Gujarat High Court
Narsangji S/O Javanji Thakor vs State Of Gujarat on 4 August, 2025
NEUTRAL CITATION
R/CR.MA/9316/2020 ORDER DATED: 04/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 9316 of 2020
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NARSANGJI S/O JAVANJI THAKOR & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS MOHINI BHAVSAR for MR BHARAT JANI(352) for the Petitioners
JUCKY LUCKY CHAN(8033) for the Respondent(s) No. 2
MR SOHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 04/08/2025
ORAL ORDER
1. To anonymized the identity of the complainant, she is
referred to as "victim" in the present judgment. Further,
Registry of this Court is directed to delete her name from the
records and replaced with the word "victim".
2. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code"),
the petitioners prayed for quashing and setting aside FIR being
C.R.No.I - 11217026200102 registered with Patan Taluka Police
Station, for the offences punishable under Sections 376(1),
506(2) and 114 of the IPC, u/s 67-A of the I.T. Act as well as all
other consequential proceedings arising out of the aforesaid FIR
qua the petitioners herein.
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3. Brief facts of the case are as under:-
3.1 As per the complaint, the respondent No.2 aged about 35
years, residing at village Chandrumana, Taluka District Patan
was married with Patel Harshadbhai Laljibhai before twenty
years and out of wedlock, she has two children. Elder is
daughter Aartiben and younger one is son Himanshu. Her
parental house is at Bareja, Ramdevnagar, Dascroi She is at
present staying with her parents at Bareja on account of
matrimonial disputes with her husband.
3.2 Approximately two years before, she was staying at village
Chandrumana and petitioner No.1 was having grocery and
mobile shop in the market from where she was purchasing
grocery items. It is alleged that she had visited the shop of
petitioner No.1 for new sim card and at that time the petitioner
No.1 had demanded two passport sized photographs and asked
her to collect sim card after two days. When she visited his shop
after two days, the petitioner No.1 had shown her indecent
photograph with him and threatened her to circulate this
photograph in village and threatened her to surrender her for
illicit relation, failing which, the said photographs will be shown
to her husband and others and thereafter demanded illicit
relations and thereafter committed rape with her. At that time
petitioner No.4 took the video of this rape.
3.3 After a week she had gone to farm of cotton seed and at
that time while passing through neliya, the petitioner No.2
caught her hold and taken her to nearby farm and committed
rape and threatened her to kill if she complains regarding this
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incident.
3.4 After a week or ten days the respondent No.3 came to her
wada-varanda at 10:00 am and threatened her and asked for
physical relations and committed rape.
3.5 Therefore, the complainant victim has filed the questioned
FIR.
3.6 The petitioners seek quashing of aforesaid FIR. Hence,
present petition.
4. Seeking quashment of the FIR, learned advocate, Ms
Mohini Bhavsar submits that the victim is a married lady. She
married to her husband 20 years back and she has also given
birth to two children. However, according to the FIR, since her
matrimonial relationship has been soar, she came to her
parental home and started residing with her mother and brother.
4.1 Learned advocate for the petitioners would further submit
that the victim is married woman and known good and bad very
well. She would further submit that there is delay in filing the
FIR and prior to filing of the impugned FIR, the victim has filed
identical complaint in the year 2018, but later on, she has
withdrawn it. She would further submit that plain reading of the
FIR allegedly indicates act and action of three persons, whereas
the FIR is filed against four persons. She would further submit
that on previous occasion, the victim had filed identical
complaint against seven different persons. She would further
submit that village people and others have been fed up with the
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behaviour of the victim and therefore, they have written a letter
to the SP, Patan that the victim is in the habit of filing false and
frivolous complaint against various people to settle the score. In
nutshell, learned advocate Ms. Bhavsar would submit that even
if the FIR is treated to be gospel truth, it shows nothing more
than the consensual relationship between the petitioners and the
victim. She would further submit that the victim is married
lady, solemnized her marriage 20 years back with her husband
and therefore, looking to this aspect as well as fact situation, it
does not attract offence of rape.
4.2 In the aforesaid premises, learned advocate Ms. Bhavsar
for the petitioners submits to allow this petition and to quash
and set aside the questioned FIR.
5. On the other hand, learned advocate Mr. Jucky Lucky
Chan appearing for the victim would submit that the victim ran
from pillar to post for registering the FIR. Various persons
named in the FIR have taken advantage of the victim's situation
and raped her. He would further submit that in the
aforementioned premises, the contention raised by the
petitioners cannot be appreciated at this juncture by holding
mini trial. He would further submit that if the court finds that
there are sufficient material to send the petitioners for trial, it
should not exercise inherent power under section 482 of the
Code. Lastly, he argued that even otherwise, the power under
section 482 of the Code can be exercised sparingly.
5.1 Upon above submission, learned advocate Mr. Chan
requests to dismiss this petition.
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6. Learned APP, having placed on the record the report, would
submit that at the relevant time, the victim was summoned to
undergo medical examination, but she refused to do so. He
would further submit that the FIR contains names of four
persons as the accused. However, the statement recorded under
section 164 of the Code reflects names of only two persons as
accused. He would further submit that even at previous
occasion, the victim has lodged complaint against different and
multiple persons.
6.1 In the aforesaid circumstances, learned APP would submit
to pass necessary orders.
7. I have heard learned advocates for the respective parties
and also perused the records.
8. The FIR spells as under:-
8.1 The FIR is filed against four persons, namely, (1) Narsangji
Thakor (2) Joitabhai Patel (3) Bhadreshbhai Patel and (4)
Amitbhai Patel. That the victim is a married lady, and her
marriage took place 20 years back from date of the complaint
and she is mother of two major children. She has matrimonial
discord with her husband.
8.2 The first alleged incident took place in the year 2018. She
met the petitioner No.1 and gave her two photographs and then
she has been showed obscene photos of her and petition No.1 in
mobile. (This fact is not supported by police investigation). As
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usual, some threat was passed and according to the
complainant, she was raped, however, no complaint was lodged,
no alarm was ever rung.
8.3 One another but independent incident was alleged with
petitioner No.1 and yet, she did not lodge any complaint and
repeated what she has done earlier.
8.4 The accused - petitioner No.4 Amit recorded the video of
the illicit act of the petition No.1 with the victim. (investigation
did not support the allegation).
8.5 The victim then met to petition No.2. She was taken into
agricultural field and according to the allegation, she was raped
there by petitioner No.2. Again, she did not raise any alarm nor
did put it before any person including the police.
8.6 Now, it is the turn of petition No.3. According to the
victim, after few days, the petitioner No.3 has taken her into the
Vada and raped her. Again, no complaint was lodged.
8.7 All these incidents happened in the year 2018. According
to the victim, she then met with one advocate and the complaint
was typed and sent to the police in the year 2020 and it became
the questioned FIR.
9. What could be noticed that at the relevant time, vide
inward No.1886 of 2018, one application was tendered by the
victim to the police alleging the act of rape. Perusal of Annexure
B collectively indicates that the incidents, which were stated in
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the FIR, were also stated in the earlier application. But later on,
she has withdrawn her complaint, where she stated that the
accused have not done anything to her. There are few other
documents on the record, which deserve to be referred, whereby
at Annexure C, the daughter and husband of the victim
addressed letter to the Taluka Police Inspector, Patan that her
mother / his wife are habitual in making false allegations of
sexual harassment against several persons. One declaration on
the stamp paper at an Annexure E filed by the victim declares
that allegations levelled by her are false.
9.1 In the aforesaid premises, the issue arises that whether
prosecution prima facie established that a major lady and
mother of major children was raped by the accused.
10. In Naim Ahmed Vs State (NCT) of Delhi, [2023] 15 SCC
385 before the Hon'ble Apex Court, it was a case where the
victim has given consent for sexual relationship with the accused
appellant upon assurance of marriage, whereby the prosecutrix,
who herself was a married woman having thee children, has
continued relationship with the appellant for five years till she
gave complaint. The Hon'ble Apex Court held as under:-
"21. The bone of contention raised on behalf of
the respondents is that the prosecutrix had given
her consent for sexual relationship under the
misconception of fact, as the accused had given a
false promise to marry her and subsequently he
did not marry, and therefore such consent was no
consent in the eye of the law and the case fell
under Clause Secondly of Section 375IPC. In this
regard, it is pertinent to note that there is a
difference between giving a false promise and
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committing breach of promise by the accused. In
case of false promise, the accused right from the
beginning would not have any intention to marry
the prosecutrix and would have cheated or
deceited the prosecutrix by giving a false promise
to marry her only with a view to satisfy his lust,
whereas in case of breach of promise, one cannot
deny a possibility that the accused might have
given a promise with all seriousness to marry her,
and subsequently might have encountered certain
circumstances unforeseen by him or the
circumstances beyond his control, which
prevented him to fulfil his promise. So, it would
be a folly to treat each breach of promise to
marry as a false promise and to prosecute a
person for the offence under Section 376. As
stated earlier, each case would depend upon its
proved facts before the court.
"22. In the instant case, the prosecutrix who
herself was a married woman having three
children, could not be said to have acted
under the alleged false promise given by the
appellant or under the misconception of fact
while giving the consent to have sexual
relationship with the appellant. Undisputedly,
she continued to have such relationship with
him at least for about five years till she gave
complaint in the year 2015. Even if the
allegations made by her in her deposition
before the court, are taken on their face
value, then also to construe such allegations
as rape by the appellant, would be stretching
the case too far. The prosecutrix being a
married woman and the mother of three
children was mature and intelligent enough
to understand the significance and the
consequences of the moral or immoral quality
of act she was consenting to . Even
otherwise, if her entire conduct during the
course of such relationship with the accused,
is closely seen, it appears that she had
betrayed her husband and three children by
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having relationship with the accused, for
whom she had developed liking for him. She
had gone to stay with him during the
subsistence of her marriage with her
husband, to live a better life with the
accused. Till the time she was impregnated
by the accused in the year 2011, and she
gave birth to a male child through the loin of
the accused, she did not have any complaint
against the accused of he having given false
promise to marry her or having cheated her.
She also visited the native place of the
accused in the year 2012 and came to know
that he was a married man having children
also, still she continued to live with the
accused at another premises without any
grievance. She even obtained divorce from
her husband by mutual consent in 2014,
leaving her three children with her husband.
It was only in the year 2015 when some
disputes must have taken place between
them, that she filed the present complaint.
The accused in his further statement
recorded under Section 313 CrPC had stated
that she had filed the complaint as he refused
to fulfil her demand to pay her huge amount.
Thus, having regard to the facts and
circumstances of the case, it could not be
said by any stretch of imagination that the
prosecutrix had given her consent for the
sexual relationship with the appellant under
the misconception of fact, so as to hold the
appellant guilty of having committed rape
within the meaning of Section 375 IPC."
11. In case of xxx Vs. State of MP, 2024 LiveLaw SC 207,
the Hon'ble Apex Court quashed criminal case against the
accused of raping a woman on false pretext of marriage after
noting that when the relationship started, woman was already
married and that there was no promise to marry. The relevant
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findings of the Hon'ble Apex Court reads as under:-
"Similar issue was considered by this Court in Naim
Ahamed v. State of NCT of Delhi on almost identical facts
where the prosecutrix herself was already a married
woman having three children. The complaint of alleged
rape on false promise of marriage was made five years
after they had started having relations. She even got
pregnant from the loins of the accused. Therein she got
divorce from her existing marriage much after the
relations between the parties started. This Court found
that there cannot be any stretch of imagination that the
prosecutrix had given her consent for sexual relationship
under misconception. The accused was not held to be
guilty."
12. Yet in another case of Amol Bhagwan Nehul Vs. State of
Maharashtra and another, 2025 INSC 782, the Hon'ble Apex
Court did find fathom in the submission that any woman being
married before and having a child of four years, would continue
to be deceived by the accused or maintain a prolonged
association or physical relationship. In para 8(d) and 9, the
Hon'ble Apex Court held as under:-
"8. Having heard both sides in this case and after
carefully considering the material on record, the following
attributes come to the fore:
(a) xxxxx
(b) xxxxx
(c) xxxxx
(d) There is also no reasonable possibility that the
Complainant/Respondent no. 2 or any woman being
married before and having a child of four years,
would continue to be deceived by the Appellant or
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maintain a prolonged association or physical
relationship with an individual who has sexually
assaulted and exploited her.
9. In our considered view, this is also not a case
where there was a false promise to marry to begin
with. A consensual relationship turning sour or
partners becoming distant cannot be a ground for
invoking criminal machinery of the State. Such
conduct not only burdens the Courts, but blots the
identity of an individual accused of such a heinous
offence. This Court has time and again warned
against the misuse of the provisions, and has termed
it a folly [Naim Ahmed Vs State (NCT) of Delhi
(2023) SCC Online SC 89] to treat each breach of
promise to marry as a false promise and prosecute a
person for an offence under section 376 IPC."
13. Yet in another case in case of Jaspal Singh Kaural Versus
State Of NCT Of Delhi, 2025 (5) SCC 756, the Hon'ble Apex
Court after approving the ratio in case of Naim Ahmed (supra) in
the factual background that the relationship between the
accused and the victim was consensual from inception and there
is no false promise of marriage. In para 15 (iii), the Hon'ble Apex
Court held as under:-
"15. Upon a bare perusal of the FIR and the charge-
sheet, the following facts are clearly established:
(i) xxxxx
(ii) xxxxx
(iii) There is also no element of criminality that can
be accrued to the Appellant, insofar as it is the own
case of the prosecutrix, that she was in a relationship
with the Appellant, while being in a subsisting
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marriage. It is also hard to believe that the
prosecutrix could have sustained a physical
relationship for a prolonged period of five years [See:
Prashant Vs. State of NCT Delhi, 2024 SCC Online SC
3375] , while being in a subsisting marriage, and
even subsequently obtaining divorce to sustain the
relationship. The prolonged period of the
relationship, during which the sexual relations
continued between the parties, is sufficient to
conclude that there was never an element of force or
deceit in the relationship. [Mahesh Damu Khare Vs.
State of Maharashtra and another, 2024 SCC Online
SC 347] The prosecutrix was thus, conscious and
cognizant of the consequences of her actions, and
had given her consent after an active and reasoned
deliberation."
14. Now, coming back to the facts of the case. Apt to note that
the victim is a married lady having marriage span of 20 years
and having two major children where engagement talks of her
elder daughter was going on. The victim is separated from her
husband. Looking to facts of the case, it is hard to believe that
she was deceived or forced to be the victim of rape. She being
married lady is found to be more vigilant and conscious of the
consequences of her act, found to be consensual in the act. The
case on hand even does not allure any act of promise by the
accused. The victim being major lady having two children,
appears to have entered in sexual relationship with different
persons on her own volition. How such act thoroughly
consensual could be termed as rape. She remained silent for
two years, named four persons in the FIR and then reduced the
name to two persons in the statement recorded u/s 164 of the
Code, did not undergo medical examination despite she was
called by the investigating officer and on previous occasion,
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having filed identical and similarly worded application,
withdrew the same. All these aspects indicate that the FIR, if
taken into consideration as it is, it does not disclose commission
of rape on her. What she has alleged in the FIR may at the best
be an outcome of the consensual relationship and nothing more
than that. That the consent empathetically is found from the
inception. Nothing on record indicates that sexual act took place
against the will or consent of the victim. Even if, the case of the
victim is accepted, there is no material on record to show that
there was dishonest inducement on the part of the petitioners.
The victim has tried to justify her case on the touchstone that
she was under constant threat and therefore, not reported the
incident of rape to the police, but it is unacceptable. The alleged
incident took place within the small town of Chandrumana,
Patan. She, according to her, roam freely around small village
and yet, she has not raised alarm or rung bell. There is no
explanation on this aspect and it raises the issue against the
complainant. The physical relationship is found to be prolonged
and at least two years old before the questioned FIR was filed. In
the aforesaid circumstances, this Court is of the opinion that
filing of the FIR is abuse of process of law.
15. As demonstrated and discussed herein above, the
ingredients of offence of rape as alleged are not attracted. The
present case squarely falls under the category enumerated in
para 102(5) and (7) of the judgment of the State of Haryana Vs.
Bhajanlal & ors., AIR 1992 SC 604. Para 102(5) and (7) reads
as under:-
"102. In the backdrop of the interpretation of the
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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) xxxx
(2) xxxx
(3) xxxx
(4) xxxx
(5) Whether, the allegations made in the F.I.R. 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) xxxx
(7) Where a criminal proceeding is manifestly
attended with malafide 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."
16. Resultantly, present petition is allowed and impugned FIR
being C.R.No.I - 11217026200102 registered with Patan Taluka
Police Station, for the offences punishable under Sections 376(1),
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506(2) and 114 of the IPC, u/s 67-A of the I.T. Act as well as all
other consequential proceedings arising out of the aforesaid FIR
qua the petitioners herein are hereby quashed and set aside.
Rule made absolute to the aforesaid extent. Direct service is
permitted.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
