Madhya Pradesh High Court
Rahul Jatav vs The State Of Madhya Pradesh on 24 November, 2016
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 MCRC No. 12804 of 2016
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON'BLE MR. JUSTICE G.S. AHLUWALIA
Misc. Criminal Case No. 12804 OF 2016
Rahul Jatav
-Vs-
State of M.P. & Anr.
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Shri Sanjeev Kumar Agarwal, counsel for the appellant.
Shri R.D. Agarwal, Panel Lawyer for the respondent
No.1/State.
Shri Prasun Maheshwari, counsel for the respondent
No.2.
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ORDER
(24/11/2016) This application under Section 482 of Cr.P.C. has been filed for quashing the FIR registered in Crime No. 732/2016 by Police Station Karera, District Shivpuri for offence punishable under Section 376 of IPC and under Section 5b(i), 6 of Protection of Children from Sexual Offences Act, 2012.
2. The prosecution story in short is that on 20.09.2016 at about 14:30 the prosecutrix alongwith her father Ghasiram Jatav lodged a FIR to the effect that she is aged about 18 years and 02 months. She is a resident of village Gadhai and about two years back she had left her studies. When she was studying in school, she was knowing the applicant and the applicant used to talk to her and on several occasions had called her in his house. He used to make a promise that after she attains the age of 18 years he will marry her and on that 2 MCRC No. 12804 of 2016 pretext he had committed sexual intercourse with her on various occasions. On 20.09.2016, when she was all alone in her house, the applicant took her to Kua Teela Road and committed sexual intercourse with her. The applicant had made a false promise of marriage but now he has refused to marry her. Accordingly, she informed the incident to her family members, and FIR was lodged.
3. The police during the investigation recorded the statement of the prosecutrix under Section 161 of Cr.P.C. In her statement under Section 161 of Cr.P.C., she had stated that while she was studying in the school she came in contact with the applicant and she used to visit his house frequently and on giving a false promise of marriage the applicant had committed sexual intercourse with her. For the first time on 22.03.2014 the applicant had physical relations with her. The applicant on various occasions had invited her to his house and had promised that the moment she attains the age of 18 years he will marry her. On various occasions, she was called in his house and he had a physical relations with her. On 20.09.2016, when she was all alone in her house then the applicant came to her house and took her to Kua Teela Road where he had a physical relations with her. The applicant had made a promise to marry her but now he had refused to do so.
4. The statement of the prosecutrix was got recorded under Section 164 of Cr.P.C. The statement recorded under Section 164 of Cr.P.C. is reproduced as under:-
^^eS jkgqy ls izse djrh gwW rFkk eS vksj jkgqy vkil esa 'kknh djuk pkgrs gSaA eq>s jkgqy ls ckr Hkh ugh djus nh vkSj ncko nsdj eq>ls fjiksVZ fy[kokbZ xbZA jkgqy us esjs fo:) dksbZ vijk/k ugh fd;k gS vksj jkgqy us dksbZ xyr dke ugh fd;kA eSa jkgqy ds fo:) dksbZ dk;Zokgh ugh pkgrh gwWA^^
5. The statement of Ghasiram Jatav, the father of the prosecutrix was also recorded under Section 161 of Cr.P.C. He stated in his statement that he has five children and her elder 3 MCRC No. 12804 of 2016 daughter has already been married. The prosecutrix is aged about 18 years 02 months. Two years back the prosecutrix used to go to Karera for prosecuting her studies. At that time, she came in contact with the applicant who is a resident of Karera. He had made a promise to marry the prosecutrix. The prosecutrix had also informed him in this regard, then he too had promised that after the prosecutrix attains the age of 18 years, he will marry the prosecutrix with the applicant. On 20.09.2016, as his mother-in-law was not well, therefore, he along with his wife had gone to see her. On that day, the applicant came to his house and on the pretext of marrying the prosecutrix, he took her to Teela Road where he had physical relations with her. After he came back to his house he was informed about the incident by the prosecutrix. Thereafter, he had a talk with the applicant and his father and asked them to marry the prosecutrix but both of them refused to do so. Accordingly, FIR was lodged.
6. Referring to the statement of the prosecutrix recorded under Section 164 of Cr.P.C., it is submitted by the counsel for the applicant as well as the counsel for the prosecutrix/respondent No.2 that in fact no offence has been committed by the applicant and the FIR was got lodged by the father of the prosecutrix under coercion and force. It was further stated by the counsel for the applicant and respondent No.2 that the applicant and the prosecutrix have got married as per the Hindu rites and rituals on 13.10.2016. The photographs have also been filed along with the petition.
7. The counsel for the State after going through the police case diary fairly conceded that in the statement recorded under Section 164 of Cr.P.C. the prosecutrix has specifically stated that she is in love with the applicant and they both want to marry each other. She was not allowed to talk to the applicant and under coercion the FIR was got 4 MCRC No. 12804 of 2016 lodged. The applicant had never committed any offence against her and she does not want any prosecution against the applicant. It was further fairly conceded by the counsel for the State that Ghasiram Jatav, the father of the prosecutrix in his statement under Section 161 of Cr.P.C. has not stated about the fact that prior to 20.09.2016 the prosecutrix was subjected to physical abuse. On the contrary, it is clear from the statement of the father of the prosecutrix that when the prosecutrix informed him about her friendship with the applicant, then the father of the prosecutrix had promised to get her married with the applicant after she attains the age of 18 years.
8. The Supreme Court in the case of Lata Singh vs. State of U.P. & Anr. reported in AIR 2006 SC 2522 has held as under:-
"We are of the opinion that no offence was committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court as well as of the administrative machinery at the instance of the petitioner's brothers who were only furious because the petitioner married outside her caste. We are distressed to note that instead of taking action against the petitioner's brothers for their unlawful and high-handed acts (details of which have been set out above) the police has instead proceeded against the petitioner's husband and his relatives.
Since several such instances are coming to our knowledge of harassment, threats and violence against young men and women who marry outside their caste, we feel it necessary to make some general comments on the matter. The nation is passing through a crucial transitional period in our history, and this Court cannot remain silent in matters of great public concern, such as the present one.
The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a 5 MCRC No. 12804 of 2016 time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or interreligious marriage.
We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
We sometimes hear of 'honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism."6 MCRC No. 12804 of 2016
9. The Supreme Court in the case of State of Haryana & Ors. vs. Bhajan Lal & Ors. reported in 1992 Supp (1) SCC 335 has held as under:-
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.7 MCRC No. 12804 of 2016
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
10. The Supreme Court in the case of Amit Kapoor vs. Ramesh Chander and another reported in (2012) 9 SCC 460 has held as under:-
27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1 Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, 8 MCRC No. 12804 of 2016 the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2 The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5 Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6 The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7 The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the 9 MCRC No. 12804 of 2016 charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9 Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10 It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11 Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12 In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal.
The Court has to consider the record and documents annexed herewith by the prosecution.
27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14 Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15 Coupled with any or all of the above, where the Court finds that it would 10 MCRC No. 12804 of 2016 amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
11. Considering the totality of the circumstances and the material which is available in the police case diary, this Court is of the considered view that in the light of the statement made by the prosecutrix under Section 164 of Cr.P.C. the continuation of the criminal proceedings against the applicant could be nothing but abuse of law. Undisputedly, the prosecutrix is a major girl aged about more than 18 years and she is free to take decision about her life and if she has decided to marry the applicant then she is free to do so.
12. The prosecutrix in her statement under Section 164 of Cr.P.C. has specifically stated that the applicant had never committed any offence with her. The fact that the father of the prosecutrix was not informed by the prosecutrix about the commission of sexual assault by the applicant prior to 20.09.2016 clearly shows that those allegations were made by the prosecutrix under coercion as stated by her in her statement under Section 164 of Cr.P.C.
13. Without commenting on the marriage of the prosecutrix with the applicant and in the light of the statement recorded under Section 164 of Cr.P.C. as well as the statement of the father of the prosecutrix the present petition is allowed. The FIR registered in Crime No.732/2016 by Police Station Karera, District Shivpuri for offence punishable under Section 376 of IPC and under Section 5b(i), 6 of Protection of Children from Sexual Offences Act, 2012 is quashed.
(G.S. AHLUWALIA) Judge (24.11.2016) (alok)