Madhya Pradesh High Court
Ashok Agrawal vs The State Of Madhya Pradesh on 31 January, 2019
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.22313/2017
Shri Amit Agrawal, learned senior counsel with shri
G.S. Chouhan, learned counsel for the applicant.
Shri Swapnil Verma, learned counsel for the
respondent No.1/State.
Shri U.S. Thakur, learned counsel for the respondent
No.2.
ORDER
( Passed on 31 /01/2019) The applicant has preferred this petition under Section 482 of Cr.P.C. for quahsing the FIR bearing crime No.52/2017 as well as charge sheet filed by the police Station- Khudail, District Indore for the offence punishable under Section 376, 323, 506 of I.P.C. and consequential proceedings of criminal case No.1342-2017 pending before Additional Chief Judicial Magistrate, Indore.
(2). The necessary facts for the disposal of the present application in short are that the complainant is a resident of Kuttakpur Gola, Tehsil-Fatehabad, District Agra. She desirous for visiting Khajrana Temple Indore had travelled from Agra to Bhopal on 20.02.2017 by train, followed by bus and reached Indore apropos to her desire to beholding Khajrana Ganesha Temple. The complainant upon an arrival in Indore, called the present applicant with whom she was mildly acquainted and asked him to succor her with the need of an accommodation in Indore and arrange for the same. The present applicant obliged and told the complainant to come to House No. 104, Kalindi Midtown, situated on the Bypass Road, Indore. The said house was situated on the first floor of the aforementioned township 2 belonging to Ajay Verma (friend of applicant). After reaching Indore complainant went to the aforesaid address where the applicant welcomed her and they had lunch, however failed to go to Khajrana Temple on that day, whilst in the course of the day present applicant with one other person in order to address his business meeting purpose left the house for the same and returned to his house at about 03:00 am and knocked the door of the room in which the complainant was sleeping alone. When she opened the door, the applicant entered into the room and he committed rape upon her. After committing rape, applicant threatened her with death if she revealed this incident to anyone. On the next date i.e. 22.02.2017, the applicant took her to Khajrana Temple. While en-route to the Temple some dispute took place between complainant and applicant as she was asking for Rs. 5,00,000/- following which the complainant started shouting, creating a ruckus which allegedly led to the present applicant leaving the scene. On 25.02.2017, the complainant made a written complaint to the Officer-in-cahrge in Mahila Thana, Indore. On the basis of which an FIR for the offence punishable under Section 376,323 and 506 of I.P.C. was registered against the present applicant. Thereafter, FIR was forwarded to the Police Station-Khudail for registration of original crime under whose jurisdiction the offence was committed.
(3). Learned counsel for the applicant has submitted that FIR was lodged by the complainant after the delay of three days of the alleged incident and explanation offered by the complainant for such lacuna in registering the complaint does not appear sound to any prudent mind. In the MLC, there is no interal or external injury was found on the person of the complainant, converse to the statement of complainant, who allegedly was 3 beaten by the applicant further forced and raped. From the statement of Ajay Verma recorded under Section 161 of Cr.P.C., it is evident that complainant woke-up early morning and had normal conversation with Mr. Ajay Verma regarding preparation of tea and about 10:00 am she alongwith applicant happily went to Khajrana Temple in the car arranged by the applicant. While en-route to the temple some disagreement ensued between the complainant and applicant as she was asking for Rs. 5,00,000/- when he refused to pay such amount then complainant started shouting.
(4). It is further submitted by the learned counsel for the applicant that an affidavit was also filed by one Mr. Bhanu Pratap, Advocate, Gwalior further elaborating the conspiracy orchestrated by the complainant, as before the occurrence of alleged incident, the complainant went to Mr. Bhanu Pratap seeking legal advise in contemplation to falsely implicate the present applicant in a rape case. Upon the knowledge of this mis-happening Mr. Bhanu Pratap conveyed this information to present applicant to which applicant requested him to impart this information to the police authorities. The wife of the applicant also sought information regarding investigation against the present applicant under RTI . The investigation conducted by the Additional Superintendent of Police, it was found that the present applicant was falsely implicated in the alleged offence and also that the complainant had indulged in infamous activity of extorting money from other reputed and prestigious persons of the society. In this investigation report each and every fact has been detailed at large alongwith the statement of the witnesses, however, this investigation report neither found mention in the charge-sheet nor is appended thereto. On earlier occasion, the complainant had filed a 4 complaint against one Mohan Singh on identical ground back in 2014 with the same intention to extort money, wherein the learned Sessions Judge acquitted the accused and made a complaint against the complainant for the offence under Section 193 of I.P.C. which is still pending before the learned court. In these circumstances, the complaint is nothing but an abuse of process of law as no adverse or negative evidence or witness whatsoever has been produced by the prosecution agency with regard to substantiate the charges, hence, charge-sheet is required to be quashed.
(5). The counsel for the applicant has relied upon the judgments of the Supreme Court in the case of Rajiv Thapar v. Madanlal Kapoor reported in (2013) 3 SCC 330 and Prashant Bharti v. State (NCT of Delhi) reported in (2013) 9 SCC 293 and submitted that the enquiry report given by the Additional S.P. can be taken into consideration by this Court at this stage also and when the police had found by conducting an immediate enquiry that no incident had taken place, then the FIR,which was lodged by the prosecutrix may be qaushed. It is further submitted that that the police Station- Khudail, without verifying the true facts of the case, has not only registered the FIR but also filed the charge-sheet.
(6). On the other hand learned Public Prosecutor for the respondent No.1/state as well as learned counsel for the respondent No.2 have submitted that looking to the allegation made in the FIR and statement recorded under Section 161 and 164 of Cr.P.C. there are sufficient material available on record to connect the applicant with present crime, therefore, the police has not committed any mistake in registering the FIR against the present applicant, hence, prayed for dismissal of the petition.
5(7). I have heard learned counsel for the parties and perused the record.
(8). Considering the submissions made by the counsel for the applicant, it appears from the enquiry report submitted by the Additional Superintendent of Police, Indore to Deputy Inspector General of Police, Indore Zone, Indore on 01.08.2017, which reads as under:
lEiw.kZ tkap ls ;g ik;k x;k fd] ihfM+rk fnukad 21@2@17 dks Lo;a viuh ethZ ls bankSj vkdj ?kVuk Lfky dkfyUnh feM Vkmu fLFkr Q~ySV esa :dh FkhA fnukad 22@2@17 dks izkr% v'kksd vxzoky ds lkFk gh eafnj n'kZu djus x;h Fkh] Q~ySV esa vt; oekZ MkW- xkSjo fnudj] MkW- ;ksxs'k 'kekZ Hkh jgs gS] ihfM++rk Hkh fnukad 23@2@17 dh 'kke rd mlh Q~ySV esa jgh gSA bl nkSjku mlds }kjk Q~ySV esa jg jgsa O;fDr;ksa ls vius lkFk gq, cykRdkj dh dksbZ ?kVuk ugh crk;h gS vkSj u gh feM Vkmu ds xkMZ vkSj u gh Mªk;oj dks dksbZ ckr crk;h gS] ?kVuk gksus ds ckn mlds }kjk lkekU; O;ogkj fd;k tk jgk Fkk] ;gka rd dh ftl O;fDr ij vkjksi yxk jgh gS] mlh ds lkFk ?kVuk ds dqN ?kaVs ckn eafnj n'kZu djus tk jgh gS] bl nkSjku lHkh ls lkekU; O;ogkj dj jgh Fkh] ;gka rd fd] ?kVuk dh fjiksVZ Hkh mlds }kjk dkQh foyac ls ys[k djk;h x;h FkhA vkosfndk Jherh- jtuh vxzoky }kjk nLrkost miyC/k djk;s gS] ftlls ;g Hkh n`f"Vxr gksrk gS fd] izdj.k dh ihfM+rk ds }kjk fnukad 25@3@14 dks Fkkuk banjxat ftyk Xokfy;j esa eksgu firk fpjksathyky xkSM+ mez 58 lky fu- 'kkafr uxj ubZ lM+d y'dj Xokfy;j ds fo:) vi- dzs 138@14 /kkjk 342] 376] 506 Hkk-n-fo- dks fjiksVZ ys[k djk;h Fkh] ftlesa og ekuuh; U;k;ky; esa vius /kkjk 161 ,oa 164 na-iz-la- ds dFkuksa ls eqdj x;h Fkh ,oa ;g Hkh U;k;ky; esa dFku ds nkSjku crk;k Fkk fd] mlus iqfyl ds ncko esa vkdj mDr dFku fn;k FkkA Jherh js.kqdk dapu iape vij l= U;k;k/kh'k Xokfy;j }kjk Fkkuk banjxat ds izdj.k esa ihfM+rk ds fo:) fnukad 26@11@14 dks ikfjr vkns'k esa Li"Vr% ys[k fd;k gS fd] ihfM+rk us bl U;k;ky; esa feF;k dFku fn;s gS] mDr feF;k lk{; ds vk/kkj ij vfHk;ksfD= ds fo:) ifjokn ds vk/kkj gS ,oa dk;Zokgh gsrq eq[; U;kf;d eftLVsªV Xokfy;j esa izdj.k iszf"kr fd;k x;k] ftl ij U;k;ky; ,-ds- flag vfrfjDr eq[; U;kf;d eftLVsªV Xokfy;j }kjk izdj.k dza- 17333@14 fnukad 15@06@15 dks lnj vijk/k dh ihfM+rk ds fo:) U;k;ky; esa feF;k lk{; ij Hkkjrh; n.M lafgrk dh /kkjk 193 ds vUrxZr fopkj.k fd;k tk jgk gSA vi- dza 52@17 ds vkjksih v'kksd firk txnh'k vxzoky ds fo:) /kkjk 376] 323] 506 Hkk-n-fo- dk tks izdj.k iathc) djk;k x;k gS] mDr izdj.k esa ek= ihfM+rk ds dFku ds vfrfjDr vU; dksbZ HkkSfrd p{kqn'khZ] ifjfLFkfrtU; lk{; ugh vk;s gS vkSj u gh ihfM+rk dh esfMdy fjiksVZ ij ,Q-,l-,y- dh fjiksVZ esa dksbZ rF; vk;s gS] ftlls dh lnj vijk/k esa dksbZ Bksl lk{; izkIr gksA ihfM+rk }kjk foyac ls vijk/k dk;e djk;k tkuk] ?6
kVuk ds ckn Hkh vU; p{kqnf'kZ;ksa ,oa lkFk jg jgs fdlh Hkh O;fDr dks ?kVuk ds ckjs esa tkudkjh u nsuk] ?kVuk ds ckn vkjksih ds lkFk gh eafnj n'kZu djus tkuk] ?kVuk ds nks fnu ckn rd Hkh ?kVuk LFky ¼dkfyUnh feM Vkmu½ esa jguk] lkekU; O;ogkj djuk ,oa ihfM+rk ds fo:) iwoZ esa Fkkuk banjxat ftyk Xokfy;j esa o"kZ 2014 esa Hkh /kkjk 376 Hkk-n-fo- dk dsl ntZ djk;k tkdj ekuuh; U;k;ky; esa feF;k lk{; nsus ls izFke n`"V;k ,slk izrhr gksrk gS fd] ihfM+rk }kjk vKkr ykHk ls o'khHkwr gksdj vlR; fjiksVZ ntZ djk;h gSA vr% izfrosnu Jheku dh vksj voyksdukFkZ lknj iszf"kr gSA (9) The enquiry report of Additional Superintendent of Police, Indore reflects that the investigation officer without consdiering the facts, which is stated in the enquiry report registered the case against the applicant only on the basis of written complaint made by the prosecutrix. The said eqnquiry report was submitted on 02.08.2017 by Additional S.P. Indore and charge sheet has already been filed on 27.07.2017 before the competent court without waiting the outcome of the enquiry report which was handed over to Additional Director General of Police, Indore Range.
(10). The Supreme Court in the case of Rajiv Thapar (Supra) has held as under:
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:-
(i) Step one: whether the material 6 MCRC-
2629-2012 relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
(ii) Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the 7 accusations as false?
(iii) Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
(v). If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
(11) The Supreme Court in the Case of Prashant Bharti (Supra) has held as under:-
" 25. Based on the holistic consideration of the facts and circumstances 9 MCRC-2629-2012 summarised in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar case stand satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the appellant-accused, in exercise of the inherent powers vested with it under Section 482 CrPC. Accordingly, based on the conclusions drawn hereinabove, we are satisfied that the first information report registered under Sections 328, 354 and 376 of the Penal Code against the appellant- accused, and the consequential charge- sheet dated 28-6-2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1-12-2008, deserves to be quashed. The same are accordingly quashed."8
(12) In the case of Krishnamoorthy Vs. Chelamman (2015) 14 SCC 559, the Hon'ble Court has observed that although in the petition under Section 482 of the Code of Criminal Procedure, the defence of the respondent cannot be considered which is absolutely disputed factual in nature and neither admitted by the complainant nor apparent on the face of the record.
(13) In the case of Suryalakshmi Cotton Mills Ltd. Vs. Rajvir Industries Ltd. (2008) 13 SCC 678 , Hon'ble Apex Court has been made following observations explaining the parameters of jurisdiction of the Hihg Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure.
"22 Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of the process of Court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal namely to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice; but, on the other, cannot also travel beyond its jurisdiction to interfere with the proceeding which is otherwise genuine. The Courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.
(14) If the enquiry report dated 01.08.2017 taken into consideration, it would be clear that immediately after the the 9 alleged incident no FIR has been lodged by the prosecutrix and she has not narrated in the incident to anyone and as per averments of the FIR, she visited with the applicant to Khajarana Temple. As per medical report no internal or external injuries were found in her body. The FSL report indicates that no semion were found on the undergarment and pubic hair of the prosecutrix as well as undergarment and pubic hair of the applicant. It is worth to note that on the basis of the complainant made by the prosecutrix, the case was registered against the Mohan Singh at Gwalior, in which during the court statement, she has not made any allegation against the said Mohan Singh and turned hostile, therefore, charge for the giving false statement before the court on oath and offence punishable under Section 193 of IPC has been registered against the prosecutrix, which is pending before the court of Chief Judicial Magistrate, Gwalior.
(15). Under these circumstances, this court is of the considered view that the prosecution of the applicant for the above mentioned offences in crime No.52/2017 would be nothing but misuse of process of law.
(16) Accordingly, relying on the enquiry report dated 01.08.2017, the FIR No.52/2017 and the criminal proceedings in criminal case No.1342-2017 pending before Additional Chief Judicial Magistrate, Indore is hereby quashed.
Certified copy as per rules.
(S. K. AWASTHI) JUDGE praveen Digitally signed by Santosh Kumar Tiwari Santosh DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452010, st=Madhya Pradesh, Kumar Tiwari 2.5.4.20=0302427ede38493e8c0c43f0be7a80 2b914f6c4be69964f9f552be6e645bacc8, cn=Santosh Kumar Tiwari Date: 2019.01.31 18:27:24 -08'00'