Gujarat High Court
Malek Nasirkhan @ Nasibkhan Ganjikhan vs State Of Gujarat on 15 February, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
R/SCR.A/3548/2020 ORDER DATED: 15/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3548 of 2020
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MALEK NASIRKHAN @ NASIBKHAN GANJIKHAN
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MS MAITHILI MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 15/02/2023
ORAL ORDER
Leave to amend is granted. Amendment to be carried out forthwith.
1. By way of this petition under Article 226 of the Constitution of India, petitioner original accused - Malek Nasirkhan @ Nasibkhan Ganjikhan has prayed for quashing and setting aside FIR being C.R. No. I - 22 of 2018 registered with Varahi Police Station, District : Patan for the offences punishable under Section 363, 366, 376 and 114 of the Indian Penal Code read with Section 3(A), 4 and 18 of the POSCO Act and has also sought for quashment of charge sheet and POSCO Case No. 22 of 2018 pending for trial before the learned Page 1 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined Additional Sessions Judge, Patan insofar it relates to petitioner.
2. The case of the petitioner is that respondent no. 2 - father of the victim had lodged FIR inter alia alleging that his daughter aged about 17 years on the date of incident, after taking dinner was sleeping outside the house, and at around 2:00 am in the midnight when respondent no. 2 woke up, he saw her daughter in sleeping position, but then subsequently at about 3:00 am in the midnight when again respondent no. 2 woke up, at that time, he could not find his daughter and after making efforts to locate her in the nearby vicinity, since her whereabouts could not be located, respondent no. 2 immediately approached Varahi Police Station and narrated the aforementioned incident. 2.1. It is the case of the petitioner that the main accused of the case on one hand is Sadilkhan, who about a week prior to the date of incident i.e. on 22.05.2018 was instrumental in luring and compelling the very victim of the case to accompany him for which, there is no independent FIR registered with regard to the said incident, but for the actual commission of crime there is Page 2 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined no role either attributed or played by the present petitioner and on account of this, the petitioner has been wrongly roped in the prosecution. It has been contended that even FIR which has been investigated, charge sheet has been filed in which also, erroneously, the authorities have shown present petitioner as absconding accused and it is for the first time that when the summons under Section 160 of the Code of Criminal Procedure came to be received, the petitioner came to know that he has been falsely implicated in the complaint and as such, has rushed to this Court by way of present petition under Article 226 of the Constitution of India for seeking quashment of FIR and consequential charge sheet as also POSCO Case no. 22 of 2018 which has been registered before the learned Additional Sessions Judge, Patan.
3. The present petition came to be entertained by the co- ordinate Bench of this Court vide order dated 24.08.2020 and subsequently, the matter has come up for consideration before this Court.
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4. Mr. Pratik Barot, learned advocate appearing for the petitioner has vehemently contended that this is a clear case of wrongful arraignment of petitioner to the actual commission of crime where the petitioner has not played any role. It has been contended that even in the charge sheet also, the Investigating Officer has erroneously shown the petitioner as absconding as referred to in column 2, but in fact the petitioner came to know about this complaint only when he received the summons under Section 160 of the Code of Criminal Procedure. Had there been any knowledge about such kind of incident, petitioner would have applied for anticipatory bail, but the very fact that petitioner has not submitted anticipatory bail application would reflect that there was no prior intimation or knowledge about such kind of serious offence like offence under Section 376 of Indian Penal Code. The only case at the best which might be that petitioner allegedly abetted in commission of alleged crime. But in fact, there is no concrete material to indicate that any role is played by the petitioner. However, it has been vehemently contended that there is absolutely no material gathered by the Investigating Officer while filing the charge Page 4 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined sheet about the proof of age of the victim. By referring to relevant statement of the victim as well as the statement of father, the exact age of the victim is not forthcoming and as such, there is hardly any case made out against the petitioner. It has been further contended that for the purpose of securing exact age of the victim, even an application was also submitted on 13.08.2019 before the Chief Officer, Dhoraji Nagar Palika through his advocate soliciting certain information with regard to the exact date of birth, but what has been supplied by the authority is on page 74 of the petition compilation which indicates the name of the father as well as name of the mother and the date of birth is referred as 14.07.1999, but on being asked, learned advocate Mr. Barot has fairly submitted that there is no name of the victim reflecting in the said birth certificate issued by the authority. However, has submitted that conjoint effect of statement of the father as well as the victim and the particulars which have been supplied in the form of birth certificate would indicate that the victim was not minor and as such, the petitioner has been wrongly involved in the prosecution.
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NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined 4.1. Learned advocate for the petitioner has submitted that it is a public document and as such, if the said date is to be presumed then the age of the victim is beyond 18 years and as such, prima facie, the provisions of POSCO Act will not be applicable. It has been further contended that in the statement of father as well as statement of victim, the name of the petitioner is not reflecting at all and no specific role has been attributed to the petitioner and as such, continuation of prosecution against the petitioner in commission of main crime as indicated in FIR would be nothing but harassment and mental torture to the petitioner. It has been submitted that when none of the statements are indicating the role played by the petitioner, there is hardly any reason in continuing the petitioner as accused in the crime which has been alleged. 4.2. Learned advocate Mr. Barot, has submitted that there is no embargo in exercise of power under Section 482 of the Code of Criminal Procedure and as such, when ex-facie ingredients of the alleged offence are not prima facie established, continuance Page 6 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined of prosecution would be nothing but abuse of process of law and as such, has relied upon the decision of the Hon'ble Apex Court in the case of Shafiya Khan @ Shakuntala Prajapati v. State of Uttar Pradesh reported in 2022 (0) AIJEL SC 68362 and has submitted that this a fit case in which powers under Section 482 of the Code of Criminal Procedure deserves to be exercised. Accordingly, requested to allow the petition. 4.3. Mr. Barot has further submitted that there is no material whereby even abatement of the petitioner can be established prima facie and as such, when no offence is made against the petitioner, present petition deserves to be allowed. No further submissions have been made.
5. As against this, Ms. Maithili Mehta, learned APP appearing on behalf of the respondent - State has submitted that the petitioner has been specifically named in the FIR and a clear role is carved out in the charge sheet which has been submitted. In the charge sheet not only specific role is attributed, but petitioner has been shown as absconding person Page 7 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined in column 2 of the charge sheet and as such, it cannot be said that no material is recovered against the petitioner. It has been submitted that in view of the fact that now after thorough investigation, charge sheet has been filed before the competent Court and hence it would not be desirable to re-appreciate the material which has been already gathered by the Investigating Officer and as such, thorough adjudication deserves before the competent forum where the trial is to take place. 5.1. Learned APP has further submitted that at the best if the petitioner is having feeling of wrongful involvement there is a remedy available to apply for discharge before the court below and as such, this is not a fit case in which powers under Section 482 of the Code of Criminal Procedure deserves to be exercised. Hence, has requested to dismiss the petition.
6. Though served, none appeared nor there is any representation on behalf of the respondent no. 2 and as such since the Court is well assisted by both the learned advocate appearing for the petitioner and learned APP for the respondent Page 8 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined State, took up the hearing of the present proceedings.
7. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it appears that the narration of the compliant would indicate that serious crime is committed with the daughter of the complainant who is aged about 17 years and with regard to the age, the material which has been produced would indicate that the victim is minor, but the fact remains that the statement of victim as well as of the father is rather indicating that she is aged about 17 years. So far as the birth certificate which has been issued by the authority, it appears that in the said certificate, no name of the victim is reflecting and as such, the said aspect deserves to be examined at the appropriate stage of the trial. It appears that after thorough investigation charge sheet has already been submitted with regard to main accused in which not only role of the petitioner has been ascribed, but shown in column 2 of the charge sheet which is reflecting on page 18. However, whether the petitioner was absconding or not, whether he was available or not would be a matter of Page 9 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined examination of fact and as such, at this stage on the basis of such inadequate material, it is difficult for this Court to accept the stand of the petitioner that at the relevant point of time the victim was major. However, the Court has not expressed any opinion on this and as such, since same is the matter of trial, in considered opinion of this Court.
7.1. With respect to another stand which has been taken by the petitioner that for the first time he came to know about the commission of crime by registration of FIR being C.R. No. I - 22 of 2018 when summons under Section 160 of the Code of Criminal Procedure came to be received by him, but then this aspect can also be gone into and examined at appropriate stage. On the contrary, the document which is reflecting on page 63 is indicating that the petitioner is also involved in yet another offence which has been reflecting in the aforementioned communication. Be that as it may, with regard to age aspect, since the certificate is not reflecting the name of the petitioner, the Court is not in a position to safely come to the conclusion that the victim was aged 18 years or beyond. Hence, in such a Page 10 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined situation, the Court is not inclined exercise its discretion under Section 482 of the Code of Criminal Procedure.
8. Mr. Barot, has submitted a recent decision of Hon'ble Apex Court, indicating that there is no embargo on exercise of power under Section 482 of Code of Criminal Procedure, but then perusal of the said observation mentioned in the case of Shafiya Khan @ Shakuntala Prajapati (supra), this Court is of the opinion that at this stage, even upon prima facie look there is no possibility of arriving at a definite conclusion as to innocence of the present petitioner and as such, though serious crime is alleged to have committed and the charge sheet which has been submitted, there is a reflection of not only name of petitioner, but same act has been allegedly committed also reflecting. In that view of the matter, in considered opinion of this Court, this is not a fit case to exercise extraordinary jurisdiction and as such, the petition being devoid of merit does not deserves to be entertained. While coming to this conclusion on the basis of the aforesaid material which is not sufficient to arrive at definite conclusion in favour of petitioner, the Court Page 11 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined would like to rely upon the decision delivered by the Hon'ble Apex Court in the case of Kaptan Singh v. State of Uttar Pradesh & Ors., reported in (2021) 9 SCC 35 since the Court has relied upon the observations contained in the said decision would like to quote the same hereunder :
"9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed by this Court in the case of Arvind Khanna (Supra), Managipet (Supra) and in the case of XYZ (Supra), referred to herein-above.
12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C..
13. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C. is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial to be Page 12 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023 NEUTRAL CITATION R/SCR.A/3548/2020 ORDER DATED: 15/02/2023 undefined conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 Cr.P.C. only and the trial Court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us herein-above. The present appeal is accordingly allowed."
9. On the basis of the aforesaid observations made by Hon'ble Apex Court and looking to the circumstances which are prevailing on record, it is not possible for this Court to accept the stand of the petitioner in the definite form and in considered opinion of this Court, stand of the petitioner requires to be adjudicated and as such, no case is made out to exercise jurisdiction under Section 482 of the Code of Criminal Procedure. Accordingly, petition being meritless, stands dismissed. Notice is discharged. Interim relief if any, stands vacated.
Sd/-
(ASHUTOSH SHASTRI, J) phalguni Page 13 of 13 Downloaded on : Sun Sep 17 21:52:45 IST 2023