Madhya Pradesh High Court
Major Manish Kumar Tiwari vs The State Of Madhya Pradesh on 20 August, 2019
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
M.Cr.C. No.13546/2019 1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.13546/2019
(Major Manish Kumar Tiwari vs. The State of M.P.)
Indore, Dated:20/08/2019
Shri C.L. Yadav, learned Senior Counsel with Shri
S.S. Thakur, learned counsel for the applicant.
Shri Ankit Khare, learned Public Prosecutor for the
respondent/State.
None present for the objector.
ORDER
Applicant/accused has preferred this petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'The Code'), for quashment of FIR bearing crime No.0425/2018, registered at Police Station Mhow, District Indore for offence punishable under Section 294, 376, 376(2)(n) of IPC read with Section 3(2)(v) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) 1989 (in brevity 'the Act, 1989') and all the consequential proceedings initiated on the basis of the aforesaid crime.
02. Briefly stated the facts leading to the case are that prosecutrix made a written complaint at Police Station Lasudiya, District Indore alleging that she is a divorcee and she wanted to marry again, therefore she registered her name in matrimonial website 'Jeevan Sathi.com'. The applicant Major Manish Kumar Tiwari liked her profile and he contacted her. He told that he is having a Master's degree in Science and presently working in Indian Army. Impressed by his profile, she made a proposal of marriage with the applicant and he accepted the same. In between the month of December, 2017 and January, 2018 the Digitally signed by Sumati Jagadeesan Date: 28/08/2019 10:07:03 M.Cr.C. No.13546/2019 2 applicant informed the complainant about the pendency of his divorce petition and that his wife is having extra marital affair with other person, therefore, he and his wife have filed divorce petition with mutual consent, the same is pending before the Court and within a period of 6 months he will get the decree of divorce. Thereafter, the complainant and the applicant were in contact with each other by phone calls and whats-app messages. In the month of March, 2018 the applicant came to his house at Indore and both of them agreed for marriage. Applicant assured that after getting the decree of divorce within a period of 5 to 6 months, he will marry her. In the month of April, 2018 the applicant again came to Indore, he took her to dinner party and forced her to drink liquor. In the month of June, 2018 the applicant once again visited Indore and took her to Khajrana temple, after attending 'Pooja' he filled vermilion in her forehead and told her that now they have solemnized their marriage and took her to army guest house, where he established physical relationship with her, however, she was not ready for that, due to which she got pregnant.
03. In the month of June, 2018 when she informed the applicant regarding her pregnancy, then he insisted her for abortion and told that he is not the father of her child. Thereafter he abused her and told her that he will not marry her as she belongs to lower caste. After a week, he sent a message to her that he want to remain with his wife and does not want to be in a relationship further with her. On the basis of which Police registered FIR and send it to Police Station-Mhow because the incident of rape was committed at Army Guest House, Mhow. On the basis of the aforesaid information, Police-Station Mhow registered FIR bearing Crime No.425/2018 for offence under Digitally signed by Sumati Jagadeesan Date: 28/08/2019 10:07:03 M.Cr.C. No.13546/2019 3 Sections 294, 376, 376(2)(n) of IPC read with Section 3(2)(v) of 'the Act, 1989'. Police recorded the statement of the prosecutrix and other witnesses. The prosecutrix was sent to hospital for medical examination. After completion of investigation, charge-sheet was filed against the applicant.
04. Leaned Senior counsel for the applicant has submitted that even if the allegations made by the prosecutrix are accepted in its entirety, it would be clear that she was a consenting party and therefore, no offence is made out against the applicant. Prosecutrix is a major lady aged about 35 years and she knew the fact that applicant is already married, therefore, the marriage is not possible with him, even then if she had consensual sex with the applicant. It is not a case where consent of the prosecutrix was obtained either by miss-representation or miss-conception of the fact. This is a clear case of mutual relationship between two major persons for sexual gratification, therefore, no offence under Section 294, 376, 376(2)(n) of IPC, 1860 read with Section 3(2)
(v) of 'the Act, 1989' is made out against the applicant. Hence learned Senior counsel prayed for quashment of FIR bearing Crime No.425/2018 registered against the applicant at Police Station Mhow, District Indore and all the consequential proceedings.
05. On the contrary, learned Public Prosecutor opposes the application contending that consent of sexual intercourse accorded by the prosecutrix was on account of false promise of marriage and the applicant very well knew the fact that his marriage with the prosecutrix is not possible even then he persuaded her to have physical relationship on the pretext of marriage. Under these circumstances, counsel prayed for Digitally signed by Sumati Jagadeesan Date: 28/08/2019 10:07:03 M.Cr.C. No.13546/2019 4 rejection of the petition.
06. Having heard learned counsel for the applicant and perused the record.
07. It is well settled that exercise of powers under Section 482 of 'the Code' is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under 'the Code' or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of process of law"
or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise.
08. Hon'ble Apex Court in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of section 482 Cr.P.C. Seven categories of cases have been enumerated where power can be exercised under Section 482 of 'the Code'. Para 102 thus reads;
" 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 extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 formulae 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 Digitally signed by Sumati Jagadeesan Date: 28/08/2019 10:07:03 M.Cr.C. No.13546/2019 5 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 F.I.R. do not disclose a cognizable offence, justifying an investi-
gation 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;
(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"
09. In the case of Vineet Kumar and Ors. v. State of Uttar Pradesh and Anr. (2017) 13 SCC 369, the Hon'ble Supreme Court has held as under:
"Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be Digitally signed by Sumati Jagadeesan Date: 28/08/2019 10:07:03 M.Cr.C. No.13546/2019 6 abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding. The present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."
10. In the context of law laid down by the Hon'ble Apex Court, it is apparent that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers.
11. In the instant case, the FIR was registered against the applicant for offence under Section 294, 376(2)(n) of IPC, 1860 and Section 3(2)(v) of 'the Act, 1989'. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her, when if the consent is given by the complainant under misconception of fact, it is vitiated.
12. It is not disputed that the prosecutrix was aged about 35 years at the time of the incident and she was major. She was also a divorcee and therefore, she was capable for giving consent for sexual intercourse. However, in the present case, the applicant has already married and the prosecutrix alleged that the applicant informed her that he has filed divorce petition against his wife by mutual consent, which is pending before the Court and he will get Digitally signed by Sumati Jagadeesan Date: 28/08/2019 10:07:03 M.Cr.C. No.13546/2019 7 divorce with his wife within a period of 5 to 6 months, therefore, he proposed her. Looking to the aforesaid position, she accepted his proposal of marriage and on the pretext of marriage he made physical relationship with her, although she was not ready for that.
13. The applicant has not filed any documents to show that he has filed any application for getting divorce with his wife and the same was pending before any Court. The applicant was knowing the fact that the marriage with the prosecutrix is not possible then also he adduced the prosecutrix for making physical relationship on the pretext of marriage and therefore, this allegation made by the prosecutrix cannot be thrown out that she has given the consent for physical relationship with the applicant under miss-conception of fact. All these questions can be decided after recording the evidence of the parties. At this stage, it cannot be said that prima-facie no offence is made out against the applicant. Hence the present petition filed by the applicant for quashment of FIR and all consequential proceedings has no merit and is accordingly, dismissed.
14. With the aforesaid, Miscellaneous Criminal Case No.13546/2019 stands dismissed.
Certified copy as per Rules.
(S. K. AWASTHI) JUDGE sumathi Digitally signed by Sumati Jagadeesan Date: 28/08/2019 10:07:03