Dr. Nitin Bhargav vs State Of Madhya Pradesh And Ors.

Applicant/accused has preferred this petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'The Code'), for quashment of FIR bearing crime No.513/2018, registered at Police Station-Barwah, District-Khargone for commission of offence punishable under Sections 366 and 376(2)(n) of IPC read with Section 3(2)(v) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in brevity 'the Act, 1989') and all the consequential proceedings relating thereto.

Relevant facts briefly stated are that on 29/09/2018 the prosecutrix/respondent No.2 has made a written complaint at Police-station-Barwah, District-Khargone to the effect that she is working as ANM at Community Health Center, Bagod, District-Khargone. In the year 2015, she met with the present applicant in a medical camp organized at Ratanpur, where the applicant told her that she loved her and wanted to marry her. Thereafter, they started to talk to each other on mobile phones, during which the applicant has been transferred to Katkoot. The applicant called the prosecutrix/respondent No.2 at Katkoot and established physical relationship with her on the false promise of marriage and committed rape upon her. The prosecutrix/respondent No.2 constructed her own house at Sanwariya Colony, Barwah and started living there. The applicant used to come to her house at Barwah and made physical relations with her regularly, however, on 17/07/2018, when the applicant came to the house of the prosecutrix, she asked the applicant about their marriage, then he declined to marry her. On the basis of aforesaid compliant, police registered FIR bearing crime No.513/2018, registered at Police Station-Barwah, District-Khargone for commission of offence punishable under Sections 366 and 376(2)(n) of IPC read with Section 3(2)(v) of the Act.

Learned counsel for the applicant submitted that the prosecutrix is a divorcee lady aged about 30 years and mother of 8 years old girl child. She is working as ANM at Community Health Center-Bagod and she cooked up story that the on the basis of false promise of marriage the applicant committed rape upon her. It is also submitted that much prior to the registration of the said FIR, the applicant made a written complaint on 01/07/2018 to Police-station-Barwah to the effect that the prosecutrix is blackmailing him with a motive to extract money from him and tarnish his image in the Society. Although the police has recorded the statement of the prosecutrix, her x-husband and the applicant, however, no action was taken by the police on the said complaint. It is further submitted that if the entire allegations made in the complaint are taken at their face value and accepted in its entirety, such allegations do not constitute any offence. Under these circumstances, learned counsel for the applicant prays for FIR bearing crime No.513/2018, registered at Police Station-Barwah, District-Khargone for commission of offence punishable under Sections 366 and 376(2)(n) of IPC read with Section 3(2)(v) of the Act and all the consequential proceedings relating thereto. In support of his contention, learned counsel for the applicant placed reliance on the judgments of Hon'ble apex Court passed in the case of Central Bureau of Investigation Vs. Ravi Shankar Shrivastava, IAS and Ors.,AIR 2006 SC 2872, Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and Others, 2018 SCC SC 3100 and Pramod Suryabhan Pawar Vs. State of Maharashtra and Anr. Passed on 21/08/2019 in Criminal Appeal No. 1165/2019.

On the other hand, learned Public Prosecutor for the respondent No.1 and learned counsel for the prosecutrix/respondent No.2 vehemently opposed the prayer by contending that on the basis of false promise of marriage, the applicant has committed rape upon the prosecutrix knowing the fact that she belongs to Scheduled Tribes Community, therefore, prima facie case for commission of offence punishable under Section 376(2)(n) of the IPC and 3(2)(v) of the Act is made out against the applicant. It is also submitted the grounds raised by the applicant in this petition for quashment of FIR are depends upon the evidence led by the parties, therefore, they cannot be considered at this stage. Under these circumstances, they prayed for rejection of the petition.

Having heard learned counsel for the parties and perused the record placed alongwith the petition.

From the perusal of the case-diary, it appears that during her posting as ANM at Community Health Center, Bagod, the prosecutrix came to the contact of present applicant in a medical camp organized at Ratanpur. During which the applicant developed intimacy with the prosecutrix and express his willingness to marry with her, thereafter, the applicant come in touch with the prosecutrix telephonically. Meanwhile, the applicant transferred to Katkoot and he called the prosecutrix there and made physical relationship with her on the pretext of marriage, which continued till 2018, however, on 17/07/2018, when the applicant came to the house of the prosecutrix, she asked the applicant about their marriage, then he declined to marry her.

It is admitted fact that the prosecutrix is a divorcee lady and mother of 8 years old girl child but there is nothing available on record to show that the applicant is already married. The applicant has filed the copy of conversation made between the parties on whatsapp and from the perusal of these conversations, it appears that the prosecutrix addressed the applicant as Patidev (husband) and the applicant never objected the prosecutrix to used the aforesaid address, which indicates that the applicant made physical relations with the prosecutrix on the promise of marriage, therefore, she was in confidence, that the applicant will marry her. The applicant and the prosecutrix never posted in the same station or hospital. From the statement of the prosecutrix, her mother and the watchman of Sanwariya Colony, Barwah, it is apparent that the applicant used to come to the house of the prosecutrix and made physical relations with her. The mother of the prosecutrix never objected their relationship and this fact is also shows that the applicant has given assurance to the mother of the prosecutrix that he will marry with her daughter, otherwise, she objected in their relationship. In one of the whatsapp message the prosecutrix asked the applicant that we should be married, however, the applicant does not reply this message, which clearly indicates that the applicant is not having any intention to marry with the prosecutrix from the very beginning, inspite of that he committed rape with the prosecutrix on the basis of false promise of marriage, therefore, the judgments relied by the learned counsel for the applicant is not applicable in the facts of the present case. It is also pertinent to note that much prior to registration of the aforesaid FIR, on 01/07/2018, the applicant made a written complaint against the prosecutrix alleging that the prosecutrix is making pressure upon the applicant to marry with her and on refusal, she threatened the applicant to kill him or implicate him in the false cape of rape. However, after the enquiry on the said complaint, the police found that no alleged offence is made out against the prosecutrix, therefore, the said complaint was filed, which also shows that the police has found no substance in the allegation made by the applicant against the prosecutrix. .

It is well settled that exercise of powers under Section 482 of 'the Code' is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under 'the Code' or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise.

Hon'ble Apex Court in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of section 482 Cr.P.C. Seven categories of cases have been enumerated where power can be exercised under Section 482 of 'the Code'. Para 102 thus reads;

"102 . In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) 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;

(2) 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 investi-gation 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;

(3) 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;

(4) 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;

(5) 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;

(6) 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;

(7) 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"

In the case of Vineet Kumar and Ors. v. State of Uttar Pradesh and Anr. (2017) 13 SCC 369, the Hon'ble Supreme Court has held as under:

"Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding. The present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."

In the context of law laid down by the Hon'ble Apex Court, it is apparent that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers.

Taking this view of the matter, this court is of the considered opinion that at this stage, it cannot be said that prima-facie no offence is made out against the applicant. Hence the present petition filed by the applicant for quashment of FIR and all consequential proceedings has no merit and is accordingly, dismissed.