The offence under Section 354D(1) IPC is established when repeated conduct after clear disinterest by the victim is evidenced, warranting dismissal of quashing application.

JUDGMENT :

Alpesh Y. Kogje, J.

1. RULE. Learned Additional Public Prosecutor waives service of rule on behalf of the respondent-state.

2. This application is filed under Section-482 of the Code of Criminal Procedure, 1973 primarily for quashing and setting aside the F.I.R. registered as C.R. No.I-11196035220491 of 2022 with Vaadi Police Station, Vadodara City on 03-08-2022 for the offence punishable under Section 354D(1) of the INDIAN PENAL CODE .

3. Learned Advocate for the applicant at the outset has submitted that F.I.R. registered is counter blast to the Civil proceedings pending between the families of both the applicant and the respondent-complainant and therefore, to get advantage in the Civil proceedings, present criminal proceedings are instituted.

3.1. Learned Advocate for the applicant has submitted that case sought to be made out against the applicant is based on non-existing facts and even if allegations are taken into consideration, there is no evidence to support the case of the prosecution.

3.2. Learned Advocate for the applicant has submitted that initially, the application was filed for quashing and setting aside the F.I.R. However, subsequently, investigation was concluded and the charge-sheet was filed and therefore, the applicant has filed separate application for stay of the criminal proceedings pursuant to filing of the charge-sheet.

3.3. Learned Advocate for the applicant has drawn attention of this Court to counter of the charge-sheet and thereafter submitted that if the case of the prosecution is considered by keeping in mind the statements of the witnesses, then also ingredients of Section 354D(1) of the INDIAN PENAL CODE is not made out. In that regard, the prosecution will be futile exercise and particularly, being counter blast is required to be quashed and set aside.

3.4. Learned Advocate for the applicant has placed reliance upon the decision of the Kerala High Court in case of Jayprakash P.P. vs. Sheeba Revi passed in CRL MC No. 631 of 2020 dated 15-06-2023 and submitted that for the purpose of attracting ingredients of Section 354 D(1) of the INDIAN PENAL CODE , it is necessary that purpose behind act, which is attributed as the act under Section 354 of the INDIAN PENAL CODE , object of the accused is to commit the offence under Section-509 INDIAN PENAL CODE and therefore, ingredients of Section-509 INDIAN PENAL CODE are also required to be attracted for the purpose of making out case under Section 354 of the INDIAN PENAL CODE .

3.5. Learned Advocate for the applicant has relied upon another judgment, which is unreported decision of the Delhi High Court in case of Sanjay Singh vs. the State (Govt. of NCT) passed in CA No. 114 of 2021 dated 12-12-2022, wherein reliance is placed on Para-14 to submit that to attract ingredients of Section 354 of the INDIAN PENAL CODE , two things are required, firstly conduct of the accused is repeated and that such repetition is after clear indication of disinterest by the victim. According to learned Advocate for the applicant, as in the present case, this two ingredients are not made out, F.I.R. as well as the charge-sheet is required to be quashed and set aside.

4. As against this, learned APP has objected to grant of application and has submitted that after filing of the charge-sheet, the trial has already begun and that statement of prosecutrix, which are recorded on 03-08-2022 and 04-08-2022 clearly makes out ingredients of Section 354 D(1) of the INDIAN PENAL CODE . It is submitted that not only statement of the victim, but there are other witnesses also, whose statements would