHAI CHAUDHARY & ORS.
                               Versus
                     STATE OF GUJARAT & 1 other(s)
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Appearance:
MR TUSHAR CHAUDHARY, MR TEJAS SATTA, MR PIYUSH TRIVEDI FOR
MR PRATIK BAROT, ADVOCATES for the Applicants
MR CHINTAN DAVE, APP for the Respondent(s) No. 1 - State
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR NEERAJ SONI(3433) for the Respondent(s) No. 2 - Ori. Complainant
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     CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 22/09/2023

                               ORAL ORDER

1. By way of present application, under Section 482

of the Code of Criminal Procedure, 1973, the applicants seek

quashment of the impugned FIR being C.R.- I No.208 of 2014

registered with the Chandkheda Police Station, District :

Ahmedabad for the offences punishable under Sections 376,

294B, 506(1) and 114 of the Indian Penal Code and Sections

66(E) and 67(A)(B) of the Information Technology Act.

2. The short facts of the prosecution case are that

before about five years, in connivance with each other, the

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accused persons have called the victim and asked her to keep

love relationship, have given trust to the victim, taken the

victim to various places individually on separate dates,

forcefully raped on her, recorded video, threatened her to

spoil her life by tarnishing her image in the society and

viral the video and thereby committed an offence as alleged.

3. Heard learned advocates.

4. Rule. Learned advocates waive service of notice of

rule forthwith for and on behalf of the respective

respondents. With consent of all the learned advocates, these

matters are taken up for hearing and final disposal today.

5. Learned advocates for the applicants have

submitted that the applicants have not committed any offence

as alleged in the impugned FIR. They have submitted that

the complaint is lodged after about five years delay which is

not explained by the complainant. They have submitted that

the allegations levelled against the applicants are nothing but

sheer abuse of process of law by the complainant. They have

submitted that the complaint impugned is absolutely false,

fabricated, concocted and far from the truth. They have

further submitted that if such incident has happened actually,

the normal reaction of anyone would be to approach the

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police authority immediately. In the present case, there is no

immediate reaction by the complainant. They have submitted

that the impugned complaint is filed with oblique motive.

They have submitted that the complainant has even not

inform to her parents also about the alleged incident. They

have submitted that these applications may be allowed by

quashing the belated complaint impugned.

6. Learned advocate Mr.Neeraj Soni through High

Court Legal Service Committee for respondent No.2 - original

complainant has vehemently opposed these applications. He

has submitted that the complainant is a victim and has

lodged the complaint against the applicants. He has

submitted that the applicants have committed an offence as

alleged in the impugned complaint in planned manner. He

has submitted that they all are known to each other. He has

submitted that they have taken the benefits of the feelings of

the victim, misused it, promised her to marry, raped her and

left her in lurch. He has submitted that the accused have

called the victim, harassed her and threatened her. He has

submitted that they have taken the video recording and

threaten to spread in the society. He has submitted that all

the accused have used same modus operandi and thereby

committed an offence. He has submitted that all these

applications may be rejected.

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7. Learned APP Mr.Chintan Dave for the State has

strongly opposed these applications. He has submitted that

prima facie offence is made out against the applicants and

therefore, all these applications may be dismissed. He has

submitted that the applicants have, in connivance with each

other, committed an offence. He has submitted that in such

offence, this Court should not take lenient view in favour of

the accused. He has submitted that it is true that the victim

has not immediately reacted to the offence either by lodging

the complaint or by telling the truth to her parents, but it is

not denied that the offence has not happened. He has

submitted that let the applicants face the trial. He has

submitted that there are catena of decisions of the Hon'ble

Apex Court that the Court should exercise the powers under

Section 482 of the Code of Criminal Procedure, 1973 very

sparingly. He has submitted that all these applications may

be dismissed.

8. I have heard rival submissions made by learned

advocates for the respective parties. I have also considered

the material available on record. On bare perusal of the

impugned FIR, the following aspects are emerged :

 There is a huge delay of about five years in

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lodging the impugned FIR.

 There is no whisper about the explanation of the

delayed complaint in the impugned FIR.

 The complaint is dated 21.10.2014.

 At the time of lodging the complaint, the age of

the victim was about 29 years.

 There are no specific dates in the FIR about the

alleged various incidents with the applicants.

 It is not the case of the complainant that all

the persons have forcefully taken the

complainant from her house at various places.

 This is not a case of gang rape.

 Every time, when anyone calls the victim by

giving any promise, the complainant goes there

on her own, spends time, returns to her home

and does not tell to her parents or police

authority.

 All the places are not the applicants' personal

properties. All places are public places.

 She got pregnant many times but was aborted

thereafter.

 There may be a money transaction between the

complainant and one Mr. Jayendra @ Jignesh.

 There was a complaint against said Jayendra, in

which there was a compromise.

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 There may be a case that the complainant has

feelings for Jayendra.

 There may be a love affair between the

complainant and Jayendra.

 It is specifically stated that she asked for money

which is borrowed by Jayendra from her,

Jayendra refused to give it back, it came to the

knowledge of her father, her father scolded her

and therefore, she felt bad and tried to commit

suicide by consuming poison.

 The complainant, on her own, took the poison

with her, and went to the house of Jayendra.

When Jayendra was not available at his house,

she consumed poison in front of Jayendra's

house and thereafter, she called 108 emergency

medical services from her mobile.

 She immediately shifted to the hospital and the

police lodged the impugned FIR, where she

imposed all the allegations against the

applicants.

These are the points, which are emerged from the

bare perusal of the impugned FIR, which this Court cannot

ignore while considering these applications, at this stage.

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9. At this stage, the affidavit filed by the

complainant opposing these proceedings needs to be

considered. Looking at the entire affidavit, there is no

whisper about the delayed complaint by the complainant.

Even in the affidavit, there is no explanation as to why she

has lodged a delayed complaint. She has narrated an entire

episode of the journey of her life from the year 2008 to

2014. The incident of consuming poison is of the year 2014.

If we consider the impugned complaint as it is vis-à-vis the

affidavit filed by the complainant, we can see that the

complainant is harping on the relationship with Jayendra @

Jignesh. She might have a love affair with said Jayendra @

Jignesh. She got pregnant by Jayendra and with her consent,

she aborted. Since there are no specific dates of various

incidents in the impugned FIR, even in the affidavit, she has

not stated the specific dates. When Jayendra refuses to

marry her, the incident of consuming poison is happened.

Therefore, the affidavit of the complainant does not help her

any further.

10. Considering the impugned FIR vis-à-vis the

affidavit of the complainant, at this stage, under Section 482

of the Code of Criminal Procedure, 1973, this Court has to

only consider, whether there is a prima facie offence against

the applicants or not. This Court has kept in mind the

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following points while deciding these applications, which is

very painful for this Court.

 There is an unexplained delay in lodging the

complaint.

 The complainant is the victim, who is a major.

 There is no case of the complainant that the

applicants have forcefully taken her with them.

 Every time, the complainant went on her own

with the applicants at public places.

 There is no love affair by the complainant with

the applicants except one Jayendra @ Jignesh.

 From the year 2008 to 2014, she has not made

any complaint either to the police authority or

to her parents.

 There was a love affair between the complainant

and Jayendra @ Jignesh.

 She got pregnant many times and aborted the

child with her consent and wish.

 When Jayendra refused to marry her, she

consumed poison.

 There was a money transaction between the

complainant and Jayendra.

 Jayendra borrowed some money from the

complainant and could not repay in time and

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there was a disputed between them.

 When Jayendra told the story about the

complainant to her father and her father has

scolded her, she took the poison, went to the

house of Jayendra and consumed in front of his

house.

 At that time, Jayendra was not present.

 She has called 108 Emergency Medical Services

from her mobile after consuming poison.

 From record, it transpires that, the complainant

has no grievance against the applicants except

Jayendra.

 There may be an emotional attachment by her

with Jayendra.

 Except Jayendra, no one from the applicants

was in continuous touch with her and she has

no grievance about it.

 It is a case of less criminality, more social

disorder.

 It is a case of over implication.

 Under such circumstances, no prima facie case

is made out against the applicants.

11. Further, it will also be fruitful to mention the

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

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Haryana V/s Bhajan Lal reported in AIR 1992 SC 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 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

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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 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 concerned Act (under which a 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 concerned Act, 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

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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."

12. In view of above peculiar facts and circumstances

of the case, this Court is of the opinion that no prima facie

case is made out against the applicants. All these

applications therefore need to be allowed by quashing the

impugned complaint while exercising the powers under

Section 482 of the Code of Criminal Procedure, 1973.

13. For the reasons recorded above, the following order

is passed :

13.1 All these applications are allowed.

13.2 The impugned FIR being C.R.- I No.208 of 2014

registered with the Chandkheda Police Station, District :

Ahmedabad, is hereby quashed and set aside, qua the