SHAILESHBHAI LAXMANBHAI MAKASANA vs STATE OF GUJARAT

R/SCR.A/13812/2026 JUDGMENT DATED: 19/10/2026
(GJHC240711502026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 13812 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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Approved for Reporting Yes No
✔
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SHAILESHBHAI LAXMANBHAI MAKASANA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DENISH V MAVADHIYA(9207) for the Applicant(s) No. 1
MS.MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER

Date : 19/10/2026

JUDGMENT
1. Rule returnable forthwith. Learned APP Ms.Monali Bhatt
waives service of notice of Rule on behalf of respondent-
State.
2. This application is filed under Article 14 and 226 of the
Constitution of India read with section 528 of BNSS,
2023 for following reliefs:
“A) That this Hon'ble Court may be pleased to admit this Special
Criminal Application;
B) This Hon'ble Court be pleased to issue an appropriate
direction/order in nature of writ and thereby allow this petition by
quashing and setting aside the impugned FIR filed by Respondent
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R/SCR.A/13812/2026 JUDGMENT DATED: 19/10/2026
(GJHC240711502026)
No.2 being CR no. 11189003261785 of 2026 before A Division Morbi
City Police Station, Dist.: Morbi and all the subsequent proceedings in
the interest of justice.
C) Pending admission hearing and final disposal of this petition, this
Hon'ble Court may be pleased to grant stay to further investigation/
proceedings pursuant to complaint at Annexure A to this petition FIR
no.11189003261785/2026 with A Division Morbi City Police Station,
Dist.: Morbi pending admission, hearing and till final disposal of the
present petition.
C) 11189003261785/2026 with A Division Morbi City Police Station,
Dist.: Morbi pending admission, hearing and till final disposal of the
present petition.”
3. Heard learned advocate Mr.Denish Mavadhiya and
learned APP Ms.Monali Bhatt for the State.
3.1. It is submitted by learned advocate Mr.Denish
Mavadhiya that the FIR alleging that in the year 2020
the complainant came into contact with the petitioner
where, family relations had developed between the
complainant and petitioner’s family including wife of the
petitioner. In May, 2020 complainant’s husband was
suffering from Leukemia and required medical
treatment, for that purpose the complainant approached
the petitioner for financial assistant of Rs.1,00,000/-. It
was advanced as a loan by the wife of the petitioner. It is
submitted by learned advocate Mr.Denish Mavadhiya
that time and again the wife of the petitioner has
demanded money for which the petitioner called the
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R/SCR.A/13812/2026 JUDGMENT DATED: 19/10/2026
(GJHC240711502026)
complainant to his flat no.201 at Swarg Palace, Morbi
under the pretext of giving her money to repay to his
wife and at that point of time, the petitioner has
committed rape on the complainant and thereafter
issued threats to the kill the family members of the
complainant in the event she discloses the offence. This
incident lead to pregnancy and birth of a son which she
suppressed under the fear of social stigma and her
husbands illness. Prior to 8 months from the date of
registration of FIR, again the petitioner had called the
complainant with the view to resolve the issue of
repayment of Rs.1,00,000/- and the complainant went to
the bungalow namely Om Villa where again the
petitioner attempted to use force to establish physical
relation, to which the complainant fled. Thereafter, while
arranging for the bone marrow to transplant to her
husband, and on unsuccessful match of bone marrow of
the ill husband with their elder son, the prospect of
testing the younger son’s bone marrow was the reason
for her acute distress leading to the disclosure of
incident to her husband and mother-in-law in 2022 and
which resulted into lodging of the impugned FIR. It is
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R/SCR.A/13812/2026 JUDGMENT DATED: 19/10/2026
(GJHC240711502026)
submitted by learned advocate Mr.Denish Mavadhiya
that the allegations made in the FIR is an afterthought
as for the incident happened in the year 2020, the FIR
was registered in the year 2026 approximately after a
delay of 6 years. It is submitted that without any proper
explanation, when the FIR is delayed the court must be
on guard and test the evidence meticulously to rule out
the possibility of embellishment in the prosecution story.
It is submitted that with ulterior motive and mala fide
intention, the complainant has leveled accusation on the
petitioner and therefore also, the impugned FIR
deserves to be quashed. It is submitted by learned
advocate Mr.Denish Mavadhiya that as there is a dispute
of repayment of the borrowed money, as an arm twisting
method, the impugned FIR is lodged and therefore, the
same is required to be interfered with by allowing the
present petition.
3.2. Learned APP Ms.Monali Bhatt has opposed this
application.
4. Having considered the submissions made by the learned
advocates for the respective parties as well as perusing
the allegations made in the FIR it transpires that the
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R/SCR.A/13812/2026 JUDGMENT DATED: 19/10/2026
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complainant who is a married lady aged around 41 years
has alleged that the complainant came into contact with
the petitioner who is running a shop namely Sakhi
Boutique. As the complainant has given clothes for
fittings, the petitioner has informed to collect from the
his residence as he was also staying in the same vicinity
and that his wife was also at home whose number was
given by the petitioner and thereafter the family
relations developed between two families. The husband
of the complainant was suffering from Leukemia disease
and the same required medical treatment as he was
hospitalized in the year 2020 for which the complainant
borrowed money amount of Rs.1,00,000/- under the
assurance to repay the same in installment. On
instructions of the petitioner, the wife has lent the
amount to the complainant and thereafter the treatment
of the husband was carried out. The wife of the
petitioner then started demanding money for which the
petitioner has conveyed that he would give the money
complainant so that she can repay to the wife and for
that purpose, he called her at his flat at Swarg Palace in
the month of May, 2020. The complainant went along
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R/SCR.A/13812/2026 JUDGMENT DATED: 19/10/2026
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with her father-in-law in the Activa and the father-in-law
dropped her with instructions that after completing
some work he would pick her up. At the time when the
complainant went to the residence of petitioner, the
petitioner was alone and he conveyed the complainant to
maintain sexual relationship with him after which she
was taken to the room and without her consent, forceful
physical relation was established by the petitioner. At
the time, she did not disclose this incident due to on
going treatment of her husband and under the fear that
her married life would be ruined. Later on, the
complainant conceived which was disclosed by the
complainant to the petitioner to which he conveyed to
her that he would take the responsibility of the child but
the incident be not disclosed to anyone.
4.1. As per the averments of the FIR, on the birth of the
younger son of the complainant, demand for repayment
of Rs.1,00,000/- was raised and again the complainant
was called by the petitioner at is residence situated at
Om Villa where she was forced to maintain physical
relation which she denied and fled from the place.
Thereafter, the husband of the complainant required a
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R/SCR.A/13812/2026 JUDGMENT DATED: 19/10/2026
(GJHC240711502026)
transplant of bone marrow where the blood test of the
elder son did not match and therefore, the younger son’s
blood test was proposed to be done. At that point of
time, the complainant disclosed about this incident to
her husband which lead to the lodging of the impugned
FIR.
4.2. The impugned FIR is challenged mainly on the ground
of delay. This Court has referred the decision of the Apex
Court in the case of State of Himachal Pradesh Vs
Premi Singh reported in (2009) 1 SCC 420, wherein
it is held cannot be the sole ground for quashment of the
FIR and disbelieve the case of the complainant. It is
observed by the Apex Court that there are several
factors which weigh in the mind of the prosecutrix and
her family before coming to the police station and lodge
and FIR. It is further held that there is mathematical
time limit for lodging the FIR in the cases of rape the
Court in such cases should adopt a realistic approach
rather than one which is unimaginative and theoretical.
The delay in cases of sexual assault cannot be equated
with the delay in case involved in other offences since
several factors weigh in the mind of the victim.
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4.3. This Court has also referred the decision of the Apex
Court in the case of Tulshidas Kanolkar vs The State
Of Goa reported in (2003) 8 SCC 590 wherein, it is
held by the Apex Court that delay per se is not a
mitigating circumstance for the accused when
accusations of rape are involved. Delay in lodging first
information report cannot be used as a ritualistic
formula for discarding prosecution case and doubting its
authenticity. It only puts the court on guard to search for
and consider if any explanation has been offered for the
delay. Once it is offered, the Court is to only see whether
it is satisfactory or not. In a case if the prosecution fails
to satisfactory explain the delay and there is possibility
of embellishment or exaggeration in the prosecution
version on account of such delay, it is a relevant factor.
On the other hand satisfactory explanation of the delay
is weighty enough to reject the plea of false implication
or vulnerability of prosecution case.
4.4. Applying the above ratio in the instant case, the
prosecutrix had given the explanation for the delay for
not reporting of the incident promptly due to ongoing
treatment of her husband and under the fear of ruining
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R/SCR.A/13812/2026 JUDGMENT DATED: 19/10/2026
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her marriage. In the opinion of this Court when the
investigation is at large, quashing of the FIR at threshold
and concluding that the physical relation of the
petitioner with victim was consensual would amount to
miscarriage of justice.
4.5. This Court has also referred the decision of the Apex
Court in the case of XYZ Vs State of Gujarat reported
in (2019) 10 SCC 337 wherein, the Apex Court has
held as under:
14. Having heard the learned counsel for the parties and after
perusing the impugned order and other material placed on record,
we are of the view that the High Court exceeded the scope of its
jurisdiction conferred under Section 482 CrPC, and quashed the
proceedings. Even before the investigation is completed by the
investigating agency, the High Court entertained the writ petition,
and by virtue of interim order³ granted by the High Court, further
investigation was stalled. Having regard to the allegations made
by the appellant/informant, whether the 2nd respondent by
clicking inappropriate pictures of the appellant has blackmailed
her or not, and further the 2nd respondent has continued to
interfere by calling Shoukin Malik or not are the matters for
investigation. In view of the serious allegations made in the
complaint, we are of the view that the High Court should not
have made a roving inquiry while considering the application filed
under Section 482 CrPC. Though the learned counsel have made
elaborate submissions on various contentious issues, as we are of
the view that any observation or findings by this Court, will
affect the investigation and trial, we refrain from recording any
findings on such issues. From a perusal of the order of the High
Court, it is evident that the High Court has got carried away by
the agreement/settlement arrived at, between the parties, and
recorded a finding that the physical relationship of the appellant
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with the 2nd respondent was consensual. When it is the allegation
of the appellant, that such document itself is obtained under
threat and coercion, it is a matter to be investigated. Further, the
complaint of the appellant about interference by the 2nd
respondent by calling Shoukin Malik and further interference is
also a matter for investigation. By looking at the contents of the
complaint and the serious allegations made against 2nd
respondent, we are of the view that the High Court has
committed error in quashing the proceedings.
15. During the course of hearing, the learned counsel for the
appellant, Section 114-A of the Evidence Act, 1872. brought to
our notice provision Section 114-A of the Evidence Act, 1872
deals with the presumption as to absence of consent in certain
prosecution for rape. A reading of the aforesaid section makes it
clear that, where sexual intercourse by the accused is proved and
the question is whether it was without the consent of the woman
alleged to have been raped, and such woman states in her
evidence before the court that she did not consent, the court shall
presume that she did not consent.
5. Considering the above ratio and facts narrated
hereinabove, in the opinion of this Court wherein, the
allegations discloses prima facie case against the
present petitioner, the impugned FIR cannot be thrown
away at thresh hold.
6. In that background, this Court is of the view that no
interference at this stage is required hence, present
petition is dismissed. Rule is discharged.
(M. K. THAKKER,J)
ARCHANA S. PILLAI
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