Madhya Pradesh High Court
Rakesh Burman vs The State Of Madhya Pradesh on 22 June, 2022
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 22nd OF JUNE, 2022
MISC. CRIMINAL CASE No. 22409 of 2022
Between:-
RAKESH BURMAN, S/O PYARELAL BURMAN,
AGED ABOUT 22 YEARS, OCCUPATION:
LABOURER, R/O WARD NO.2, SIHORA, POLICE
STATION SIHORA, DISTRICT JABALPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI AMANULLA USMANI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH, THROUGH
POLICE STATION SIHORE DISTRICT JABALPUR
(MADHYA PRADESH)
2. DEEPAK PATKAR, S/O NARENDRA PATHAK,
AGED ABOUT 21 YEARS, R/O WARD NO.2,
SIHORA, PS SIHORA, DISTRICT JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANOJ KUSHWAH - PANEL LAWYER)
This application coming on for admission this day, the court passed the
following:
ORDER
This petition under Section 482 of the Cr.P.C has been filed by applicant for quashment of the proceedings of S.T.No.128/2021 (State of M.P. vs. Rakesh Burman) under Section 377 of IPC pending on the Court file of 3rd ASJ, Sihora, District Jabalpur.
Signature Not Verified SANLearned counsel for the applicant has contended that in S.T.No.128/2021 Digitally signed by JASLEEN SINGH SALUJA Date: 2022.06.29 10:46:52 IST charge under Section 377 of IPC has been framed against the applicant for 2 commission of offence under Section 377 of IPC by 3rd ASJ, Sihora, District Jabalpur. He further contended that FIR was registered against the applicant on the basis of complaint made in writing by complainant Deepak Patekar about commission of carnal intercourse with him against the order of nature by applicant. Framing of charge and pendency of proceedings before the trial Court is abuse of the process of law. No offence under Section 377 of IPC is made out against the applicant as complainant and applicant had consensual sexual relationship. Consensual relationship between two male adults is not an offence.
Learned counsel for the applicant placing reliance on the ratio of judgement of Navtej Singh Johar vs Union Of India, Ministry Of Law, reported in (2018)10 SCC 1 has contended that consensual sexual relation of adults has been decriminalized by the apex Court. In this case complainant and applicant/accused both are adult, the recital of the complaint made in writing by the complainant itself reveals that sexual acts between them were consensual in nature. Therefore, continuation of proceedings and trial of the S.T.No.128/2021 against applicant for offence under Section 377 of IPC is an abuse of process of law. Therefore, it has been prayed that proceedings of S.T.No.128/2021 pending on the case file of 3 rd ASJ, Sihora, District Jabalpur be quashed and petitioner be set at liberty.
On the other hand, learned counsel for the State has opposed the argument advanced by the learned counsel for the applicant and has submitted that complainant has made a complaint in writing before the Police about carnal Signature Not Verified SAN intercourse with him without his consent against the order of nature by the Digitally signed by JASLEEN SINGH SALUJA applicant. Complainant has nowhere stated that act done by the applicant was Date: 2022.06.29 10:46:52 IST 3 consensual in nature. Therefore, proceedings of trial pending before the learned 3rd ASJ in S.T.No.128/2021 cannot be quashed.
I have heard rival submissions of learned counsel for the parties and gone through the material available in the case diary.
On a perusal of the complaint made in writing against the applicant complainant, it is revealed that on 21.07.2021, Deepak Patekar 21 years old boy filed a complaint in writing before the Sihora Police alleging that on 17.07.2019 Rakesh Burman told him that they both will remain together. On 17.07.2019 Rakesh Burman committed unnatural offence with him. Thereafter, he took him to Jabalpur. They both worked at Bittu Dhaba for one year and in that period Rakesh Burman committed unnatural offence with him for a number of times. On 25.06.2020 Rakesh left with his sister Pooja Burman. An F.I.R. was registered.
In his statement under Section 161 of Cr.P.C complainant Deepak Patekar has clearly stated that on 17.07.2019 unnatural sex was committed with him by Rakesh Burman after consuming liquor. He further stated that after coming over to his home, her mother and sister had asked Rakesh as to why he has committed such grotesque act with Deepak. He further stated that all persons working in Bittu Dhaba had tried to make Rakesh understand for not committing such act with him. In the meantime, Pooja Burman, sister of applicant Rakesh had sent some miscreants to his home. On 25.06.2020, Pooja and Rakesh Burman beat him He has clearly stated that Rakesh Burmam had exploited him. In his statement, he has nowhere stated that he was having Signature Not Verified consensual sexual relationship with Rakesh Burman. In his statement recorded SAN under Section 164 of the Cr.P.C Deepak Patekar has made specific allegations Digitally signed by JASLEEN SINGH SALUJA Date: 2022.06.29 10:46:52 IST against Rakesh about forcibly committing unnatural offence with him. He has 4 nowhere stated that his relations were consensual in nature.
As far as the pronouncement in the case of Navtej Singh Johar vs Union Of India, Ministry Of Law (supra) is concerned, Hon'ble Supreme Court has decriminalized Section 377 only to the extent where consensual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. Where such consent is a free consent and completely voluntary in nature and devoid of any duress or coercion. In this case from the averments of complaint and statement made by the complainant it cannot be said that sexual acts by applicant/accused with complainant was consensual or complainant had given a free consent which was completely voluntary in nature and devoid of any duress or coercion. In the case of Navtej Singh Johar (supra), it has been specified that the provisions of Section 377 of IPC will continue to govern non- consensual sexual acts against adults, all acts of carnal intercourse against minors and acts of bestiality.
In the case in hand, a perusal of the complaint, the statement of the complainant recorded under Section 161 and 164 of Cr.P.C. nowhere suggests that there was a consensual sexual relationship between the complainant and the applicant/accused. On the contrary, it appears that it was not voluntary in nature and devoid of duress of person. In such circumstances when after investigation, charge sheet has been filed and learned trial Court has framed the charges and applicant accused is facing trial, it would not be justified to quash the proceedings of S.T.No.128/2021 because under Section 482 of the Cr.P.C Signature Not Verified SAN it cannot be decided whether legal evidence is available or not or evidence Digitally signed by JASLEEN SINGH SALUJA available is clearly inconsistent with the accusations made, and a case where Date: 2022.06.29 10:46:52 IST 5 there is legal evidence which on appreciation, may or may not support the accusations, When exercising jurisdiction under Section 482 of the Cr.P.C High Court cannot decide whether the evidence available in case is reliable or not reliable or whether on a reasonable appreciation of accusations would not sustain . It is the function of the trial Judge who after recording and appreciating the evidence of the parties has to record its opinion whether prosecution has successfully proved its case or not.
In case of State of A.P. Vs. Golconda Linga Swamy, reported in (2004) 6 SCC 522, in para 7 the Hon'ble Supreme Court has held as under:
"7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death."Signature Not Verified SAN
In the case of Neeharika Infrastructure Private Limited Vs. State of Digitally signed by JASLEEN SINGH SALUJA Date: 2022.06.29 10:46:52 IST Maharashtra and Others, reported in 2021 SCC OnLine SC 315, the 6 Hon'ble Supreme Court has made it clear that power of quashing the proceedings should be exercised sparingly with circumspection and in the rarest of rare cases (not to be confused with the confirmation in the context of death penalty). It is further held that quashing of case should be an exception rather then ordinary rule.
In this case, it has to be noted that if applicant was not satisfied with the framing of charges by learned Judge under Section 377 of IPC he had to challenge the order of framing of charge in revision, but instead of doing so. He has filed petition under Section 482 of Cr.P.C. for quashing of entire criminal proceedings of session trial. In the case in hand, on going through the FIR and other material on record it cannot be said that complaint discloses no offence or continuation of the prosecution will be abuse of process. Therefore, in the facts and circumstances of the case, I am of the view that it is a case which does not warrant exercise of the powers under Section 482 of the Cr.P.C by this Court.
Consequently, this petition under Section 482 of the Cr.P.C being devoid of merits is dismissed.
(DINESH KUMAR PALIWAL) JUDGE Jasleen Signature Not Verified SAN Digitally signed by JASLEEN SINGH SALUJA Date: 2022.06.29 10:46:52 IST