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2009 DIGILAW 373 (CHH)

AJAY GUPTA v. STATE OF C. G.

2009-12-09

T.P.SHARMA

body2009
ORDER 1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code') for quashrnent of the F.I.R. registered in Crime No.70/ 2009 by Police Station Pandatarai, Tahsil Pandariya, District-Kabirdham and criminal proceedings pending before the Sessions Judge, Kabirdharn in Sessions Trial No.38/09. 2. Quashment is prayed on the ground that in absence of prima facie allegation, registration of offence and initiation of criminal proceedings would amount to abuse of the process of the Court. 3. Brief facts necessary for disposal according to the pleadings of the petitioners are that petitioner No.1 Ajay Gupta got married with respondent No.5 Rarna Gupta (prosecutrix of the present case) in Arya Samaj Mandir, Raipur on 2.2.2009, Certificate of the marriage has been issued by Arya Samaj Mandir. Respondent No.5 is legally wedded wife of petitioner No.1. After his marriage, petitioner No.1 has travelled with respondent No.5 to different places. When they carne back, then petitioner No.1 carne to know that F.I.R. has been lodged against the petitioners for the offence punishable under Sections 341,342,365,366 and 376/34 of the Indian Penal Code. The petitioners have not abducted or illegally confined or kidnapped the prosecutrix. Petitioner No.1 has not committed rape with the prosecutrix. Registration of F.I.R. and continuance of criminal proceedings on the basis of alleged fact would amount to abuse of the process of the Court. Prosecutrix Rama Tiwari has lodged the aforesaid F.I.R. against the petitioners on 10.4.2009 in which she has alleged that the petitioners have committed the aforesaid offences. They have taken signature over some document§; at Raipur and petitioner No.1 has committed rape with her. Offence has been investigated by the police concerned and after completion of investigation, charge sheet has been filed. 4. I have heard learned counsel for the parties and perused the copies of F.I.R., charge sheet and other documents filed on behalf of the petitioners. 5. Learned counsel for the petitioners vehemently argued that prosecutrix Rama Tiwari is legally weeded wife of petitioner No.1 and she has travelled with the petitioner No.1 in different places. Petitioner No.1 while discharging his marital obligation has maintained physical relation with the prosecutrix, therefore, the same is not the offence punishable under Section 376 of the Indian Penal Code. Learned counsel further argued that the respondents have deliberately concealed the factum of lawful marriage. They have concealed certificate of marriage. Petitioner No.1 while discharging his marital obligation has maintained physical relation with the prosecutrix, therefore, the same is not the offence punishable under Section 376 of the Indian Penal Code. Learned counsel further argued that the respondents have deliberately concealed the factum of lawful marriage. They have concealed certificate of marriage. Learned counsel placed reliance in the matter of Keki Hormusji Gharda and others Vs. Mehervan Rustom Irani and another-1 in which the Apex Court has held that law does not take care of trifles. Construction of an access road which might have caused some inconvenience but not wrongful restraint under Section 399 of the Indian penal Code. Allegation contained in complaint petition were of trivial nature and therefore, High Court ought to have exercised its power under Section 482 of the Code. 1. (2009)6SCC475 6. On the other hand, learned counsel for respondents No.1 to 3 opposed the petition and argued that respondent No.5 Rama Tiwari has lodged the report against the petitioners. On the basis of her report, the police has investigated the matter and after completion of investigation, charge sheet has been filed against the petitioners. 7. In case of prayer of quashment of charge sheet and the F.I.R. under Section 482 of the Code, the petitioners are required to make out the exceptional case for invoking extraordinary inherent jurisdiction. At the time of taking cognizance, the police is required to see whether the allegation made discloses prima facie commission of the offence and at the time of taking cognizance and framing of the charge, the Court is required to see that whether allegation made in the charge sheet or complaint if admitted in its face value in its entirety, then conviction would be possible or not and if conviction would be possible, then the Court is under obligation to take cognizance and frame the charge, inter alia, if such conviction would not be possible then the order taking cognizance or order framing charge would amount to abuse of the process of the Court. 8. This is a petition under Section 482 of the Code for quashment of criminal proceedings pending against the petitioners. While dealing with exercise of power under Section 482 of the Code in the matter of M/s. Zandu Pharmaceutical Works Ltd. and others Vs. Md. Sharaful Haque and others-2 the Apex Court has held thus, 2. AIR 2005 SC 9 "8. This is a petition under Section 482 of the Code for quashment of criminal proceedings pending against the petitioners. While dealing with exercise of power under Section 482 of the Code in the matter of M/s. Zandu Pharmaceutical Works Ltd. and others Vs. Md. Sharaful Haque and others-2 the Apex Court has held thus, 2. AIR 2005 SC 9 "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to on order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as ore necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest' (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. 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." 9. In the present case, petitioner No.1 has filed marriage certificate which shows that respondent No.5 has married with him in Arya Samaj Mandir, Raipur. F.I.R. lodged by respondent No.5 reveals that the present petitioners have kidnapped and abducted her and took her to Raipur where they have obtained signature over some documents. She has not stated anywhere that she has married with petitioner No.1 and petitioner No.1 is her husband, inter alia, she has specifically stated in the F.I.R. and statement recorded under Section 161 of the Code that the petitioners have kidnapped, abducted and petitioner No.1 has committed rape with her. Unless the factum of lawful marriage of petitioner No.1 with respondent No.5 is proved, at this stage, it is difficult to hold that respondent No.5 is legally wedded wife of petitioner No.1. 10. In the present case, it is pertinent to note that the parties are residents of Pandatarai, District Kabirdham for away from Raipur and marriage certificate reveals that petitioner No.1 and respondent No.5 have solemnized marriage in Arya Samaj Mandir, Raipur. Unless circumstance is explained, this circumstance itself is against the petitioners and supports the case of the prosecution. 10. In the present case, it is pertinent to note that the parties are residents of Pandatarai, District Kabirdham for away from Raipur and marriage certificate reveals that petitioner No.1 and respondent No.5 have solemnized marriage in Arya Samaj Mandir, Raipur. Unless circumstance is explained, this circumstance itself is against the petitioners and supports the case of the prosecution. If the allegation made in the charge sheet is admitted in its face value in its entirety, then same would be sufficient for conviction of the petitioners for the aforesaid offences. 11. In these circumstances, the petitioners have utterly failed to make out the exceptional case for quashment. Consequently the petition is liable to be dismissed and is accordingly dismissed. Petition Dismissed.