Madhya Pradesh High Court
Rohit Rajput vs The State Of Madhya Pradesh on 9 February, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.4509/2022
(Rohit Rajput Vs. State of M.P.)
Through video conferencing
Gwalior, Dated: 09.02.2022
Shri K.P.S. Sengar, Counsel for the applicant.
Shri A.K. Nirankari, Counsel for the State.
Shri Pradeep Katare, Counsel for the complainant.
Case diary has been received in M.Cr.C. No.6120/2022,
which is listed at serial no.15, whereas this case is listed at serial
no.15.1.
This application under Section 482 of Cr.P.C. has been filed
for quashment of FIR in Crime No.597/2021 registered at Police
Station Thatipur, District Gwalior for offence under Section 366-A,
343, 376(2) (n), 376(3), 506, 34 of IPC and Section 3/4 and 5 A.L/6
of POCSO Act.
2. It is submitted by the counsel for the applicant that in fact the
prosecutrix is major and initially on the basis of the forged
documents, she was shown to be minor but later-on on the affidavit
of the Principal of the School, it was found that the prosecutrix is
major and therefore, the offence under POCSO Act has been deleted.
The prosecutrix had voluntarily married the co-accused and in case,
if the applicant is prosecuted for the offence in question, then his
carrier would be ruined.
3. Per contra the application is vehemently opposed by the
2
THE HIGH COURT OF MADHYA PRADESH
MCRC No.4509/2022
(Rohit Rajput Vs. State of M.P.)
counsel for the state.
4. The application filed by the applicant for grant of anticipatory
bail has been rejected by this Court by a detailed order dt.11.01.2022
passed in M.Cr.C. No.18/2022. The applicant is still absconding and
he has not surrendered. It is not out of place to mention here that the
co-accused Yogesh Gahlot had filed a Writ Petition No.16082/2021
in the nature of Habeas Corpus. In the said Writ Petition the
prosecutrix appeared before the High Court and made the following
statement on 20.09.2021, which reads as under :
" The corpus present in person stated that she is
not in illegal confinement of her father and the
petitioner has forcefully married with her
without her consent for the same"
5. This Court by order dt.27.09.2021 passed in W.P.
No.16082/2021 passed the following order:
"This petition in the nature of habeas
corpus has been filed for production of corpus
by the petitioner. The petitioner is claimed to
have married the corpus. On 20/9/2021 the
corpus had appeared before the Court and made
a statement that she is not in illegal confinement
of her father and the petitioner has forcibly
married her without her consent for the same.
Thereafter, on 22/9/2021 the following order
was passed:-
Respondent No.4 has filed
IA.12110/2021 along with which letter signed by the Corpus served in the office of the Superintendent of Police, Gwalior on 06.09.2021 is annexed, the reading of which 3 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) discloses commission of cognizable offence.
Sub-Inspector Ms. Ankita Bhargava, Police Station Thatipur, Gwalior (M.P.) informs that this letter has not yet been received in the Police Station.
The Superintendent of Police, Gwalior (M.P.) is directed to file an affidavit as to the fate of the letter received in his office on 06.09.2021.
Let affidavit be filed latest by 24.09.2021.
List the case on Monday i.e.27.09.2021.
In the meanwhile, Corpus is allowed to reside with her parents.
From the plain reading of this order, it is clear that on 22/9/2021 Ms. Ankita Bhargava, Sub Inspector, Police Station Thatipur, District Gwalior had informed the Court that the copy of letter dated 6/9/2021 written by the corpus to the Superintendent of Police, Gwalior has not been received.
In compliance of the aforesaid order, the Superintendent of Police, Gwalior has filed his affidavit. Paragraphs 3, 4 and 5 of the affidavit read as under:-
"3. That, after passing the order by this Hon'ble court deponent inquired from the regarding receipt and dispatch details of letter / complainant dated 06-
09-2021 and it was revealed from the record that complainant /letter was received on 06-09-2021 and thereafter this complainant was dispatched to Police Station Thatipur on 08-09- 4 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) 2021 and was received very same day. A copy of dispatch detail is enclosed herewith as Annexure A/1
4. That, thereafter deponent immediately issued letter dated 23-09-2021 and detailed City Superintendent of Police Morar District Gwalior to conduct the preliminary inquiry and fix the responsibilities of negligence on delinquent officers in this matter and further directed C.S.P. Morar to submit report within 3 days so that further action can be initiated. A copy of letter dated 23-09-2021 is enclosed herewith as Annexure A/2
5. That, deponent further submits that on oral report of corpus and her mother an FIR 597/2021 dated 23-09- 2021 under section 366A, 343, 376(2)(n), 376(3), 506 and 34 of IPC and section 5l, 6, 3 and 4 Protection of Children from Sexual Offences Act, 2012 has also been lodged at Police Station Thatipur. A copy of FIR dated 23- 09-2021 is enclosed herewith as Annexure A/3"
From the affidavit of Shri Amit Sanghi, Superintendent of Police, Gwalior, it is clear that the complaint dated 6/9/2021 made by the corpus to the Superintendent of Police, Gwalior was dispatched to Police Station Thatipur on 8/9/2021 and it was received on the very same day. It is really shocking that in spite of receipt of complaint dated 6/9/2021 on 8/9/2021, the Sub Inspector Ms. Ankita 5 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) Bhargava posted in Police Station Thatipur made a false statement before this Court that the copy of letter dated 6/9/2021 has not been received. Further, it is clear from the affidavit of Shri Amit Sanghi, Superintendent of Police, Gwalior that in spite of receipt of complaint dated 6/9/2021 by Police Station Thatipur, no action was taken and only after the order dated 22/9/2021 was passed by this Court, thereby requiring the Superintendent of Police Gwalior to file an affidavit as to the fate of the letter received in his office on 6/9/2021, it appears that the FIR in Crime No.597/2021 has been lodged on 23/9/2021 for offence under Sections 366-A, 343, 376(2)(n), 376(3), 506, 34 of IPC and Section 5l, 6, 3, 4 of the Protection of Children from Sexual Offices, Act. Thus, it is clear that the statement made by Ms. Ankita Bhargava, Sub Inspector, Police Station Thatipur, District Gwalior on 22/9/2021 runs contrary to the affidavit of Shri Amit Sanghi, Superintendent of Police, Gwalior. Further, Shri Amit Sanghi, Superintendent of Police, Gwalior has also filed the copy of the dispatch details to show that the complaint dated 6/9/2021 received in the office of Superintendent of Police, Gwalior was sent to SHO, Police Station Thatipur, District Gwalior on 8/9/2021. From the affidavit of Shri Amit Sanghi, Superintendent of Police, Gwalior, it is also clear that a direction has been given to CSP, Morar, District Gwalior to conduct a preliminary enquiry as to why no action was taken on the complaint made by the corpus and why Ms. Ankita Bhargava, Sub Inspector, Police Station Thatipur had given a false statement before the High Court.
At present, there is nothing on record to show the outcome of that enquiry. It is not known that as to whether any enquiry has been conducted or not.
Be that as it may.
6THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) It is the case of Superintendent of Police, Gwalior that Ms. Ankita Bhargava, Sub Inspector, Police Station Thatipur, District Gwalior has made a false statement before the Court on 22/9/2021 and in fact the complaint dated 6/9/2021 was already received in Police Station Thatipur, District Gwalior on 8/9/2021 and in spite of that, no action was taken. Thus, it is clear that Ms. Ankita Bhargava, Sub Inspector, Police Station Thatipur, District Gwalior had made a false statement on 22/9/2021. Accordingly, issue show-cause notice to Ms. Ankita Bhargava, Sub Inspector, Police Station Thatipur, District Gwalior as to why she may not be punished for having committed gross contempt of Court by making false statement before this Court on 22/9/2021.
Office is directed to register contempt proceedings separately. The notice be served through Superintendent of Police, Gwalior. List the contempt case in the week commencing 20/10/2021.
At this stage, it is submitted by the counsel for the petitioner that in view of the subsequent developments, he does not wish to press this petition.
Accordingly, this petition is dismissed as not pressed.
6. It is the contention of the counsel for the applicant that the Principal of the school had subsequently given a supplementary affidavit pointing out that the date of birth of the prosecutrix mentioned in the school record was incorrect and accordingly, on the basis of this supplementary affidavit the offences under POSCO Act have been deleted.
7. Considered the submission made by the counsel for the 7 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) applicant.
8. A similar submission was made by the co-accused Yogesh Gahlot in his application under Section 438 of Cr.P.C., which was registered as M.Cr.C. No.54837/2021 and which was decided by order dt.17.11.2021 and following order was passed :
This first application under Section 438 of CrPC has been filed for grant of anticipatory bail.
The applicant apprehends his arrest in connection with Crime No. 597/2021 registered at Police Station - Thatipur, Gwalior, District Gwalior, for offence punishable under Sections 366-A, 343, 376(2), 376(3), 506, 34 of IPC and Section 5L/6, 3/4 of POCSO Act.
Heard on I.A. No.31859/2021, an application for conducting ossification test of the prosecutrix.
The Supreme Court in the case of Joginder Singh Vs. State of Haryana reported in (2014) 11 SCC 335 has held that the age of a victim is to be assessed as per the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015. Section 94 of the Act, 2015 reads as under:-
"94. Presumption and determination of age.- (1)Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further 8 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining --
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."9
THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) Thus, the question of ossification test would arise only if the documents mentioned in the above mentioned Section are not available. In the present case, the school register of prosecutrix is available and further the accused has no right to dictate the Investigating Officer. Furthermore, from the case diary, it is clear that the ossification test report of the prosecutrix is already available. Accordingly, I.A. No.31859/2021 is hereby rejected.
I.A. No. 31838/2021 and I.A. No. 31839/2021 have been filed for taking additional documents on record.
It is submitted by Counsel for applicant that he has obtained certain documents from the school with regard to the date of birth of prosecutrix, therefore, they may be taken on record. It is further submitted that these documents have already reached to police station on 08.11.2021. When Shri Manish Sharma was asked as to how the applicant is aware of the fact that certain documents regarding the date of birth of prosecutrix have reached to the Police Station, then it is submitted by Shri Sharma that the concerning school has informed the applicant under the Right to Information Act that the previous admission register was wrongly given to the Police and now the correct admission register has been given to the Police on 08.11.2021. Thus, it is clear that the applicant even during his abscondance is approaching the various witnesses.
Be that as it may.
The Police case diary also contains the school register and certain documents, which has been provided by the school on 08.11.2021, therefore, there is no need to take the documents on record which has been filed along with I.A. No.31838/2021. Accordingly, I.A. No.31838/2021 is rejected.
So far as I.A.No.31839/2021 is 10 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) concerned, Samagra I.D. of the family of the prosecutrix has been placed on record which shows that the age of the prosecutrix was 18 years on the date of registration i.e. on 31.5.2014.
So far as Samagra I.D. is concerned, first of all it is suffice to mention that it is not a document of age of a person. Furthermore, in the year 2014 it was shown that the prosecutrix is aged about 18 years and, therefore, in the year 2021 she should have been aged about 25 years whereas it is the case of the applicant that she has attained the age of 18 years in the month of June, 2021. Thus on merits also the Samagra I.D. cannot be accepted. The applicant has also annexed a copy of the application which was filed for obtaining the caste certificate of the prosecutrix according to which the date of birth of the prosecutrix was disclosed as 5.6.2003. It is suffice to mention here that not only this document does not contain any attestation by a competent authority but it also does not find place in Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015, therefore, it cannot be considered.
According to the prosecution case, the prosecutrix is minor and her date of birth is 20.11.2006. On 22.06.2021, she went missing and thereafter she came back on 02.07.2021. It was stated by her that she was kidnapped by the co-accused Rohit and applicant and they took her to a room which was being claimed by co-accused Rohit as his room and when she objected to it, then applicant claimed that he would marry her and would keep her as his wife. When the prosecutrix objected to it, then she was locked inside the room and was kept there for seven to eight days. The applicant was also residing with her whereas co-accused Rohit was frequently visiting and was providing food. During this period of seven to eight days, she was raped by the applicant on 11 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) various occasions. Thereafter, the applicant took her to his house situated in Kabir Colony, Thatipur where she was kept forcefully. On one day, applicant and his parents brought certain papers and compelled her to sign the same without permitting her to read out and thereafter the applicant claimed that now she has become his wife and she cannot go anywhere. She came back to her parental home on 02.07.2021 and then she narrated the entire incident.
So far as the question of marriage between the applicant and the prosecutrix is concerned, it is suffice to mention here that according to the prosecution case, the prosecutrix is minor. Furthermore, as per the allegations made by the prosecutrix she was raped prior to signing of certain documents of marriage. Furthermore, the applicant has annexed a copy of the marriage certificate issued by the Mool Shankar Arya Samaj Vaidik Sanstha, Pawan Sut Colony, Hurawali, Gwalior. In the case of Shalu Sharma vs. State of M.P. by order dated 9.12.2020 passed in W.P.No.762/2020, this Court had specifically restrained Mool Shankar Arya Samaj Vaidik Sanstha, Pawan Sut Colony, Hurawali, Gwalior from performing any marriage. It appears that Madhya Bharat Arya Pratinidhi Sabha who was being represented in W.P.No.762/2020 filed review petition and while issuing notices, this Court by order dated 13.1.2021 passed in R.P.No.1202/2020 stayed the direction issued by this Court to Madhya Bharat Arya Pratinidhi Sabha to amend the guidelines in the light of provisions of Sections 5 to 8 of Special Marriage Act. It also appears that Mool Shankar Arya Samaj Vaidik Sanstha, Pawan Sut Colony, Hurawali, Gwalior has also filed W.A.No.95/2021 and it has been informed by the State Counsel that the restrain order issued by this Court against Mool Shankar Arya Samaj Vaidik Sanstha, 12 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) Pawan Sut Colony, Hurawali, Gwalior has not been stayed. Thus it is clear that the restrain order issued against Mool Shankar Arya Samaj Vaidik Sanstha, Pawan Sut Colony, Hurawali, Gwalior is still in force and in spite of that Mool Shankar Arya Samaj Vaidik Sanstha, Pawan Sut Colony, Hurawali, Gwalior has performed the marriage and in the light of the direction given in the case of Shalu Sharma (supra), the marriage performed by Mool Shankar Arya Samaj Vaidik Sanstha, Pawan Sut Colony, Hurawali, Gwalior is an invalid marriage. Furthermore, in the light of the judgment passed by the Supreme Court in the case of Independent Thought vs. Union of India & Anr. reported in (2017) 10 SCC 800, physical relationship with a minor wife below the age of 18 years would also be an offence as exception 2 of Section 375 of IPC has been read down.
Accordingly, no case is made out for grant of anticipatory bail. The application fails and is hereby dismissed.
9. Therefore, while considering the supplementary affidavit of the Principal, this Court had rejected the contention of the co-
accused with regard to the fact that the prosecutrix is major. Further more, this Court had also observed that in the light of order dt.09.12.2020 passed in W.P. No.762/2020 in the case of Shalu Sharma vs. State of M.P. the Mool Shankar Arya Samaj Vaidik Sanstha, Pawan Sut Colony, Hurawali, District Gwalior, was restrained from performing any marriage ceremonies and it was also observed that in case, if any marriage is performed by the said 13 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) institution, then the said marriage would be an invalid marriage. If the statement of the prosecutrix which was made by her before this Court in the Writ Petition filed in the nature of Habeas Corpus that she was forcibly married to the co-accused is taken into consideration, then it is clear that the statement of prosecutrix before this Court is correct. It is not out of place to mention here that Mool Shankar Arya Samaj Vaidik Sanstha Pawan Sut Colony, Hurawali, District Gwalior, had filed Writ Appeal No.95/2021 against the order passed in the case of Shalu Sharma (supra ) and the said Writ Appeal has been dismissed by order dt.17.12.2021.
10. According to the prosecution case, the prosecutrix was kidnapped by the co-accused Yogesh Gahlot and the present applicant. The motorcycle was being driven by the present applicant whereas Yogesh was a pillion rider. They took her to a room which was claimed by the applicant as his room. Thereafter, she was detained in the said room and she was locked by the applicant. The co-accused Yogesh was staying with the prosecutrix, whereas the applicant was providing food and during this period of illegal detention, Yogesh Gahlot had committed rape on the prosecutrix on various occasions. Thus, there are specific allegations that the applicant had not only assisted the co-accused in kidnapping the prosecutrix but he also assisted the co-accused by providing his room 14 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) and by locking the prosecutrix inside the room as well as he was continuously providing food to the co-accused as well as the prosecutix.
11. Further more, whenever any application under Section 482 of Cr.P.C. is filed, it is always expected that the counsel must disclose as to whether his application for bail has been rejected or not ? The submission, which have been made by the applicant in the present case have already been dealt with by this Court while considering the first bail application of the co-accused Yogeh Gahlot as well as the first bail application of the present applicant in M.Cr.C. No.18/2022.
Unfortunately, without disclosing that the bail application filed by the applicant under Section 438 of Cr.P.C. has been rejected on 11.01.2022, this application was filed for quashment of the proceedings on 20.01.2022. Thus, it is clear that every attempt was made to mislead the Court by suppressing the fact that the bail application of the applicant under Section 438 of Cr.P.C. has already been dismissed on 11.01.2022.
12. Be that whatever it may be.
13. The lawyers must realize that they are the officers of the Court and they must come with clean hands so that they can assist the Court in passing correct orders.
14. Considering the totality of the facts and circumstances of the 15 THE HIGH COURT OF MADHYA PRADESH MCRC No.4509/2022 (Rohit Rajput Vs. State of M.P.) case coupled with the allegations made against the applicant this Court is of the considered opinion that no case is made out for quashment of FIR.
The application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Shanu Digitally signed by SHANU RAIKWAR Date: 2022.02.09 17:05:34 -08'00'