ORAL JUDGMENT

1. The matter is taken up through video conference.

2. The present petition is filed for quashing of FIR being CR-NO. I- 11204047200816 of 2020 filed against the present petitioner by the respondent no.2 before the Nadiad West Police Station, Tal-Nadiad, Kheda under sections 376 and 323 of IPC.

3. Learned advocate Mr. Das for the petitioner has contended that the alleged incident has taken place on 19.02.2020 and the complaint has been lodged on 26.07.2020. He vehemently argued that there is inordinate delay in lodging the FIR, which clearly suggests that false complaint has been filed against the petitioner. He further submitted that the complainant is a divorcee and used to threaten the petitioner to file rape case against him. He further submitted that the narration in the FIR is false and frivolous and the investigating officers has hastily registered the FIR without any preliminary inquiry. Therefore, he has requested to quash and set aside the aforesaid FIR.

4. Learned advocate Mr. Das has heavily placed reliance upon the judgment of Anil Khadkiwala Vs. State (Government of NC of Delhi) reported in 2019 AIR (SC) 3583 and vehemently argued that as per the judgment of the Hon'ble Supreme Court the subsequent and second quashing petition is maintainable.

5. Per Contra, learned APP Mr. HK Patel has heavily opposed and submitted that pursuant to the earlier order passed by this Court in Criminal Misc. Application No.12050 of 2020 on 27.08.2020 for quashing of same FIR, was withdrawn and the liberty to approach before the appropriate Court is granted and therefore, the present application is the subsequent application for quashing the same FIR, is not maintainable. Further, the allegations leveled against the petitioner are serious in nature. Therefore, the petition may not be entertained.

6. Learned advocate Mr. Das for the petitioner has placed reliance on the detailed merits of the case. He has further submitted that the earlier quashing petition was withdrawn without entering into any merits of the case therefore the decision as held by Hon'ble Apex Court in the case of Anil Khadkiwala Vs. State (Government of NC of Delhi)

(Supra) is very much applicable to the present case.

7. Learned advocate Mr. Das has also placed reliance on the extraordinary powers under section 482 of CrPC that to meet with the ends of justice, this Court is empowered to exercise such extraordinary discretion. Therefore, in the greater interest of justice, the petitioner's constitutional rights may be allowed.

8. This Court is fully agreed with the observations made by the Hon'ble Apex Court that the second application for quashing of FIR is maintainable, but the petitioner has already approached before the Sessions Court for anticipatory bail, and the sessions Court has disallowed the same, therefore, under the CrPC, whenever such dismissal is taken place, the petitioner is required to move before the concerned forum as per the provisions of the CrPC. Therefore, in the peculiar facts and circumstances of the case, this Court is of the opinion that the second application for quashing is not maintainable.

9. Having heard the rival submissions of both the sides, and looking to the peculiar facts and circumstances of the case, this Court has observed that on 27.08.2020 the petitioner is permitted to withdraw the quashing petition with a liberty to move before the appropriate court with appropriate application, wherein, the petitioner has acceded for anticipatory bail which was disallowed by the learned trial Court. Though the right of discharge application was also open but it appears that petitioner has not exercised. This Court has also considered the directions passed by the Hon'ble Apex Court in the case of Anil Khadkiwala Vs. State (Government of NC of Delhi) (Supra) which, in the opinion of this Court is not helpful to the petitioner. Therefore, the Court is not inclined to exercise discretion under Section 482 of CrPC, against the order of