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Gujarat High Court · body

2020 DIGILAW 620 (GUJ)

Divyeshbhai Natwarlal Jatkia v. State Of Gujarat

2020-07-22

B.N.KARIA

body2020
JUDGMENT : 1. By way of present application, present applicant has prayed to quash and set aside the FIR filed by the respondent no.2 before Bhakti Nagar Police Station, Rajkot being C.R.No.11208052200249 dated 19.04.2020 and further prayed to stay the further investigation in pursuance of the FIR till pendency and final disposal of the application. Notice was issued to the respondents on 29.04.2020. Today, when the matter is called out for hearing, learned advocates for the respective parties requested to take up this matter for final hearing. 2. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State and learned advocate Mr. Vijay H. Nangesh waives service of notice of rule for and on behalf of respondent no.2 and has filed an affidavit dated 11.06.2020 of respondent no.2-first informant. Heard learned advocates for the respective parties. 3. Learned advocate for the applicant submits that the incident is of the year 2018 and 2019, whereas the complaint is filed in the year April-2020 without explaining the delay and this creates a serious suspicion about the version of the complainant about entering into physical relationship by the applicant – accused. Therefore, in absence of any evidence against the applicant, present FIR cannot stand in eye of law. He further submits that the fact regarding divorce given by the applicant's wife could have been easily verified by the complainant since she herself has stated that she was quite often visiting the family of the applicant- accused and if at all she had any doubt, she could have verified the same by visiting the house of the applicant. That, the complainant herself has stated in the complaint that the applicant had entered into physical relationship with her, which amounts to her consensual act of allowing the applicant voluntarily and therefore, Section 386 of IPC cannot be invoked against the applicant. That, the impugned complaint has been filed with a view to cause harassment to the applicant and for oblique motive with a view to extract money from the applicant, which is nothing, but an abuse of process of law. That, the impugned complaint has been filed with a view to cause harassment to the applicant and for oblique motive with a view to extract money from the applicant, which is nothing, but an abuse of process of law. That the complaint has been filed with malicious intention to harass the applicant, which squarely falls within the ratio laid down in the reported judgment in the case of State of Haryana v. Bhajanlal, wherein it is categorically held that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeane on the accused and with a view to spite him due to private and personal grudge is liable to be quashed. Learned advocate for the applicant has referred thes transcript conversation made between the applicant and the original complainant and tried to convince this Court that there was not such a physical relation from the present applicant with the original complainant without her consent. That conversation between the applicant and the original complainant is not denied by respondent no.2-original complainant in her affidavit. That the provisions under the Atrocity Act are not applicable considering the fact of the present case as alleged offence was never committed in the public view. In support of his arguments, learned advocate for the applicant has placed his reliance on the judgment in the case of Pramod Suryabhan Pawar v. State of Maharashtra and another reported in (2019) 9 SCC 608 and requested to allow the prayer sought for by the applicant. 4. Learned APP for the respondent-State and learned advocate for respondent no.2 have strongly objected the submissions made by learned advocate for the applicant and submitted that in the year 2018, the twin children of the applicant were studying in the school and complainant was serving as a Teacher in the same school. So in the parents meeting and other programme of the school, complainant came into the contact with the applicant as both the children were weak in their educational studies and thus, for some time, applicant was sending his children at the home of the complainant for teaching. That prior to one year from the FIR, by developing false faith and trust of marriage, applicant developed physical relation with the complainant by giving promise to marry with her saying that first wife was divorced by him. That prior to one year from the FIR, by developing false faith and trust of marriage, applicant developed physical relation with the complainant by giving promise to marry with her saying that first wife was divorced by him. That, after sometime, when the complainant talked about the marriage, applicant did not give any proper reply and avoid the issue of marriage and thus, the complainant did raise a serious doubt about the relationship and knew that for a lust, he continued relation with her. That, from the phone calls, whatsapp chats, mobile call details and other evidence, it is prima facie established that applicant gave false promise and assurance of marriage. That, after lodging FIR, medical examination of the complainant was made, wherein the doctor concerned clearly opined that the possibility of sexual intercourse cannot be ruled out. That, the statements of witnesses namely Jayaben Ukabhai and Avinash Ukabhai (Mother and brother of the complainant) clearly support the case of the complainant. That, alleged consent for sexual intercourse was on a misconception of fact, and therefore, it cannot be considered as consent, but it amounts to cheating as the applicant from beginning had no intention to marry her and therefore, there is prima facie case under Section 376 of the Indian Penal Code. Learned advocate for respondent No.2 and learned APP for the respondent-State have relied upon the citation reported in 2019(13) SCC 01 and requested to dismiss the present petition. 5. Having considered the facts of the present case, submissions made by learned advocates for the respective parties as well as learned APP for the respondent-State, it appears from the record that the impugned complaint was lodged by respondent no.2- victim herself before the police alleging that she was serving in the private school as a Teacher in St. Mary's School, Kalavad Road, Rajkot since about 11 years and she was teaching different subjects in the standard of 5th to 8th. Her father was not alive and mother was doing household work. She had a brother aged about 28 years, who was also engaged in textile work. She was not married. Mary's School, Kalavad Road, Rajkot since about 11 years and she was teaching different subjects in the standard of 5th to 8th. Her father was not alive and mother was doing household work. She had a brother aged about 28 years, who was also engaged in textile work. She was not married. As per the averments made in the complaint, when she was taking classes of Standard-6 in the year 2018, two children of the present applicant were attending the classes of Standard-5 of the complainant, and therefore, she came into contact with their parents i.e. present applicant and his wife-Binduben because they were attending the meetings of the parents. Both the children were sent to the house of the original complainant for doing homework by their mother and because of this, family relations were developed between the present applicant and the complainant and this relation extended to visit each other’s home quite often. In the complaint, she has further averred that when she was going to school before one year, the present applicant met her on the road and stopped her and started to talk her that she and her family members were liking the applicant because of his good nature and he had taken divorce from his wife. The present applicant further informed her whether she would like to get married to him. Reply from the complainant was that it was not possible as she was of the age of his daughter and she belongs to scheduled caste and there was caste difference between them. The present applicant insisted by saying that in the case of marriage, age and caste were not to be looked into. However, the complainant did not fall into proposal made by the applicant. After 2-3 days, the present applicant again met the complainant at the same place and informed her that he does not care about the caste and age and that he promised to give her status of his wife and requested to think about his proposal of getting married with him. Thereafter, continuous talks were taking place on each other’s mobile phone and both of them were chatting on whatsup also. The applicant was taking the complainant on his long drive in his car and at that time also, he used to talk to the complainant about getting her married to him, but the answer of the complainant was ‘No’. Thereafter, continuous talks were taking place on each other’s mobile phone and both of them were chatting on whatsup also. The applicant was taking the complainant on his long drive in his car and at that time also, he used to talk to the complainant about getting her married to him, but the answer of the complainant was ‘No’. On a request being made by the applicant to visit his office, the complainant met him and issue of marriage was disccussed. The present applicant informed her that he has obtained divorce from his wife and there cannot be any problem in getting her married. However, the complainant refused to accept the proposal of getting married with the present applicant. The applicant tried to satisfy her of his huge wealth and his status in the society as he was also wholesale seller of the medicines in Gujarat and Saurashtra and had his own car, bunglow, huge wealth and insisted her to get married to him. Again, the complainant bluntly refused to his proposal and asked him not to talk to her in this way again. However, the present applicant under protect entered into physical relationship with the complainant. Again, after 2-4 days, the applicant stopped his car on the way and when the complainant was passing, the applicant insisted her that the complainant should get married to him and told her to accompany him to his office and because of the force made by the present applicant, she went to his office and once again, the applicant asked her to get married by showing the capacity of his wealth created by him and he said that now-a-days, it is quite common and she need not get worried and forcibly entered into physical relationship with her. After 2-4 days again, the applicant visited the house of the complainant and at that time, no family members were available in her house and she was alone, taking advantage of the same and he once again entered into physical relationship with the complainant. On number of occasions, the applicant induced the complainant of getting married, called her at his office and visited her home and entered into physical relationship. The family members of the complainant, thereafter, came into knowledge of their relation, and therefore, the complainant talked to the applicant about her marriage. On number of occasions, the applicant induced the complainant of getting married, called her at his office and visited her home and entered into physical relationship. The family members of the complainant, thereafter, came into knowledge of their relation, and therefore, the complainant talked to the applicant about her marriage. On being talked by the present applicant of her marriage with the applicant, the applicant refused to get married with the complainant saying that what was status of his wife as he has yet not obtained divorce from his wife. When the complainant insisted that he should get her married as he was promising her since about a year that he would get married, taking advantage of the same, he had entered into physical relationship. The applicant bluntly refused of getting married with the complainant and lifted his hand showing that his community would not accept her and that there was a serious problem of caste in the society. On 16.04.2020, the applicant was called by the complainant on her mobile and the complainant explained him to face difficulties from her family members. In response, the applicant informed her that she would forget about all that was happened between them and if this would be known to his family members, he would be in difficulty and they both would met to find out solution of their issue and not to further proceed in this regard. As per the averments made in the complaint by the respondent no.2-complainant, the applicant falsely stated that he had obtained divorce from his wife, taking advantage from the complainant, entered into physical relation by promising her to get married, and thereafter, refused to get her married. Hence, the complaint was lodged by her. It appears from the contents of the complaint that she was aged about 29 years and serving as a Teacher in St.Mary’s School at Rajkot as she had studied upto B.Ed. and was unmarried. Two children of the applicant were studying in the same school where she was serving as a Teacher. In the year 2018, in parents meeting and other programs of the school, complainant came in contact with the applicant as both the children of the applicant were attending the classes run by the complainant at her home. and was unmarried. Two children of the applicant were studying in the same school where she was serving as a Teacher. In the year 2018, in parents meeting and other programs of the school, complainant came in contact with the applicant as both the children of the applicant were attending the classes run by the complainant at her home. As per the averments made in the complaint, when she was going to the school, on a middle of the road i.e. Amin Marg, applicant stopped her and informed that she and her family members were well cultured and the applicant liked her as well as he had taken divorce from his earlier wife and wanted to marry with the complainant. Answer was given by the complainant that it was not possible as she was aged of his daughter and being belonging to the scheduled caste community as well as age difference. In response to the answer given by the complainant, the applicant informed that in marriage age and caste were not material, however, still the complainant did not like to talk further on this issue with the applicant. After 2-3 days, again, the applicant stopped the complainant at the same place and made the proposal of getting married with her saying that he will give place in his life as a wife and had taken divorce from his wife. He promised and assured that after marriage, she would be given status of his wife as he was financially strong. Chatting of whatsapp and talks on phone calls between them were continued. Once in time of holiday, the complainant went on a long drive with the applicant in his car and talked about the marriage by her with the applicant. She was asked to meet him in his office at Rajkot. The applicant talked about his divorce from his earlier marriage and made proposal to the complainant that now there was no problem in their marriage, however, she was not ready for marriage. The applicant insisted on false promise that he has lots of properties and wholesale distributor of medicines in Saurashtra and Gujarat area and he has car and bunglow and in the entire life, he will take care of her. He entered into the physical relation with the complainant, however, she denied of such type of physical relation, and therefore, left the place. He entered into the physical relation with the complainant, however, she denied of such type of physical relation, and therefore, left the place. After 2-3 days, again, the applicant met the complainant at the same place and talked about his marriage with her as well as assurance and promise were given to her for marriage by developing a false faith and trust of marriage. He started to visit at her home when family members were not present and continued his physical relation with the complainant. She was again called in his office and the applicant entered into physical relation with her, and thereafter, continued such a physical relation on the promise of marriage continued the same. After sometime, when the complainant talked about her marriage with him, the applicant did not give proper reply and avoided talks of his marriage, and therefore, she raised a serious doubt about the relationship that the applicant was not having love with her, but only for lust, he continued such relationship. Present applicant either promised to get married with her, as he had taken divorce from his wife and continued physical relation only. As per the say of the complainant, she had phone calls, whatsup chats, mobile call details and other electronic evidence which shows that the false promise was given by the present applicant as well as assurance of his marriage with her. It appears from her affidavit, statements were recorded by the police on 17.04.2020, 19.04.2020 and 20.04.2020 and medical examination of the complainant was done at P.K. Government Hospital, Rajkot on 20.04.2020, wherein it was opined by the Medical Officer that hymen old torn, possibility of sexual intercourse cannot be ruled out. The statements of other witnesses viz. Jayaben Ukabhai (mother of the complainant) and Avinash Ukabhai (brother of the complainant) were also recorded by the concerned Investigating Officer on 20.04.2020 which also supports the case of the prosecution. Panchnama was also prepared by the Investigating Officer. It appears that initially promise was given by the present applicant to the complainant of getting married with her as he had taken divorce from his first wife, and therefore, she gave her consent for physical relationship on assurance that the applicant would marry her. Investigation of the offence is carried by the Investigating Officer. Prima facie involvement of the present applicant is found. Investigation of the offence is carried by the Investigating Officer. Prima facie involvement of the present applicant is found. The statement of the complainant supports the case of the prosecution. It appears that the consent was given by the complainant on misconception of the fact that the applicant had given promise to marry her and he took the benefits of his false promise and committed the alleged offence. As per the contents of the affidavit, phone call record and conversation placed between them is produced at Annexure-B. Affidavit was aware that the complainant may file an FIR against him, and therefore, he talked in such a manner. Therefore, the earlier chats, whatsup chats, audio and video as well as telephonic conversations are required to be investigated for proper and fair investigation. It appears that the complainant initially refused to have a physical relationship with him, but thereafter, the applicant allured the complainant with a promise to marry and had a physical relationship with her and therefore, act of the present applicant would fall in the definition of rape on the pretext of marriage. Promise given by the present applicant to marry with the complainant was false and from very beginning, there was no intention of the applicant to marry with the complainant and despite knowing, he continued to give false promise and allured the complainant to give her consent for physical relationship. The applicant informed the complainant that divorce was taken by him from his first wife, but the said information was also wrong. Consent of the complainant was admittedly misconception of the fact that false promise was given by the applicant otherwise complainant could not have given the consent for physical relationship. Therefore, it can be said that it is a case of cheating and deception and consent is also under misconception. In case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another reported in (2019) 9 SCC 608 , relied upon by the applicant, it was a petition for quashment of FIR under Section 482 of the Code of Criminal Procedure, 1973. As per facts of the case, allegations of rape were based on a false promise to marry. In case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another reported in (2019) 9 SCC 608 , relied upon by the applicant, it was a petition for quashment of FIR under Section 482 of the Code of Criminal Procedure, 1973. As per facts of the case, allegations of rape were based on a false promise to marry. Considering the allegations made in the complaint and after entering into the detailed analysis of the contents of the whatsup application sent by the applicant and the words alleged to have been spoken and the Hon’ble Apex Court allowed the appeal and found that the allegations in the FIR cannot establish the commission of the offence alleged. For applying judgment of the Hon’ble Apex Court, it is necessary to go through the observations of the Hon’ble Apex Court and contents of the FIR. In the cited case, complainant alleged in her complaint that on false promise of marriage, the applicant established sexual relationship with her on multiple occasions, spanning over a period of six years. However, the allegations in the FIR did not, on their face, indicated that promise was given by the applicant was false, or that the complainant engaged in sexual relations on basis of such promise. There was no allegation in the FIR that when the applicant promised to marry the complainant, it was done in bad faith or with intention to deceive her. The Hon’ble Apex Court, on the allegations on the face of FIR, held that it was not established commission of offence as alleged, and therefore, the judgment of the Hon’ble High Court was set aside and FIR was quashed. In the present case, in the complaint, she has clearly alleged that the false promise of marriage was given by the present applicant saying that he had taken divorce from his wife of his earlier marriage and established sexual relation with her on multiple occasions for a period of one year. The allegations in the FIR on their face indicate that promise given by the applicant was false and the complainant engaged in sexual relationship on the basis of such promise. After family members of the complainant came into knowledge of the relation of the complainant and the applicant, she requested the applicant to marry with her, at that time, the applicant refused to do so. After family members of the complainant came into knowledge of the relation of the complainant and the applicant, she requested the applicant to marry with her, at that time, the applicant refused to do so. The physical relationship was done in bad faith, however, he had no intention to marry with the victim from the beginning. Considering the facts of the cited case as well as facts and circumstances of the present case, the judgment relied upon by the present applicant would not apply in the present case. In the case of Anurag Soni Vs. State of Chhattisgarh (in Criminal Appeal No.629 of 2019, decided on 09.04.2019, arising out of SLP (Criminal) No.618 of 2019) relied upon by learned APP for the respondent-State as well as learned advocate for respondent no.2, on a similar issue, the Hon’ble Apex Court in Paragraph-12 has observed as under: “The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC.” 6. In the present case, the applicant had a physical relation with the original complainant which is supported by the medical opinion also. By giving false assurance and promise to her that he would marry her, as first wife has given divorce, such relation was developed by the applicant. After one year of continuing such physical relationship with the original complainant when she requested to marry with him, he refused to do so. By giving false assurance and promise to her that he would marry her, as first wife has given divorce, such relation was developed by the applicant. After one year of continuing such physical relationship with the original complainant when she requested to marry with him, he refused to do so. From this, it appears that applicant never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the applicant falls squarely under the definition of rape as he had physical relation with her consent which was obtained under misconception of fact as defined under Section 90 of the Indian Penal Code. Thus, the alleged consent said to have been obtained by the applicant was not voluntary consent and this Court is of the view that the applicant indulged in sexual intercourse with the complainant by misconstruing to her his true intentions. It appears from the record placed before this Court that the applicant only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the complainant as the applicant himself was married having two children. 7. In view of the above and for the reasons stated above, this Court is of the opinion that in the facts and circumstances of present case, the request made by the learned advocate for the applicant, for quashing the impugned FIR cannot be accepted as the investigation is under process. The present applicant must face the consequences of the crime committed by him. Accordingly, present application fails and is hereby dismissed. Rule is discharged. 8. After dismissing this application, learned advocate for the applicant requested to suspend the order passed by this Court with a view to approach the Higher Forum for a period of one month. 9. On a request being made by learned advocate for the applicant, order of this Court passed on today, shall be placed under abeyance for a period of one month from today. Copy of its order is available with the Registry. Interim relief, granted by this Court vide order dated 29.04.2020, shall continue for the same period. Application dismissed.