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2016 DIGILAW 1963 (ALL)

Nisharuddin v. State of U. P.

2016-05-19

AJAI LAMBA, RAVINDRA NATH MISHRA II

body2016
JUDGMENT Nisharuddin has approached this court for issuance of a writ in the nature of certiorari quashing Case Crime No.765 of 2015 under Sections 363, 366, 376, 342, 506 I.P.C. and 3/4/17/18 Protection of Children from Sexual Offences Act, Police Station Madiyaun, District Lucknow (Annexure-1). 2. The facts and circumstances in chronology of events emanating from the record, in brief are that respondent no.3 got married to the petitioner, as is evident from Annexure No.5, Nikah Nama on 14.12.2015. Evidently, the marriage has not been accepted by respondent no.4 who apparently started interfering in the matrimonial life of the petitioner and respondent no.3 by way of house trespass and assault etc. Respondent no.3 under the circumstances, initiated criminal proceedings against her own mother and other relatives vide Annexure No.7, Criminal Complaint dated 2.1.2016 for commission of offence under Sections 323, 504, 506, 452 I.P.C. 3. On going through Annexure No.7, we find that respondent no.3 made allegations to the effect that she lost her father and thereafter was living in the house of her maternal uncle (Mama). Mother of respondent no.3 Smt. Mabiya Khatoon, maternal uncle and maternal aunt were opposed to the marriage of respondent no.3 with the petitioner and wanted to get her married elsewhere therefore they were making repeated attempts to kidnap respondent no.3 and wanted to indulge in honour killing and there is a possibility that respondent no.3 would be done to death in honour killing. 4. It has further been alleged in criminal complaint Annexure No.7 that on 25.12.2015 at 4.00 O' Clock, all the four accused namely Smt. Mabiya Khatoon, Smt. Rubina, Saleem and Mukeem came to the house in a Four Wheeler and forcibly dragged respondent no.3 in the vehicle and gave her beatings with fist blows and kicks. Respondent no.3 raised hue and cry. Respondent no.3 was saved. Respondent no.3 had gone to the police for registration of the crime which was not done hence complaint has been filed. 5. Annexure No.8 is the statement of respondent no.3 recorded under Section 200 Code of Criminal Procedure, 1971 (for short 'Cr.P.C.') as provided under the procedure for prosecuting a complaint in which respondent no.3 has given her age as 20 years and defined herself as wife of the petitioner. The incident of 25.12.2015 has been reiterated in the statement recorded on oath in court. 6. The incident of 25.12.2015 has been reiterated in the statement recorded on oath in court. 6. Impugned criminal proceedings were initiated at the instance of respondent no.4 vide the crime registered on 9.12.2015 with the allegations that respondent no.3 had been kidnappedbducted and was subjected to rape. 7. The petitioner has approached this Court with the plea that the impugned criminal proceedings have been initiated in abuse of process of the court and process of the law, at the instance of respondent no.4. 8. We have taken note of the fact that when respondent no.3 joined investigation in Case Crime No.765 of 2015 (supra), she was given in the custody of her mother and other relatives on 6.1.2016. 9. Statement of respondent no.3 was recorded under Section 164 Cr.P.C. in which she supported the prosecution case. Medical age of respondent no.3 has been assessed and has been found to be about 17 years. According to testimonials/transfer certificate and Adhaar Card, date of birth of respondent no.3 has been indicated as 9.8.1998. Respondent no.3 under the circumstances, was 17 years and four months old at the time of marriage with the petitioner, if the testimonial (Annexure No.9) is taken into account. 10. On 23.2.2016, the following order was passed by this Court so as to verify whether the documents relied upon by the petitioner are genuine or not : 1. This petition seeks issuance of a writ in the nature of certiorari quashing Case Crime No. 765 of 2015 under Sections 363, 366, 376, 342, 506 I.P.C. and 3/4/17/18 Protection of Children from Sexual Offences Act, P.S. Madiyaun, district Lucknow (Annexure-1). 2. Learned counsel for the petitioner contends that Annexure-5, evidence of marriage of petitioner No.1 with respondent No.3 makes it evident that respondent No.3 was not victimised, kidnapped or raped. The marriage of respondent No.3 with the petitioner is opposed by respondent No.4, therefore, impugned criminal proceedings have been initiated. 3. Learned counsel has also drawn attention of the Court towards Annexures 7 and 8 to contend that respondent No.3 has initiated criminal proceedings against her mother and other family members for victimising her because respondent No.3 got married to the petitioner. So much so, the respondent No.3 has filed a complaint case against her parents and in support of her plea, she has made a statement under Section 200 CrPC which has been placed on record as Annexure-8. 4. So much so, the respondent No.3 has filed a complaint case against her parents and in support of her plea, she has made a statement under Section 200 CrPC which has been placed on record as Annexure-8. 4. Issue notice to respondents 3 and 4, returnable on 18.3.2016, to be served also through Station House Officer, P.S. Madiyaun, district Lucknow. 5. Till the next date of listing, arrest of the petitioner shall remain stayed. 6. The Investigating Officer is directed to confirm the facts pleaded on behalf of the petitioner and file his counter affidavit. The statement of respondent No.3 be recorded under Section 164 CrPC and the same shall also be filed along with counter affidavit. Medical age of respondent No.3 shall also be assessed. 7. Petitioner is directed to join investigation and furnish all the documents available with the petitioner with the investigating officer, on 29.2.2016, at 10.00a.m. 8. List on 18.3.2016." 11. The petitioner and respondent no.3 have been summoned in court, considering the peculiar facts and circumstances of the case. 12. Respondent no.3 has been confronted with the criminal complaint filed by her against her own mother, maternal uncle and aunt. Respondent no.3 admits to filing of the case. Respondent no.3 has also been confronted with her statement recorded on oath in court (Annexure No.8). Respondent no.3 has stated that she gave the statement, however, under duress and pressure of the petitioner. 13. We have also carefully gone through the counter affidavit filed on behalf of the investigating agency. In the counter affidavit filed on behalf of investigating agency, it has been stated that it stands verified that respondent no.3 initiated criminal proceedings against her own mother, maternal uncle etc. vide Annexure No.7. It has further been verified that respondent No.3 gave her statement under Section 200 Cr.P.C., which has been appended as Annexure No.8. Investigation has not been concluded till date. 14. It is however the case of the prosecution that going by the statement of respondent no.3 recorded under Section 164 Cr.P.C., it stands established that the offence has been committed by the petitioner. The case of the prosecuting authority, as projected in court, is that stand of the victim/prosecutrix as has emerged from her statement recorded under Section 164 Cr.P.C. is to be accepted as such. The case of the prosecuting authority, as projected in court, is that stand of the victim/prosecutrix as has emerged from her statement recorded under Section 164 Cr.P.C. is to be accepted as such. In view of the said statement, it stands established that the petitioner committed offence of kidnapping and rape. 15. We have also taken into account the counter affidavit filed on behalf of respondent Nos.3 and 4. Respondent nos.3 and 4 have essentially relied on statement of prosecutrix (respondent no.3) recorded under Section 164 Cr.P.C. to say that offence has been committed and the petitioner be prosecuted. 16. Before we proceed further, we would like to refer to the definition and scope of 'investigation'. 17. Division Bench of this Court in Madhuri Devi v. Sate of U.P. and others : Writ Petition No.7590 of 2015 decided on 21.8.2015 in regard to investigation, has held as under (relevant paragraphs 12, 13, 14, 15, 39, 40, 42, 43 and 45) : - 12. "Investigation" is a term defined under Section 2 (h) of the CrPC in the following terms: "(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;" 13. The dictionary meaning of investigation as per The New Lexicon Webster's Dictionary of the English Language is "an examination for the purpose of discovering information about something". 14. As per Oxford Advanced Learner's Dictionary of Current English, investigation is "an official examination of the facts about a situation, crime, etc". 15. "Investigate" has been defined in Oxford Dictionary (supra) as, "to carefully examine the facts of a situation, an event, a crime etc to find out the truth about it or how it happened." 39. In the considered opinion of the court, although an accused would have no right of hearing, however, a duty is cast on the investigating agency to conduct fair and impartial investigation. If the investigator receives relevant information in regard to the facts of a case under investigation, be it from the complainant informant, a witness or even the accused, a duty is cast on the said investigating officer to investigate that aspect. In case the investigation is select and one sided, the truth cannot be unearthed. If the investigator receives relevant information in regard to the facts of a case under investigation, be it from the complainant informant, a witness or even the accused, a duty is cast on the said investigating officer to investigate that aspect. In case the investigation is select and one sided, the truth cannot be unearthed. If facts or some evidence/material is brought to the notice of the investigator, on consideration of which it can be demonstrated that the accused is not connected with commission of the crime, surely in such cases, the investigating agency would be obliged to investigate that aspect, in the interest of fair play and purity of administration of criminal justice. For this purpose, the information given by the accused cannot be ignored on the analogy that he has no right to be heard. 40. The judgement rendered by the Hon'ble Supreme Court in Ram Lal Narang's case(supra) (emphasized portion), also indicates that when it comes to the notice of the investigating agency that a person already accused of an offence has good alibi, it would be a duty of that agency to investigate the genuineness of the plea of alibi. 42. Also, it may happen that the name of an accused is given by the complainant for mala fide reasons, however, at the point in time when the offence was committed that person was abroad. In the circumstances, manifest injustice would be caused in prosecuting that person. However, if the investigating officer also considers the version of the accused in that context, entries in the passport can be verified and a conclusion drawn that allegations in the First Information Report to that extent are false. Similarly, a person might not have anything to do in commission of an offence and he might have plausible and acceptable material and evidence to demonstrate that fact, surely it is the duty of the investigating officer to take those evidences/material into account and only thereafter conclude investigation. Objective of investigation is 'to find out the truth'. It is the bounden duty of the investigating officer to find out as to how the incident/transaction/event happened. The investigation is required to be conducted through a scrupulous, unbiased, trustworthy and lawful manner. (emphasised by us) 43. Objective of investigation is 'to find out the truth'. It is the bounden duty of the investigating officer to find out as to how the incident/transaction/event happened. The investigation is required to be conducted through a scrupulous, unbiased, trustworthy and lawful manner. (emphasised by us) 43. There might be another situation wherein only the accused might have access to material or evidence relevant for investigation of a crime which would elucidate, clarify and unfold the facts. Surely, investigation in regard to such material would help the investigating agency to come to the right conclusion. Thus, there can be no bar spelt out in law to the accused pointing out the material which is relevant for the investigation of the crime. It would, however, be solely for the investigating agency to draw a conclusion, on completion of investigation. 45. From the definition of 'investigation' provided under Section 2 (h) of Cr PC, it is evident that it includes all proceedings for the 'collection of evidence'. The provision does not even envisage that only the version given by the complainant/informant is to be inquired or investigated." 18. From the above, it is evident that the investigation is process of finding out the truth. Investigation is in regard to an incident. There are a number of cases reported wherein a complainant/informant after committing offence has registered false criminal case against others. It therefore follows that statement of a complainant/victim cannot be accepted as such, and is required to be investigated whether he or she is telling the truth or not. Circumventing circumstances might come on record which may indicate/establish that the statement given by the prosecutrix is false and motivated under the influence of some other persons. This is particularly so when scientific/forensic evidence cannot be collected so as to prove commission of a particular crime. 19. When the allegations of commission of offence are only oral, veracity of statements of witnesses assumes utmost importance. In case the oral allegations cannot be confirmed by way of collection of physical evidence or forensic or medical evidence, it becomes imperative for the prosecution and the court to become cautious. In such circumstances, in the interest of substantial justice and so as to avoid malacious prosecution, the statement of such victim is required to be verified, whether she is stating the facts or not. 20. In such circumstances, in the interest of substantial justice and so as to avoid malacious prosecution, the statement of such victim is required to be verified, whether she is stating the facts or not. 20. In the above noted context, we are required to consider as to what is the evidentiary value of a statement of a witness recorded under Section 164 Cr.P.C.? Whether such a statement can be taken at its own face value and can formulate the only basis of filing charge-sheet against the accused? Whether the trial court, only on the basis of statement recorded under Section 164 Cr.P.C., record conviction and sentence? 21. Some judgements rendered by the Hon'ble Supreme Court of India and Hon'ble Allahabad High Court in context of statement of a witness recorded under Section 164 Cr.P.C., and its value, are required to be noticed. 22. The Hon'ble Supreme Court of India in Ram Kishan Singh v. Harmit Kaur ( AIR 1972 SC 468 ), has held the following : - 8. A statement under Section 164 of the Cr PC is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness.........." (Emphasised by us) 23. In Ram Prasad v. State of Maharshtra (1999(2) R.C.R.(Criminal) 819 : 1999 Cri. L.J. 2889), Hon'ble Supreme Court of India has held as under : - 15. Be that as it may, the question is whether the court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before "any authority legally competent to investigate the fact" but its use is limited to corroboration of the testimony of such witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 3 2 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof." (Emphasised by us) 24. In Ram Lakhan Sheo Charan and Others v. State of UP (1991 CRI.L.J. 2790), the following has been held by Hon'ble Allahabad High Court: - "12. The trial was held when the new Code of Criminal Procedure had come into force. The wordings of Section 164 in the new and old code of Criminal Procedure with little change are the same. As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36 : (1942) 43 Cri LJ 277, a Division bench of the Calcutta High Court had held that the statements under section 164 of the Code can be used only to corroborate or contradict the statement made under section 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor AIR 1946 PC 45 : (1946) 47 Cri LJ 344, the Privy Council had observed that the statement under section 164 of the Code cannot be used as substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observation as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257 : (1949) Cri LJ 872, and in Bhagi v. Crown, 1950 Cri LJ 1004 : (AIR (37) 1950 HP 35). Similar observation as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257 : (1949) Cri LJ 872, and in Bhagi v. Crown, 1950 Cri LJ 1004 : (AIR (37) 1950 HP 35). It was also held by a single bench of the Himachal Pradesh Judicial Commissioner's court that statement under section 164 of the code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642 : (1960 Cri LJ 1167). A division bench of this court had also observed that statements under section 164 of the Code cannot be used as substantive evidence. 13. The above catena of cases go to show that where the witness do not support the prosecution story in the court, then their statements under section 164 of the Code cannot be used as substantive piece of evidence. In this case, the learned Judge had erred in using Exts. Ka-15 and Ka-16 as substantive piece of evidence" (Emphasised by us) 25. In case Phool Chand v. State of UP (2004 Cri LJ 1904), Hon'ble Allahabad High Court has held as under : - "18. Learned Additional Public Prosecutor Sri Amarjeet Singh had tried to emphasise that Karan (PW.1) and his wife Smt. Makkhan (PW.2) were produced before the Magistrate for recording their statements under section 164 Cr.P.C. in which they fully supported the facts/circumstances leading to the commission of multiple murders in this case. The Learned Counsel has contended that these statements should be given due weight and should be considered for proving the offence with which the appellants were charged. On thoughtful consideration on this legal aspect of the matter, we find that the aforesaid submission has no substance in it. The statement of a witness under section 164 Cr. P.C. is one where the accused have hardly any occasion to cross examine him and if it is to be treated as substantive piece of evidence, it should be duly tendered before trial court and then a witness should be produced by the prosecution for his cross examination. The statement of a witness under section 164 Cr. P.C. is one where the accused have hardly any occasion to cross examine him and if it is to be treated as substantive piece of evidence, it should be duly tendered before trial court and then a witness should be produced by the prosecution for his cross examination. In this context, the Learned Senior Advocate appearing for the appellants has cited the case law of Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 (1946 (47) Cri LJ 336) and Ram Kishan Singh v. Harmeet Kaur, 1972 Cri LJ 267 : ( AIR 1972 SC 468 )." In this case the Privy Council and the Hon'ble Supreme Court have categorically held that the statements recorded under section 164 Cr.P.C are not substantive evidence. It can be used only to corroborate the statements of the witness or to contradict them. In the present case, when the witness (P.W.1 and P.W.2) have themselves did not support their version, their statements earlier recorded under section 164 Cr.P.C could not be available to the prosecution for their corroboration. It could, to the maximum, be used by the prosecution for their contradiction, but that too has not been done in the present case. It is obvious that it would be a fallacy of a legal approach to have reliance upon the statements of a witness recorded under section 164 Cr.P.C. and thereby to record conviction of the accused persons on that basis." (Emphasised by us) 26. In Bhuboni Sahu v. King, AIR 1949 PC 257 : (1949) Cri LJ 872, the following has been held : - "5. A statement made under section 164 of the Code of Criminal procedure can never be used as substantive evidence of the fact stated, but it can be used to support or challenge evidence given in Court by the person who made the statement. The statement made by the approver under section 164 plainly does not amount to the corroboration in material particulars which the courts require in relation to the evidence of an accomplice. An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition. The statement made by the approver under section 164 plainly does not amount to the corroboration in material particulars which the courts require in relation to the evidence of an accomplice. An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition. But in considering whether the evidence of the approver given before the committing Magistrate was to be preferred to that which he gave in the session court, the court was entitled to have regard to the fact that very soon after the occurrence he had made a statement in the same sense as the evidence which he gave before the committing Magistrate." (Emphasised by us ) 27. On perusal and consideration of the law above extracted, it becomes evident that statement of a witness recorded under Section 164 Cr.P.C. is not substantive evidence. It can be used to corroborate the statement of the witness. It can be used to contradict the witness. Such statement would either be elevated to the status of evidence under Section 3 2 of the Evidence Act if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. Therefore, in case after recording of statement under Section 164 Cr.P.C., the witness dies before his or her statement can be taken as a prosecution witness in the course of trial, Section 3 2 of the Indian Evidence Act would be attracted. 28. It has been clarified in the above referred judgments that where a witness does not support the prosecution story in the court, then only the statement recorded under Section 164 Cr.P.C. cannot be used as substantive piece of evidence to record conviction of the accused. The basis of laying down this law is that the statement of a witness is recorded in the absence of the accused. At the time of giving statement by the witness, the accused has not had the occasion to cross examine the witness. Thus, so as to convert a statement under Section 164 Cr.P.C. into substantive piece of evidence, it should be duly tendered before the trial court and then the witness should be produced by the prosecution for cross examination. 29. At the time of giving statement by the witness, the accused has not had the occasion to cross examine the witness. Thus, so as to convert a statement under Section 164 Cr.P.C. into substantive piece of evidence, it should be duly tendered before the trial court and then the witness should be produced by the prosecution for cross examination. 29. Having considered the purpose and relevance of statement of the witness recorded under Section 164 of the Code of Criminal Procedure in the course of investigation, we must provide and clarify that such a statement is required to be verified by the investigating officer. Such a statement cannot be considered as complete investigation. A large number of cases are coming before us in which a highly exaggerated picture is painted by the witness which might ex facie seem absurd or inherently improbable. While such a witness might involve more than one person in commission of the offences, on verifying the contents of the statement, it might be found that some of the named accused were elsewhere and nowhere close to the place of incident. To reiterate the law laid down in Madhuri Devi's case (supra), the incident is required to be investigated. It cannot be ruled out that a statement given by the witness under Section 161 Cr.P.C. or 164 Cr.P.C. might not be truthful and therefore it follows that in the interest of fair and effective investigation, the same is required to be confirmed and verified, particularly when there is reason to suspect the truthfulness of the statement. There might be cases where absence (or presence) of medical and physical evidence reflect suspicion on the statement of the witness. There might be other cases where there is animus between the parties indicating the urge to falsely implicate the accused. There might be other cases where the case at issue is in counter blast. Therefore, such statement recorded under Section 164 Cr.P.C. Cannot be accepted at its face value as the final truth and might require verification through investigation. 30. From the above noticed law in context of facts of this case, it becomes abundantly clear that the investigating agency was faced with a situation wherein at the first instance the prosecutrix/the alleged victim of offence/respondent no.3 filed criminal complaint against her mother and others and in support of her marriage with the petitioner. 30. From the above noticed law in context of facts of this case, it becomes abundantly clear that the investigating agency was faced with a situation wherein at the first instance the prosecutrix/the alleged victim of offence/respondent no.3 filed criminal complaint against her mother and others and in support of her marriage with the petitioner. By virtue of Annexure Nos.5, 7 and 8 which have been duly verified, it stands established from the point of view of respondent no.3/the victim that she was married to the petitioner and the offence as alleged, has not been committed. This aspect of the matter, however, has been ignored by the investigating agency while giving precedence to the subsequent statement given by the victim recorded under Section 164 Cr.P.C. after the victim was given in the custody of her mother. 31. We are also required to consider the grounds on which impugned proceedings can be quashed. The scope of quashing of criminal proceedings has been considered by Hon'ble Supreme Court of India in 1991(1) R.C.R.(Criminal) 383 : AIR 1992 SC 604 State of Haryana and others v. Ch. Bhajan Lal and others. 32. Hon'ble Supreme Court of India while taking notice of various judgments on the issue in Ch. Bhajan Lal's case (supra), has summed up as follows in paragraph 108. The said para when extracted reads as under : "108. 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 extraordinary power under Article 226 or the inherent powers under Section 4 82 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 powers should be exercised. 1. 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 cognisable 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 F.I.R. do not constitute a cognisable offence but constitute only a non-cognisable 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." (Emphasised by us) 33. When the facts and circumstances are collectively considered, it stands demonstrated that respondent no.4 did not accept the marriage of the petitioner with her daughter i.e. respondent no.3 and therefore initiated impugned criminal proceedings. Respondent no.3 would be the main witness of the incident of kidnapping and rape. When the facts and circumstances are collectively considered, it stands demonstrated that respondent no.4 did not accept the marriage of the petitioner with her daughter i.e. respondent no.3 and therefore initiated impugned criminal proceedings. Respondent no.3 would be the main witness of the incident of kidnapping and rape. Respondent no.3 on her part got married to the petitioner, as is evident from Annexure No.5 and subsequently initiated criminal proceedings against her own mother and other relatives who were interfering in her married life vide Annexure No.7. Not only that, respondent no.3 appeared as her own witness and gave her statement under Section 200 Cr.P.C. on oath in court wherein she not only supported the factum of marriage but she also pleaded for prosecution of her relatives for interfering in her married life. 34. Respondent no.3, however, in abuse of process of the law and process of the court, by subsequent statement recorded under Section 164 Cr.P.C., is desirous of prosecuting the petitioner. Thus, respondent no.3 is approbating and reprobating in context of the same incident viz. her marriage and other connected offences allegedly committed. The circumstances clearly establish that the criminal proceedings initiated are manifestly attended with mala fide intention. It is in malicious prosecution for ulterior move for wreaking vengeance on the petitioner on account of personal grudge, the impugned proceedings have been initiated, which is not permissible in law. The circumstances reflect that respondent no.3 changed her stand under influence of respondent no.4, her mother and other relatives after going in their company on 6.1.2016. 35. We are of the considered opinion that a consumer of justice cannot be allowed to abuse the process of the court on his or her whims. It is not permissible in law to approach a court of law, file a case with certain set of facts, appear in court and give evidence on oath in court in support of the case, and later take a stand that all earlier proceedings were initiated under influence and threat without any material or evidence of such threat. The respondent no.3 initiated criminal proceedings and supported them vide her statement given under Section 200 Cr.P.C. (Annexure Nos.7 and 8) and later has taken a stand that the proceedings had been initiated under influence/threat of the petitioner. This is neither palatable nor acceptable in law. 36. The respondent no.3 initiated criminal proceedings and supported them vide her statement given under Section 200 Cr.P.C. (Annexure Nos.7 and 8) and later has taken a stand that the proceedings had been initiated under influence/threat of the petitioner. This is neither palatable nor acceptable in law. 36. Considering the facts and circumstances noticed above, in context of the law, we are of the considered opinion that the impugned proceedings have been initiated at the instance of respondent no.4 with ulterior motive because she did not accept the marriage of her daughter with the petitioner. The stand of respondent no.3, the victim as stated in her statement recorded under Section 164 Cr.P.C. Cannot be accepted as gospel truth because in a court proceeding initiated by her in context of the same/related incident (Annexure Nos.7 and 8), respondent no.3 took a totally contrary stand indicating her marriage with the petitioner. The court proceedings cannot be brushed aside merely on asking of respondent no.3 who later chooses to take a different stance. 37. In view of the above, we allow this petition. Consequently, proceedings of Case Crime No. 765 of 2015 under Sections 363, 366, 376, 342, 506 I.P.C. and 3/4/17/18 Protection of Children from Sexual Offences Act, P.S. Madiyaun, district Lucknow (Annexure-1), are hereby quashed. 38. Let a copy of this order be sent to the Station House Officer, Police Station Madiyaon, District Lucknow and the concerned Magistrate, through Senior Registrar of this Court.