R/CR.MA/23064/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR MODIFICATION OF ORDERS) NO.
23064 of 2017
In CRIMINAL MISC.APPLICATION NO. 12513 of 2017
AKIL RAFIKBAPU KADRI 1….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MS. KRUTI M SHAH, ADVOCATE for the Applicant(s) No. 1 – 2
MR LR PUJARI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 15/09/2017
ORAL ORDER
1. Rule. Learned APP waives service.
2. By an order dated 29.5.2017 passed in Criminal Misc. Application
No. 12513 of 2017 the petitioners were admitted to bail subject to the
condition interalia that they should mark their presence with the
concerned police station on every Monday of each calendar month for a
period of three months and thereafter alternate Monday for a period of
six months between 11:00 a.m. and 2:00 p.m. The said condition is
sought to be modified effectively seeking an exemption of recording
petitioners’ presence with the concerned police station on the ground
that subsequent to the abovereferred order, another complaint being
C.R. No. I – 70 of 2017 in the Karanj Police Station of Ahmedabad City
now alleging gang rape against the petitioners, by the same prosecutrix
has been lodged on 1.9.2017 invoking the provisions of the Atrocities
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Act as well.
3. Learned counsel for the petitioners has invited attention of this
Court to the observations made in the order dated 24.7.2017 passed in
Criminal Misc. Application No. 16178 of 2017 in the case of Ashraf
Rafikbapu Kadri v. State of Gujarat and one respondent; who has been
arrayed as coaccused alongwith the petitioners in C.R. No. I – 46 of
2016 registered at Karanj Police Station, Ahmedabad City, alleging the
offences interalia under Section 376 of Indian Penal Code and the
provisions of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. The observations made by this Court in the said
order read thus:
“3. Having considered the rival contentions, it
appears that the prosecutrix aged 35 years as on
the date of lodgment of the complaint i.e.
4.8.2016 is a divorcee having a child aged 15
years; admits that she had fallen in love with the
petitioner, and that one day in February 2016, she
had established the consensual physical relations
with the petitioner in a hotel at Lal Darwaja. She
further claims that a video clipping of her sexual
acts with the petitioner were shot by the
petitioner and on the strength of such videos
clipping, she was being black mailed by the
petitioner for sexual favours. She claims that
said clippings were forwarded to her mobile. It
appears that such shooting of the film could not
be fortified upon forensic examination of her
mobile phone wherefrom only some photographs which
are not even incriminating in nature could be
retrieved. Furthermore, prima facie this Court
fails to understand as to why the accused will
have any occasion to blackmail the victim on the
strength of such blue film when she had
voluntarily accompanied the accused and
voluntarily established sexual relations with him.
Prima facie, this Court is of the opinion that
there was no occasion for the petitioner to adopt
above method for compelling the prosecutrix to
give herself into his sexual demands as she had
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voluntarily established sexual relations with the
accused.
Under the above circumstances, the prosecutrix
further makes a statement in the FIR that, after
shooting of the blue film, the petitioner had
established physical relations with her against
her wishes frequently. The prosecutrix also claims
the accused having procured her gold ring and
Rs.10,000/ from her. She also claims to have
given two applications against the petitioner in
the police station as she could not bear the
petitioner any more. It is stated that,
eventually, on account of settlement reached with
the petitioner, she withdrew one of the
applications, and as the accused did not comply
with the terms of the settlement, she reiterated
the application by registering another (second)
application with the police station.
Since in the FIR itself, a reference is made to
the abovereferred previous applications made by
the prosecutrix, the record was called for by this
Court; on perusal of which, it is noticed that
apart from the two applications and the deed of
settlement referred to by the prosecutrix in the
FIR, a statement dated 22.7.2016 given by her is
found. In her statement dated 22.7.2016 the
prosecutrix admits her consensual relations and
frequent sexual acts with the petitioner at the
hotel at Lal Darwaja. In the said statement she
refers to the accused having demanded Rs.10,000/
and her mobile under the pretext that he would
return after performance of namaj but did not
return eventually. It is clearly stated by her
that because of such dispute earlier she had filed
application and thereafter when at Savarkundla the
petitioner met her and promised to her that he
will return Rs.10,000/ and mobile phone, she
eventually refers to the settlement without any
force or threat from any corner and also
acknowledges the receipt of Rs.10,000/ and the
mobile phone. However in one of the application
abovereferred she has come out with the different
story that a sum of Rs.10,000/ and mobile phone
was taken by the accused from her purse. Be that
as it may, the prosecutrix goes on to make further
allegation against the petitioner after the
settlement in another complaint which has been
produced on record by the learned counsel for the
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complainant. The said application seems to have
been inwarded on 14.6.2017 with the office of DGP,
Gandhinagar, and it refers to the occurrence of
9.11.2016 i.e. more than six months back of the
inward date abovereferred. There the prosecutrix
comes out with the allegation of her being
kidnapped by the petitioner and other persons and
she also makes an allegation that under compulsion
by the petitioner and other persons, she had to
give away her immovable property worth Rs.12.00
lacs for Rs.1,34,000/ and thus the property was
grabbed by petitioner and others. She has also
made a grievance against as many as 53 persons in
the said complaint.
Looking to the above conduct of the prosecutrix
and other facts discussed hereinabove, prima
facie, her case emerging in the FIR does not
inspire confidence of this Court. The petitioner
is therefore entitled to be admitted to bail.”
4. Learned counsel for the petitioners submitted that for quashing of
the FIR registered at C.R. No. I – 70 of 2017 above stated, the petition
under Section 482 of Code of Criminal Procedure being Criminal Misc.
Application No. 22821 of 2017 is already filed and since in the said case
i.e. C.R. No. I – 70 of 2017 invoking the provisions of Atrocities Act are
invoked, it may not be possible for the petitioners to invoke the
provisions of Section 438 of Cr.P.C. and it is compliance with the above
conditions the petitioners remain present in Karanj Police Station, there
are chances of their being arrested in a frivolous and false complaint i.e.
C.R. No. I – 70 of 2017. It is therefore contended that to enable the
petitioners to pray for necessary orders in the quashing petition,
protection of the petitioners is necessary.
5. Learned APP has opposed this application with the contention that
a serious offence is alleged against the petitioners and the petitioners
must cooperate with the law by presenting themselves in the police
station and that it would thereafter for the police to decide the
appropriate course of action.
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6. Having considered the rival contentions as also having regard to
the observations made by this Court as quoted hereinabove, this Court
finds substance in the arguments advanced by the petitioners that the
petitioners may be arrested in connection with the above FIR if they
mark presence on the specified day. In view of the observations made by
this Court aforestated, an opportunity is required to be given to the
petitioners to invoke the jurisdiction under Section 482 of Cr.P.C. before
their arrest. Accordingly while partly allowing this petition, the
petitioners are exempted from complying with the condition No.3(e) for
the specified day i.e. 18.9.2017. Rule is made absolute with no order as
to costs. Direct service (today) is permitted.
(G.R.UDHWANI, J.)
syed/
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