Gujarat High Court
Hetalben Mansukhbhai Sabhaya vs State Of Gujarat & on 22 February, 2016
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/12965/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 12965 of 2015
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HETALBEN MANSUKHBHAI SABHAYA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MB PARIKH, ADVOCATE for the Applicant(s) No. 1
MR.HIREN M MODI, ADVOCATE for the Respondent(s) No. 2
MR JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 22/02/2016
ORAL ORDER
1. By way of the present application under Section 439(2) of the Code of Criminal Procedure, 1973, the applicant- original complainant has challenged the judgment and order dated 26.06.2015 passed by learned 2nd Additional Sessions Judge, Rajula in Criminal Misc. Application No.88 of 2015, by which, learned Sessions Judge has exercised his power under Section 438 Cr.P.C. and has ordered that the applicant shall be released on regular bail in connection with the FIR being C.R.No.I-38 of 2015 registered with Dhari Police Station, District-Amreli for the offences punishable under Sections 376, 452, 465, 468, 506(2), 292(A) of the Indian Penal Code.
2. The brief facts of this case are that the present applicant-original complainant, who is aged about 27 years, lodged an FIR on 14.6.2015 with the aforesaid police station Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Feb 28 05:13:30 IST 2016 R/CR.MA/12965/2015 ORDER making allegation that before 4 years ago, complainant and her friend namely Shilpa went for shopping. At that time Shilpa had introduced accused Vipul. The said Vipul insisted friendship, however, the same has been refused. Thereafter, the accused-Vipul gave one mobile phone to the complainant when she was alone at her home, however, the same has been refused but at that time accused-Vipul had given threat and therefore, she accepted the same. It was alleged that the accused-Vipul used to come to the house of the complainant when she was alone at her residence, he has committed rape by giving threats to the complainant that he will circulate the obscene photographs and movie clippings and he used to show this in his friend circle.
2.1 It was further alleged that this was happened thrice and every time after committed rape he used to take obscene photographs and movie clippings which were used for blackmailing the complainant. It was further alleged that the forged certificate with regard to registration of the marriage was created by the respondent-accused and he tried to establish that she has entered into marriage with the respondent-accused. Therefore, the complaint has been filed and the respondent-accused came to be arrested on 19.6.2015 and thereafter, he came to be released on bail on 26.6.2015 by 2nd Additional Sessions Judge, Rajula in Criminal Misc. Application No.88 of 2015. Hence, this application.
3. Pursuant to notice issued by this Court, respondent-accused has appeared through learned advocate Mr.Hiren M.Modi and has filed his affidavit-in-reply.
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R/CR.MA/12965/2015 ORDER
4. Mr.M.B.Parikh, learned advocate appearing for the applicant-original complainant, states that the trial court has released the respondent-accused within a period of 12 days after his arrest. He would submit that the trial court has ignored the material evidence on record, affidavit filed by investigating agency clearly suggests that the investigation is required when they have found forged documents prepared by respondent-accused. He would further submit that during the pendency of this application, charge-sheet is filed and papers of investigation support the case of the prosecution that the respondent-accused committed offence of forgery. By taking me through the statements of the witnesses, he would further submit that the offence has been taken place which would come in the way of the applicant in future and, therefore, the present application may be allowed and bail granted by the Trial Court in favour of respondent-accused may be cancelled.
5. On the other hand, Mr.Modi, learned advocate appearing for respondent No.2-accused, submits that the FIR indicates that the applicant-original complainant had developed relationship with the respondent-accused which continued for considerable time. He would submit that the prosecutrix is aged about 27 years and the respondent- accused is aged about 28 years and both are married and matured persons and developed relationship. He would further submit that the allegations made against the respondent-accused are false and frivolous. He would further submit that the trial court has exercised his jurisdiction under Section 439 of the Code of Criminal Procedure while releasing the respondent-accused on bail which may be cancelled exceptionally if it is established that the order passed by the Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Feb 28 05:13:30 IST 2016 R/CR.MA/12965/2015 ORDER trial court is perverse and contrary to law. He would further submit that it is not the case either of the prosecutrix or of the prosecution that he has committed any breach of conditions imposed by the Trial Court.
6. Ms.Jirga Jhaveri, learned Additional Public Prosecutor, appearing for the respondent No.1-State of Gujarat has assisted the Court by producing the papers of investigation.
7. I have heard learned advocates appearing for the respective parties. It is not in dispute that the applicant- original complainant and respondent No.2-accused, who are aged about 27 years and 28 years respectively, are matured persons. I have gone through the judgment of the trial court. In my opinion, in such serious case, the trial court ought to have waited for completion of investigation when the serious charge of rape as well as forgery with regard to marriage certificate were alleged against the present respondent- accused and the fact that there are no allegations of committing any breach of conditions imposed by the Trial Court on the respondent-accused. I am also of the opinion that the present application is not required to be entertained and, accordingly, it is dismissed.
8. However, I am of the opinion that the trial court should be directed the respondent-accused to mark his presence before the concerned police station till the trial is over. Hence, the respondent-accused is hereby directed to mark his presence on any day of first week of every English calendar month till the trial is over. Notice is discharged.
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