Prabhat Singh vs State Of Madhya Pradesh And Another

Petitioner/accused has filed this Misc. Criminal Case under Section 482 of the Code of Criminal Procedure to quash the charge sheet and criminal proceedings in connection with Crime No.247/2018, registered at Police Station Chhindwara Dehat and pending before Special Judge (Atrocity) Chhindwara in S.T.No.161/2018.

2 : The case of the prosecution in short is that prosecutrix-respondent No.2 is a member of Scheduled Caste. Petitioner/accused is not a member of Scheduled Caste or Scheduled Tribe. At the time of incident, on 14.7.2018, prosecutrix-respondent No.2 was 16 years and 5 months of age. She was residing with her parents. Prosecutrix-respondent No.2 went to her school, but she did not return. Thereafter, her mother lodged a missing report on 15.7.2018, on the basis of which FIR was registered under Section 363 of the Indian Penal Code (hereinafter referred to as the IPC for short). Investigation was started. During investigation on 3.9.2018, prosecutrix-respondent No.2 was recovered and her statement was recorded. She alleged that the petitioner/accused called her to Bhind by giving threats of dire consequence to her family members. Thereafter, she went to Gwalior by bus and then petitioner/accused carried her to Bhind. Petitioner/accused solemnized marriage with her at Ratangarh temple and kept her for about one and half months at Gohad. Thereafter, petitioner/accused had intercourse with her. When petitioner/accused came to know that mother of prosecutrix-respondent No.2 has lodged FIR against him, then he left her at Bhind, thereafter she returned to her house. Petitioner/accused ran away from Chhindwara. Statements of prosecution witnesses were recorded. After investigation, charge sheet has been filed against the petitioner/accused under Sections 363, 366, 366(ka), 376(Dha), 506 of IPC, Section 3(i) & (ii), 3(2)(v), 3 (2)(va) of SC/ST (Prevention of Atrocities) Act and Sections 4 & 6 of POCSO Act.

3 : Learned counsel for the petitioner/accused submitted that prosecutrix-respondent No.2 went Bhind on her own will and no matter of threat is involved. Thereafter, she was in continuous contact of her father and when parents came to know in respect of marriage of her daughter, they forced the petitioner/accused to convert his religion and to adopt Christian religion. When petitioner/ accused refused to do so, the prosecutrix-respondent No.2 returned to her house on her own will and under influence of her parents, she lodged false report. The prosecutrix- respondent No.2 and her family members belong to Christian religion and therefore prosecutrix-respondent No.2 is not entitled to get benefit of SC/ST (Prevention of Atrocities) Act. Prosecutrix told him that she is major and if the petitioner/accused will not marry her, she will commit suicide as she loves him. As per radiology test, at the time of incident, her age was above 17 years and below 18 years. The statement of prosecutrix-respondent No.2 reveals that she freely, voluntarily and consciously consented to have sexual intercourse with petitioner/ accused and her consent was not in consequence of any misconception of fact. The petitioner/accused has been falsely implicated in this case. No prima facie offence is made out against the petitioner/accused and it is a case of misusing the provisions of SC/ST (Prevention of Atrocities) Act. In view of the statement of prosecutrix/ respondent No.2, her age and education, she had sufficient intelligence to understand the significance and quality of the act, she was consenting to. Her statement also shows that she did not resist the overture of the petitioner/accused as she stated and succumbed to them. She thus freely exercised a choice between resistance and assent. As per Exception 2 of Section 375 of IPC, sexual intercourse or sexual acts by a man with his own wife, if the wife is not below the age of 15 years, is not rape. The prosecutrix-respondent No.2 admitted in her statements recorded under Section 161 and 164 of Cr.P.C. that the marriage between petitioner/ accused and her was solemnized at Ratangarh temple and subsequently they entered into sexual relationship, therefore, no case of rape under SC/ST (Prevention of Atrocities) Act is made out. Apart from that, the Constitution Bench had held that by reconversion, he could not become a Hindu but recognition by the community is a pre-condition. It was found that caste had recognised him after reconversion a member of Scheduled Caste. When a person belongs to Scheduled Caste is converted to Christian community or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family law by which he was originally governed, therefore, the whole allegations are concocted and prepared with due deliberations, because there is much delay in lodging FIR. This is abuse of process of law. Nowhere it is mentioned by the prosecutrix-respondent No.2 in the complaint that the accused had intimidated or threatened her or anyone else, so no case is made out. On these grounds, he prays that charge sheet and criminal proceedings may be quashed.

4 : Learned Govt. Advocate for the respondent No.1-State and learned counsel for the respondent No.2 oppose the petition on the ground that prima facie case is made out against the petitioner/accused, therefore, they pray for dismissal of the petition.

5 : Heard learned counsel for both the parties and perused the record.

6 : Perusal of record reveals that prosecutrix-respondent No.2 is a member of Scheduled Caste. Sub divisional Magistrate issued a Caste Certificate in her favour, which is annexed in the case diary. It is mentioned that prosecutrix-respondent No.2 is a member of caste 'Mahar'. This 'Mahar' case is notified by the Government as Scheduled Caste. This is a matter of evidence. It is evident that the petitioner/accused is not a member of SC/ST community. At the time of incident, the age of prosecutrix/respondent No.2 was below 18 years. It is evident from the record that at the time of incident, prosecutrix-respondent No.2 was studying in Class-XI. Her date of birth as per school entry is recorded as 23.2.2002, as is clear from the certificate issued by the Principal of the school. The date of incident is 14.7.2018, so it is evident that at the time of incident, the age of prosecutrix-respondent No.2 was below 18 years, therefore, consent of prosecutrix has no role in this case.

7 : Learned counsel for the petitioner/accused submits that petitioner/accused solemnized marriage with the prosecutrix-respondent No.2. Thereafter, he had intercourse with her, therefore, Exception (2) of Section 375 of IPC is applicable in the present case.

8 : As per Exception (2) of Section 375 of IPC, sexual intercourse or sexual acts by a man with his own wife, if the wife is not below the age of 15 years, is not rape. But, in this regard Hon'ble Apex Court in the case of Independent Thought Vs. Union of India and another [(2017) 10 SCC 800), has held in paras 190 to 200 as under :-

"190. One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 IPC, is the Court creating a new offence. There can be no cavil of doubt that the Courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 IPC, no new offence is being created. The offence already exists in the main part of Section 375 IPC as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and POCSO.

In this behalf, reference may be made to some English decisions. In England, there was never any such statutory exception granting immunity to the husband from the offence of marital rape. However, Sir Mathew Hale, who was Chief Justice of England for five years prior to his death in 1676, was credited with having laid down the following principle:

"But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract."

The aforesaid principle, commonly known as Hale's principle, was recorded in the History of the Pleas of the Crown 63 and was followed in England for many years. Under Hale's principle a husband could not be held guilty of raping his wife. This principle was based on the proposition that the wife gives up her body to her husband at the time of marriage. Women, at that time, were considered to be chattel. It was also presumed that on marriage, a woman had given her irrevocable consent to have sexual intercourse with her husband.

The aforesaid principle was followed in England for more than two centuries. For the first time in Reg v. Clarence64, some doubts were raised by Justice Wills with regard to this proposition. In Rex v. Clarke65, Hale's principle was given the burial it deserved and it was held that the husband's immunity as expounded by Hale, no longer exists. Dealing with the creation of new offence, the House of Lords held as follows:

"The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the Parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it."

In my view, as far as this case is concerned, this Court is not creating any new offence but only removing what was unconstitutional and offensive. THE PRIVACY DEBATE

Ms. Jayna Kothari, learned counsel for the Intervener, had raised the issue of privacy and made reference to the judgment of this Court in the case of Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India and Ors.66 to urge that the right of privacy of the girl child is also violated by Exception 2 to Section 375 IPC. I have purposely not gone into this aspect of the matter because anything said or urged in this behalf would affect any case being argued on "marital rape" even in relation to "women over 18 years of age". In this case, the issue raised is only with regard to the girl child and, therefore, I do not think it proper to deal with this issue which may have wider ramifications especially when the case of girl child can be decided without dealing with the issue of privacy. RELIEF

Since this Court has not dealt with the wider issue of "marital rape", Exception 2 to Section 375 IPC should be read down to bring it within the four corners of law and make it consistent with the Constitution of India.

In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:-

(i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14 , 15 and 21 of the Constitution of India;

(ii) it is discriminatory and violative of Article 14 of the Constitution of India and;

(iii) it is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:

"Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape".

It is, however, made clear that this judgment will have prospective effect.

It is also clarified that Section 198(6) of the Code will apply to cases of rape of "wives" below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

At the cost of repetition, it is reiterated that nothing said in this judgement shall be taken to be an observation one way or the other with regard to the issue of "marital rape".

Extremely valuable assistance was rendered to this Court by Mr. Gaurav Agarwal, learned counsel appearing for the petitioner and Ms. Jayna Kothari, learned counsel appearing for the intervener and I place on record my appreciation and gratitude for the same."

9 : Relevant provisions of Section 3 of SC/ST (Prevention of Atrocities) Act, provides as under :-

"3. Punishments for offences of atrocities.-

(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance;

(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood;

3(2)(v). Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;

(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine."

Thus, prima facie, it is evident that all ingredients of alleged offence are available on record, so it is not a fit case in which inherent powers can be invoked.

10 : The Hon'ble Apex Court in the case of Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:-

"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

11 : The Apex Court in the case of State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under Chapter XIV and of the principles of law enunciated by court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, Apex Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list to 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 FIR 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.

(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."

12 : In the case of Janata Dal v. H. S. Chowdhary & Others (1992) 4 SCC 305, the Hon'ble Apex Court has observed thus:-

"132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."

13 : In the casde of Roy V.D. v. State of Kerala (2000) 8 SCC 590, the Hon'ble Apex Court has observed thus:-

"18..... It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in great hardship and injustice to the accused. In our opinion, exercise of power under section 482 CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice."

14 : The Hon'ble Suprme Court in the case of Zandu Pharmaceutical Works Ltd. & Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-

"8. ....It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

15 : Further, a three judges Bench of Hon'ble Apex Court in Inder Mohan Goswami & Another v. State of Uttaranchal & Others AIR 2008 SC 251 has examined scope and ambit of section 482 of the Criminal Procedure Code. The court in the said case observed that inherent powers under section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be fully justified in preventing injustice by invoking inherent powers of the court."

16 : Learned counsel for the petitioner relied the Apex Court judgment in the case of Gorige Pentaiah Vs. State of Andhra Pradesh and others [(2008) 12 SCC 531], E.V. Chinnaiah Vs. State of A.P. And others [(2005) 1 SCC 394], but the fact of these cases are different from the present case.

17 : All the disputed questions, will be decided at trial. In view of the aforesaid discussions and legal position, this Court does not find it appropriate to exercise its inherent power under Section 482 of Cr.P.C. to quash the charge sheet and Criminal proceedings.

18 : Accordingly, the petition filed by the petitioner/accused under Section 482 of Cr.P.C., stands dismissed.