Gujarat High Court
Himmatlal Ruplabhai Nisarata vs State Of Gujarat on 14 December, 2023
NEUTRAL CITATION
R/CR.MA/14032/2021 ORDER DATED: 14/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 14032 of 2021
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HIMMATLAL RUPLABHAI NISARATA
Versus
STATE OF GUJARAT
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Appearance:
MR PRITHU PARIMAL(9025) for the Applicant
MR DHAWAN JAYSWAL, APP for the Respondent No. 1 - State
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MS. BHAVNA D ACHARYA(6406) for the Respondent No. 2 - Complainant
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 14/12/2023
ORAL ORDER
1. By way of present application, under Section 482 of the Code of Criminal Procedure, 1973, the applicant seeks quashment of the impugned FIR being C.R. No.11187008210789 of 2021 registered with the Santrampur Police Station, District : Mahisagar for the offences punishable under Sections 376(2)(n), 504, 506(2) and 114 of the Indian Penal Code.
2. The brief facts of the prosecution case are that after contacting the victim by accused No.1 - the present applicant on facebook and whatsapp, the accused No.1 has given false promise her to marry, went to the house of the Page 1 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined complainant and also taken her to the various places, made sexual intercourse without her consent, and that when the complainant told accused No.1 to decide the date of marriage, accused No.1 replied that his sister refused to marry with the complainant - victim and thereby accused No.2 and 3 has supported accused No.1 not to marry with the complainant, and that accused No.2 and 3 have repeatedly threatened the complainant personally as well as on phone and thereby committed an offence as alleged together. Hence, the impugned FIR.
3. Heard learned advocates.
4. Rule. Learned advocates waive service of notice of rule for and on behalf of the respective respondents, forthwith. With consent of all the learned advocates, the matter is taken up for hearing and final disposal today. 5.1 Learned advocate Mr.Pruthu Parimal for the applicant has strongly relied upon the allegations levelled in the FIR and has submitted that merely filing of charge-sheet will not curtail his right to agitate the application further. To support of his submission, he has relied upon the decision in the case of Abhishek versus State of Madhya Pradesh reported in 2023 LiveLaw SC 731 and in the case of Page 2 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined Satishchandra Ratanlal Shah versus State of Gujarat reported in (2019) 9 SCC 148.
5.2 He has further submitted that there is no intention of the accused person i.e. Himmatlal, who is in relationship with the complainant, not to marry and abuse the relationship by giving false promises. He has further submitted that on the contrary, on the reading of the entire FIR, the accused person is ready to marry with the complainant, but due to some unavoidable family circumstances, which are not in control of the applicant, such marriage is not solemnised. He has submitted that there is no intention of the accused person from the inception of the relationship to take disadvantage of the relationship as alleged in the FIR. He has submitted that the FIR is nothing but abuse of process of law as no ingredients of Section 376(2)(n) of the IPC as well as Sections 504, 506(2) and 114 of the IPC can be satisfied. He has relied upon the decision of the Hon'ble Apex Court in the case of Deepak Gulati versus State of Haryana reported in (2013) 7 SCC 675 and submits that all these aspects as mentioned in the FIR can be considered at the best that there is some relationship between them but beyond that, no criminality can be attributed to the present applicant. Page 3 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023
NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined 5.3 He has further submitted that in view of the other decisions of the Hon'ble Apex Court, this Court can exercise the powers under Section 482 of the Code of Criminal Procedure, 1973 in favour of the applicant, even the case is under Section 376 of the IPC and that is also after filing of the charge-sheet and therefore, he prayed to allow this application by considering the decision in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, with a view to prevent the abuse of process of law as facing trial by the applicant will amount to harassment to him. He has submitted that this application may be allowed. 6.1 Per contra, learned advocate Ms.Bhavna Acharya for the complainant has strongly opposed this application. She has vehemently submitted that now, charge-sheet is filed and criminal case is numbered and when such serious allegations are levelled against the applicant, more particularly, under Section 376 of the IPC, which is an offence against the society, that too by an educated person with clear mala fide intention and admittedly, there are prima facie materials and there is relationship developed on the basis of the false promise to marry by the present applicant with the complainant - victim and under the guise of that false promise, the applicant has entered into the physical relationship with the complainant. She has, therefore, Page 4 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined submitted that an offence is made out against the applicant. 6.2 She has relied upon the decision of the Hon'ble Apex Court in the case of Iqbal alias Bala versus State of Uttar Pradesh reported in (2023) 8 SCC 734. She has submitted that at the best, the applicant can avail appropriate remedy before the concerned learned trial Court, but no relief can be granted by this Court while exercising the powers under Section 482 of the Code in favour of the applicant at this stage, which can be exercised very sparingly in view of the catena of decisions of the Hon'ble Apex Court, more particularly, the affidavit in reply filed by the complainant, whereby she has narrated as to how the events have been taken place and therefore, she has submitted that there is several material available with the prosecution and now, the charge-sheet is filed against the present applicant and trial is commenced. She has submitted that this application at this stage may be dismissed.
7. Learned APP Mr.Jayswal for the State has submitted that prima facie offence is made out against the applicant. He has submitted that investigation is over, charge-sheet has already been filed before the learned trial Court, which is culminated into criminal case. He has submitted that prima facie material is available with the Page 5 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined prosecution against the applicant and the ingredients of Section 376(2)(n), 504, 506(2) and 114 of the IPC are satisfied. Therefore, this Court should not exercise the powers under Section 482 of the Code in favour of the applicant at this stage. He has submitted that the applicant may be faced trial before the learned trial Court. He has submitted that this application may be dismissed.
8.1 I have heard rival submissions made by the learned advocates for the respective parties. I have perused the material available on record. From the bare reading of the FIR, it transpires that the complainant - victim is a Doctor by profession - a dental surgeon and running a hospital in the name of Vinayaka Dental Care. It also transpires from the reading of the FIR that she has received one friend request from the applicant on facebook and thereafter, they developed relationship through whatsapp chat. Further, they also started meeting each other thereafter and they have also attended party of their common friend and thereafter the complainant was given false promises by the applicant that he will marry with her and keeping trust on the aid false promises, the applicant has entered into physical relationship with the complainant against her wish. Further, repeatedly, the same was happened thereafter and on one day, the applicant has refused the marry with the Page 6 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined complainant under the pretext that his sister is not agreeable to the said relation due to same ' Gotra'. It also transpires that there are other allegations levelled in the FIR. Prima facie, it transpires that admittedly, there were physical relations between the applicant and the complainant. 8.2 At this stage, it would be fruitful to refer to the provisions of Sections 376(2)(n) of the Indian Penal Code, as under :
"376 Punishment for rape.
(2) Whoever, -
(n) commits rape repeatedly on the same woman,"
8.3 It is not in dispute that in a given case, the Court can also look into the matter even after filing of charge-sheet, but that power should be exercised very sparingly in view of the decision of the Hon'ble Apex Court, more particularly, considering the decision of the Hon'ble Apex Court in the case of Iqbal alias Bala versus State of Uttar Pradesh reported in (2023) 8 SCC 734. The relevant paragraphs 6 to 9 of the said decision are as under :
"6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only Page 7 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined question that falls for our consideration is whether we should quash the FIR ?
7. It is relevant to note that the victim has not furnished any information in regard to the date and time of the commission of the alleged offence. At the same time, we also take notice of the fact that the investigation has been completed and charge sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence more particularly in the absence of any specific date, time, etc. of the alleged offences, yet we are of the view that the appellants should prefer discharge application before the Trial Court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and charge sheet is ready to be filed before the competent court. In such circumstances, the Trial Court should be allowed to look into the materials which the investigation officer might have collected forming part of the charge sheet. If any such discharge application is filed, the Trial Court shall look into the materials and take Page 8 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined a call whether any case for discharge is made out or not.
8. At this stage, we express no final opinion as regards the truthfulness of the allegations levelled in the FIR.
9. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely."
8.4 There is no dispute about the fact that the Hon'ble Apex Court has considered the case under Sections 375, 374 and 417 r/w. 90 and 365 in the case of Deepak Gulati versus State of Haryana reported in (2013) 7 SCC 675, but, prima facie the facts of that case are different and Page 9 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined more particularly, considering the fact that those proceedings travelled upto the Hon'ble Apex Court arising from the Criminal Appeal and the judgment of conviction passed by the learned trial Court and the order of the criminal appeal went upto there.
9. At this stage, this Court has considered the judgment of the Hon'ble Apex Court in the case of Daxaben versus State of Gujarat reported in (2023) 4 GLR 2824, whereby even in the serious offence like 306, even in the case of settlement arrived at between the parties, the Hon'ble Court has taken strict view by holding that in such serious offence, which has wide impact in the society, such powers should not be exercised and considering the totality of the facts and circumstances of the present case and considering the fact that now, charge-sheet is already filed and prima facie material is available against the applicant, prima facie, the ingredients of Section 376 of the IPC are satisfied in the present facts. Therefore, I am of the opinion that this is not a fit case where this Court should exercise the powers under Section 482 of the Code of Criminal Procedure, 1973 in favour of the applicant at this stage, more particularly, considering the decision in the case of Neeharika Infrastructure Pvt. Ltd. Versus State of Maharashtra reported in 2021 SCC Online SC 315, more particularly Para 80 Page 10 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined thereof, which reads as under:
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/ FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under :
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV Page 11 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
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 Page 12 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-
interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go Page 13 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal Page 14 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed Page 15 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted"
and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, Page 16 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined the High Court has to give brief reasons why such an interim order is warranted and/ or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted"
can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
10. It is a well settled law that 'consent' based on a 'misconception of fact' is not consent. Cases wherein a woman engaging in sexual relation on false promise to marriage, her 'consent' is based on 'misconception of fact' and such sexual act will amount to rape. Where a woman does not 'consent' to sexual acts described in main body of section 375, offence of rape has occurred. This view has been taken by the Hon'ble Apex Court in the case of Pramod Suryabhan Pawar Page 17 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023 NEUTRAL CITATION R/CR.MA/14032/2021 ORDER DATED: 14/12/2023 undefined versus State of Maharashtra reported in (2019) 9 SCC 608. Therefore, the observations made in this decision are required to be kept in mind while appreciating the facts of the case on hand, as active understanding of circumstances, actions and consequences of proposed act are very relevant. Therefore, at this stage, this Court should not exercise the powers under Section 482 of the Code in favour of the applicant.
11. In view of above, the present application needs to be dismissed and is dismissed accordingly. Rule is discharged. Interim relief, if any, stand vacated.
(SANDEEP N. BHATT,J) M.H. DAVE Page 18 of 18 Downloaded on : Tue Dec 19 20:36:22 IST 2023