Chattisgarh High Court
Munnalal Tande vs State Of Chhattisgarh on 23 February, 2022
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 397 of 2021
Order reserved on : 14/12/2021
Order delivered on : 23/02/2022
Munnalal Tande, S/o Late Gangaram Tande, Aged About 49
Years, Presently Posted as Supervisor at Collectorate,
Mahasamund, R/o H-03, Government Colony Clubpara,
Mahasamund, District Mahasamund, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Police Station- Mahasamund,
District- Mahasamund, Chhattisgarh.
2. Smt. X Y Z Nill.
---- Respondents
For Petitioner : Mr. Sanjay Agrawal, Advocate. For State/Respondent No.1 : Mr. Akhtar Hussain, P.L. For Respondent No.2 : Mr. Manoj Paranjpe, Advocate Hon'ble Smt. Justice Rajani Dubey, Judge CAV Order 23/02/2022
1. This petition is filed under Section 482 of Cr.P.C. for quashing of Criminal Proceedings of Sessions Case No. 10/2021 arising out of Crime No. 313/2020 pending before the Additional Sessions Judge, FTC, Mahasamund (C.G.) and Final Report (Annexure A/1).
2. Brief facts of the case are that the prosecutrix/respondent No.2 lodged a written complaint before the Police Station- Mahasamund alleging inter alia that she was working as peon in the office of Collectorate, District- Mahasamund. It was further 2 alleged that around August September, 2019 the petitioner who was working as Collectorate Superintendent came into contact with her. She has further alleged that the petitioner told her that he has no wife and, therefore, he will marry her and take care of her children. Complainant believed his statement and on the pretext of marriage, the petitioner is alleged to have committed sexual intercourse with her by coming to her government quarter. She has further alleged that whenever she asked about marriage, the petitioner made excuses of family and departmental work and forced her to make false complaints against her old friends. It is further alleged that when the prosecutrix compelled the petitioner, the petitioner took her with her children and her mother to Chandi Mandir, Bagbahra and put vermillion on her forehead on 01.03.2020 and accepted her as wife, thereafter, petitioner again came to her house and continued sexual relation and on 05.03.2020, he compelled her to lodge the report. When the prosecutrix informed the above fact of going to Chandi Temple to her father Manmohan Bharge, sister Madhuri and other in-laws, then on 19.03.2020, they went with the prosecutrix to the government quarter of the petitioner situated at Club Para, Mahasamund (C.G.) but petitioner refused to keep her and also denied the marriage and on that day for the first time, the prosecutrix came to know that the petitioner is married. Thereafter, the prosecutrix after waiting for a considerable period, on 03.07.2020, she lodged written complaint at Police Station- Mahasamund. The reason for delay has been mentioned as 3 "Upon refusal to keep after discussion and advise by family members" in the FIR. In the FIR, the prosecutrix has levelled allegation on the petitioner that the petitioner forced her to make a false complaint against her old friends on 05.03.2020. In the aforesaid false case of gang rape the prosecutrix herself has given statement in favour of the four accused persons and have facilitated for their bail application before the High Court and also before the court below. Prosecutrix has executed an affidavit dated 02.06.2020 in which she has tried to twist the aforesaid case of gang rape to falsely implicate the present petitioner stating that the petitioner compelled her to make such report. Petitioner has filed this petition for quashing the criminal proceedings of Session Case No. 10/2021 pending before the Additional Sessions Judge, FTC, Mahasamund (C.G.) and the Final Report (Annexure A/1). Hence, this petition.
3. Learned counsel for the petitioner submits that the prosecutrix has stated in her complaint against the petitioner that he had concealed the fact that he is married and also have children. On 19.03.2020, she came to know about the wife and children of the petitioner. The prosecutrix was very much aware of the fact that the petitioner is married and having wife and children as she went to visit many places with the petitioner and his family and other common friends which is clear from the photographs (Annexure A/3). The registration of FIR against the petitioner is an abuse of process of law, there is a delay of more than 4 months in registering the FIR from the date of incident and no cogent 4 explanation has been given about delay in lodging the FIR, therefore, on that ground registration of FIR deserves to be quashed. The reason for delay in lodging the FIR itself shows that the FIR is vested with malafide and to seek revenge. On 05.03.2020, the prosecutrix has made a complaint at Police Station- Mahasamund, District- Mahasamund (C.G.) against four people for committing gang-rape with her from 01.10.2019 to 31.10.2019 and the police registered the same offence against all four accused in Crime No. 112/2020. The affidavit given in the aforesaid crime shows that the prosecutrix has tried to twist the case to somehow falsely implicate the petitioner. The prosecutrix is major aged about 30 years and if the whole case of the prosecution is accepted on its face, even then no offence is made out against the present petitioner because in the FIR, she herself has stated that "when the prosecutrix insisted for marriage with the petitioner, he took her to the Chandi Temple on 01.03.2020 and put vermillion on her forehead in front of her two children" this itself proves her case doubtful because when she herself is saying that the petitioner has married her on 01.03.2020, therefore, no case of offence under Section 376(1) can be made out against the present petitioner. The contents of the entire FIR does not disclose any offence committed by the present petitioner. Prosecution of the accused persons would be nothing but abuse of process of law and, therefore, the petition preferred by the petitioner deserves to be allowed. He further submits that merely the bald allegation without constituting any offence cannot be 5 given the effect of an offence at stake the life and liberty of the petitioner. In support of his argument, he has placed reliance in the matters of Pramod Suryabhan Pawar v. State of Maharashtra & Anr. reported in (2019) 9 SCC 608, State of Haryana and others v. Ch. Bhajan Lal and others reported in AIR 1992 SC 604 and Zandu Pharmaceuticals Works Ltd. And others Vs. Mohammad Sharaful Haque and another reported in (2005-vol-51-ACC-Page 188).
4. Per contra, learned State counsel opposes the petitioner's argument and would submit that after investigation, charge-sheet was filed against the petitioner under Section 376 and the offence committed by the petitioner is heinous in nature.
5. Counsel for respondent No.2 would submit that this petition is not maintainable and she has been exploited by the petitioner, therefore, she has filed FIR against the petitioner and after investigation, charge-sheet was filed and the case is pending before learned Sessions Judge. At every stage, statement of witness recorded under Section 161 of Cr.P.C. and offence of the accused cannot be taken into consideration by this Court. He has also placed reliance in the matter of Rajeev Kaurav v. Baisahab and others reported in (2020) 3 SCC 317.
6. Heard counsel for the parties and perused the material available on record.
7. Petitioner has filed the order sheets and statement of witnesses and other documents of Session Trial. During investigation, Statement of prosecutrix under Section 164 of Cr.P.C. has been 6 recorded by the Judicial Magistrate First Class and after recording of statements of other witnesses and completion of investigation, charge-sheet was filed against the petitioner under Section 376 of IPC. Petitioner has filed document for compensation which shows that in Crime No. 1128/2020, the prosecutrix has applied for compensation amount and amount of Rs. 8,25,000/- have been sanctioned out of which 50% has already been released in her favour. Learned counsel for the petitioner submits that thereafter, she denied the prosecution case in court below.
8. In the present case, the FIR and the statement of prosecutrix recorded under Section 164 of Cr.P.C. are prima facie sufficient to file charge-sheet against the petitioner.
9. Hon'ble Apex Court in the matter of Neeharika Infrastructure Private Limited Vs. State of Maharashtra and others reported in 2021 AIR (SC) 1918 has laid down some principles related to powers of the High Court under Section 482 of Cr.P.C. which reads as under:-
(iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a 7 rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law.
During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
10.Hon'ble Apex Court in the matter of State of Haryana and others Vs. Ch. Bhajanlal and others reported in AIR 1992 SC 604 has observed and held that in following category of cases the High Court may in exercise of powers under Article 226 under Section 482 of Cr.P.C. which reads as under:-
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(a) 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.
(b) 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 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;
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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.
11. Hon'ble Apex Court in the matter of Rajeev Kaurav Vs. Baisahab and others reported in (2020) 3 SCC 317 has held in para 8 which reads as under:-
It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the 9 ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings.
It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.
12. Looking into the contents of the FIR and statements recorded under Sections 164 & 161 of Cr.P.C. constitute prime facie offence against the petitioner. The case of the petitioner does not fall in any criteria as mentioned by Hon'ble Apex Court in various cases.
13. With the aforesaid observations, the petition is liable to be and is hereby dismissed.
Sd/-
(Rajani Dubey) Judge Ruchi