Maheshkumar Hareshbhai Kukadiya vs State Of Gujarat
2024 Latest Caselaw 5864 Guj

Gujarat High Court

Maheshkumar Hareshbhai Kukadiya vs State Of Gujarat on 1 July, 2024

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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     R/CR.MA/11512/2024                           ORDER DATED: 01/07/2024

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC. APPLICATION (FOR QUASHING & SET ASIDE
              FIR/ORDER) NO.11512 of 2024

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                     MAHESHKUMAR HARESHBHAI KUKADIYA
                                   Versus
                          STATE OF GUJARAT & ANR.
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Appearance :
MR BM MANGUKIYA for the Applicant.
MS BELA A PRAJAPATI for the Applicant.
for the Respondent No.2.
MS MAITHILI MEHTA, APP for the Respondent No.1.
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                            Date : 01/07/2024
                             ORAL ORDER

1. By way of this petition, the applicant has prayed to quash FIR bearing C.R. No.I-11210025211233 of 2021 lodged with Limbayat Police Station, Surat for the offences punishable under Sections 363, 366, 312, 313, 506, 376(2)(f), 376(2)(i), 294(b), 506(2), 201 and 176 of the Indian Penal Code as well as Sections 3(a), 4, 5(j)2, 5(k), 5(L), 7, 8, 5(N) and 5(q) of the Prevention of Children from Sexual Offences Act and Section 3 (2) of the PNDT Act. The applicant has also prayed to quash and set aside proceedings of Special (POCSO) No.103 of 2021 pending before Special Judge, Special Court, Surat.

2. The present petition preferred for quashing of the FIR as well as consequential proceeding is filed on the ground that the applicant is a Doctor and he is arraigned as an accused in respect of FIR in question and as the trial in respect of the main accused is

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over and the main accused is acquitted by the learned 2nd Additional Sessions Judge, Surat vide judgment dated 15.9.2022 in Special (POCSO) Case No.103 of 2021 on the ground of benefit of doubt, according to learned advocate Mr. B. M. Mangukiya, the trial against the applicant would be a futile exercise in view of acquittal of the main accused.

3. The brief facts giving rise to the present petition are stated as under :-

3.1 That as per the FIR dated 7.3.2021 lodged by one Mubinabibi Nazir Ahmed Shaikh, she has stated that main accused Shafik Shaikh who happens to be husband of the daughter of sister of the first informant has lured the daughter of the first informant (victim girl) aged about 13 years by giving false promise of marriage and thereby developed intimated relations with her and as the victim girl was found pregnant, the said Shafik Shaikh took her in the Hospital and admitted and aborted the child and thereafter has threatened them to kill her. As per the FIR, it is stated that when when the first informant found a baby bump, upon inquiry, the victim girl has stated that why are you asking me about baby bump, you should ask about it to Shafik. Therefore, when the first informant inquired from Shafik, he confessed that he was having love affair with the victim girl since last two years and, therefore, he asked the victim girl to marry with him. When the first informant shown her inability to marry her daughter with Shafik on account of her tender age as well as on account of the fact that accused No.1 happens to be relative, he abused her and ran away. Thereafter, on the next day, the first informant along with her husband went to her sister's residence to discuss the

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aforesaid and came late. On the next day, she found that the victim girl was not having baby bump and, therefore, upon inquiry, the victim girl said that Shafik had come to her residence and promised her to marry on a condition to abort the child and, therefore, she trusted his version and, therefore, she was taken to hospital at Dindoli where abortion had taken place and, thereafter she was dropped back at her residence. Therefore, considering the fact that the family would loose her and that this would affect the reputation of the family, she remained silent and thereafter also, as Shafik started visiting her family and started threatening them that if they do not arrange for victim girl's marriage with him, they would be killed, the FIR was registered.

4. Thereafter, initially when the FIR was registered, the same was registered only against accused - Shafik and subsequently, during the course of investigation, present applicant was arraigned as accused when the charge-sheet was filed and offences punishable under Sections 3 (2) of Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 as well as Sections 201 and 176 of the Indian Penal Code were added in the FIR vide application dated 18.6.2021 made by the Investigating Officer of the concerned Police Station. The applicant who is a Doctor has rightly carried out the abortion of the victim girl aged 13 years when she was carrying pregnancy of around six months stated in the FIR (if converted into weeks, the same would come to around 24 weeks).

5. Mr. B. M. Mangukiya, learned advocate appearing for the applicant submitted that the applicant who has carried out the abortion while performing his duty as Doctor, he would not have

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said no for abortion considering the age of the victim girl as he owns a duty to the society who serve as a Doctor. He further submitted that when the main accused is acquitted on account of benefit of doubt, nothing remains in the trial of the applicant and if the applicant is permitted to face the trial, the same would be a futile exercise.

6. According to learned advocate Mr. B. M. Mangukiya, though the applicant's trial has not yet commenced, in view of provisions of Section 157 of the Indian Evidence Act, the evidence in respect of the trial of accused No.1 would be admissible in the trial of the present applicant also and can be considered to quash the impugned FIR and consequential proceedings qua the present applicant. He further submitted that in view of the medical papers submitted by Police, an opinion has been obtained from the Government Medical College which has opined that no drugs have been administered to the victim girl for medical termination of pregnancy. Therefore, even the charges under the PNDT Act also would not be sustainable. By making the aforesaid submission, learned advocate Mr. B. M. Mangukiya prayed to quash the impugned FIR and all consequential proceedings arising out of the said FIR.

7. Though averments have been made and the copies of the orders have been annexed in the petition about earlier quashing petitions filed by the applicant being Special Criminal Application No.4199 of 2021 which was withdrawn vide order dated 14.6.2021 and thereafter filed another quashing petition being Special Criminal Application No.6725 of 2021 which was also withdrawn vide order dated 4.8.2021 with a liberty to file an

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application for discharge before the competent Court as well as another quashing petition, learned advocate Mr. B. M. Mangukiya did not brought the aforesaid aspect expressly to the notice of this Court during his arguments.

8. I have heard learned advocate appearing for the applicant and perused the record. Upon hearing learned advocate for the applicant, as the record was bulky, on 26.6.2024, the matter was kept for orders today i.e. 1.7.2024.

9. From the perusal of the record, I found that the allegation against the main accused was of rape and under the provisions of POCSO Act. The FIR was initially registered under the provisions of 363, 366, 312, 313, 506, 376(2)(f), 376(2)(i), 294(b), 506(2) of the Indian Penal Code as well as Sections 3(a), 4, 5(j)2, 5(k), 5(L), 7, 8, 5(N) and 5(q) of the Prevention of Children from Sexual Offences Act. Subsequently, Sections 201 and 176 of the Indian Penal Code as well as Section 3 (2) of the PNDT Act were added in the FIR and charge-sheet was filed for the said offences on 15.4.2021 wherein the applicant was shown as absconding accused. Thereafter, the applicant preferred an application under Section 438 of the Code of Criminal Procedure, 1973 seeking anticipatory bail being Criminal Misc. Application No.15863 of 2021 wherein the coordinate Bench of this Court vide order dated 16.9.2021 issued rule and protected the applicant by passing an order of not to arrest the applicant till the next date of hearing. Ultimately, from the record it seems that the relief granted in favour of the applicant continued till 8.2.2024 and coordinate Bench of this Court vide order dated 8.2.2024 passed in Criminal Misc. Application No.15863 of 2021 granted anticipatory

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bail to the applicant.

10. In the meantime, quashing petition was filed by the applicant being Special Criminal Application No.4199 of 2021 which was withdrawn vide order dated 14.6.2021 and thereafter the applicant had preferred quashing petition being Special Criminal Application No.6725 of 2021 which was withdrawn on

4.8.2021 with a view to file discharge application before the competent Court.

11. In the meantime, the trial qua the main accused commenced and completed and he was acquitted by giving him benefit of doubt vide judgment dated 15.9.2022 in Special (POCSO) Case No.103 of 2021 passed by the learned 2 nd Additional Sessions Judge, Surat which would indicate that the trial qua the applicant is not even commenced and no charge is framed against him.

12. Considering the aforesaid facts as well as considering the fact that the allegations against the main accused were of committing a rape on a minor girl who happen to be daughter of the paternal aunt of his wife and, therefore, he was the one against whom there were allegations of rape and offence under the provisions of POCSO Act, whereas the role of the applicant is different. It is alleged that the applicant has abated in crime by doing abortion of a minor girl illegally and hence, during the course of investigation, the offence of Section 3 (2) of PNDT Act read with Sections 201 and 176 of the Indian Penal Code were added. Considering the aforesaid aspect, as the role of the present applicant viz.a.viz role of the main accused are different as well as considering the fact that the main accused has not been acquitted

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by giving him clean acquittal beyond any doubt, but he was acquitted on the basis of granting him benefit of doubt, so also considering the fact that the nature and standard of proof in respect of present applicant and co-accused would be considered considering the different role in the offence in question, prima facie, no case for quashing can be said to have been made out. Accordingly, the present application is required to be dismissed and the same is dismissed.

(NIRZAR S. DESAI,J)

SAVARIYA