Madhya Pradesh High Court
Parwati Bai vs The State Of Madhya Pradesh Thr on 29 August, 2018
1
HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018
Shri R.K. Upadhyay, learned counsel for the
petitioner.
Shri G.S. Chauhan, learned Public Prosecutor for
respondent no.1-State.
Heard.
This petition under Section 482 of the Criminal Procedure Code (for short 'Cri.P.C.') has been filed by complainant Parwati Bai being aggrieved by order dated 12.06.2018 passed by the learned Special Judge, Vidisha, whereby the learned Special Judge has quashed the order passed by Ms. Barbi Juneja, Judicial Magistrate First Class, Vidisha, taking cognizance against the accused persons vide order dated 25.10.2017.
2. A perusal of order dated 25.10.2017 reveals that cognizance has been taken against Dinesh, Kailash, Pooja, Neeraj and Badki under the provisions of Sections 324, 323, 294, 341, 354, 354B, 394, 506B, 427 read with Section 34 of the Indian Penal Code (for short 'IPC') on a complaint filed by petitioner Parvati Bai. Copy of such complaint has been enclosed by petitioner Parvati Bai as Annexure P/4.
3. It is not in dispute that petitioner Parvati Bai had approached the Police Station Kotwali on 02.04.2016, where a report in regard to non-cognizable offence was lodged against Kailash. The allegation in the report was that on 02.04.2016, when complainant Parvati Bai was returning from hospital alongwith her younger son Ajay, 2 HIGH COURT OF MADHYA PRADESH MCRC No.29247/2018 (Parwati Bai v. State of MP) Gwalior, Dated : 29.08.2018 then close to Bajaria Chowki, she had met Kailash Yadav. Because of old report, he started abusing her and was preparing to beat her when she left the place alongwith her son, and thereafter approached the Police alongwith her husband and Guru Bhai Tilak Singh Kushwah. In this report, there is no mention of name of other accused persons except Kailash, but a private complaint was filed under the provisions of Sections 324, 323, 294, 341, 354, 354B, 394, 506B, 427 read with Section 34 of IPC against five named persons and three unknown persons. In this regard, statements of prosecutrix were recorded and she gave her statements on 22.08.2016 under Section 200, Cr.P.C. and in her first para, she narrated that on 02.04.2016, close to Bajaria Chowki, Kailash had met her and had abused her. At that point of time, she had elaborated the specific abuses, which were hurled by Kailash to the effect that he had said that why she is roaming around and he will throw her and then she had caught hold of her hand and had tried to pull her clothes, and thereafter, he had run away on his vehicle. In paragraphs 2, 3 and 4, she has only narrated about the incident which had taken place on 06.01.2016 and has not said anything about the incident which had taken place on 02.04.2016.
4. Her son, another person, who was allegedly with her, PW2 Ajay, who was a student of 7 th Class, was examined 3 HIGH COURT OF MADHYA PRADESH MCRC No.29247/2018 (Parwati Bai v. State of MP) Gwalior, Dated : 29.08.2018 before the trial Court and he narrated that on 02.04.2016, when he was returning back from the Government Hospital alongwith his mother, then on way, they had met Kailash Yadav, who had obstructed the way of his mother and had abused her and then had tried to pull the clothes of her mother. Thereafter, Kailash had run away and then he says that his mother had gone to the Police Station to lodge report. These two statements contain material contradictions inasmuch as complainant Parvati Bai has not given any statement that she had gone with her son to lodge the report. In fact, the report Annexure P/3 reveals that she had gone alongwith her husband and Guru Bhai Tilak Singh Kushwah to report the matter. Therefore, report Annexure P/3 does not disclose presence of her son Ajay at the time of lodging of the report. On the basis of such statements, the Court of JMFC Ms. Barbi Juneja had taken cognizance against five persons under the provisions of Sections 324, 323, 294, 341, 354, 354B, 394, 506B, 427 read with Section 34 of IPC.
5. Being aggrieved by the said order, the accused persons had filed a revision before the Court of the Special Judge, who has quashed the order of taking cognizance after recording a finding that none of the ingredients of the offences alleged against accused persons are made out.
6. At this stage, the learned counsel for the petitioner when asked, fairly admits that the offences under Sections 4 HIGH COURT OF MADHYA PRADESH MCRC No.29247/2018 (Parwati Bai v. State of MP) Gwalior, Dated : 29.08.2018 294, 341 and 354B of IPC will be made out against Kailash and cognizance has been wrongly taken under other Sections and such Sections will be dropped during the trial.
7. In support of such submissions, the learned counsel for the petitioner has placed reliance on the judgment of the Madhya Pradesh High Court in the case of Anil Kumar Sahu & Others v. Laxmi & Another as reported in 2005 (3) MPLJ 495. The ratio of the judgment is that a criminal complaint need not be quashed, where ingredients of the offence are disclosed.
8. Similarly, the learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of Mona Panwar v. High Court of Judicature of Allahabad as reported in (2011) 3 SCC 496. Reliance has been placed on paragraphs 19 and 20 of the said judgment, where the phrase "taking cognizance of" has been defined to mean cognizance of an offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. It has been held in paragraph 19 that when the Magistrate had applied his mind only for ordering an investigation under Section 156 (3) of the Code or issued a warrant for the purposes of investigation, he 5 HIGH COURT OF MADHYA PRADESH MCRC No.29247/2018 (Parwati Bai v. State of MP) Gwalior, Dated : 29.08.2018 cannot be said to have taken cognizance of an offence. In paragraph 20, it has been held that taking cognizance is a different thing from initiation of the proceedings. One of the objects of examination of the complainant and his witnesses as mentioned in Section 200 of the Code is to ascertain whether there is prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person. Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further.
9. In the light of these judgments when the record of the case and the impugned order are scrutinized, it is apparent that in the Police complaint Annexure P/3, the allegations were made only against one person, i.e., Kailash Yadav. There is no mention of other persons Dinesh Saxena, Pooja Saxena, Neeraj Yadav or Badki Bhoi. In fact, learned counsel for petitioner admits that Police has already registered Crime No.22/16; State v. Kailash & Others and Crime No.23/16; State v. Mahesh, and both the cases are pending before the same JMFC. However, a private complaint has been filed besides Kailash Yadav against these persons and three unknown persons, which prima-faice reveal that the complainant has resorted to a vexatious and false action intended only to harass persons 6 HIGH COURT OF MADHYA PRADESH MCRC No.29247/2018 (Parwati Bai v. State of MP) Gwalior, Dated : 29.08.2018 against whom a case has been filed on 08.01.2016 and in regard to which the learned counsel for the petitioner admits that counter-cases have been filed. Therefore, as far as other persons except Kailash Yadav are concerned, cognizance has been wrongly taken by the JMFC and learned JMFC Ms. Barbi Juneja has failed to apply her judicial mind and in the opinion of this Court, Ms. Barbi Juneja has not only failed to apply a judicial mind, but has also failed to appreciate the legal provisions correctly before taking cognizance of the complaint and, therefore, the Registrar General is directed to take cognizance of this order and initiate appropriate remedial training for the concerned JMFC on the administrative side after giving opportunity of hearing to her. For this purpose, Registrar General may call for complete case papers including present petition.
10. As far as Kailash Yadav is concerned, it is apparent from Annexure P/3 that there are no specific abuses mentioned in the complaint. This fact has been appreciated by the learned Special Judge and he has categorically taken note of this fact that in the report it is not mentioned as to which abuses were hurled by Kailash Yadav and whether such abuses were offensive or not. In view of such facts and also the fact that when the Police had not taken cognizance of the offence, she had not taken any action under the provisions of Section 154 (3), Cr.P.C. and 7 HIGH COURT OF MADHYA PRADESH MCRC No.29247/2018 (Parwati Bai v. State of MP) Gwalior, Dated : 29.08.2018 had not approached the Superintendent of Police disbelieving evidence of Ajay her son and that of her husband Mahesh Prajapati, who had not deposed anything in regard to the incident, which had taken place on 02.04.2016. In fact, in his statement Mahesh Prajapati has given the date of the incident as 04.01.2016. He has mentioned that at about 8.00 AM, he was taking sun bath when Kailash Yadav and his wife Neeraj were abusing them. The scrutiny of statement of Mahesh Prajapati reveals that nowhere in his statement he has narrated anything about incident which had taken place on 02.04.2016. He has even not mentioned that his wife had narrated anything about such incident and he had gone to the Police Station to make report in regard to the incident which had allegedly taken place on 02.04.2016. Similarly, Bablu Kushwah has also narrated about some incident which had taken place on 04.01.2016 at 8.00 PM. Therefore, two of the witnesses, which had been examined in support of the complainant, i.e., Mahesh Prajapati and Bablu Kushwah are not reliable witnesses.
11. As far as Ajay is concerned, Ajay too is not reliable witness inasmuch as Ajay has narrated that from the place of the incident, he had gone to the Police Station alongwith his mother and thereafter the Police caught hold of Kailash Yadav and had brought him to the Police Station, where he was put behind the lock up and thereafter he was 8 HIGH COURT OF MADHYA PRADESH MCRC No.29247/2018 (Parwati Bai v. State of MP) Gwalior, Dated : 29.08.2018 released. It is apparent that when the Police had recorded a complaint for non-cognizable offence, then there was no justification for the Police to have apprehended Kailash and put him behind the lock up. Therefore, the statements of Ajay also do not inspire any confidence.
12. As far as the complainant is concerned, the complainant in her Police report has not narrated the specific abuses and has also not mentioned that Kailash had intercepted her or had tried to obstruct her, therefore, none of the ingredients under Section 341 of IPC are available inasmuch Section 341 of IPC prescribes punishment for wrongful restraint. In the Police complaint, there is no mention of any wrongful restraint and which is a further improvement in her complaint and in her statements.
13. Similarly, Section 294 of IPC deals with obscene acts and songs. In the Police complaint, there is no mention of any obscene acts committed by Kailash. It is only mentioned that he had abused and was preparing to beat them. Therefore, the offence under Section 294 of IPC will also not be made out.
14. Similarly, to constitute an offence under Section 354B of IPC, there should be an assault or use of criminal force to woman with intent to disrobe. None of the ingredients under Section 354B of IPC have been mentioned in the Police complaint Annexure P/3, therefore, cognizance could 9 HIGH COURT OF MADHYA PRADESH MCRC No.29247/2018 (Parwati Bai v. State of MP) Gwalior, Dated : 29.08.2018 not have been taken even under Section 354B of IPC. As is apparent from the deposition of Mahesh Prajapati as is available on page 27 of this petition, the Special Judge has rightly quashed the impugned order. Therefore, the learned Special Judge has rightly appreciated the evidence and the material on record and has quashed the order passed by the JMFC taking cognizance against all the accused persons under Sections 324, 323, 294, 341, 354, 354B, 394, 506B, 427 read with Section 34 of IPC. Thus, there is no illegality or irregularity in the impugned order passed by the learned Special Judge, Vidisha, who has rightly set aside the illegal order passed by the JMFC.
15. In view of such facts, this Court is not required to exercise its inherent jurisdiction under Section 482, Cr.P.C. to quash the impugned order. Thus, the petition fails and is dismissed with costs of Rs.2,000/- to be paid by the petitioner to accused Kailash for filing a vexatious complaint.
16. Let a copy of this order be sent by the Registry to the Registrar General for necessary action.
(Vivek Agarwal) Judge meh/-
Digitally signed by MEHFOOZ AHMEDDate: 2018.08.30 10:57:46 +05'30'