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2024 DIGILAW 858 (GUJ)

Vikas Valjibhai Salat v. State Of Gujarat

2024-04-15

ILESH J.VORA

body2024
ORDER : 1. Since the present applications arise out of the same set of facts and contentions and issues before this Court in all applications are also common and therefore, the same are being decided through this common order. 2. By invoking inherent powers of this High Court under Section 482 of the Code of Criminal Procedure, 1973, the applicants original accused have preferred these applications in relation to the FIR registered with Devgadh Baria Police Station being C.R.No.Part-A-II-11821005220190 of 2022, for the offence punishable under Sections 376(2-N)(3), 506(1), 506(2), 507, 509 and 114 of the Indian Penal Code and Sections 4, 6, 8, 17 and 18 of The Protection of Children from Sexual Offences Act, 2012. The applicants have been impleaded as accused nos.6 to 8. After completion of the investigation, chargesheet came to be filed against nine persons for the aforesaid offences. The principal accused Darshan Salat, was minor as at the relevant time, his age was 17 years and 6 months, whereas the age of the victim at the time of commission of allegedly offence was 15 years. 3. This Court has heard learned counsel Mr.Maulik Nanavati for Nanavati and Company, Mr.Nisarg Jain and Ms.C.M. Shah, learned APP for the respective parties. 4. Brief facts giving rise to file present applications are that, from 2016 to 2022, the victim and principal accused Darshan maintained physical relationship on promise to marry and according to prosecution case, on the different occasion, they indulged in the sexual relationship and the principal accused while maintaining the said relationship recorded her objectionable videos. In the month of June-2022, the principal accused narrated the said facts about the relationship with the victim to the close relatives of the victim. The accused could not marry her as he has already engaged someone. Despite of this, the accused threatened the victim and her family members that if she will get married somewhere else, he makes photos and objectionable videos viral on social media and also will share it with the person with whom she would get married. The accused could not marry her as he has already engaged someone. Despite of this, the accused threatened the victim and her family members that if she will get married somewhere else, he makes photos and objectionable videos viral on social media and also will share it with the person with whom she would get married. In these background facts, on 25.06.2022, the principal accused along with the accused Jayeshbhai Salat and Vikash chased the victim and her family members at the temple where they came for religious purpose and threatened and warned them, if they would have engaged the victim with someone, then he will viral the objectional videos on social platform, and thereafter, on 26.06.2022, the principal accused along with eight persons, including the present applicants came near the house of the victim and threatened that if she will get married somewhere then he will viral the videos and photographs on the social platform and the accused applicant Dinesh threatened the witness Mehulbhai that he will physically cause harm, if he further make a statement on social media. 5. In the aforesaid background facts and circumstances, the father of the victim lodged an FIR on 30.06.2022, against the eight persons, including present applicants for the commission of the aforesaid offences. During the course of the investigation, the statement of the victim under Section 164 was recorded before the Magistrate and after collecting the necessary evidence, the police filed a chargesheet on 10.08.2022 against the applicants herein and subsequently, the co-accused Jayesh Kanubhai, Kanubhai Virsingh, Saurabh Arjunbhai and juvenile accused have been apprehended and chargesheet against them came to be filed on 28.11.2022. The chargesheet filed against the applicants has been culminated into Special POCSO Case No.50/2022 and for the remaining accused against whom, the supplementary chargesheet was filed, the case has been registered as POCSO Case No.65 of 2022. 6. The chargesheet filed against the applicants has been culminated into Special POCSO Case No.50/2022 and for the remaining accused against whom, the supplementary chargesheet was filed, the case has been registered as POCSO Case No.65 of 2022. 6. The applicants being original accused nos.6 to 9 have preferred quashing petitions, inter alia alleging that they have been falsely implicated in the alleged offence and they have nothing to do with the alleged offence committed by the principal accused and therefore, the charge of provisions of POCSO Act and Section 376 (2-N)(3) of the Indian Penal Code is not sustainable in law as prima facie no material collected during the investigation to establish the alleged offence and therefore, the continuation of the criminal trial qua the charges of rape and abetment of an offence under Sections 16 and 18 of the POCSO Act is nothing but a sheer abuse of process of law and Court. 7. At the stage of admission of these applications, charges yet not framed by the Court concerned and therefore, vide order dated 26.10.2023, liberty granted in favour of the applicants to raise all the contentions before the Trial Court and as and when application is filed, the Trial Court will have to decide it on its own merits. During the proceedings before the Trial Court, the application for alteration of charge under Section 216 of the Cr.P.C. was filed as the Trial Court has already framed the charge against the applicants. After hearing the parties, the said application was not considered and the same came to be rejected. In these circumstances, the applicants, by way of amendment, the order passed below Exh.25 for not to discharge dated 16.09.2024, has been challenged and also raised the contentions that the mandatory provisions of Section 226/227 of the Cr.P.C. while framing the charge has not been followed by the Trial Court. 8. Mr.Maulik Nanavati, learned counsel appearing for and on behalf of the applicants, has submitted that the applicants are not the prime accused. They have nothing to do with the alleged offence of rape and sexual assault. No any specific overt acts by the applicants herein so far as the principal offence of rape and sexual assault as alleged against the principal accused Darshan. They have nothing to do with the alleged offence of rape and sexual assault. No any specific overt acts by the applicants herein so far as the principal offence of rape and sexual assault as alleged against the principal accused Darshan. It is not the case of the prosecution that from 2016 to 2022, the applicants in any manner abetted and/or aided the principal accused, or induced the victim. Thus, it was contended that the applicants have not committed any offence under Section 16 read with Section 17 of the POCSO Act. 9. Mr.Nanavati would further submit that raising specific contentions before the Court concerned with regard to non-applicability of the provisions of the POCSO Act, request was made to alter the charge as the Trial Court without any material for the commission of the offence, framed the charges under the penal sections as well as the provisions of the POCSO Act. In such circumstances, he would urge that prior to the incident allegedly happened in June-2022, the applicants were not part of the alleged act committed by the principal accused. 10. In view of the aforesaid factual aspects and considering the role attributed to present applicants herein, the material collected during the course of investigation in the form of chargesheet, Mr.Nanavati would further submit that the allegations made in the FIR and the material in the form of chargesheet do not disclose any offence punishable under the provisions of POCSO Act and therefore, in order to prevent the abuse and misuse of process of law and Court and for the ends of justice, the charges for the prosecution under Sections 376 and provisions of the POCSO deserves to be quashed. 11. Mr.Nisarg Jain, learned counsel appearing for the respondent no.2- original complainant, opposing the applications, has submitted that the applicants were part of the conspiracy hatched by the principal accused and they having knowledge that the accused had recorded the objectionable video of the victim and threatened to viral it if she will be engaged somewhere by the complainant and as a part of conspiracy on the social platform of the community, one of the photos was published by the accused. Referring the provisions of Chapter-XVII - Charge, he contended that considering the peculiar facts and circumstances of present case, the accused may be charged with and may be tried with the principal accused when the offence committed in a same transaction by the same person. In that view of the matter, he would urge that the questioned whether there is no evidence to lead the accused with the principal offence cannot be examined at this stage and let it be tried and tested by the Trial Court itself. Lastly, he contended that the Trial Court has followed the mandatory provisions before framing the charge and due opportunity of being heard was given to the applicants accused and therefore, no error of law could be said to have been committed by the Trial Court while framing the charge as well as rejecting the application Exh.25 for alteration of the charge framed. 12. Ms.C.M. Shah, learned APP for the respondent – State, has submitted that after framing the charge, the Court has proceeded to record the evidence of the victim and therefore, if the applicants face the trial with the principal accused, then no harm would be caused to the right of his defence, and therefore, considering the stage of the trial, the Court may not exercise its powers under Section 482 of the Cr.P.C. 13. Apex Court in number of cases has laid down the scope and ambit of Court’s powers under Section 482 of the Cr.P.C. It is laid down that every High Court inherent powers to act, ex debito justitiae to do real and substantial justice for administration of which alone it exits, or to prevent the abuse of process of Court and the said powers can be exercised to give effect to an order under the Code; to prevent the abuse of process of Court; to otherwise secured ends of justice. 14. In light of the settled position of law and considering the peculiar facts and circumstances of present case, the issue falls for consideration of this Court whether the FIR and consequential proceedings in relation to the prosecution of rape and abatement of offence under the POCSO Act liable to be quashed in exercise of extraordinary and inherent jurisdiction of this Court. 15. 15. In the facts of present case, the discharge application filed by the applicants came to be rejected on 29.08.2023 and thereafter, on 16.09.2023, the charges came to be framed by the Trial Court for the offences against the applicants. The application for alteration of charge under Section 216 of Cr.P.C. was also dismissed on 29.01.2024. In such circumstances, before framing the charge, the present applications for quashing of the criminal proceedings have been filed and during the pendency of this application, liberty was granted to raise the contentions before the Trial Court in relation to the charge. Thus, this Court does not find merits in the contentions that after framing the charge by the Court, the applications may not be entertained. It would be beneficial to refer to and rely upon the judgment of the Supreme Court in the case of Satish Mehra Vs. State of NCT (Delhi), 2012 (13) SCC 614. In the said judgment, the Apex Court dealt with the issue as raised herein and observed and held that power to quash proceedings after charges framed is wider as evidence adduced with submitting chargesheet can be looked into for determining disclosure of offences. Where the allegations do not disclose prima facie case and prosecution of accused would result in abuse of process, then proceedings can be quashed either at the early stage or at later stage. The reasons behind the such conclusion also clarified by the Apex Court in the said judgment, wherein it has been further observed that in case the allegations made in the FIR, prima facie do not disclose in the triable offence, there can be reasoned as to why accused should be made to suffer the agony of legal proceedings that more often gets protracted and therefore, a prosecution which is bound to become a lame or a sham or to be interdicted in the interest of justice as continuation thereof will amount to an abuse of process of law and this is the core basis on which the power to interfere with pending proceedings has been recognized to be inherent in every High Court. 16. 16. Bearing in mind the aforesaid fundamental principles of law which recognized the powers of High Court to quash the proceedings at any stage, where the allegations do not disclose the prima facie case for the offence alleged, and considering the peculiar facts and circumstances of present case, this Court found substance in the submissions made by learned counsel Mr.Maulik Nanavati. He raised the contentions that so far charge for the prosecution of rape and abetment of offence under Sections 17 and 18 of the POCSO Act, prima facie even the allegations made in the FIR and chargesheet accepted to be true, do not disclose the commission of the offence and therefore, the trial qua the said offences is nothing but sheer harassment to the applicants and amount to abuse of process of law. On perusal of the allegations made in the FIR and material collected during the course of investigation, it prima facie appears that before June-2022, the applicants were not in any manner connected with the principal accused so far as the allegations of rape and sexual assault are concerned. According to case of prosecution, the principal accused Darshan under the promise to marry maintained sexual relationship with the victim and the same was continued till 14.11.2021. The role of the applicants as per the prosecution case came into picture in the month of June-2022 and according to prosecution case, when the principal accused threatened the victim and her father, the applicants accompanied the principal accused two times at the different place mentioned in the FIR. Thus, therefore, in the commission of the alleged offence of rape and sexual assault under the POCSO Act, prima facie, there is no allegation that the applicants had instigated, abetted and or aided the principal accused in commission of the said offences and therefore, the allegations accepted do not constitute or make out a case for the offence under Section 376(2-N)(3) of the IPC and Sections 17 and 18 of the POCSO Act. 17. For the reasons recorded, this Court is convinced that the Trial Court has committed an error of law while dealing with the discharge application and did not consider the broad probabilities, the material evidence and the basis infirmities appearing in the case. 17. For the reasons recorded, this Court is convinced that the Trial Court has committed an error of law while dealing with the discharge application and did not consider the broad probabilities, the material evidence and the basis infirmities appearing in the case. Thus, therefore, without much discussion on merits of the case, considering the parameters of quashing of the criminal proceedings laid down in the case of State of Haryana Vs. Bhajanlal (1992 Supl. (1) SCC 335), the case of the applicants falls under parameters (i), (iii) and (v) as carved out in the said case. 18. Resultantly, if the criminal proceedings for the prosecution, under Section 376(2-N)(3) of the IPC and Sections 4, 6, 8, 17 and 18 of The Protection of Children from Sexual Offences Act, 2012, qua the applicants would remain continued, then it would amount to abuse and misuse of process of law and Court and therefore, relying on the judgment of the Apex Court in the case of Ishwarpratap Singh Vs. Uttar Pradesh ( 2018 (13) SCC 612 ), there is no prohibition under the law for quashing the chargesheet in part. Thus, for the said offences, this Court finds that case is made out. Consequently, chargesheet as well as order of framing of charge to that extent is quashed. However, so far as the applicants are concerned, the Trial Court is at liberty to proceed with the matter qua the remaining offences i.e. Sections 506(1), 506(2), 507, 509 and 114 of the IPC. When the charges for the said offences are quashed, this Court does not deem it fit to interfere with the order dated 16.09.2023 under challenge. However, the Trial Court is at liberty to amend and/or alter the charge after giving an opportunity to both the sides. 19. Accordingly, present applications stand allowed in part. The observations made hereinabove are prima facie in nature and confined to the adjudication of the present application and Trial Court shall not get influenced by the said observations during the course of trial.