Lilaben Vijaybhai Chakravati vs State Of Gujarat
2025 Latest Caselaw 787 Guj

Gujarat High Court

Lilaben Vijaybhai Chakravati vs State Of Gujarat on 11 July, 2025

                                                                                                             NEUTRAL CITATION




                             R/CR.MA/12841/2021                                ORDER DATED: 11/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                           FIR/ORDER) NO. 12841 of 2021

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                                            LILABEN VIJAYBHAI CHAKRAVATI & ANR.
                                                           Versus
                                                  STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR MEHUL H RATHOD(701) for the Applicant(s) No. 1,2
                       MR VIRAT G POPAT(3710) for the Respondent(s) No. 2
                       MR ROHAN SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
                       No. 1
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                            CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 11/07/2025

                                                            ORAL ORDER

1. Learned advocate for the petitioners has not pressed this petition qua petitioner No.2. Accordingly, present petition stands disposed of as not pressed qua petitioner No.2. Rule discharged.

ORAL ORDER QUA PETITIONER NO.1

2. 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.11191020210187 registered with Vastrapur Police Station, for the offences punishable under Sections 376, 376(2)(n), 328, 506(2), 294(b) of the IPC, u/s 66E of the I.T. Act as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.

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3. Brief facts of the case are that in the month of March, 2020, the petitioner No.2 has developed friendship with the victim through facebook. That in the month of July 2020, the petitioner No.2 made video call to the victim and clicked obscene photos of the victim and threatened the complainant by making the photos viral on social media and under the threat, the petitioner No.2 made rape of the victim. Therefore, the present FIR is filed.

4. Learned advocate for the petitioner would submit that there is delay of about four months in lodging of the FIR and for that there is no satisfactory explanation. He would further submit that so far as the role of the petitioner No.1 is concerned, she is alleged to have acted as abettor and nothing more than that and therefore, the essential ingredients of sections 376 are not attracted against the petitioner No.1 being lady. To buttress his submission, learned advocate for the petitioner pressed into service judgment in case of Priya Patel Versus State Of Madhya Pradesh , 2006 (6) SCC 263. Upon such submission, he prays to allow the petition.

5. On the other hand, learned advocate for the complainant would submit that on reading of the FIR, the role of the petitioner is very much there in abetting the petitioner No.2 to commit the offence. Upon such circumstances, he prays to dismiss the petition.

6. Joining the hands with learned advocate for the complainant, learned APP prays to dismiss the petition.

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R/CR.MA/12841/2021 ORDER DATED: 11/07/2025

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7. Having heard learned advocates for the respective parties, what appears that the role of the petitioner is limited to the extent of abetting the petitioner No.2 and nothing more than that. Admittedly, the petitioner No.1 is a lady accused. Even considering the FIR on the face of it, it does not disclose offence of section 376 of the IPC so far as present petitioner No.1 is concerned. Hence, continuation of proceedings against the petitioner No.1 is abuse of process of law.

8. In Priya Patel (supra), the Hon'ble Apex Court, while holding that rape can be committed only by a man, held in para 8 as under:-

"8. A bare reading of Sec. 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Sec. 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape"

shall be punished, etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section(2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. "Common intention" is dealt with in Sec. 34 IPC and provides that when a criminal act is done by several persons in

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furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a pre- arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Sec. 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their common intention"

as appearing in the Explanation to Sec. 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g)."

9. 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 offence and make out the case against the accused.

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(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."

9.1 The findings of the Hon'ble Apex Court in para 1,3 and 7 are attracted in the present case. In view of above, present petition deserves consideration.

10. This Court is quite conscious that power u/s 482 of the Code of Criminal Procedure, 1973 is extraordinary power and should be used sparingly, as the exercise of such power would scuttle the FIR at the threshold. But, if the FIR fails to make out essential ingredients of the offence, power should be exercised.

11. Resultantly, this petition is allowed. The impugned being C.R.No.11191020210187 registered with Vastrapur Police

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R/CR.MA/12841/2021 ORDER DATED: 11/07/2025

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Station filed against the present petitioner No.1 Lilaben Chakravarti 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.

12. It is clarified that the FIR in question and subsequent proceedings arising there-from in respect of the petitioner No.2 stands continued; without being influenced by any observations made in this order.

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