Chandrashekar and Others vs State of M.P. and Others

S.K. Palo, J.—This petition has been filed under Section 482 of Cr.P.C. for invoking the inherent jurisdiction of this Court seeking relief at FIR at Crime No. 129/14 registered at Police Station Pahadgarh, district Morena, for the offences under Sections 366 , 376 of IPC be quashed.

Brief facts of the case are Smt. Vidya W/o. Naresh Rajak lodged a report Annexure P/1 at Police Station Pahadgarh, for offence under Sections 366 , 376 of IPC on 31.08.2014 against Hari S/o. Bhogiram Rajak alleging that her marriage was solemnized around five years back with Naresh Rajak. The behaviour of Naresh Rajak and his family members were not good towards the prosecutrix. Therefore, in June, 2013, she returned back to her matrimonial home and started living at village Pahadgarh. Accused Hari S/o. Bhogiram who was residing in the same neighbourhood. He stated intimacy with the prosecutrix. He insisting her to elope with him. On 12.4.2014, he rang up and asked her to go to Kailaras. The prosecutrix went to village Kailaras. From there, she was taken to Morena by Hari. From Morena they went to Jaipur in a video coach. There she was kept at Sitapur area in a rented house. The rent of the house was 1500/- rupees per month. On 13.04.2014 he forcibly committed sexual intercourse with her. Since then, she was subjected to sexual intercourse by Hari. When she became repented, she was taken to an advocate and was made to executed certain documents, Hari told her that she is now the legal married wife. Hari continued to commit sexual intercourse with her. She became pregnant. Later she came to know that Hari is already a married man. The name of first wife is Anita. She rang up to her sister. She some how managed to come to Morena where her mother, father were present. Seeking them, Hari left the place. The prosecutrix along with her parents went to Police Station Pahadgarh and lodged the report.

Subsequently, on 31.08.2014 under Section 161 Cr.P.C., the statement of the prosecutrix was recorded which is the replica of the FIR. Later her statement was again recorded under Section 164(5-A) of Cr.P.C., on 26.09.2014. She has mentioned that applicants Chandra Shekar, Vinod and one Mukesh took her from her village Pahadgarh to Kailaras, where she was kept for 4-5 days and these three persons committed sexual intercourse with her. From there, Hari took her to Jaipur. In the statement she also mentioned that in the report she narrated the names of Chandra Shekar, Vinod and Mukesh. However, the Town Inspector of the concerning Police Station asked her why she is including the names of these three persons.

Subsequently, her statement under Section 161 Cr.P.C. was recorded on 30.09.2014 in which again she reiterated that when she had gone to lodge the report at Pahadgarh Police Station, she had given the details of petitioner Chandra Shekar, Vinod and another person Mukesh having committed sexual intercourse with her.

Charge-sheet has been filed against Hari as well as against the petitioners Chandra Shekar, Vinod and Mukesh.

On behalf of the petitioners Chandra Shekar and Vinod, this petition has been filed for quashing the FIR at Crime No. 129/14 and to discharge the petitioners for the offences under Sections 366 , 376 of IPC registered against them.

Petitioners claimed that their names have not been reflected in the FIR nor in the statement under Section 161 of Cr.P.C. written on 31.08.2014: Whereas, after FIR written on 31.08.2014, for the first time, she narrated the names of the petitioners in her statement under Section 164(5-A) of Cr.P.C. on 26.09.2014 and in her statement under Section 161 Cr.P.C. dated 30.09.2014. The statement so made by the prosecutrix after a lapse of 26 days is false, frivolous and afterthought. The petitioners claimed that when their names were not reflected in the FIR and in the Police statement recorded on 31.08.2014, subsequent mention of their names are misuse of the process.

Learned counsel for the respondents arguing against the submissions made above has stated that the facts could only be verified and tested after the evidence is adduced. At this stage, it would not be appropriate to discharge the petitioners. It is further claimed that the petitioners were named by the prosecutrix in the statement under Section 164(5-A) Cr.P.C. and under Section 161 Cr.P.C. recorded on 30.09.2014. Therefore, without adducing any evidence, the same cannot be rejected.

The petitioner has also filed Annexure P-6, a report by L.P. Chanderia, SDOP, Kailaras, district Morena, to the Superintendent of Police, Morena, on 26.11.2014. This report was submitted on the complaint of petitioner Chandra Shekar and Vinod in which the SDOP has held that in Crime No. 129/14 registered under Sections 366 , 376 of IPC lodged against the sole accused Hari Singh. In the FIR, the abductee/prosecutrix has not named the petitioner Chandra Shekar and Vinod. Petitioners are cousins of accused Hari Singh. The prosecutrix was being tutted for financial gain by creating social pressure, names of the petitioners have been included in her statement under Section 164 of Cr.P.C. During investigation it was found that the petitioners were arrested on 15.11.2014. This report raises a grave and genuine suspicion in the prosecution case.

It is also to be seen that if any such crime was committed at Morena by the petitioners and other person named Mukesh, why she did not resist the same, why the prosecutrix did not lodge any report at Morena or Jaipur for about three months. Neither the same has been reflected on report dated 31.08.2014. If at all the names of petitioners was not included at the time of lodging report, she could have complained to the Police officers. The report submitted by SDOP, Kailaras in the complaint made by the petitioners also supports the petitioners'' case.

In the case of Prashant Bharti Vs. State of NCT of Delhi, , Hon''ble the Supreme Court has given the guidelines that all the steps delineated by this Court in Rajiv Thapar and Others Vs. Madan Lal Kapoor, stands satisfied and FIR was quashed. At paragraph 30 of the same, the Hon''ble Supreme Court has propounded the steps to determine the veracity of a prayer for quashing raised by an accused by invoking the power vested in High Court under Section 482 Cr.P.C. which are:-

"30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

30.2. 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 accusations as false.

30.3. 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?

30.4. 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?

30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. 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."

In a case decided by this Court in Ravikant Dubey and Others Vs. State of M.P., , it is held that,

"(b) Criminal Procedure Code (2 of 1974), S. 482 - Petition for quashing of FIR - Evidence deposed before trial Court during trial not to be considered for purpose of quashing of FIR - Only facts mentioned in FIR and other material available on record produced along with charge-sheet to be taken into consideration while entertaining petition for quashing of FIR."

In Gian Singh Vs. State of Punjab and Another, , the Hon''ble Apex Court has laid down that,

"(b) Criminal Procedure Code (2 of 1974) - Inherent power of the High Court - Formation of opinion by the High Court before exercise of on either of the twin objectives (i) to prevent abuse of the process of any Court, or (ii) to secure the ends of justice, is a sine qua non. (Para 50)".

Considering the above factual aspects and the legal prepositions, it is emerged that this is a fit case for quashing FIR as regarding the present petitioners and subsequent criminal proceeding to secure the ends of justice and to prevent the abuse the process of Court.

Petition is allowed. FIR at Crime No. 129/14 and subsequent criminal proceedings as regarding the present petitioners Chandrashekar and Vinod Kumar is therefore quashed. It is made clear that this Court has not passed any order regarding the other accused persons.