Pareshsinh Ranjitsinh Rathod vs State Of Gujarat
2025 Latest Caselaw 3291 Guj

Gujarat High Court

Pareshsinh Ranjitsinh Rathod vs State Of Gujarat on 21 February, 2025

                                                                                                             NEUTRAL CITATION




                           R/CR.MA/14953/2019                                   ORDER DATED: 21/02/2025

                                                                                                              undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                          FIR/ORDER) NO. 14953 of 2019
                      ==========================================================
                                                PARESHSINH RANJITSINH RATHOD
                                                            Versus
                                                   STATE OF GUJARAT & ANR.
                      ==========================================================
                      Appearance:
                      MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
                      NOTICE SERVED for the Respondent(s) No. 2
                      MR CHINTAN DAVE, APP for the Respondent(s) No. 1
                      ==========================================================
                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                            Date : 21/02/2025

                                                              ORAL ORDER

When the matter is called out, learned advocate for the petitioner is absent. However, after dictation of judgment, he remained present in the Court.

Rule. Learned APP waives service of notice of rule for the respondent State.

1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed for quashing and setting aside FIR being C.R.No.I - 162/2017 registered with Himmatnagar "A" Division Police Station, for the offences punishable under Sections 363 and 366 of the IPC r/w section 3(1)(w-2), 3(2)(5) of the Scheduled Caste, Scheduled Tribe (Prevention of Atrocities) Act (in short "the Act") and u/s 11(4) and 12 of the POCSO Act as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.

NEUTRAL CITATION

R/CR.MA/14953/2019 ORDER DATED: 21/02/2025

undefined

2. Brief facts of the case as obtained from pleadintgs are as under:-

2.1 That on 15.07.2017, at about 10 a.m. in the morning, the victim was alone at Himmatnagar and victim had come to Kantalu Village. It is further alleges that on 19.07.2017, one of the teacher from Mayon High School had called on mobile phone of victim and informed that the victim has not attended the school for the last 2 days. It is further alleged that victim had come to the rented premise and found that it is locked and the mobile of the victim is also switched off and upon further inquiry, victim found the name and number of the petitioner from victim's file from the room. It is further alleged that upon inquiry, it was found learnt from the neighbours that the victim had left on 16.07.2017 and the whereabouts of the victim even from her friend was also not found. It is further alleged that the complainant then also tried to search whereabouts of the victim from his relatives and eventually son of sister in law of the complainant said upon learning about the mobile number that the same belongs to the petitioner and the victim and the petitioner use to meet frequently near Rajendranagar Chowkdi and they use to talk on mobile phone as well with each other. It is further alleged that on 24.07.2017, the complainant along with his other family members had visited the home of the petitioner and it was learnt that even petitioner is not at home from 16.07.2017 and upon the aforesaid allegations, a police complaint came to be registered.

3. At the outset, let refer the order dated 23.1.2025 passed by the Coordinate Bench of this Court.

NEUTRAL CITATION

R/CR.MA/14953/2019 ORDER DATED: 21/02/2025

undefined

"When the matter is taken up for hearing, learned APP, Mr. Mehta, under the instructions from the police officer concerned present before this Court, has submitted that immediately after registration of the FIR, the investigation was carried out by the 10 concerned, however at that relevant point of time, neither the applicant nor therefore, 'A' summary the victim were traceable, was submitted before the competent court, which was also accepted by the court concerned.

Learned advocate, Mr. Sheth for the applicant submitted that in fact, the applicant and the victim both were not aware about the registration of the FIR and as per the case of the prosecution, on the date of incident, the victim was minor, however on attaining the majority, the victim girl solemnized her marriage with the applicant and the said marriage was also registered before the competent authority and on the strength of the said fact, when the present application is filed, the Coordinate Bench of this Court granted stay of further proceeding. Learned advocate further submitted that in fact, the applicant and victim both are ready and willing to remain present before the IO concerned to record their directed by this Hon'ble Court. as statement and when

In view of the above facts, the applicant and the victim girl both shall remain present before the concerned Investigating Officer for giving their statement on 20.02.2025 and the concerned Investigating Officer shall submit report before this Court in that regard on the next date of hearing."

4. Learned APP, upon instructions of the investigating officer, who is present in the Court, submitted that the petitioner and the victim girl both remained present before the investigating officer and the investigating officer recorded their statement before the police, wherein, it is stated that the they were in love and on request of the victim girl, both were eloped on their

NEUTRAL CITATION

R/CR.MA/14953/2019 ORDER DATED: 21/02/2025

undefined

volition and later on, the victim has attained the age of majority and they married on 15.7.2018 and out of said wedlock, one baby girl was born and since then, they are living together as husband and wife. During the investigation, the investigating officer has also obtained certificate of Registrar of Marriage, Pirozpur, Tal: Kapadvanj, Dist: Kheda. Said report along with certificate and statement of both the victim and the petitioner are taken on record.

5. The FIR is filed by the aggrieved father of the victim alleging that his minor girl was enticed and lured by the petitioner to marry her, but the fact is coming otherwise. It is true that at the relevant time, the victim was minor. According to the FIR, the alleged offence has taken place on 16.7.2017, whereas, the victim became major and contracted marriage on 15.7.2018. So, it appears that the victim was more than 17 years at the relevant time. Looking to the factual aspect, it can be said that the victim was living with the petitioner on her own since the beginning.

6. As far as POCSO charge is concerned, the victim herself said that she did not enter into physical relationship with the petitioner till she attained the age of majority and therefore, POCSO charge does not survive.

7. The Hon'ble Apex Court in case of S. Vardarajan v. State of Madras, 1964 SCC OnLine SC 36, had an occasion to consider almost similar facts that arise for consideration in the present case. This Court has observed thus:

NEUTRAL CITATION

R/CR.MA/14953/2019 ORDER DATED: 21/02/2025

undefined

"7. .....It will thus be seen that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the SubRegistrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the

NEUTRAL CITATION

R/CR.MA/14953/2019 ORDER DATED: 21/02/2025

undefined

desire of accompanying him wherever he went was course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her......."

8. In recent case of Tilku Alias Tilak Singh Vs. The State Of Uttarakhand rendered in Criminal Appeal No.183 of 2014, the Hon'ble Apex Court, having referred to the judgment of Hon'ble Apex Court in case of S. Vardarajan (supra), believed that age between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong. Para 18 to 20 are relevant, which reads as under:-

"18. It is thus clear that the prosecutrix, who according to the learned Single Judge of the High Court, was between 16 to 18 years of age was very much in the age of understanding as to what was right and wrong for her.

19. From the evidence of the prosecutrix itself, it will be clear that she had voluntarily gone along with the appellant herein, travelled to various places and also resided as husband and wife at Dehradun.

20. In that view of the matter, we find that the learned Single Judge of the High Court was not justified in upholding the conviction for the offences punishable under Sections 363 and 366 of the IPC."

9. Ordinarily, the Court should loath in scuttling the FIR at the nascent stage and more particularly, in case of allegations of

NEUTRAL CITATION

R/CR.MA/14953/2019 ORDER DATED: 21/02/2025

undefined

the offence under the POCSO are levelled against the accused, but in the peculiar facts of the case where the girl aged 17 years and more having age of understanding as to what was right and wrong for her, on her own, eloped with the petitioner and later became her wife after attaining the age of majority and also became the mother of his child and now, they are living happily married life as husband and wife, which speaks volumes about gravity of offence. Therefore, allowing the accused to put on trial may jeopardize the matrimonial life of the petitioner and the victim. The victim never states that she was kidnapped, abducted or enticed to marry with the petitioner and therefore, essential ingredients of the offences u/s 363 and 366 of the IPC are not made out and thus, it is a fit case to exercise inherent jurisdiction for quashing of the proceedings.

10. In the case of State of Haryana Vs. B.Bhajanlal & ors., AIR 1992 SC 604, the Hon'ble Apex Court summed up the proposition of law, which reads as under:-

"(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 ins the F.I.R. and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the code.

(3) Where, the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same donot disclose the commission of any

NEUTRAL CITATION

R/CR.MA/14953/2019 ORDER DATED: 21/02/2025

undefined

offence and make out the case against the accused.

(4) Where, the allegations in the F.I.R. 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 S.155(2) of the Code.

(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) Where, there is an express legal bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) toi the institution 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 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."

11. Resultantly, this petition is allowed. The impugned being C.R.No.I - 162/2017 registered with Himmatnagar "A" Division Police Station filed against the present petitioner is hereby quashed and set aside. Consequently, all other proceedings arising out of the aforesaid FIR are also quashed and set aside. Accordingly, Rule is made absolute. Direct service is permitted.

(J. C. DOSHI,J) SHEKHAR P. BARVE