Gujarat High Court

Maheshkumar Hareshbhai Kukadiya vs State Of Gujarat on 1 July, 2024

Author:
Nirzar S. Desai

Bench:
Nirzar S. Desai

NEUTRAL CITATION

R/CR.MA/11512/2024 ORDER DATED: 01/07/2024

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC. APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO.11512 of 2024

=========================================
MAHESHKUMAR HARESHBHAI KUKADIYA
Versus
STATE OF GUJARAT & ANR.
=========================================
Appearance :
MR BM MANGUKIYA for the Applicant.
MS BELA A PRAJAPATI for the Applicant.
for the Respondent No.2.
MS MAITHILI MEHTA, APP for the Respondent No.1.
=========================================

CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 01/07/2024
ORAL ORDER

1. By way of this petition, the applicant has prayed to
quash FIR bearing C.R. No.I-11210025211233 of 2021 lodged
with Limbayat Police Station, Surat for the offences punishable
under
Sections 363
,
,
,
,
,
376(2)(f)
,
376(2)(i)
,
294(b)
,

506(2)
,
and
of the Indian Penal Code as well as Sections
3(a), 4, 5(j)2, 5(k), 5(L), 7, 8, 5(N) and 5(q) of the Prevention of
Children from Sexual Offences Act and Section 3 (2) of the PNDT
Act. The applicant has also prayed to quash and set aside
proceedings of Special (POCSO) No.103 of 2021 pending before
Special Judge, Special Court, Surat.

2. The present petition preferred for quashing of the FIR
as well as consequential proceeding is filed on the ground that the
applicant is a Doctor and he is arraigned as an accused in respect
of FIR in question and as the trial in respect of the main accused is

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over and the main accused is acquitted by the learned 2nd
Additional Sessions Judge, Surat vide judgment dated 15.9.2022 in
Special (POCSO) Case No.103 of 2021 on the ground of benefit of
doubt, according to learned advocate Mr. B. M. Mangukiya, the
trial against the applicant would be a futile exercise in view of
acquittal of the main accused.

3. The brief facts giving rise to the present petition are
stated as under :-

3.1 That as per the FIR dated 7.3.2021 lodged by one
Mubinabibi Nazir Ahmed Shaikh, she has stated that main accused
Shafik Shaikh who happens to be husband of the daughter of sister
of the first informant has lured the daughter of the first informant
(victim girl) aged about 13 years by giving false promise of
marriage and thereby developed intimated relations with her and
as the victim girl was found pregnant, the said Shafik Shaikh took
her in the Hospital and admitted and aborted the child and
thereafter has threatened them to kill her. As per the FIR, it is
stated that when when the first informant found a baby bump, upon
inquiry, the victim girl has stated that why are you asking me about
baby bump, you should ask about it to Shafik. Therefore, when the
first informant inquired from Shafik, he confessed that he was
having love affair with the victim girl since last two years and,
therefore, he asked the victim girl to marry with him. When the
first informant shown her inability to marry her daughter with
Shafik on account of her tender age as well as on account of the
fact that accused No.1 happens to be relative, he abused her and
ran away. Thereafter, on the next day, the first informant along
with her husband went to her sister's residence to discuss the

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aforesaid and came late. On the next day, she found that the victim
girl was not having baby bump and, therefore, upon inquiry, the
victim girl said that Shafik had come to her residence and promised
her to marry on a condition to abort the child and, therefore, she
trusted his version and, therefore, she was taken to hospital at
Dindoli where abortion had taken place and, thereafter she was
dropped back at her residence. Therefore, considering the fact
that the family would loose her and that this would affect the
reputation of the family, she remained silent and thereafter also, as
Shafik started visiting her family and started threatening them that
if they do not arrange for victim girl's marriage with him, they
would be killed, the FIR was registered.

4. Thereafter, initially when the FIR was registered, the
same was registered only against accused - Shafik and
subsequently, during the course of investigation, present applicant
was arraigned as accused when the charge-sheet was filed and
offences punishable under Sections 3 (2) of Pre-Conception and
Pre-Natal Diagnostic Techniques Act, 1994 as well as
Sections 201

and
of the Indian Penal Code were added in the FIR vide
application dated 18.6.2021 made by the Investigating Officer of
the concerned Police Station. The applicant who is a Doctor has
rightly carried out the abortion of the victim girl aged 13 years
when she was carrying pregnancy of around six months stated in
the FIR (if converted into weeks, the same would come to around
24 weeks).

5. Mr. B. M. Mangukiya, learned advocate appearing for
the applicant submitted that the applicant who has carried out the
abortion while performing his duty as Doctor, he would not have

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said no for abortion considering the age of the victim girl as he
owns a duty to the society who serve as a Doctor. He further
submitted that when the main accused is acquitted on account of
benefit of doubt, nothing remains in the trial of the applicant and if
the applicant is permitted to face the trial, the same would be a
futile exercise.

6. According to learned advocate Mr. B. M. Mangukiya,
though the applicant's trial has not yet commenced, in view of
provisions of
Section 157
of the Indian Evidence Act, the evidence
in respect of the trial of accused No.1 would be admissible in the
trial of the present applicant also and can be considered to quash
the impugned FIR and consequential proceedings qua the present
applicant. He further submitted that in view of the medical papers
submitted by Police, an opinion has been obtained from the
Government Medical College which has opined that no drugs have
been administered to the victim girl for medical termination of
pregnancy. Therefore, even the charges under the PNDT Act also
would not be sustainable. By making the aforesaid submission,
learned advocate Mr. B. M. Mangukiya prayed to quash the
impugned FIR and all consequential proceedings arising out of the
said FIR.

7. Though averments have been made and the copies of
the orders have been annexed in the petition about earlier
quashing petitions filed by the applicant being Special Criminal
Application No.4199 of 2021 which was withdrawn vide order
dated 14.6.2021 and thereafter filed another quashing petition
being Special Criminal Application No.6725 of 2021 which was also
withdrawn vide order dated 4.8.2021 with a liberty to file an

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application for discharge before the competent Court as well as
another quashing petition, learned advocate Mr. B. M. Mangukiya
did not brought the aforesaid aspect expressly to the notice of this
Court during his arguments.

8. I have heard learned advocate appearing for the
applicant and perused the record. Upon hearing learned advocate
for the applicant, as the record was bulky, on 26.6.2024, the matter
was kept for orders today i.e. 1.7.2024.

9. From the perusal of the record, I found that the
allegation against the main accused was of rape and under the
provisions of
POCSO Act
. The FIR was initially registered under
the provisions of 363, 366, 312, 313, 506, 376(2)(f), 376(2)(i),
294(b), 506(2) of the
Indian Penal Code
as well as Sections 3(a), 4,
5(j)2, 5(k), 5(L), 7, 8, 5(N) and 5(q) of the Prevention of Children
from Sexual Offences Act. Subsequently,
Sections 201
and
of
the Indian Penal Code as well as Section 3 (2) of the PNDT Act
were added in the FIR and charge-sheet was filed for the said
offences on 15.4.2021 wherein the applicant was shown as
absconding accused. Thereafter, the applicant preferred an
application under
Section 438
of the Code of Criminal Procedure,
1973 seeking anticipatory bail being Criminal Misc. Application
No.15863 of 2021 wherein the coordinate Bench of this Court vide
order dated 16.9.2021 issued rule and protected the applicant by
passing an order of not to arrest the applicant till the next date of
hearing. Ultimately, from the record it seems that the relief
granted in favour of the applicant continued till 8.2.2024 and
coordinate Bench of this Court vide order dated 8.2.2024 passed in
Criminal Misc. Application No.15863 of 2021 granted anticipatory

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bail to the applicant.

10. In the meantime, quashing petition was filed by the
applicant being Special Criminal Application No.4199 of 2021
which was withdrawn vide order dated 14.6.2021 and thereafter
the applicant had preferred quashing petition being Special
Criminal Application No.6725 of 2021 which was withdrawn on

4.8.2021 with a view to file discharge application before the
competent Court.

11. In the meantime, the trial qua the main accused
commenced and completed and he was acquitted by giving him
benefit of doubt vide judgment dated 15.9.2022 in Special (POCSO)
Case No.103 of 2021 passed by the learned 2 nd Additional Sessions
Judge, Surat which would indicate that the trial qua the applicant is
not even commenced and no charge is framed against him.

12. Considering the aforesaid facts as well as considering
the fact that the allegations against the main accused were of
committing a rape on a minor girl who happen to be daughter of
the paternal aunt of his wife and, therefore, he was the one against
whom there were allegations of rape and offence under the
provisions of
POCSO Act
, whereas the role of the applicant is
different. It is alleged that the applicant has abated in crime by
doing abortion of a minor girl illegally and hence, during the course
of investigation, the offence of Section 3 (2) of PNDT Act read with

Sections 201
and
of the Indian Penal Code were added.
Considering the aforesaid aspect, as the role of the present
applicant viz.a.viz role of the main accused are different as well as
considering the fact that the main accused has not been acquitted

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by giving him clean acquittal beyond any doubt, but he was
acquitted on the basis of granting him benefit of doubt, so also
considering the fact that the nature and standard of proof in
respect of present applicant and co-accused would be considered
considering the different role in the offence in question, prima
facie, no case for quashing can be said to have been made out.
Accordingly, the present application is required to be dismissed
and the same is dismissed.

(NIRZAR S. DESAI,J)

SAVARIYA

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