Gujarat HC Orally Questions State For Conducting 'Preliminary Inquiry' In Plea For Lodging Rape FIR Against BJP MLA, Lists Matter On Monday

While hearing a 2021 plea moved by a woman seeking registration of an FIR against BJP MLA from Prantij–Gajendrasinh Parmar, the Gujarat High Court on Wednesday (October 9) orally questioned the State for conducting a preliminary inquiry in a case pertaining to allegations of rape.

After hearing the matter for some time a single judge bench of Justice Niral R Mehta adjourned it for further hearing on October 14.

At the outset of the hearing the high court orally asked the counsel for the State as to why he was appearing in the matter.

The court orally asked, “Who appears here? You appear (to the state's counsel). What is so significant about it? Your presence suggests that there has to be something".

To this the state's counsel submitted, “No, it may be not like that, but since twice, thrice police officers have done scrutiny, statements are recorded, again she turned… from her own affidavits, her own statements and makes allegation.”

To the court's query the counsel submitted that the petitioner wants registration of the FIR against the MLA. The high court thereafter orally queried as to why was the police not registering an FIR.

To this the counsel submitted, "She first time approached the police after 8 months (from the alleged incident). When we called for recording of her statements pursuant to her applications, she refused to come stating that 'we are trying to settle'. Ultimately files an affidavit. I am on the aspect that when she herself comes to the police station gives an affidavit stating that the allegations made in my application are under misconception and nothing is required to be done in this application".

On the court's query the counsel said that the woman's allegation was more or less that Parmar had "induced and committed offence of rape", adding that both parties are major.

At this the high court orally asked, "Then, the rape cannot be done?" To this the counsel submitted that he was submitting on the aspect that the woman had herself gone to the concerned police station and given a statement and affidavit stating that the allegations made in her application are under a "misconception and nothing is required to be done in this application".

The high court thereafter orally remarked, "There is a statement before the police, ultimately. Now, she is making allegation on oath by way of this petition”.

The court thereafter perused through the plea and documents and orally said, "I was wondering why are you here for such petition. Many matters like this are here, you are never seen. My wondering was not that abnormal. The proposed accused, the allegation is against the MLA. That is why you are here”.

The state's counsel however submitted that he was before the court as the police had performed its duties multiple times, however the woman was wavering one way or the other. He submitted that she had moved the first application eight months after the alleged incident and had subsequently filed an affidavit stating that the matter had been settled; thereafter she had again moved an application.

Pointing to the facts the counsel said, "This application is of 17.02.2021 and it was received by the police station by police for the first time on 03.04.2020 and the solitary incident which is mentioned in the application is of 30.07.2020. So, prior to 8 months. And a particular quarter no. 50. We had inquired there is no such quarter no.50...everything is on record, I have placed everything on record. It is not that we have not inquired. Despite that she said, that 'we have settled, affidavit filed'. We have closed. Again she files an application, therefore, we started preliminary inquiry. We preliminary made an inquiry and concluded that no offence is made".

At this stage, the high court orally asked the State's counsel,“Why in 376 (Section) you made a preliminary inquiry? Let us see Lalita Kumari (Govt.Of U.P.& Ors), preliminary inquiry is permitted in which cases? In Civil dispute. This is pertaining 376, why preliminary inquiry?”

Answering to the query of the Court the counsel submitted that as per Lalita Kumari preliminary inquiry is permitted in "matrimonial dispute cases, land dispute, civil dispute". He thereafter said that after the alleged incident as per the woman's own case, the first time she approached the police was after 8 months.

"We called her four times that 'you come and give us a statement so that we can convert it into FIR'. She had never come," he submitted. The court however asked as to why was she being called for a statement when she had already given a written plea. The counsel responded that it was an application given by the woman.

To this court asked, "So, can that not be taken cognizance to?...Why are you calling her? That is done, that is done, page 21 is the application, that is FIR"

The counsel pointed to the woman's application and said, "In a format of FIR, we require signature of the (victim) in the form 156 and thereafter, present before the Magistrate in 24 hours".

The court however orally said, "Yes so you make it ready, she will come for the signatures...For that you are taking 3-4 times?...this is something unusual. Under the guise of Lalita Kumari, why are you taking inquiry before registering FIR? Why so much inquiry before lodgement of FIR?"

The counsel submitted that because the police had inquired so he was duty bound to answer and added,“I was apprehending this query because Lalita Kumari says that in particular cases only you can permit it. But here my Lords, once giving an application to police...I would not use words throwing the application before police...she had given this application, thereafter, it is also her duty…”

The court however orally said “Some humility has to be there with the police. If any lady is lodging the complaint of rape, don't call her again and again in the police station. Some humility…go to her place. Every time you call IO, what nivedan do you want?"

To this the counsel said, “Not again and again, Saheb, pelli vaar, ek vaar to aavu pade (Sir, she has to come one time). Fariyad lakhava aave, pachi saheb nivedan 5 ma bolaya, aayaj nai, amara samadhan chale che, aa che tec he, pachi affidavit kari ne kai didhu ke akshepo khota che. Pachi, paachi arji aapi ek varse (She should come for lodging of complaint, then under Form 5, we called. She said there is a relationship between them so and so...then submits affidavit that the allegations are not true, then again filed the application after one year). Therefore, we were to inquire. And considering her background...Im not taking my lords first to the background. Whoever may be the background, we are not concerned with that, whatever the background. But, in this backdrop of facts–before 8 months, solitary incident, where the place of incident is also not in existence, thereafter calling her for four times…”

The Court then orally said “Then you file report under 169. Why are you hesitant in lodging FIR at the first instance? Investigate, file report under 169. You have the power, right? Then, do it. Take it on your shoulder.” For context, Section 169 CrPC deals with the release of an accused when there is insufficient evidence against them after investigation.

The counsel pointed to Lalita Kumari v Govt.Of U.P.& Ors and said that the judgment points to instances where there is abnormal delay and latches in initiating criminal proceedings for three months.

The high court however orally said, "In Section 376, in our country the penals are different...Aye aave che tamari same ayej bau che (She is coming opposite you that's a big step)”.

The counsel however said that he was not "joining issues" and that he will point out from the record that this is the third incident of "blackmailing by her, two different persons, through herself as well as through her niece" and thereafter she had given an application.

The court however remarked that the woman's character cannot be certified in this manner. It orally said, “Don't certify the character. She may have a tainted history, but that does not mean in future she gets exploited like this. You can't certify like this". To this the counsel agreed and said, "I agree. I bow down. We cant certify like this"

The high court thereafter said that it shall list the matter on Monday (October 14) to which the state's counsel said that he shall also place a report which he said will have some significance.

The Court then orally added, “Had that report (been) filed after lodgment of FIR, I would have appreciated. This is an investigation. Under the garb of inquiry, you assassinate somebody's character like this and you give scot free to the MLA. You said that 'aane to habit che blackmailing karva ni' (She has a habit of blackmailing). But, that doesn't give any right to anybody".

The counsel however said that the woman's character was not intended to be assassinated adding that the inquiry was conducted for a reason. He said that the woman's allegations have come eight months after the alleged incident adding that it should not be a case where "some miscreants who are not entitled to gain something", gain it under the guise of criminal prosecution.

The court thereafter orally said, “Correct. But then, what the statute says, if there is a cognizance of offence disclosed, at first instance lodge FIR. That is the mandate. And you, your policewala has committed IPC aapo 166 aapo lao, 166 vacho, tame badha par aavse IPC, jovo IPC 166, amend thayu che, vacho. 166A (Give me IPC, read 166 (section), this will apply to all of you (the State) it has been amended, read 166A); for this purpose this is enacted, no inquiry. (166A) (c) vacho barabar (Read 166A (c), right?)...Be prepared on Monday, we will issue direction for lodgment of FIR, pella policewada par lagadiye FIR (First will register FIR against police officer). This is statute, I don't go beyond statute. Section 166A (c) gives you any right to inquiry before lodgment of FIR?”

For context, Section 166A IPC refers to a public servant disobeying direction under law. The provision entails that if a public servant fails to record any information given to him under Section 154(1) CrPC in relation to "cognizable offence" punishable under various provisions of the IPC including Section 376, then he is liable to be punished with rigorous imprisonment for a term not less than six months but which may extend to two years, and shall also be liable to fine. Notably, Section 166A was introduced vide the Criminal Law (Amendment) Act, 2013.

After hearing the matter for some time, the court adjourned it to October 14, to which the counsel submitted that he shall assist the court in the matter.

Case Title: X vs State of Gujarat and Others