Gujarat High Court
Arvind Mitha Gohil (Dalit) vs State Of Gujarat & on 30 June, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/21725/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 21725 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ARVIND MITHA GOHIL (DALIT)....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ASHVIN M PANCHAL, ADVOCATE for the Applicant(s) No. 1
MRS.DHARITA P MALKAN, ADVOCATE for the Respondent(s) No. 2
MR JITENDRA MALKAN, ADVOCATE with MS.KHUSHBOO V MALKAN,
ADVOCATE for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 30/06/2017
ORAL JUDGMENT
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1. RULE. Learned APP Mr.H.K.Patel waives service of Rule on behalf of respondent No.1-State and learned Advocate Mr.Jitendra Malkan waives service of Rule on behalf of respondent No.2.
2. This petition under Section 482 is filed for quashing of the FIR being I-CR No.104 of 2014 registered with Bhimasar Police Station, Gandhidham-Kutch (East). The said FIR was registered on 29.09.2014 for offences under Sections 376, 366 and 114 of the Indian Penal Code. 2.1 In the FIR, respondent No.2 herein has alleged that on 13.09.2015, she was kidnapped by the applicant and entered into sexual intercourse against her will and thereby committed an offence. It is alleged in the FIR that when respondent No.2 had gone for purchasing from nearby store, the applicant, who was her neighbour, came towards her and asked her to accompany him and upon resistance, the applicant held respondent No.2 with hand and took her to nearby jeep in which both of them set and went to city of Bhuj from her village and met Advocate over there and thereafter signed several documents and exchanged garlands in presence of witnesses and thereafter they went to reside with a relative of their friend and stayed there for five days, during which, against the will of the respondent No.2, the applicant entered into sexual intercourse. Thereafter both of them Page 2 of 13 HC-NIC Page 2 of 13 Created On Wed Aug 16 04:36:27 IST 2017 R/CR.MA/21725/2014 JUDGMENT continued to live in that house for ten more days where there was no incident of sexual intercourse and thereafter, respondent No.2 left house of the relative of their friend and went to her elder sister's place and from there, her brother-in-law took her to her parents, from where she came to register the FIR.
3. Heard learned Advocate Mr.Ashvin M.Panchal for the applicant.
4. Learned Advocate for the applicant submitted that the applicant and respondent No.2 both are aged 27 and 21 years respectively and on their own will, both had entered into marriage. He submitted that the affidavit with regard to marriage was also sworn and notarized. The application for registration of marriage was filed and the marriage is also now registered. He drew attention of this Court to the affidavit as well as communication made to the Police authorities about the fact that the applicant and respondent No.2 have married and since it is against the wish of the parents of the respondent No.2, they anticipated harassment and pressure from the family of respondent No.2. He also drew attention of this Court to the marriage certificate issued under the Gujarat Marriage Registration Act, 2006 issued by the Sub-registrar, Bhuj Nagarpalika. According to the marriage certificate, the marriage was solemnized Page 3 of 13 HC-NIC Page 3 of 13 Created On Wed Aug 16 04:36:27 IST 2017 R/CR.MA/21725/2014 JUDGMENT on 20.12.2014. During the course of arguments, learned Advocate for the applicant tendered marriage certificate, which is taken on record.
4.1 Learned Advocate for the applicant produced on record order dated 13.01.2015 passed by Principal Senior Civil Judge, Anjar-Kutch below application Exh.5 in HMP No.1 of 2015 filed by the applicant against respondent No.2. In this HMP, the applicant has prayed for permanent injunction against respondent No.2 and her family members from entering into marriage of respondent No.2 with any other person as the marriage between the applicant and respondent No.2 is in subsistence. He drew attention of this Court to the order passed to indicate that the Civil Court of proper jurisdiction has prima facie concluded that the marriage between the applicant and respondent No.2 is in subsistence and therefore, while allowing application Exh.5, has restrained respondent No.2 from entering into any other marriage. Learned Advocate for the applicant submitted that the said order is passed after by parte hearing where respondent No.2 has also filed her appearance and reply and as on date, the order below Exh.5 is confirmed and not the subject matter of challenge before any other forum.
4.2 Learned Advocate for the applicant referred to
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and relied upon following judgments of the Apex Court and this Court:-
I. In the case of Lata Singh Vs. State of U.P. & Anr., reported in AIR 2006 SC, 2522.
II. Judgment and order dated 26.03.2015 passed by this Court in Criminal Misc.Application No.15688 of 2014.
III. Judgment and order dated 25.08.2014 passed by this Court in Criminal Misc.Application No.12099 of 2012.
4.3 Learned Advocate for the applicant submitted that not only the marriage has taken place between the applicant and respondent No.2 but the fact of marriage was also published by way of notice in the newspaper in vernacular language having local circulation. He therefore submitted that on the ground that the marriage is in existence, sexual intercourse would not fall in the definition of Section 375 of the Indian Penal Code and hence, no offence can be said to be committed, for which the applicant needs to be prosecuted any further. 4.4 He therefore submitted that he FIR and the consequential charge proceedings, i.e. charge sheet, charges framed and the consequential Sessions Case No.178 of 2015 in the Court of 4th Additional Sessions Judge, Anjar-Bhuj need to be quashed.
5. As against this, learned APP submitted that the Page 5 of 13 HC-NIC Page 5 of 13 Created On Wed Aug 16 04:36:27 IST 2017 R/CR.MA/21725/2014 JUDGMENT allegations in the FIR, the subsequent investigation and filing of the charge sheet make it clear that there is sufficient evidence to maintain the charge against the applicant and once the charge sheet is filed, the Court needs to believe that there exists a prima facie case for the charges for which charge sheet is filed. Therefore, at best, the applicant can file an application for discharge and quashing application may not be entertained at this stage.
6. Learned Advocate Mr.Jitendra Malkan for respondent No.2 submitted that the allegations in the FIR suggest commission of offence. He drew attention of this Court to the affidavit in reply filed by respondent No.2 and submitted that the swearing in of the affidavit of both applicant and the respondent No.2 reflects guilt mind of the applicant to make a show that the applicant and respondent No.2 were having a love affair. 6.1 He referred to the averments made in the said affidavit to suggest that it is not clear as to under what circumstances respondent No.2 was required to swear in such affidavit. It is further averred that in case there was love affair then the applicant would have forced respondent No.2 to get into marriage.
6.2 Learned Advocate for respondent No.2 referred
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to the judgment of the Apex Court in the case of State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors., reported in AIR 1992 SC 604 to contend that the Apex Court has in this judgment enlisted seven criteria for sparingly exercising powers under Section 482. He submitted that the present case does not fall in any of the seven criteria.
7. Having heard learned Advocates for the rival parties and having gone through the record of the case, the most important aspect is the order passed by the Principal Senior Civil Judge below Exh.5 in HMP No.1 of 2015, which is a case between the applicant herein and respondent No.2. This judicial pronouncement, though below application for interim injunction, records a finding of fact about existence of a valid marriage between the applicant and respondent No.2. On the strength of the documents produced before the Court, such injunction order has been passed and respondent No.2 is now restrained from entering into a new marriage. The Court of an appropriate jurisdiction has recognized the existence of marriage while passing injunction order.
Such order is not subjected to any further challenge. The marriage certificate is also a proof of coming into existence of the marriage between the applicant and respondent No.2. There is nothing on record to indicate that such certificate is inoperative, cancelled or even Page 7 of 13 HC-NIC Page 7 of 13 Created On Wed Aug 16 04:36:27 IST 2017 R/CR.MA/21725/2014 JUDGMENT challenged in any manner by the complainant side. The communications prior to registration of the FIR made by the applicant and respondent No.2 to the Police authorities indicate existence of free will before entering into the marriage. The public notice issued in local newspaper declaring marriage of the applicant and respondent No.2 in general public is also an evidence to support the existence of marriage.
8. All these uncontroverted set of facts leads any prudent man to believe the existence of a valid marriage and therefore, the applicant was also right to believe the existence of a legal and valid marriage with respondent No.2 and therefore, as a party to a valid marriage had consummated the marriage which includes entering into sexual relationship. Therefore, in the instant case, ingredients to attract requirements of Section 375 appears to be non-existent.
9. This Court in the unreported judgment in Criminal Misc.Application No.15688 of 2014 dated 26.03.2015 has lucidly described the relevant provisions and the circumstances in which act of consensual relationship can be taken out and the definition of rape. In paras-14, 15 and 16, this Court has held as under:-
"14. Having discussed the legal aspects bearing on the interpretation of the term consent with Page 8 of 13 HC-NIC Page 8 of 13 Created On Wed Aug 16 04:36:27 IST 2017 R/CR.MA/21725/2014 JUDGMENT special reference to Section 90 of the IPC, I must now turn my attention to the factual aspects of the case related to consent. (I) The prosecutrix was 28 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act, she was consenting to.
She is serving as an Adviser with the Tata AIG Life Insurance Company at Surat.
(II) It is difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her. The accused would not have visited the house of the prosecutrix with an invitation card on his own marriage. It appears that for any reason the accused and the prosecutrix discontinued the relationship and parted ways.
15. Thus, in the over all view of the matter I am not convinced with the case of the prosecutrix. In a case of this type no other evidence is helpful except the version of the prosecutrix. Assuming for the moment that there was some assurance of marriage even then mere breach of promise to marry by itself will not substantiate the offence under Section 376 of the Indian Penal Code.
16. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) has Page 9 of 13 HC-NIC Page 9 of 13 Created On Wed Aug 16 04:36:27 IST 2017 R/CR.MA/21725/2014 JUDGMENT been dealt with by the Supreme Court in Rajiv Thapar & Ors. V/s. Madan Lal Kapoor (Criminal Appeal No....of 2013, arising out of SLP (Crl.) no.4883 of 2008, decided on 23.1.2013) wherein the Supreme Court interalia held as under:-
22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section -482 of the Cr.P.C.
the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly Page 10 of 13 HC-NIC Page 10 of 13 Created On Wed Aug 16 04:36:27 IST 2017 R/CR.MA/21725/2014 JUDGMENT reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.c. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i)Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the materials is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions Page 11 of 13 HC-NIC Page 11 of 13 Created On Wed Aug 16 04:36:27 IST 2017 R/CR.MA/21725/2014 JUDGMENT contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the
affirmative, judicial conscience of the High
Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
10. The facts in the present case appear to be on better footing and hence the case of the applicant deserves consideration.
11. One more aspect which this Court has considered Page 12 of 13 HC-NIC Page 12 of 13 Created On Wed Aug 16 04:36:27 IST 2017 R/CR.MA/21725/2014 JUDGMENT is, on the previous date of hearing, when the Court was on the verge of passing an order, learned Advocate for respondent No.2 had sought time so that an amicable settlement can be persuaded looking to the facts of the case. Today, it is submitted by learned Advocate for respondent No.2 that the efforts made by the learned Advocate to contact the complainant have failed. He submitted that even communication addressed by Registered Post AD has not been responded to by the complainant. The indifferent conduct of the complainant is also suggestive of the fact that the complainant herself may not be keen to prosecute the applicant.
12. In view of the aforesaid discussion, in the opinion of this Court the facts of the case would fall in criteria 5 of the reported judgment in the case of Ch.Bhajan Lal (supra) and hence, FIR being I-CR No.104 of 2014 registered with Bhimasar Police Station, Gandhidham- Kutch (East) and the consequential proceedings deserve to be and are hereby quashed. The application is allowed. Rule is made absolute.
Sd/-
(A.Y. KOGJE, J.) SHITOLE Page 13 of 13 HC-NIC Page 13 of 13 Created On Wed Aug 16 04:36:27 IST 2017