Gujarat High Court

Jatin Jagdishbhai Panchal vs State Of Gujarat on 2 September, 2025

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                             R/CR.MA/2743/2020                                 ORDER DATED: 02/09/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                           FIR/ORDER) NO. 2743 of 2020
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                                                  JATIN JAGDISHBHAI PANCHAL
                                                             Versus
                                                   STATE OF GUJARAT & ANR.
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                       Appearance:
                       JIGAR K MEHTA(7548) for the Applicant(s) No. 1
                       KRUNAL S MEHTA(9227) for the Applicant(s) No. 1
                       NOTICE SERVED TO CONCERNED POLICE STATION for the
                       Respondent(s) No. 2
                       MR SOHAM JOSHI, APP for the Respondent(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 02/09/2025

                                                            ORAL ORDER

1. By way of this petition 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.A - 11191037200058 registered with Odhav Police Station, for the offences punishable under Sections 354(A) of the IPC, u/s 7 and 8 of the POCSO Act, u/s 66(d) of the IT Act as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.

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

2.1 The complainant is the mother of victim. That on 19.1.2020, when the victim remained busy with her mobile

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phone all day, the complainant took her mobile phone and saw that there was a TikTok video on her mobile phone in which the victim and the petitioner were seen. This video was of the incident when the petitioner tried to take a selfie with the victim, she refused and the petitioner slapped her on her cheek and then took a selfie and in another video, the victim was crying and holding the feet of the petitioner.

2.2 On inquiry from the victim, the complainant found that on 12.1.2020, when the complainant along with his sister and aunt went to NID riverfront, she met the petitioner and thereafter, exchanged mobile phone numbers and later they were chatting on WhatsApp.

2.3 That on 18.1.2020, the victim again met the petitioner at NID riverfront, where TikTok video was made. Thus, the petitioner has lured and enticed the victim from 12/01/2020 till date, chatted with her on WhatsApp, made TikTok videos and molested her. Therefore, impugned FIR is filed.

2.4 Hence, present petition to quash and set aside the impugned FIR.

3. Learned advocate Mr. Mehta for the petitioner would submit that the FIR u/s 354(A) of the IPC r/w sections 7 and 8 of the POCSO Act r/w section 66(d) of the IT Act has been levelled against the petitioner, but looking to the contents of the FIR, none of the offences are attracted. He would further submit that the FIR indicates nothing more than recording of scripted video of the victim. Apart from that, there is no other

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allegation levelled against the petitioner. He would further submit that recording of scripted video on tiktok platform is not an offence under section 7 of the POCSO Act having punishment u/s 8 of the POCSO Act. He would further submit that recording of scripted video of the victim girl does not amount to an act with sexual intent which involves physical contact without penetration and therefore, he would submit that since essential ingredients of offences u/s 7 and 8 of the POCSO Act are missing in the FIR, the petitioner should not be sent for facing the trial under the provisions of the POCSO Act.

3.1 Learned advocate Mr. Mehta would further submit that offence u/s 66(d) of the IT Act is also not attracted in the present case. He would further submit that as per section 66(d) of the IT Act, if someone has been cheated by personation by using any computer resource or communication device, he would be subjected to punishment upto three years or fine. In the present case, the FIR on its face value does not indicate that the victim was cheated by personation using any computer resource and in that circumstances, he would submit that since the FIR does not disclose any material against the petitioner and therefore, the petitioner may not be sent for facing the trial.

3.2 It is also argued that allegation of recording video on tiktok platform is also insufficient to invite allegation of outraging modesty of a woman, which attracts offence u/s 354A of the IPC.

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3.3 Upon such submissions, Learned advocate for the petitioner prays to allow the petition by quashing and setting aside the impugned FIR.

4. Learned APP on the other hand, would submit that the charge sheet has already been filed, wherein charge is already framed and trial is commenced against the petitioner. He would further submit that since the learned trial Court is seized with the entire matter, this Court should not scuttle the FIR saying that no offence is made out on plain reading of the FIR. He would further submit that the FIR on its plain reading shows that the petitioner has lured minor daughter of the complainant and filmed video on tiktok platform and this prima facie indicates that the petitioner has acted with sexual intent involves physical contact without penetration. He would further submit that the videos are prepared on tiktok platform, which also attracts the offence u/s 66(d) of the IT Act. He would further submit that moreover, the offence u/s 354A of the IPC is also levelled against the petitioner. In view of above submissions, He would further submit that since prima facie case is made out against the petitioner, the petition may be dismissed.

5. I have extensively heard learned advocates for both the parties and also perused the contents of the FIR.

6. Though served, none appears for the respondent No.2.

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7. The translated version of the FIR into English from vernacular language reads as under:-

"My name is Vandnaben W/o Nareshbhai Prabhudas, caste Rami, age - 43 years, occupation - housewife, residing at House No.-17 Shaktivijay Society, near Chaganbha's Vadi, Arbudanagar Road, Odhav, Ahmedabad City and native of village Mokal Pipali, Taluka-Karanja, District-Wasim, Maharashtra. Mobile No. 9904473086.

Having come personally, I declare and dictate the facts of my complaint that I reside at the above mentioned address with my daughter Dharti, age 17, and my younger daughter abc, age 16, and I am a housewife. My husband passed away 13 years ago. My younger daughter abc is doing a nursing course.

Today at night, my elder daughter Dharti and my younger daughter abc and I were at home. At this time, as my younger daughter abc remained busy with her mobile phone all day, I took her mobile phone today at about 9.00 o'clock in the evening, and saw that there was a TikTok video on her mobile phone in which my daughter abc and a boy were seen. This video was of the incident when the boy tried to take a selfie with my daughter, she refused, and this boy slapped her on her cheek and then took a selfie and in another video, I saw my daughter abc crying and holding the boy's feet. So, I asked my daughter for the name and address of the boy seen in the video, and she told me the boy's name is Jatin Jagdishbhai Panchal, residing at Divyakunj Society, Vastral, Ahmedabad City. Therefore, I had chatted and talked with this Jatin Panchal on WhatsApp on his mobile number 7043796785 from my daughter abc's mobile number 8469311279. When I asked my daughter abc about this, she stated that on 12/01/2020, which was a Sunday, her sister Dharti, her aunt's daughter Aarti Thaker and she went to N.I.D. Riverfront for an outing and there she met this Jatin Panchal at N.I.D. Riverfront and she and Jatin

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exchanged mobile phone numbers and later they were chatting on WhatsApp. And later on 18/01/2020, again, we including my daughter Dharti, my aunt's daughter Aarti, and Aarti's fiancé whose name is not known and I went to N.I.D. Riverfront and I also called this Jatin Panchal there. My daughter told me that they met over there and this TikTok video was made there. Therefore, when I tried to persuade my daughter abc on this issue, she went into the bathroom and locked the door from the inside and was not opening it and hence, I dialed 100 and I have come here with my daughter abc. Therefore, as the above-mentioned Jatin Jagdishbhai Panchal, residing at Divyakunj Society, Vastral, Ahmedabad City, has lured and enticed my minor daughter abc, age 16, from 12/01/2020 till date, chatted with her on WhatsApp, made TikTok videos and molested her, this is my complaint against this Jatin Jagdishbhai Panchal to conduct investigation as per law. My witnesses are those mentioned in the complaint and those found during the police investigation."

8. It is the case of the complainant that her minor daughter aging nearly 15 years and 10 months was lured by the petitioner, her video has been captured and was placed on tiktok platform, the petitioner has taken selfies. The offence alleged against the petitioner is for the offence punishable u/s 354A of the IPC r/w section 7 of the POCSO Act having punishment in section 8 of the POCSO Act so also u/s 66D of the IT Act. The complainant checked the whatsapp of the victim's phone and found chat and messages made by the petitioner to the victim, also some video containing victim abc on tiktok is found.

9. At this juncture let quote sections 29 and 30 of the POCSO Act, which reads as under:-

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"29. Presumption as to certain offences:- Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

30. Presumption of culpable mental state:- (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation.--In this section, "culpable mental state"

includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact."

9.1 Against petitioner, offence u/s 7 of the POCSO Act is alleged. Above statutory presumption arise and in that circumstances, to rebut statutory presumption, accused need to lead evidence. At the state of quashing of FIR, the Court cannot believe on the words of petitioner and quash FIR.

10. Plain reading of the FIR prima facie indicates that the victim has been harassed by the petitioner. In the present case, the investigating officer has completed investigation and charge sheet has been filed. Even the charge is also framed

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against the petitioner and trial is going on. In view of above circumstances, relief of quashing of impugned FIR cannot be granted. The petitioner has not placed on record any material nor charge sheet papers, which could be enough to quash the impugned FIR.

11. It is well settled that the Court at the stage of quashing the FIR at threshold should refer to the FIR and to find out that whether any cognizable offence is made out. In other words, if no offence is constituted on bare reading of the FIR or complaint papers, in that circumstances, the Court may justify in quashing the proceedings.

12. In MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1:

1983 SCC (Cri) 115, the Hon'ble Apex Court held that proceedings can be quashed on the face of the complaint and papers accompanying the same if no offence is constituted. The Court cannot add or subtract anything. In para 10, it has been held as under:-

"10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if, on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out, then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code."

13. In the case of State of Haryana Vs. Bhajanlal & ors., AIR

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1992 SC 604, the Hon'ble Apex Court has opined that power of quashing can be exercised very sparingly and that too in rarest of rare case. Relevant observations reads as under:-

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice."

14. In the aforesaid circumstances, while referring to the judgment in case of Ajay Malik v. State of Uttarakhand, 2025 SCC OnLine SC 185, the Hon'ble Apex Court reiterated the position of law for quashing the FIR as under:-

"8. It is well established that a High Court, in exercising its extraordinary powers under Section 482 of the CrPC, may issue orders to prevent the abuse of court processes or to secure the ends of justice. These inherent powers are neither controlled nor limited by any other statutory provision. However, given the broad and profound nature of this authority, the High Court must exercise it sparingly. The conditions for invoking such powers are embedded within Section 482 of the CrPC itself, allowing the High Court to act only in cases of clear abuse of process or where intervention is essential to uphold the ends of justice.

9. It is in this backdrop that this Court, over the course of several decades, has laid down the principles and guidelines that High Courts must follow before quashing criminal proceedings at the threshold, thereby pre-empting the Prosecution from

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building its case before the Trial Court. The grounds for quashing, inter alia, contemplate the following situations : (i) the criminal complaint has been filed with mala fides; (ii) the FIR represents an abuse of the legal process; (iii) no prima facie offence is made out;

(iv) the dispute is civil in nature; (v.) the complaint contains vague and omnibus allegations; and (vi) the parties are willing to settle and compound the dispute amicably (State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335)."

14.1 To be noted that in case on hand, it is alleged that a girl aged about 15 years and 10 months has been harassed and molested by the petitioner filming her in public, the act which is in utter disregard to sensitivity towards woman.

15. In Sushil Kumar Tiwari Versus Hare Ram Sah, 2025 JX(SC) 1137, the Hon'ble Apex Court observed in regard to struggle of a woman for sensitivity in para 2 held as under:-

"2. The struggle for sensitivity towards offences against women, children and other marginalized groups passes through various phases of evolution. Whereas, the end goal is most desirable, the journey is not always a pleasant one. At times, the victims find themselves pitched against a system full of insensitive stakeholders and at other times, the victims find themselves in conflict with the procedural intricacies of the laws in place. Despite the importance of procedural sanctity, it is always a matter of utter failure for the system as a whole when a culprit, that too of a heinous sexual offence, manages to walk free by entangling the victim in misapplication of procedural rules, without the knowledge of the victim and without any control of the victim."

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15.1 A note of caution has been sounded by the Hon'ble Apex Court that abruptly putting end to trial in POCSO case is again object and reason of enacting the Act.

16. In Ramji Lal Bairwa & Anr. Versus State Of Rajasthan, 2025 (5) SCC 117, the Hon'ble Apex Court in para 17, 18 and 19 held as under:-

"17. The objects and reasons for the enactment of the POCSO Act, as extracted above, would undoubtedly show that quashment of proceeding initiated under POCSO Act abruptly by invoking the power under Section 482, Cr. PC without permitting it to mature into a trial, except on extremely compelling reasons ex facie malafidely initiated or initiated solely to settle the score etc., would go against the very intention of the legislature behind the enactment. As noted earlier, it is the inadequacy of the existing laws to address certain issues relating sexual offences against the children that made the legislature to come up with the aforesaid legislation with a view to protect and respect the privacy and confidentiality of children and to ensure their physical, emotional, intellectual and social development.

18. The POCSO Act also addressed the lack of provisions defining various offences against the children and also adequate penal provisions therefor. A careful scanning of the various provisions under the POCSO Act would reveal that with a view to achieve the aforesaid objects and purposes various offences against the children are specifically defined and provisions for adequate penalisation are also inserted in the Act. Obviously, rubbing the breast of a child would constitute an offence of sexual assault under Section 7 of POCSO Act, punishable with imprisonment of either description for a term which

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shall not be less than three years and may extend to five years and also fine. They would reveal that the commission of such offences against the children should be viewed as heinous and serious. Needless to say, that commission of such offences cannot be taken lightly as offences of private nature and in fact, such offences are bound to be taken as offences against the society."

19. In the decision in Attorney General for India v. Satish and Anr., (2022) 5 SCC 545 at paragraph 38, this Court held thus:-

The act of touching any sexual part of the body of a child with sexual intent or any other act involving physical contact with sexual intent, could not be trivialised or held insignificant or peripheral so as to exclude such act from the purview of sexual assault under Section 7. As held by this Court in Balram Kumawat v. Union of India, the law would have to be interpreted having regard to the subject- matter of the offence and to the object of the law it seeks to achieve. The purpose of the law cannot be to allow the offender to sneak out of the meshes of law."

17. Applying the aforesaid ratio to the facts of the present case, the Court is of the considered opinion that the petitioner has failed to make out any prima facie case so as to exercise inherent jurisdiction u/s 482 of the Code in favour of the petitioner.