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CR.MA/3936/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3936 of 2010
======================================
UDAY
BHANUSHANKAR RAVAL - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
======================================
Appearance
:
MR VIRENDRA BAHETI for
Applicant(s) : 1,
MR LR POOJARI APP for Respondent(s) : 1,
MR B
B NAIK, SENIOR COUNSEL FOR MR PARTHIV A BHATT for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH
H.SHUKLA
Date
: 26/08/2010
ORAL
ORDER
The
present application has been filed by the petitioner under section
482 of the Code of Criminal Procedure, 1973, (‘Code’, for short) for
quashing the First Information Report being I-C.R.No.146 of 2010
registered with Junagadh City “B” Division Police
Station for offences under sections 376 (2) (a) (i) (ii), 376(2)
(b), 506(2) and 323 of Indian Penal Code on the grounds set out in
detail in the memo of petition.
Learned
counsel Mr.Baheti for the petitioner has referred to the First
Information Report annexed at Annexure- “A” and
submitted that the complaint was earlier given on dated 31st
January, 2009 for the similar allegations about her exploitation
when the husband was involved in a case which has been registered as
N.C. complaint. Therefore, learned counsel for the petitioner
submitted that once the complaint has been registered as NC
complaint, the second First Information Report would not be
permissible in law. He, therefore, submitted and emphasized that the
First Information Report is dated 24.03.2010 and the offence is
alleged to have been committed during the period from 22.08.2007 to
28.01.2009, and, therefore, it is an abuse of the process of law. He
also referred to Annexure-“B”, which is a fax-message
dated 23.11.2008 and emphasized that it cannot be said to be an
offence alleged. He has also submitted referring to provisions of
section 376(2) of the Indian Penal Code that complainant cannot be
said to be in his custody and also cannot within local limits of his
jurisdiction, and, therefore, this provision would not be attracted.
Learned
counsel Mr.Baheti referred to the order passed by this Court dated
16.04.2010 in Criminal Miscellaneous Application No.3373 of 2010
with regard to cancellation of a bail filed against the present
applicant and submitted that it prima facie records
that it cannot be said to be an offence under section 376
of the Code. He has also referred to and relied on the judgment
reported in AIR 1992 SC
604 in
the case of State
of Haryana and others vs. Ch.Bhajan Lal and others and
submitted that guidelines have been laid down. Therefore, the
matter may be admitted and further investigation qua the present
complaint may be stayed. He has also referred to the judgment
reported in AIR
1988 SC 709 in
the case of Madhavrao
Jiwaji Rao Scindia and another vs. Sambhajirao Chandrojirao Angre
and others
to
emphasize the observation made in para-7 that if the process of law
is abused, the Court may interfere. He has also referred to judgment
reported in 2008
(8) SCC 77 in
the case of Baijnath
Jha vs. Sita Ram and another and
submitted that if the complaint is mala
fide on
vague assertions and filed due to private and personal grudge, it
would amount to abuse of process of law.
Mr.Poojari,
learned Additional Public Prosecutor referred to the First
Information Report and submitted that First Information Report
itself discloses the cognizance offence. He submitted that entire
circumstances are required to be considered that when the
investigation was not properly done and the petitioner
who is Investigating Officer in a case where the husband of the
complainant was involved, he had created a situation that she was
put to helpless condition and thereafter exploited her. He,
therefore, submitted that by creating the circumstances she was put
under pressure and forced to surrender to the demand of the
petitioner. Therefore, the investigation may not be stayed at this
stage. He has also referred to and relied on the judgment of the
Hon’ble Apex Court reported in AIR 1992 SC 604 in
case of State of Haryana
and others (supra) and
submitted that parameters of guidelines are well settled that once
the First Information Report itself discloses offence, the Court may
not intervene. He has also produced the papers of the investigation
to emphasize that when the complainant was admitted in the hospital
for an abortion, the present petitioner has treated and signed the
papers as husband. In the aforesaid circumstances, he, submitted
that, present petition may not be entertained.
Mr.B.B.Naik,
learned senior counsel appearing for original complainant-respondent
No.2 has referred to the papers and the report dated 13.1.2009.
Referring to pages-26 and 27 of the report learned senior counsel
submitted that 1800 SMS received between the petitioner and
respondent No.2. He has also submitted that she was induced by the
petitioner to have relationship by creating such circumstance that
would render her helpless. He, therefore, submitted that entire
circumstances may be considered and considering the guidelines laid
down in Bhjanlal ‘s case (supra), the Court may not stop the
investigation at this stage. Learned senior counsel emphasized
and submitted that once the First Information Report under section
154 of the Cr.P.C. is registered disclosing the cognizance offence
prima facie, investigation has to be permitted to be completed
except in some exceptional cases. He, therefore, submitted that
present case does not fall within exceptional cases and therefore
present application may not be entertained.
In
light of rival submissions, it is required to be considered whether
it calls for any interference. It is well accepted that the scope of
discretion under section 482 of the Code is required to be
considered and exercised with utmost care and circumspection as laid
down in case of State of
Haryana and others vs. Ch.Bhajan Lal and others reported
in AIR 1992 SC 604
with their perception
wherein guidelines are well settled in this regard. However,
considering the facts as disclosed in the First Information Report
and the entire records which have been brought including the
fax-message at Annexure-B and also the papers produced by learned
APP today much emphasizing that the petitioner had introduced
himself as husband when the complainant respondent No.2 was admitted
in the hospital for abortion of the child conceived out of illicit
relationship of the petitioner and complainant-original respondent
No.2 whether would amount to such offence alleged as the Court is
not required to consider the merits and de-merits
and whether there are evidences and whether it would be a case
resulting in a conviction or not, as it will be depend upon the
facts in each case. At the same time, it is required to be stated
that as it transpires from the fax-message at Annexure-B as well as
other records including the papers of Nursing Home collected during
the investigation that respondent No.2 had illicit relationship
resulting in pregnancy and as it is stated with regard to SMS and
she had sent SMS to higher authorities and her attempt for suicide,
these reflect even the relationship which she had developed with the
petitioner and in fact the family of the respondent No.2 had not
liked. It is another thing that the petitioner had promised her and
thereafter dispute started regarding accepting her as a wife. It is,
at this stage, the relationship may have spoiled resulting in this
complaint, and, therefore, without much elaboration, the conduct of
the petitioner as a police officer may not be justified or may
entail other consequences including the departmental proceedings but
prima facie considering
the material the Court is of the opinion that the present petition
deserves to be admitted and it requires consideration. With regard
to aspect of inducement and exploitation of the petitioner, as is
disclosed that she herself is said to have indulged in such
relationship for a long time. Therefore, without any further
elaboration, the following order is passed:
RULE
returnable on 24th
September, 2010. In the meanwhile, interim relief, in terms of
para-12(B) is granted.
[R.H.SHUKLA,
J.]
Amit/-
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