Gujarat High Court
Vipul Mansukhbhai Patodiya vs State Of Gujarat on 30 June, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 9039 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
=====================================================
Approved for Reporting Yes No
Yes
=====================================================
VIPUL MANSUKHBHAI PATODIYA & ANR.
Versus
STATE OF GUJARAT & ANR.
=====================================================
Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2
HARDIK D NAIK(9618) for the Respondent(s) No. 2
MS ROMA I FIDELIS(3529) for the Respondent(s) No. 2
MR RONAK RAVAL ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
=====================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 30/06/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Abhishek Khuman for
learned advocate Mr. Ashish M. Dagli appearing
for the applicants, learned Additional Public
Prosecutor Mr. Ronak Raval appearing for the
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
respondent - State and learned advocate Mr.
Nisarg J. Desai for learned advocate Ms. Roma
Fidelis appearing for the respondent No.2 -
original complainant.
2. RULE. Learned Additional Public Prosecutor mr.
Ronak Raval waives the service of rule on behalf
of the respondent No.1 - State and learned
advocate Mr. Nisarg J. Desai for learned
advocate Ms. Roma Fidelis waives the service of
rule on behalf of respondent No.2 - original
complainant.
3. By way of this application, the applicants have
prayed for quashing and setting aside the FIR
being C.R. No. I-362 of 2019 dated 1.8.2019
registered with Varachha Police Station,
District : Surat for the commission of offence
punishable under Section 376(1)(2)N, 354(c),
406, 420, 506, 114 of the Indian Penal Code as
well as quash all other consequential
proceedings arising out of the aforesaid FIR qua
the present applicants.
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
4. Brief facts are as under :-
4.1 It is the case of the applicants
that the complainant viz. Chandrikaben
Mukeshbhai Maganbhai Akbari filed an FIR on
1.8.2019 registered an FIR under Section
376(1)(2)N, 354(c), 406, 420, 506, 114 of
the Indian Penal Code, as per the FIR
registered against seven persons, the
present applicants are accused No. 5 and 6.
4.2 As per the FIR, the complainant
knew the accused No.1 viz. Subhashchandra
Manubhai Shiroya since 2007-2008 as he was
a neighbour and friend of her husband.
Thereafter, they were not in touch with
each other but when the complainant's
husband purchased a new flat by paying the
consideration in cash and thereafter, when
the accused No.1 visited the flat after
long time, he told the complainant and her
husband that if consideration of the flat
is paid in cash, someday they will be
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
harassed by income tax department and
therefore, he offered to go for a loan.
When the petitioner's husband shown
interest, he said that he knows someone who
can arrange for loan over the property and
accordingly, it was decided that the
complainant would avail the loan on another
property of the complainant situated at
Minibazar Diamond World Office No.508 and
accused No.1 suggested that whatever amount
of loan is disbursed in favour of the
complainant, the same would be utilized by
the accused No.1 for his textile business
and even the installments also would be
paid by him and once the loan is repaid,
the accused No.1 shall pay back the
principal amount and profit to the
complainant. Accordingly, a loan of Rs.
40,00,000/- (Rupees Fourty Lakhs) were
disbursed in the name of complainant and
the said amount was withdrawn in cash and
paid to accused No.1. According to the FIR,
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
in the year 2016, in addition to the above
amount of Rs.40 lakhs paid to the accused
No.1, further amount of Rs. 1,10,00,000/-
(Rupees One Crore Ten Lakh) were given in
cash to the accused No.1 for which the
accused No.1 gave signed cheques having
signature of himself as well as one Alpesh
and Vishal. The loan facility availed by
the present complainant was being repaid by
accused No.1 by paying the EMIs. However,
he continued to pay the EMI only for a
period of fifteen months and thereafter
from sixteenth month, the complainant was
called at his office and was raped by the
accused No.1 and that act was recorded in
CCTV, due to which the accused No.1 used to
blackmail the complainant. The role of
present applicants comes thereafter as per
the FIR, after the forceful act, after
about a month, accused No. 1 called the
complainant and asked her to come to his
office to collect the amount of EMI for
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
which she refused. The accused No.1
threatened her to blackmail in view of CCTV
footage and threatened to make it viral and
accordingly, out of fear, the complainant
went to the place, she was called and
followed the car of the accused No.1. The
complainant was taken to a flat where
present applicant No.1 was present and
there as per the FIR, accused No.1 offered
the complainant to the applicant No.1 and
subsequently asked him to go out and
accordingly, the accused No.1 had gone out
of the flat and the complainant was once
again raped by accused No.1. Similarly, as
far as the role of present applicant No.2
is concerned, as per the FIR, once again
the complainant was called at the office of
the accused No.1 where the applicant No.2
was present and ultimately, upon seeing the
complainant, he himself said that his
presence there would not be desirable and
therefore, he left the premises. In all,
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
the FIR is registered against seven
persons, however, the rest of the content
of FIR is in respect of non-payment of
Rs.1.5 crore and about the complainant
having been raped by the accused No.1 and
by Vishal as well and other persons who are
arraigned as co-accused.
4.3 FIR is lengthy one but for the
purpose of present petition, the role of
present applicants is required to be
considered and therefore, only the portion
which covers the role of present petitioner
is elaborately stated in the facts.
5. Learned advocate Mr. Abhishek Khuman appearing
for the applicants submitted that the present
applicants have not participated in the offence
in question, merely because they were present
when the complainant was taken to the flat of
accused No.1 and office of accused No.1
respectively, their presence only was there as
per the FIR, as well as, as per the charge-sheet
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
papers and both of them had left the respective
premises even before the act was committed and
therefore, the same cannot be termed as
commission of offence, as it does not disclose
any offence, in view of the fact that they have
neither participated in the crime nor there is
any material to indicate that they have abated
the main accused. A bare reading of the FIR only
indicates that their presence and barring their
presence at the time when the accused No.1 has
come with the complainant who had come on her
own volition and as per the FIR who did not even
shown any resistance or she did not even
screamed or resisted to be in the premises. The
present applicants had no prior knowledge about
the fact that whether the complainant victim had
come there with her own volition or she was in
any way in relationship with the accused No.1 or
she was brought forcibly on account of some
blackmailing by the accused No.1. He further
submitted that in absence of any material which
would indicate that there was slightest
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
resistance or indication given to the present
applicants by the complainant that she was
brought to the premises against her will and
forcibly, the applicants would not know under
which capacity she was there accompanying the
accused No.1 and therefore, it cannot be said
that in any way the present applicants merely by
their presence in the premises had participated
in the crime or has abated accused No.1. He,
therefore prayed for quashing and setting aside
of FIR by stating that the present applicants
role even if the entire FIR is read as it is, is
of being present at the scene of offence and
therefore, the same cannot be construed as
participation or abetment and therefore,
considering their role, the impugned FIR is
required to be quashed and set aside qua the
present applicants.
6. Learned Additional Public Prosecutor Mr. Ronak
Raval appearing for the respondent - State, from
the charge-sheet papers though vehemently
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
opposed the petition by stating that in view of
the fact that the charge-sheet is already filed
and a prima-facie case against the present
applicants are made out and an offence can be
said to have been committed, he also could not
point out anything beyond what is stated in the
FIR about the role of the present applicants and
he also could not dispute that the present
applicants have even touched the victim lady.
7. Learned advocate Mr. Nisarg J. Desai for learned
advocate Ms. Roma Fidelis appearing for the
respondent No.2 - original complainant though
vehemently opposed the petition, he also
reiterated what is stated in the FIR and on the
basis of that submitted that merely because the
present applicants were present at the scene of
offence, the same can be construed to have
participated in the offence in question, they
were in a position to save the present
complainant from being forced to get intimate by
the accused No.1. However, pursuant to a quary
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
from the Court that does the FIR or any
statement indicates that the present complainant
had at any point of time given any indication or
had disclosed the fact before present applicants
that she was forcibly brought to the premises.
Learned advocate Mr. Nisarg Desai could not
answer the aforesaid query nor could point out
anything from the record to attribute any prior
knowledge about the offence or knowledge about
the fact that the complainant was being
blackmailed and was forced to come with accused
No.1 and the aforesaid fact was known to the
present applicants. However, learned advocate
Mr. Nisarg Desai prayed for dismissal of the
petition on the ground that now the charge-sheet
is filed and therefore, this Court may not
entertain this petition as the filing of charge-
sheet prima-facie indicates that offence is made
out against the present applicants and
therefore, he prayed for dismissal of the
petition.
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
8. I have heard learned advocates for the parties
and perused the record. Upon perusal of record
and more particularly FIR and the statement of
victim following fact emerges :-
(i) As far as role of applicant No.1 is
concerned, the FIR indicates that when the
complainant was brought to a flat, the
present applicant No.1 was present there and
when the accused No.1 introduced the
complainant as his love interest (though in a
very inappropriate manner by using a
derogatory word for her).
He just laughed at it. The accused No.1
offered the present applicant and ultimately,
asked him to get out of the room and the
applicant No.1 left the room.
(ii) As far as applicant No.2 is concerned,
he was present in the office of accused No.1
at the time when the accused No.1 came along
with the complainant at his office and seeing
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
both of them together, the applicant No.2 on
his own said that his presence there is not
desirable and he left the office premises of
the accused No.1.
Both the above facts narrated in the
FIR would make it clear that the FIR does not
disclose the fact that at any point of time,
the complainant tried even to give an
indication to the present applicants that she
did not accompany the accused No.1 on her own
sweet-will or volition. She did not resist or
made any indicative gesture which may give a
chance to the present applicants to know that
she was accompanying the accused No.1 out of
compulsion or fear and despite that the
present applicants did not do anything either
to save her or to understand and know that
the accused No.1 has brought the complainant
forcibly to commit an offence. The FIR is
completely silent about the same and
therefore, the submission of learned advocate
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
Mr. Abhishek Khuman that in view of language
of the FIR and statement of the complainant
herself, it does not disclose that the
present applicants were aware about the fact
that in which capacity the complainant had
accompanied the accused person, was she in a
relationship with the accused No.1 or she was
forcibly brought to the flat or office
premises by the accused No.1. Whether she had
accompanied the accused No.1 out of fear of
being blackmailed or she had accompanied the
present applicants on her own will.
Therefore, in view of above, it cannot
be said that despite knowing the intention of
the accused No.1 to commit a forced act with
the complainant, the present applicants left
the room and therefore, the Court is of the
view that merely because someone is present
when two adult persons, as the age of
complainant as stated in the FIR is forty six
(46) year who was capable enough at least to
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
speak up against any illegal or forced
proposed act by the accused No.1, but chosen
to remain silent, as can be seen from the FIR
out of fear may be but that fact was not
known to the present applicants and
therefore, when the present applicants have
left the room, it cannot be said that they
have participated in the crime nor it can be
said that they were aware about the intention
of the accused No.1 or they have abetted the
accused No.1 and therefore, looking to the
overall facts and circumstances and role
assigned to the present applicants, I don't
see that the present applicants can be asked
to face the trial as an accused merely
because of their presence in the premises
when the victim had accompanied the accused
No.1 to that premises. In view of above
discussion, according to this Court, this is
a fit case to quash the FIR qua present
applicants only, as the FIR also suggest
that they have not even touched the victim
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
and even before the act, they had left the
concerned premises on both the respective
occasions. Accordingly, the submissions of
learned advocate Mr. Abhishek Khuman merits
acceptance. No case is made out against the
present applicants and asking them to face
the trial would amount abuse and misuse of
process of law. Therefore, the present FIR
qua present applicants is required to be
quashed and set aside and same is quashed and
set aside accordingly. However, it is
clarified that the observations made by this
Court is confined only to the role of present
applicants and are tentative in nature. As
far as the role of other accused persons are
concerned, the trial Court shall not be
influenced by the above observations at the
time of trial in respect of other accused
persons.
9. Resultantly, this application is allowed
and the impugned FIR bearing C.R. No. I-362 of
NEUTRAL CITATION
R/CR.MA/9039/2022 JUDGMENT DATED: 30/06/2025
undefined
2019 dated 1.8.2019 registered with Varachha
Police Station, District : Surat filed against
the present applicants is hereby quashed and set
aside qua the present applicants. Consequently,
all other proceedings arising out of the
aforesaid FIR are also quashed and set aside qua
the present applicants. Rule is made absolute.
Direct service is permitted.
(NIRZAR S. DESAI,J)
Pallavi
