Gujarat High Court
Amitbhai Jayantibhai Padariya vs State Of Gujarat on 6 December, 2023
NEUTRAL CITATION
R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 19594 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AMITBHAI JAYANTIBHAI PADARIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 2
MS M H BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 06/12/2023
ORAL JUDGMENT
1. Rule. Learned APP waives service of notice of Rule for the respondent-State.
2. Present application is filed by the applicants under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter Page 1 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined referred to as "CrPC") seeking to quash and set aside the FIR being CR No.11213026200041 of 2020 registered with Kotadasangani Police Station, Rajkot (Rural) for the offences punishable under Sections 363 376(D), 376(2)(N), 504, 506(2) and 114 of the Indian Penal Code, 1860 and Sections 3(1)w, 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Sections 37(1), 135(3) of the Gujarat Police Act and Section 25(1)(B)(A) of the Arms Act.
3. Heard learned advocates for the respective parties.
4. Learned advocate for the applicants submits that the applicants are have nothing to do with the offence alleged and they are falsely implicated in the offence. It is submitted that the facts of the case are that on 26.02.2020, applicant No.1 was at home around 09:30 in the morning. Subsequently, applicant No.1 visited a friend at Gondal, where he stayed for 20 minutes. Afterward, he went to console another friend, Dilipsinh Parmar, whose mother had passed away. applicant No.1 spent approximately one hour there and t 11 a.m., he returned home on his Jupiter Scooter. It is further submitted by the learned advocate for the applicant that, at around 11:45 a.m. the applicant No.1 answered a phone call from his friend, Manojbhai Akbari, and proceeded to the office at Kotadasangani Taluka Panchayat. Subsequently, at about 12 Page 2 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined p.m., applicant No.1 picked up his friend from Classic Pan House and departed for Ramod in a white-coloured Brezza Car. Around 12:35 p.m., applicant No.1 reached near the office of his party at Sattapar Crossroads, where villagers had gathered for some work. applicant No.1 waited there for about 15 minutes. CCTV cameras installed at the party office recorded that applicant No.1 left the office at around 12:47 p.m. heading towards Kotadasangani Taluka Panchayat. 4.1 It is further submitted that between 01:00 to 01:05 p.m., applicant No.1 arrived at the shop called Raj Traders, opposite Kotadasangani Bus Stand, owned by his friend Dharmendrasinh Jadeja. CCTV footage from the shop confirmed applicant No.1's presence between 01:00 to 01:15 p.m. during this time, applicant No.1 received a phone call from Kishore Damabhai Gajera, who informed them that Dilipbhai Dahyabhai Rathod, the complainant's father, was causing trouble near Ramod Bus Stand in a drunken state. In response, at around 01:40 p.m., applicant No.1 contacted PSI of Kotadasangani Police Station to address the situation. The applicant No.1 contacted the DSP since the PSI was on leave, as the applicant No.1 did not have the telephone number of the officer in charge of Kotadasangani Police Station. After completing all the tasks, applicant No.1 arrived at their home around 03:30 p.m. This information is verifiable through CCTV Page 3 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined footage from the residence of applicant No.1. 4.2 It is further submitted that applicant No.2, at the alleged time and date of the offense, was not in proximity to the complainant's location, as evidenced by CCTV footage. On the specified date, at around 11 a.m., applicant No.2 visited at village Sandhwaya, specifically at the residence of Hareshbhai Ramoliya, for lunch related to a marriage function, where he stayed for about an hour. Notably, applicant No.2 is documented in video footage from the marriage event on the alleged date of the offense. Additionally, applicant No.2 visited the Gram Panchayat Office on the same date, which is also established from the CCTV Footage. Consequently, applicant No.2 did not have any interaction with applicant Nos.1 and 3 at the alleged date and time of the offense.
4.3 It is further submitted that applicant No. 3 reached Ramod Patel Samaj at around 1:00 pm. On the date of the alleged offence, which is evidenced by the CCTV footage. Thereafter, he returned to his residence and went to sleep at about 02:00 am. As a result, applicant No. 3 was not present at the time and date of the alleged offence. The learned advocate for the applicants submits that the applicants have nothing to do with the alleged offence. In support of this claim, the plea of alibi has been raised. Subsequently, after gathering CCTV footages, Page 4 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined they filed Special Criminal Application No.1781 of 2020 before this Court, which was withdrawn by the applicants on 16.06.2020. The Investigation Officer was then instructed to thoroughly examine the plea of alibi presented by the current applicants.
4.4 Considering the aforesaid fact, the learned advocate for the applicants asserts that this Court specifically directed the Investigating Officer to consider the plea of alibi raised by the applicant. However, the chargesheet has been filed without taking into account the alibi defence. Therefore, relying on their alibi defence and considering the NARCO Test, the learned advocate requests to allow the present application.
5. Learned APP has vehemently opposed the current application, asserting that the offense in question is against a woman. The defenses raised by the applicants should be considered integral part to the evidentiary process and subjects for trial. Furthermore, the Narco test report is not on record, and a charge-sheet has been filed. Consequently, the learned APP argues that the Court should refrain from exercising jurisdiction at this stage. Additionally, attention is drawn to Criminal Misc. Application No. 1214 of 2022, filed by the applicant under Section 482 CrPC before this Court, which was withdrawn on 04.07.2023. Therefore, the learned APP Page 5 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined submits that the application may be dismissed.
6. Having heard the learned advocates for the respective parties and having gone through the documents on record, it is worth to mention that present application is a successive application and main defence raised by the present applicants qua their alibi and they are not involved in the offence. The offense was committed on 26.02.2020, with the time of commission being around noon, between 01:00 to 01:30. According to the complaint, the victim was alone at her house when the applicants arrived in a white-colored Brezza Car. applicant No.1 is accused of forcibly restraining her, placing her in the car, and subsequently forcefully engaging in sexual intercourse with her at the back seat of the moving vehicle. It is further claimed that applicant No.1 brandished a revolver, threatening the victim not to disclose the incident, warning of dire consequences if she did. Subsequently, both accused No.2 and No.3 are accused of engaging in sexual intercourse with her. It is also alleged that accused No.1 holds a leadership position within the ruling BJP Party, serving as the General Secretary of Kotadasangani Taluka. Additionally, the mother of applicant No.1 was a Village Sarpanch of Ramod.
7. It is important to note at this stage that the alibi plea is solely based on CCTV footage, which, according to the Page 6 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined prosecution, should not be considered. The investigating officer, after recording statements under Section 164 of the CrPC, along with the doctor's evidence and sufficient material collection, has filed a chargesheet against the accused persons. Although CCTV footage was collected, it did not provide conclusive opinions regarding the allegations made by the complainant. The evidence gathered during the investigation indicates the time of the offense as between 12:30 p.m. to 13:00 p.m. However, the opinion of the Forensic Science Laboratory (FSL) is still pending, and the verification of the alibi and CCTV footage is underway as per this court's earlier order dated 16.06.2020 passed in Special Criminal Misc. Application No.1781 of 2020. The chargesheet against the accused persons has been filed based on the collected material. It is asserted that there is sufficient evidence from the statement of the prosecutrix under Section 164 of the CrPC, and hence the chargesheet has been submitted. The investigating papers indicate that the chargesheet was filed after the collection of adequate material.
8. It is worth to mention that learned advocate relied on the evidence of Narco analysis and Polygraph test, but report is yet to be received from the DESF Gandhinagar which is mute part of compilation. Assuming for a moment that, the Narco Analysis Test is conducted, but both Narco analysis and Page 7 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined Polygraph tests are not conclusive proof. Regarding the plea of alibi raised by the applicants, it is clarified that it needs to be substantiated during the trial. The defense of alibi itself is a disputed question of fact which prima facie, indicates the involvement of accused in an offence. The admissibility and relevance of the Narco Analysis and Polygraph test need to be assessed during the trial. The disputed questions raised by the applicants also require adjudication and appreciation during the trial, with evidence being presented absence of the accused at the place of occurrence was within the special knowledge of the accused persons, and they would have to prove this by presenting cogent evidence.
9. In view of the above, while exercising the powers under Section 482 of the CrPC, such an exercise is not permissible, and this Court is not obliged to undertake any exercise to hold a mini-trial. Regarding the allegations levelled against the present applicants and that too qua defence of alibi, they are deemed serious and prima facie, after collecting evidence, a chargesheet has been filed. Hence, this Court is not inclined to examine the correctness of the complaint, and nothing suggests that the allegations in the complaint are patently frivolous or do not disclose any offense.
10. In this regard reference is made to judgment passed by Page 8 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined the Apex Court in the case of Amit Kapoor v. Ramesh Chander, reported in 2012 9 SCC 460 online wherein the Apex Court had held as under:
"27(9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
(10) It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
(11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
(12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
(13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
11. Further reference is made to the judgment of the Apex Page 9 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined Court in the case of Supriya Jain v. State of Haryana, reported AIR 2023 SC(Criminal) 1101.
12. As the allegations under Section 376 of the IPC, the Court has also relied upon the judgments passed by the Apex Court in the case of Shimbhu v. State of Haryana, reported in (2014) 13 SCC 318, the State Of A.P vs Gourishetty Mahesh & Ors, reported in (2010) 6 SCC 588. Further in the case of Neeharika Infrastruecture Pvt. Ltd. vs. State of Maharshtra, reported in 2021 SCC Online SC 315 wherein, the Apex Court has observed that:
"iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;"
13. Further, in the case of Ramveer Upadhyay and Anr. vs. State of U.P. and Anr. reported in 2022 OnLine SC 484, it Page 10 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023 NEUTRAL CITATION R/CR.MA/19594/2023 JUDGMENT DATED: 06/12/2023 undefined is observed and held by the Apex Court that the High Court, while exercising jurisdiction under Section 482 of the Cr.P.C, would not ordinarily embark upon an enquiry into whether the evidence is reliable or not or whether there is reasonable possibility that the accusation would not be sustained.
14. So far earlier Criminal Misc. Application No.1214 of 2022 is concerned, the same has been withdrawn by the applicant on 04.07.2023 and present application is preferred after filing of the chargesheet. Learned APP has opposed the present application considering the law laid down by the Apex Court in the case of Bhisham Lal Verma v. Union of India, reported in 2023 SCC Online SC 1399.
15. Considering the aforesaid facts, the application stands dismissed. Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial. Learned Trial Court shall have to decide the allegations levelled in the complaint on its own merits without being influenced by any of the observations made in the order.
16. Rule is discharged. Direct service is permitted.
(HASMUKH D. SUTHAR,J) ALI Page 11 of 11 Downloaded on : Tue Dec 12 20:32:41 IST 2023