Gujarat High Court
Abdulrahim Jamalhaider Kureshi vs State Of Gujarat on 9 October, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.MA/15235/2022 JUDGMENT DATED: 09/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 15235 of 2022
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2023
In R/CRIMINAL MISC.APPLICATION NO. 15235 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
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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ABDULRAHIM JAMALHAIDER KURESHI
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1
MR. NISARG N JAIN(8807) for the Respondent(s) No. 2
MS. ASMITA PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 09/10/2023
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NEUTRAL CITATION
R/CR.MA/15235/2022 JUDGMENT DATED: 09/10/2023
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ORAL JUDGMENT
1. RULE. Learned Additional Public Prosecutor waives service of rule on behalf of the respondent-state.
2. This application is filed under Section-482 of the Code of Criminal Procedure, 1973 primarily for quashing and setting aside the F.I.R. registered as C.R. No.I-11196035220491 of 2022 with Vaadi Police Station, Vadodara City on 03-08-2022 for the offence punishable under Section 354D(1) of the Indian Penal Code.
3. Learned Advocate for the applicant at the outset has submitted that F.I.R. registered is counter blast to the Civil proceedings pending between the families of both the applicant and the respondent-complainant and therefore, to get advantage in the Civil proceedings, present criminal proceedings are instituted.
3.1 Learned Advocate for the applicant has submitted that case sought to be made out against the applicant is based on non-existing facts and even if allegations are taken into consideration, there is no evidence to support the case of the prosecution.
3.2 Learned Advocate for the applicant has submitted that initially, the application was filed for quashing and setting aside the F.I.R. However, subsequently, investigation was concluded and the charge-sheet was filed and therefore, the applicant has filed separate application for stay of the criminal proceedings pursuant to filing of the charge-sheet.
3.3 Learned Advocate for the applicant has drawn attention of this Page 2 of 7 Downloaded on : Fri Oct 13 20:35:12 IST 2023 NEUTRAL CITATION R/CR.MA/15235/2022 JUDGMENT DATED: 09/10/2023 undefined Court to counter of the charge-sheet and thereafter submitted that if the case of the prosecution is considered by keeping in mind the statements of the witnesses, then also ingredients of Section 354D(1) of the Indian Penal Code is not made out. In that regard, the prosecution will be futile exercise and particularly, being counter blast is required to be quashed and set aside.
3.4 Learned Advocate for the applicant has placed reliance upon the decision of the Kerala High Court in case of Jayprakash P.P. v/s. Sheeba Revi passed in CRL MC No.631 of 2020 dated 15-06-2023 and submitted that for the purpose of attracting ingredients of Section 354D(1) of the Indian Penal Code, it is necessary that purpose behind act, which is attributed as the act under Section 354 of the Indian Penal Code, object of the accused is to commit the offence under Section-509 Indian Penal Code and therefore, ingredients of Section-509 Indian Penal Code are also required to be attracted for the purpose of making out case under Section 354 of the Indian Penal Code.
3.5 Learned Advocate for the applicant has relied upon another judgment, which is unreported decision of the Delhi High Court in case of Sanjay Singh v/s. the State (Govt. of NCT) passed in CA No.114 of 2021 dated 12-12-2022, wherein reliance is placed on Para-14 to submit that to attract ingredients of Section 354 of the Indian Penal Code, two things are required, firstly conduct of the accused is repeated and that such repetition is after clear indication of disinterest by the victim. According to learned Advocate for the applicant, as in the present case, this two ingredients are not made out, F.I.R. as well as the charge-sheet is required to be quashed and set aside.
4. As against this, learned APP has objected to grant of application Page 3 of 7 Downloaded on : Fri Oct 13 20:35:12 IST 2023 NEUTRAL CITATION R/CR.MA/15235/2022 JUDGMENT DATED: 09/10/2023 undefined and has submitted that after filing of the charge-sheet, the trial has already begun and that statement of prosecutrix, which are recorded on 03-08-2022 and 04-08-2022 clearly makes out ingredients of Section 354D(1) of the Indian Penal Code. It is submitted that not only statement of the victim, but there are other witnesses also, whose statements would indicate the conduct of the applicant, which would attract ingredients of Section 354 of the Indian Penal Code.
5. In rejoinder, learned Advocate for the applicant has once again emphasis that the offence is registered only in view of the pending Civil litigation between the family members of both sides and he has referred to Plaint of Rent Suit No.38 of 2022 to indicate that the applicant would in the natural course be visiting the disputed shop, which is subject matter of the suit and therefore, his mere visit to shop, cannot be treated to be that the applicant was committing offence of stalking.
6. The Court has taken into consideration the Affidavit in reply filed on behalf of the respondent No.2-complainant, which is annexed with other documents, which includes photographs, where allegedly the applicant is found siting exactly opposite to the house of the respondent No.2- complainant.
7. Having considered the rival submissions of the parties and having perused the documents on record, it appears that F.I.R. came to be registered on 03-08-2022 on the basis of incident, which allegedly took place on the same date. Perusal of the FIR would indicate that previously also, two months back, similar incident had happened, where the applicant has allegedly followed the victim on vehicle and had tried to interact with her asking her to enter into friendship with him. Once again, on the date of registration of F.I.R., similar incident was repeated, Page 4 of 7 Downloaded on : Fri Oct 13 20:35:12 IST 2023 NEUTRAL CITATION R/CR.MA/15235/2022 JUDGMENT DATED: 09/10/2023 undefined wherein allegation is that the applicant with mobile in his hand was trying to make some entries and that he came near to the respondent No.2 and asked her to give smile and come near to him. The victim being disinterested had clearly declined and not only that immediately, went to her home and made report to the Mobile Women Help Line No.181. The description given by the complainant in the F.I.R. with regard to situation, in which the applicant in isolated area, has tried to approach her, would clearly indicate the intention of the applicant.
7.1 The charge-sheet which is filed after due investigation consists of statements, which are recorded, not only of the victim herself, but other witnesses also. From the perusal of the statement given by the victim herself, which indicates the manner and method, in which the applicant has conducted, not only that every now and then, it is stated in the statement that the applicant is following victim and keeps on siting, just opposite to the house of the victim.
7.2 The Court has also found that statement made by the victim are substantiated even by the Affidavit filed by the victim before this Court, which consists of photographs of various time, wherein presence of the applicant is recorded by the CCTV Camera.
7.3 Reliance on the decision of Kerala High Court in case of Jayprakash P.P. (supra) to substantiate the ground that for attracting Section 354D(1) of the Indian Penal Code, ingredients of Section-509 of Indian Penal Code is also required to be made out by the prosecution, does not appear to be ratio of the judgment cited, as in the facts of the case, it is indicated that the applicant therein was facing charge of Section 354D(1) of the Indian Penal Code and Section-509 of Indian Penal Code. In the opinion of the Court, Section 354D(1) of the Indian Penal Page 5 of 7 Downloaded on : Fri Oct 13 20:35:12 IST 2023 NEUTRAL CITATION R/CR.MA/15235/2022 JUDGMENT DATED: 09/10/2023 undefined Code is stand alone offence and does not rely upon ingredients of any other Section particularly Section-509 of the Indian Penal Code.
7.4 Second decision relied upon by learned Advocate for the applicant in case of Sanjay Singh (supra), it would be appropriate to observe that the Court had taken into consideration deposition of the victim during the course of a trial in the Court and that deposition of the victim indicated that there was no intention to built personal interaction. The complainant had failed to depose that the accused had repeated such conduct, even after her clear indication of disinterest. Such is not the facts of the present case, where in the incident, which is referred to in the FIR, which took place two months prior to the registration of the FIR clearly, the victim had indicated her disinterest, despite that on the day of registration of the FIR, again the applicant has repeated his conduct clearly indicating his intention to establish interaction with the victim. Not only that the statement recorded during the course of investigation also clearly makes out ingredients of Section 354D(1) of the Indian Penal Code.
8. The applicant did argue about the civil suit being filed by the father and uncle of the applicant regarding a shop against the father of the victim because of which this FIR is filed, and that the applicant in the due course of his business, he used to visit the shop and therefore the same cannot be construed to be stalking. Firstly, there is no pleadings on the record to that extent, however even if oral submission is taken into consideration, the Court has perused the Plaint which indicates that it was the grandfather of the applicant who had opened the cycle shop long time back, however at the time of filing of the suit the said shop was closed and it was being used as an office by the uncle of the applicant. Moreover, the Photographs placed on the record along with the Page 6 of 7 Downloaded on : Fri Oct 13 20:35:12 IST 2023 NEUTRAL CITATION R/CR.MA/15235/2022 JUDGMENT DATED: 09/10/2023 undefined affidavit clearly demonstrates that the applicant sitting opposite to the house of the victim is not that innocently being there to visit his uncle's premises.
9. In view of the aforesaid, the Court is not inclined to interfere as the ingredients of the offences are prima facie made out and therefore, no case is made out for quashing and setting aside of the proceedings post charge-sheet. In view of the aforesaid, this application deserves to and is hereby dismissed. Rule is discharged.
10. At this stage, learned Advocate for the applicant makes request that considering the age of the applicant, the trial be expedited. Considering the age of the applicant being 19 years and student, it is open for the applicant to make an application before the concerned trial Court for expediting the hearing.
11. In view of the order passed in the main matter, Criminal Misc.Application No. 1 of 2023 in Criminal Misc.Application No.15235 of 2022, dose not survive and accordingly, the same stands disposed of.
Sd/-
(A.Y. KOGJE, J) PARESH SOMPURA Page 7 of 7 Downloaded on : Fri Oct 13 20:35:12 IST 2023