Shambhu Singh and Others vs State of M.P.

V.D. Gyani, J.—By this petition u/s 482, Code of Criminal Procedure the Petitioners pray for quashing for the order dated 14.7.1990, passed by the 1st Addl. Sessions Judge, Ratlam, in Sessions Trial No. 20 of 1990, thereby framing charge u/s 366/34 IPC against the Petitioners.

Before taking up the grounds challenging the framing of charge, it would not be out of place to record a few basic facts giving rise to the prosecution: Mt. Gangabai, a widow, on 15.5.1989 lodged a report with the police complaining that her daughter Lilabai, aged about 20 years (as given in the FIR) was forcibly taken away from a well by her uncle Dhulsingh s/o Rama and Narsingh s/o Rama, both residents of village Aligarh in district Ratlam. It is also to be found in the FIR that Lilabai was married to Balusingh of village Somchiri. It was a customary matrimonial alliance, known as NATRA, which was witnessed by Fatta and Rama Gujar.

On the basis of this report a case u/s 366 IPC was registered at police station Tal, and investigated. On completion of investigation, charge-sheet was filed against as many as fourteen persons, and charges as stated above were framed against them.

Out of fourteen, nine accused have come to this Court praying for quashing of the charge on the grounds that even if the allegations as made in the charge-sheet are taken as true and allowed to go unrebutted, yet no offence, as charged or for that matter any offence, is disclosed against the Petitioners.

It is for this reason that Shri Purohit, learned Counsel for the Petitioners strenuously urged that pending prosecution against the Petitioners be quashed as a whole and not merely the charge as framed.

The law on the point is well-settled. If FIR does not disclose commission of a cognizable offence, as pointed out by the Supreme Court, the FIR can itself be quashed. But in the instant case, the case has gone far ahead of that stage. Petitioners counsel, however, urged that taking the statements of all the witnesses together and there are four witnesses, Gangabai lodged the FIR, on being informed by Rama, her daughter Lilabai and the other two witnesses, Rama and Fatta. Gangabai acquired knowledge from Rama and Rama in his statement specifically refers to only three persons, namely, Narsingh, Dhulsingh and Balu. Similarly, Fatta in his statement recorded u/s 161 Code of Criminal Procedure, has referred to Narsingh and Dhulsingh, uncles of prosecutrix Lilabai and Balu, to whom she was given in NATRA. The other man referred to in his statement is Rama. Lilabai''s statement reveals the names of two more persons, Bhuwan and Parvatsingh, apart from the above named Narsingh, Dhulsingh and Balu.

It may be noted that these five persons named by the above named witnesses are not Petitioners before this Court. The incident of forcible, abduction of Lilabai is dated 15.5.89. She is said to have been abducted by Narsingh, Dhulsingh & Balu, while she was returning from the field. Although she was recovered from the custody of Balu on 23.10.89, her statement u/s 161 Code of Criminal Procedure was recorded a month later on 23.11.89.

It is not the question of sufficiency or insufficiency of evidence against the Petitioner, the moot question that arises for consideration is the total lack of evidence, not even a bald reference to the Petitioners, much less any incriminating imputation made by any of the above-named witnesses. It is for this reason that interference is called for.

At this stage, since the trial in respect of the accused other than the present Petitioners, is yet to proceed, it would not be proper and desirable to make any comments as regards the evidence collected in the case. But so far as the present Petitioners are concerned, the submissions made by their counsel cannot also be lightly brushed aside.

Shri Desai, learned Panel Lawyer appearing for the State, referring to an entry dated 8.12.89, made in the case-diary, submitted that Lilabai''s statement was got recorded u/s 164 Code of Criminal Procedure and Petitioners names have emrged thereafter.

Here again, without commenting on the statement as such, suffice it to note, as has been pointed out by the Supreme Court, the very fact that the statements of the prosecutrix were required to be recorded u/s 164 Code of Criminal Procedure, goes to show that there was a stage during the course of investigation when the investigating agency had some doubt about the statement made by the witness. This does not add in any manner to the strength of the prosecution case, so far as the Petitioners are concerned. Accusation against the Petitioners is one of abetting the offence of abduction.

Section 107 IPC, which defines "abetment" as comprising:

(a) instigation to commit the offence,

(b) engaging in conspiracy to commit the offence, and

(c) aiding the commission of an offence.

Abetment thus necessarily means some active suggestion or support to the commission of the offence.

The word "instigate" literally means to goad, urge, forward, provoke, incite, or encourage to do an act and a person is said to instigate Anr. when he actively suggests or stimulates him to the act by any means, or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Although it is not necessary that the instigation should be only in words and may not be by conduct, but there has to be at least the allegation of instigation, either by words or by conduct and no such allegation is to be found as against the Petitioners in the recorded statements of the above-named witnesses. Any facility afforded to the doing of an act is, under the Explanation 2, equivalent to aiding the doing of the act. The essential ingredients of the offence of abetment by aid are:

(a) The act or omission which constitutes the aid must have been done intentionally;

(b) The aid must be by a postitive act or an illegal omission;

(c) The aid must have been given either prior to or at the time of the commission of the offence abetted;

(d) The aid must have been given for the purpose of facilitating the commission of the offence; and

(e) The aid must in fact have facilitated it.

Now, these ingredients cannot be searched in vacume, they can only be applied and tested on the allegations as made, which unfortunately, there is none. It may also be noted that even from circumstances abetment can be inferred, but those circumstances also do not find place, nor indicated.

Shri Desai, placing reliance on a very recent decisions of the Supreme Court in Radhey Shyam Vs. Kunj Behari and Others, urged that no interference u/s 482 Code of Criminal Procedure can be resorted to.

As has already been noted above, it is not for any inefficiency or evidence, but for total lack thereof that the power u/s 482 Code of Criminal Procedure is invoked. The nature of the grounds, as enumerated in para 5 of the judgment in Radheshyam''s case (supra) are being availed of in the instant case. It is not by any meticulous appreciation of evidence, but on mere reading of the statements recorded u/s 161 Code of Criminal Procedure, of the witnesses named above, who do not even refer to the present Petitioners, either by name or by some identifiable description, yet they are being sought to be roped in with the aid of Section 109 IPC. Both these authorities relied upon by the learned Counsel, with respect, are not attracted to the facts of the present case.

The case of State of U.P. v. Man Mohan etc. 1986 CrLJ 1245 , was a case under the Essential Commodities Act and the trial Court had formed an opinion that there were grounds to presume that the accused had committed the offence; whereas the present case relates to abetment of an offence u/s 366 IPC, wherein as many as fourteen persons are being sought to be implicated. The law relating to abetment has already been discussed above and in the light of the said discussion and accepting the total evidence, as it is, and allowing it to go unrebutted, yet the essential ingredients constituting abetment on the part of the Petitioners cannot be said to have been made out. Reading the statements, which have been discussed above, as a whole it would be clear that there is absolutely no allegation whatsoever against the Petitioners and the Supreme Court in State of West Bengal and Others Vs. Swapan Kumar Guha and Others, has very categorically held that, where the first information report does not disclose commission of any cognizable offence, the High Court is justified in quashing the investigation, of course, this power, as of necessity, is to be very sparingly exercised. Reading and re-reading of the statements, there is not a slightest hint against the Petitioners.

In Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, the Supreme Court has gone a step ahead in considering the chance of ultimate conviction on the basis of material. Although in the instant case, no such situation arises, but the relevant part of the said judgment can be quoted with advantage:

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 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 utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are 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.

For the foregoing reasons this petition succeeds and is allowed. The prosecution as such, so far as it relates to the present Petitioners, deserves to be quashed and is accordingly quashed, irrespective of the stage the trial had reached.