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Gujarat High Court · body

2019 DIGILAW 731 (GUJ)

Yashpalsinh Bipinsinh Gohil v. State of Gujarat

2019-07-09

A.S.SUPEHIA

body2019
JUDGMENT : A.S. SUPEHIA, J. 1. Rule. Learned Additional Public Prosecutor for the respondent No.1 and Learned advocate Mr. Aftabhusen Ansari for respondent No.2 waive service of notice of Rule on behalf of the respective respondents. 2. The present application has been filed seeking quashing and setting aside the F.I.R. being C.R.No.I-21 of 2017 registered at Infocity Police Station, Dist. Gandhinagar for the offence punishable under Section 376 of the Indian Penal Code, 1860 (for short “the IPC”) and under Sections 3(1)(r)(s)(w)-(i) and 3(2)(ii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Atrocities Act”). It is the case of the applicant that the impugned F.I.R. is a counter blast of the F.I.R. being C.R.No.I-47 of 2016 registered at Tarapur Police Station, Dist. Anand for the offence punishable under Sections 389, 500 and 506(2) of the IPC and under Sections 66-A and 66-E of the Information Technology Act, 2000 (for short “the IT Act”). 3. Learned advocate Mr. Bomi Shethna appearing for the applicant has submitted that the present case is a classic example of such cases wherein though, there being not a single face to face meeting between the respondent No.2-original complainant and the applicant, the applicant has been wrongly arraigned by the respondent No.2 as an accused of grievous offence of Section 376 of the IPC as well as there being not enough satisfaction of the complainant to humiliate, extort and harass the applicant, the complainant has also accused the applicant under the Atrocities Act. 4. The brief facts of the case are as under : 4.1 The applicant had preferred the F.I.R. being C.R.No.I-47 of 2016 registered at Tarapur Police Station, Dist. Anand. The said F.I.R. came to be lodged by the applicant against the respondent No.2 since she used to call the applicant through various different mobile numbers and used explicit language and also edited images of the applicant and sent such images through social media and electronic messaging system to the relatives and friends of the applicant and also she had extorted the applicant and demanded a sum of Rs.2,00,000,/-. 4.2 The respondent No.2 used to extort money from the applicant and also threatened the applicant over the phone call that if he fails to adhere to her demands, she would file a complainant under Section 376 of the IPC against him. 4.2 The respondent No.2 used to extort money from the applicant and also threatened the applicant over the phone call that if he fails to adhere to her demands, she would file a complainant under Section 376 of the IPC against him. It is further alleged that the applicant had thereafter, approached Tarapur Police Station, Anand and informed the authority about the same. Thereafter, the family members of the respondent No.2 had approached the applicant and started assaulting him. The respondent No.2 has thereafter, recreantly fetched the photos of the sister of the applicant and edited them and started forwarding those edited images over the social media and electronic messages (Whatsapp) with abusive and explicit contents describing her as prostitute. Therefore, the applicant had no other alternative remedy other than to file complaint pursuant to which the respondent No.2, on 10.06.2016, was released on bail by the Judicial Magistrate, First Class, Tarapur, Dist. Anand. 4.3 It is the case of the applicant that as a counter blast of the aforementioned F.I.R. filed by the applicant, the respondent No.2 has filed the impugned F.I.R. making following allegation : - In January, 2014, the applicant was willing to have a relationship with the respondent No.2 and therefore, the applicant had tried his best to achieve the confidence and love of the respondent No.2. Resultantly, she fell for the applicant due to his tactful words and interest. Further it is alleged that the applicant had informed the respondent No.2 that he was preparing for Public Service Examination and that he resided in a hostel in vicinity. The respondent No.2 therefore, got impressed by him and used to travel to Gandhinagar with the applicant. In that course, the applicant had lured the respondent No.2 to watch movie to which the respondent No.2 readily agreed. Further it is alleged that the applicant had told the respondent No.2 to wait somewhere else as the movie was yet to start and thereafter, the applicant took her to Purnima Hotel, Sector-16, Gandhinagar but as she was not having her identity proof with her hence, the applicant took her to his hostel, where he used to stay. It is alleged that the applicant took the respondent No.2 to his room, where he told her about his wish of having physical relations with her to which, she denied at the first instance. It is alleged that the applicant took the respondent No.2 to his room, where he told her about his wish of having physical relations with her to which, she denied at the first instance. Thereafter, the applicant induced her to have physical relationship with him by falsely promising to marry her. Upon such fake promise, the respondent No.2 and the applicant got intimated and during that course of time, someone had knocked the door of the room due to which, the respondent No.2 got afraid and thereafter, she got ready and left the room crying. It is further alleged that the applicant had followed her and then took her on his motorcycle and dropped her near to her home. Thereafter, the respondent No.2 had tried to contact the applicant through the mobile phone, which was left unanswered and therefore, she tried contacting him through different numbers. Further, it is alleged by her that the applicant had abused her over the phone call and used caste abusive words. Again in April, 2016 the applicant called her at Tarapur Bus Stand and behaved with extreme profanity. After the aforesaid incident, the respondent No.2 went in shock and approached Tarapur Police Station and called her parents and informed them the about the whole incident. Afterwards, the respondent No.2 noticed that all the abusive messages sent by the applicant to her were deleted from her mobile phone, which she suspected to have been deleted, while she was half out of her senses immediately post incident. It is also alleged that the respondent No.2 was trying her best to convince the applicant to marry her but did not succeed and therefore, she resorted to file the impugned F.I.R. 5. Learned advocate Mr. Bomi Shethna for the applicant has submitted that as a counter blast, the respondent No.2 lodged the impugned F.I.R., on 22.02.2017, before Infocity Police Station, Dist. Gandhinagar. He has further submitted that the applicant is in possession of call records of his conversation with the respondent No.2, wherein she admits that the photograph of his sister posing as a prostitute was circulated by her pursuant to which several other unknown people were inquiring about the rate of the sister of the applicant. It is submitted that this act of the respondent No.2 shows the psyche of her so as to tarnish the image of the applicant and his family members. It is submitted that this act of the respondent No.2 shows the psyche of her so as to tarnish the image of the applicant and his family members. Further, it is submitted that the applicant is also in possession of abusive, vulgar and explicit images, wherein the applicant and his sister are posed along-with offensive and vulgar contents. 5.1 He has further submitted that the applicant had seen the respondent No.2 for the first time, after the lodgment of the F.I.R. by the respondent No.2 i.e. on 26.05.2016, when the respondent No.2 was called before Tarapur Police Station. It is asserted by the learned advocate that the incident of rape, as per the respondent No.2, had taken place in the month of May, 2014 and the respondent No.2 had lodged the F.I.R., after passage of more than two years, therefore, there is considerable delay in filing the impugned F.I.R. Hence, on the ground of delay itself, the impugned F.I.R. is required to be quashed and set aside. He has further submitted that the impugned F.I.R. is filed as a counter blast to the F.I.R., which was filed by the applicant so that the applicant bends over to the demand of the respondent No.2 and settle the matter by paying her the amount of Rs.2,00,000/-. 5.2 Learned advocate has further submitted that the respondent No.2 had intentionally invoked Sections pursuant to the Atrocities Act so that the applicant can be roped into the matter with an intention that no Courts may grant him anticipatory bail. It is submitted that as per the version of the respondent No.2, the offence under the Atrocities Act had taken place in 2016 and she filed the F.I.R. on 22.02.2017, after a delay of around 10 months. He has further submitted that the respondent No.2 had not alleged any single incident at the time of filing the regular bail application before the JMFC, Tarapur, Anand. It is submitted that the respondent No.2 had only stated in that application that she used to remain mentally sick and therefore, regular bail ought to be accorded to her and vide order dated 10.06.2016, she was enlarged on regular bail by the JMFC, Tarapur, Anand. 5.3 In support of his submissions, learned advocate has placed reliance on the judgement of the Apex Court in the case of State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604 . 6. 5.3 In support of his submissions, learned advocate has placed reliance on the judgement of the Apex Court in the case of State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604 . 6. Learned Additional Public Prosecutor Ms. Monali Bhatt, upon instructions of the Investigating Officer, who is personally present before this Court, has submitted that the investigation is over and charge-sheet is also filed. 6.1 She has also submitted a report dated 08.07.2019. The same is ordered to be taken on record. It is submitted that as per the report, except the evidence/statement of the complainant, the investigating officer has not found anything incriminating against the applicant. She has submitted that the statement of various witnesses, including one H. Natvarlal Raijada, who is accompanying the applicant as well as the respondent No.2 at the hostel where they used to stay, also does not reveal anything incriminating. 7. Learned advocate Mr. Ansari for the respondent No.2 has submitted that as regards the delay in filing the impugned F.I.R., as the applicant has promised her to marry and since he did not marry, she was constrained to file the impugned F.I.R. 8. I have heard the learned advocates for the respective parties and also perused the impugned F.I.R. and documents as pointed out by the learned advocates. 9. The contents of the impugned F.I.R. dated 22.02.2017 reveal that the complainant has alleged that in January 2014, the applicant was willing to have a relationship with the complainant and therefore, the applicant had tried his best to achieve the confidence of the complainant and got succeed and thereafter, the applicant established physical relationship with the complainant by promising to marry her. Thereafter, the applicant tried to contact her through the mobile phone, but his calls and messages were left unanswered, therefore, he started abusing her and her caste. The applicant had also called her to meet him near Tarapur Bus Stand and behaved with extreme profanity. It is also alleged that the received calls and messages, which were also deleted by the applicant from her mobile phone, which were sent by the applicant using abusive and vulgar language. It is alleged by the complainant that she tried her best to convince the applicant to marry her but when she got failed, she preferred to file the impugned F.I.R. 10. It is alleged by the complainant that she tried her best to convince the applicant to marry her but when she got failed, she preferred to file the impugned F.I.R. 10. Thus, the close scrutiny of the F.I.R. reveals that the complainant has alleged that in the year 2014, the applicant had made false promise to marry her and, thereafter, in the year 2016, he has abused her and her caste and committed the offence under the Atrocities Act. Moreover, the F.I.R. is bereft of particular facts and the contents of the same reveals that the same are vague and do not inspire any confidence. The incident, as per the allegations made by the respondent No.2, has taken place in the years 2014 and 2016 and the impugned F.I.R. has been filed on 22.02.2017, after a delay of almost 10 months. It is also not in dispute that the applicant had filed the F.I.R. being C.R.No.I-47 of 2016 registered at Tarapur Police Station, Dist. Anand for the offence punishable under Sections 389, 500 and 506(2) of the IPC and under Sections 66-A and 66-E of the IT Act against the complainant. In the bail application filed by the complainant before the lower Court, pursuant to the said F.I.R. filed by the applicant also does not reveal the facts as alleged by the complainant and ultimately, she was enlarged on bail. It appears that the impugned F.I.R. is filed as a counter blast and in order to wreak vengeance on the applicant with an oblique motive of harassing him. 11. In the Column No.8 of the impugned F.I.R., which requires the “reason of delay” in lodging the F.I.R., she has specifically stated that at the relevant time, the applicant had abused by her caste and hence, today as per the say of her mother and father, she is lodging this F.I.R. Except that, no reason has been attributed for delay. 12. The investigation, which is carried out by the Investigating Officer also does not reveal any complicity of the applicant, except the statement of the complainant. The allegations in the impugned F.I.R. made by the complainant about the physical relationship and the promise to marry pertains to the year 2014 and thereafter, she has remained absolutely silent and has narrated the incident of the year 2016 alleging about abusing her by the caste. The allegations in the impugned F.I.R. made by the complainant about the physical relationship and the promise to marry pertains to the year 2014 and thereafter, she has remained absolutely silent and has narrated the incident of the year 2016 alleging about abusing her by the caste. There is not a whisper in the F.I.R. about the words or language used by the applicant insulting her caste. The contents of the impugned F.I.R., prima facie appear to have been conceptualized. 13. In the considered opinion of this Court, the present applicant cannot be embroiled in the rigmarole of the criminal trial in the light of facts and circumstances of the case and the investigation carried out by the respondent-State. Considering the facts of the present case, it appears that further continuation of criminal proceedings in relation to the impugned F.I.R. against the original accused would be unnecessary harassment to the applicant and would amount to abuse of process of law and Court and hence, to secure the ends of justice, the impugned F.I.R. is required to be quashed in exercise of power under Section 482 of the Code. 14. Resultantly, the present writ application is allowed. The impugned F.I.R. being C.R.No.I-21 of 2017 registered at Infocity Police Station, Dist. Gandhinagar as well as all other consequential proceedings arising from the impugned F.I.R. are hereby quashed and set aside qua the applicant. Rule is made absolute.