GUJARAT HIGH COURT AARTIBEN CHODAJI THAKOR R/SCR.A/3530/2020 ORDER IN THE HIGH COURT OF GUJARAT AT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, the petitioner, who is now aged about 22 years, has filed this petition for seeking following reliefs:-

(2.) The case of the petitioner is that the petitioner is coming from lower strata of society and has studied upto 4 th Std. and she was physically and sexually exploited by one Laxmanbhai Senaji Prajapati, for a period of about 8 years. Said Laxmanbhai Prajapati is engaged in the catering business at Mandal and on 22.5.2012, said Laxmanbhai Prajapati persuaded the petitioner and her parents to take the petitioner in a tour group for catering need in North India and South India, and at that point of time, the petitioner was aged about 14 years and against her will, she was physically assaulted by said Laxmanbhai and established physical relationship. So much so that when at various places during the said tour period, she was subjected to establish physical relationship and was even compelled to take a treatment as well and a threat was administered according to the petitioner and a solace of marriage was given to the petitioner. As a result of this, nothing further was done by the petitioner in that regard. But, when the petitioner completed the age of 18 years, the petitioner asked said Laxmanbhai to marry her, it was conveyed that he is already a married man, having two children. As a result of this, on 27.6.2019, even live-in relationship agreement was also entered into between the petitioner and said Laxmanbhai. But, then she was not taken to her matrimonial home and on the contrary, she was kept away and by narrating certain incidents which took place during the course of time, even the parents of the petitioner were called on 30.11.2019 and the parents were given an amount of Rs.1,50,000/- and some documents have been executed. According to the petitioner, the father of the petitioner is a labourer and uneducated person and therefore, nothing was done. However, after mustering some courage, the petitioner gave an application on 1.2.2020 for the first time and demanded certain papers from said Laxmanbhai. At that time, no cooperation was given, but on the contrary, an attempt was made to beat the petitioner, which has resulted into filing of a complaint before the higher police personnel on

(3.) 2.2020. Even on 5.2.2020, a legal notice was also given to Kunvarji Babaji Thakore and after that, a detailed police complaint came to be registered on 19.2.2020 before Mandal Police Station, narrating the entire episode which took place right from 2012. According to the petitioner, a clear offence is made out not only under Section 376 of the IPC, but for the offences punishable under Sections 4, 6, 10 and 12 of the POCSO Act. But, the police officers did not show any inclination to register the FIR. According to the petitioner, in view of Section 166A of the IPC and Section 21 of the POCSO Act, it is a mandatory requirement to register FIR. However, upon perusal of the papers, the petitioner realized that FIR, no-doubt, has been registered but only under Section 495 of the IPC. As a result of this, the petitioner is left with no alternate but to approach this Court by way of filing the present petition under Article 226 of the Constitution of India. 3. Mr.Aditya Pandya, learned advocate for the petitioner, has contended that heinous crime is committed by said Laxmanbhai against the petitioner, when prior to 8 years she was a minor. It has been submitted that said Laxmanbhai is headstrong person and as such, the police authority ought to have registered the complaint under specific section i.e. Section 376 of the IPC as well as under the provision of the POCSO Act which is a mandate of the statute. It has further been contended that no limitation is prescribed for registering the offence even if some delay has taken place and as such, since there is a clear inaction on the part of concerned authorities not to register the complaint under specific offence, the petitioner has approached this Court by way of present petition, for the purpose of seeking not only the relief clause 9(A) but also for transfer of investigation. Learned advocate has submitted that there is a sufficient explanation given as to why for a pretty long period of 8 years, the petitioner could not approach this Court. But when there is a specific mandate of the statute, it was obligatory on the part of Investigating Officer to register the complaint. Having not done so, the reliefs as prayed for be granted, in the interest of justice. Learned advocate for the petitioner has submitted that in view of overall material on record, ex-facie the offence of Section 376 of IPC is committed and the provision of POCSO Act are also clearly attracted and as such, a writ be issued directing the respondent authorities to add these offences which are prayed for and since that has not been done, the petitioner has also sought another relief of seeking transfer of investigation from respondent No.2. Learned advocate has also pointed out that though there is a specific application given on 19.2.2020, so far the police authorities have not adhered to the said request. Hence, appropriate direction be issued to the concerned authorities. To substantiate his contention, though the judgments have not been cited specifically, a request is made that the same have been incorporated in the memo of petition which can be taken in aid. Hence, a request is made to grant the reliefs as prayed for in this petition. No other submissions have been made.