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2020 Supreme(Guj) 954
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. Karia, J.
Divyeshbhai Natwarlal Jatkia – Applicant
Versus
State Of Gujarat – Respondent
R/Criminal Misc. Application No. 6338 of 2020
Decided On : 22-07-2020
Advocate Appeared:
For the Applicant : Mr Sandeep R Limbani
For the Respondent: Mr Vijay H Nangesh, Ms Monali Bhatt, APP
Point of Law: Offence of Rape - 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.
Headnote:
Indian Penal Code,1860 - Sections 386, 376 , 90 and 375 - Code of Criminal Procedure, 1973 - Section 482 - Offence of rape - FIR - Malicious intention to harass the applicant - Complaint is filed in year without explaining delay and this creates a serious suspicion about the version of complainant about entering into physical relationship by applicant - absence of any evidence against applicant, present FIR cannot stand in eye of law - He further submits that fact regarding divorce given by the applicant's wife could have been easily verified by 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 same by visiting the house of applicant - Complainant herself has stated in the complaint that the applicant had entered into physical relationship with her - 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 - Complaint has been filed with malicious intention to harass the applicant –
Finding of the Court:
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 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 - 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 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 - Alleged consent said to have been obtained by the applicant was not voluntary consent and this Court is of view that applicant indulged in sexual intercourse with complainant by misconstruing to her his true intentions - 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 –
Result: Application dismissed
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 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 t
