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Madhya Pradesh High Court · body

2014 DIGILAW 1471 (MP)

Pukhraj Singh v. State of M. P.

2014-11-13

S.K.PALO

body2014
ORDER 1. Heard on the question of admission. Admit. With the consent of both parties, matter is heard finally. 2. This revision under section 397 read with sections 401 and 482 of CrPC has been filed with the prayer to set aside the order dated 28.3.2014 passed by the learned ASJ Sironj, District Vidisha in S.T. No.405/2012. 3. Brief facts just necessary for disposal of the petition is that, Crime No.211/12 was registered at Police Station, Sironj on 19.6.2012, two the minor prosecutrix were found absent from their home. Report lodged by their father, Gum Insan No.13/12 and 14/12 was registered by the Police Sironj. After investigation, it was found that both the prosecutrix were sisters having friendly terms with Ashok Kushwah and Monoj Kushwah. The present applicant Pukhraj Singh is the brother-in-law of the accused, Ashok Kushwah. The minor prosecutrix were enticed and were eloped with accused Ashok Kushwah and Monoj Kushwah. The present applicant Pukhraj Singh met them at Chhatri Naka. He was known to the prosecutrix because he used to visit the house of accused Ashok Kushwah. Both the accused persons Ashok and Monoj asked to go with Pukhraj so that nobody suspects them while leaving the village. The present applicant Pukhraj escorted them to Guna Bus Stand. He has also assured both the prosecutrix that he will get help them marry with Ashok and Manoj. Both accused Ashok and Manoj came to the house of applicant Pukhraj. They committed sexual intercourse with both the prosecutrix. They were kept for few days applicant’s residence. Subsequently, they stayed in a different house. Ashok and prosecutrix No.1 lived as husband and wife and Manoj and prosecutrix No.2 lived as husband and wife. 4. On these statements, Crime No.211/12 was registered under sections 376, 363 and 366A/34 of IPC, Session Trial No.405/13 was decided by the Additional Sessions Judge, Sironj. Accused Ashok and Manoj vide judgment dated 21.5.2013 were acquitted. In the said case, the present applicant Pukhraj remained absconded. Later, applicant Pukhraj surrendered before the Court and ST No. 405/13 restored to its original number and proceedings initiated. Charges under sections 376, 363 and 366A/34 of IPC was explained to the applicant, which he denied. 5. In the trial, the prosecutrix No.1 and No.2 were examined on 26.3.2014 regarding the charges. Later, applicant Pukhraj surrendered before the Court and ST No. 405/13 restored to its original number and proceedings initiated. Charges under sections 376, 363 and 366A/34 of IPC was explained to the applicant, which he denied. 5. In the trial, the prosecutrix No.1 and No.2 were examined on 26.3.2014 regarding the charges. In the statement prosecutrix have stated that, when applicant Pukhraj took them to his house at Guna, his wife told them to stay here in that night because it was already 10 O’clock. They stayed in the house of applicant Pukhraj. Prosecutrix No.1 further stated that, the applicant Pukhraj committed sexual intercourse with her in that night and kept her in his house for three months. It is also stated that after three months they had a fight with the wife of the applicant Pukhraj. Therefore, both the prosecutrix fled away from the house of applicant. 6. Prosecutrix No.2 also corroborated the story and stated that the applicant never allowed them to leave the house. They further added that applicant was tried to sale them for Rs. Two lacs. 7. Mother of the prosecutrix’ was examined and she has stated that the prosecutrix were escorted on motorcycle to Guna by the applicant. 8. Learned ASJ on the basis of these statements amended the charge vide order dated 28.3.2014 and added section 376 of IPC against the present applicant Pukhraj. 9. Applicant has challenged this order on the ground that the order is against the provisions of law, facts and evidence. At no point of time, such allegation were levelled against the applicant by both the prosecutrix. In order to gain some money, the prosecutrix are implicating the applicant by giving false statements. In view of the above circumstances, no person can rely on such statements of the prosecutrix. The prosecutrix returned to their home and are not living with accused persons Ashok and Manoj. The prosecutrix are implicating the applicant to gain money which they demanded but was not fulfilled by the applicant. Therefore, the applicant prays to set aside the order in question. 10. The prosecutrix returned to their home and are not living with accused persons Ashok and Manoj. The prosecutrix are implicating the applicant to gain money which they demanded but was not fulfilled by the applicant. Therefore, the applicant prays to set aside the order in question. 10. On perusal of the records and statements of the prosecutrix’, it is found that, the accused Ashok and Manoj were acquitted , because in the statements of the prosecutrix No.1 and No.2 were recorded on 14.5.2013 they did not support the prosecution case and they denied any criminal act having committed by the accused Ashok and Manoj. 11. At the time of enquiry of Gum Insan, statement recorded under section 161 and statement before the Session Court on 14.5.2013, the prosecutrix did not level any allegation of sexual intercourse by the present applicant nor there any allegation of keeping them at his house for three months. They even went to the extent of saying that the prosecutrix left for their Aunt’s house at Chhatri Naka, from there they went to Guna and stayed there for two months in a rented house. When they were coming to Bus Stand to board for Sironj, they were caught by the police. Accused Ashok and Manoj did not abused them sexually. 12. Learned Public Prosecutor submitted in his argument that charge has been framed according to the statements of the prosecutrix. Therefore, there is no illegality or perversity in the impugned order. 13. The Hon’ble Supreme Court in the case of State of Haryana and others v. Bhajan Lal and others, reported in 1992 Suppl.(1) SCC 335, has formulated certain guidelines, in which inherent power under section 482 of CrPC can be exercised to prevent the abuse of process of the Court or otherwise to secure the ends of justice. The Hon’ble Court has held ; This Court in the backdrop of interpretation of various relevant provisions of the CrPC 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 of the Constitution of India or the inherent powers under section 482, CrPC 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, this Court made it clear that it may not be possible to law down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formula and to give and exhaustive list to myriad kinds of cases wherein such power should be exercised : (1) where the allegations made in the first information report of 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 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 controverted allegations made in the FIR or complaint land 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 importable 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 specified provisions 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.” 14. Keeping in mind the above, the petitioner has not been alleged for the offence under section 376 and subsequently after certain developments, he has been seems to be implicated for the offence under section 376 of IPC with some ulterior motive. Keeping in mind the above, the petitioner has not been alleged for the offence under section 376 and subsequently after certain developments, he has been seems to be implicated for the offence under section 376 of IPC with some ulterior motive. It is apparent on the face of the record that the earlier prosecution under section 376 of IPC was against accused Ashok and Manoj. Thus, proceeding if continued would result into wasting of valuable time of the Court, it will cause hardship to the petitioner. 15. In view of the above, this is a fit case to invoke the powers under section 482 of CrPC. This view is fortified in the judgment rendered by the Hon’ble Supreme Court in Satish Mehra v. State (NCT of Delhi) and another [(2012)13 SCC 614], in which the Hon’ble Supreme Court has held as under : A. Criminal Procedure Code, 1973 -- S.482 -- inherent power of High Court – power to quash proceedings specially after framing of charges -- scope and nature of -- reiterated -- held, power to quash proceedings after charges were framed is wider as evidence adduced while submitting charge-sheet can be looked into for determining disclosure of offence against accused -- where allegations do not disclose prima facie case and prosecution of accused would result in abuse of process then proceedings can be quashed either at early stage or at later stage – this extraordinary power available to High Court needs to be exercised carefully land sparingly -- it cannot be used for quashing legitimate prosecution -- Criminal Procedure Code, 1973, sections 161, 165, 173, 227 and 239. 16. Therefore, to prevent the abuse of process of the Court, and to prevent the harassment to citizen of India by illegal prosecution under section 376 of IPC, it would be imperative, obligation to interfere in the impugned order. Therefore, by allowing this petition invoking power under section 482 of CrPC, order dated 28.3.2014 passed by the learned ASJ, Sironj in S.T. 405/2012 is set aside. .............