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2020 DIGILAW 659 (MP)

Anil Routel v. State Of M. P.

2020-06-02

RAJENDRA KUMAR SRIVASTAVA

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JUDGMENT Rajendra Kumar Srivastava, J. - This petition under Section 482 Cr.P.C. has been filed by the petitioner seeking quashment of entire criminal proceeding of Special Case No. 25/2018 pending before the Court of Second ASJ, Umaria, in relation to offence under Sections 376 (2) (n), 376 (3), 376 (2) (h ) as well as Section 5(i) r/w Section 6 of POCSO Act. He also prays for quashing the order dated 03.01.2019 whereby the learned IInd ASJ has framed the charges of aforesaid offences. 2. It is informed by the learned panel lawyer for the State that the notice has been duly served upon the respondent No. 2/prosecutrix. 3. According to the case, on the basis of a letter received from the office of SP Umaria, in respect of a complaint filed by the prosecutrix, the Deputy Superintendent of Police has inquired the matter and prima-facie found that the petitioner and prosecutrix were in love and the prosecutrix had pregnancy of 9 months by the petitioner, thus, the petitioner performed Court marriage with her on 22.03.2018 and taken her to his house where the petitioner and his family members tortured the prosecutrix on account of demand of dowry. Hence, the police has registered a case against the petitioner and his family members under Sections 498-A, 34 of IPC as well as Section 3/4 of Dowry Prohibition Act. Thereafter, while investigating the matter, police has recorded the statement of prosecutrix and other witnesses and added the offence of Section 376(2) of IPC as well as Section 3/4 of POCSO Act against the petitioner. Due to non-relevancy of the offence of Section 498-A IPC and 3/4 Dowry Prohibition Act with the facts of the case, the police has exonerated the family members of the petitioner. Thereafter, the police has filed the charge-sheet against the petitioner for the offence of Sections 376 (2)(h), 376 (2)(i) and 376(2)(n) of IPC as well as offence of Section 3/4 POCSO Act. After examining the documents annexed with the charge-sheet, the learned trial Court has framed the charges which are under challenge in this petition. 4. Learned counsel for the petitioner submits that the petitioner and prosecutrix both were already married with other one, hence, the prosecutrix is not a legally wedded wife of the petitioner, even then initially the police has registered the case under matrimonial offences. 4. Learned counsel for the petitioner submits that the petitioner and prosecutrix both were already married with other one, hence, the prosecutrix is not a legally wedded wife of the petitioner, even then initially the police has registered the case under matrimonial offences. The police has investigated the matter in two contradictory views, initially the police found marital relationship between the petitioner and prosecutrix and subsequently, alleged that the petitioner raped upon her which shows faulty investigation on the part of the police. On perusal of statements of the prosecutrix and her relatives, no prima-facie case is made out against the petitioner. He further submits that the complainant has admitted that she was maintaining a relationship with the petitioner since 2010 who got married with one Rinku Routel in year 2013 and she further stated that her relationship was continued even after her marriage with one Male Kumar Baiga. He further submits that the prosecutrix admitted the marriage with the petitioner through an affidavit executed before the Notary showing her age 21 years on 22.03.2018 and she never stated that she divorced Male Kumar before performing the marriage with the petitioner. According to her, last time they have made physical relation in the month of August, 2017, at that time, she was more than 20 years of age. He also submits that in the year 2010, POCSO Act was not in existence and came in the year 2012, hence, no case under POCSO Act is made out against the petitioner. He further submits that according to prosecutix, the petitioner has been committing rape upon her since 2010 on false promise of marriage, but prior to this FIR, the prosecutrix never lodged any complaint against the petitioner. There is also delay in lodging the FIR. The prosecution has failed to give proper explanation of such delay, hence, the FIR deserves to be set aside. He further submits that in the statement dated 11.04.2018, the prosecutrix only alleged about the facts of torture and demand of dowry against the petitioner and his family members. The learned trial Court failed to see that the prosecutrix was in relationship with the petitioner knowing the fact that he was already married with another lady, hence, there was no question of promise for performing the marriage with her. Therefore, no case would be made out against the petitioner. The learned trial Court failed to see that the prosecutrix was in relationship with the petitioner knowing the fact that he was already married with another lady, hence, there was no question of promise for performing the marriage with her. Therefore, no case would be made out against the petitioner. He also submits that the wife of petitioner and his parents went to police station to lodge a missing complaint of petitioner and against the relatives of prosecturix but police did not register their complaint. They have also filed complaints dated 03.07.2018 and 06.06.2018 before SP Umaria, against the prosecutrix and her family members for threatening them to falsely implicate in the case. Therefore, in such circumstances, it can be said that the petitioner has been falsely implicated in the case and entire criminal proceeding deserves to be set aside. In support of his contention, he relied on various pronouncements of the Hon'ble Supreme Court which are mentioned as under: 1. Rajiv Thapar Vs. Madan Lal Kapoor, (2013) 3 SCC 330 . 2. Prashant Bharti Vs. State (NCT of Delhi), (2013) 3 SCC 330 . 5. On the other hand, learned panel lawyer for respondent State opposes the petition submitting that there is sufficient material available in the case to prosecute the petitioner. The complainant has specifically alleged against the petitioner for the aforesaid offences, hence, FIR or criminal proceedings may not be quashed at this stage. Learned counsel for the State further submits that the offences are related to POCSO Act and are heinous in nature. He further submits that the petitioner performed marriage with the prosecutrix on 22.03.2018 and thereafter he threw her out from his house, hence, there is no delay in lodging the FIR. He further submits that at this initial stage of trial, the Court may not go into the question of truthfulness or veracity of complaint made by respondent No. 2, it is for the trial Court to decide the same in trial. On perusal of FIR, there is sufficient prima facie material to prosecute him further, hence, this petition deserves to be dismissed. 6. Heard and perused the case diary. 7. On perusal of case diary, it appears that the allegations made against the petitioner is that on false pretext of marriage, he had been making physical relation with the prosecutrix since 2010, even after her marriage with another person. 6. Heard and perused the case diary. 7. On perusal of case diary, it appears that the allegations made against the petitioner is that on false pretext of marriage, he had been making physical relation with the prosecutrix since 2010, even after her marriage with another person. The petitioner also performed marriage with the prosecutrix through an affidavit and thereafter he threw her out from his life when she was pregnant. Since, the learned counsel for the petitioner raised the ground of delay in lodging the FIR, therefore, it would be appropriate to decide the said issue first. 8. In the present case, the case diary shows that on the basis of written complaint filed by respondent No.2, the FIR has been registered by the police on 16.04.2018 against the petitioner and his family members for the offence of Sections 498-A/34 of IPC and Section 3/4 Dowry Prohibition Act, thereafter, the police has recorded the statements of prosecturix and others and altered the offence which are under challenge in this case. On perusal of statement of prosecutrix, it appears that on 22.03.2018, the petitioner performed marriage with her by executing an affidavit and she has duly explained the time period which passed before lodging the FIR, moreover, in any eventuality whether there is any inordinate delay in lodging the FIR or not, same would be tested at trial. In the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , the Hon'ble Apex Court held that the courts cannot overlook the fact that in sexual offences, delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. 9. Now, I proceed to examine the merits of the case to find out whether any case is made out against the petitioner or not ? In this context, first, I would like to refer to the principle laid down by the Hon'ble Apex Court for quashing the FIR. 9. Now, I proceed to examine the merits of the case to find out whether any case is made out against the petitioner or not ? In this context, first, I would like to refer to the principle laid down by the Hon'ble Apex Court for quashing the FIR. In the case of State of Haryana vs. Bhajan Lal, (1992) Supp1 SCC 335 , the Hon'ble Apex Court held that the power under section 482 Cr.P.C should be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The court issued seven guidelines to exercise the power under section 482 Cr.P.C. Same are quoted herein under : "(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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party. (6)Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, 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." 10. The learned counsel for the petitioner argued that in the case, offence of POCSO Act would not be attracted as the incident was occurred in the year 2010 and said Act came into force from 2012. In this regard, it appears from the case diary that the petitioner and respondent both have performed marriage to other one. They were in love affair since 2010 and since after they used to enter into co-habitation. According to prosecturix, in the year 2013 even after performing marriage with another girl, the petitioner forcefully made physical relation with her on assurance of performing marriage. She stated in her statement that in the year 2014, she also performed marriage with another person but the petitioner compelled her to leave her matrimonial home and was making physical relation with her forcefully. The police has collected the school record of the prosecutrix and according to it, her date of birth is 15.01.1998, thus, it is found that at the relevant point of time i.e from 2010 to 2014, she was minor. It is true the POCSO Act came into effect in the year 2012 but the offence alleged to be committed by the petitioner was continued from year 2010 to 2018, hence, prima facie offence prescribed under the POCSO Act would attract in the case. Since, during the aforesaid period, the prosecutrix was minor and prima facie shows that the petitioner committed penetrative sexual assault on her more than once or repeatedly, offence of Section 5(i)/6 is prima-facie made out in the case. Consent of minor is irrelevant. 11. Further, the prosecturix stated that in August 2017, the petitioner forcefully made physical relation, which resulted into her pregnancy. The petitioner forced her to abort the pregnancy. Consent of minor is irrelevant. 11. Further, the prosecturix stated that in August 2017, the petitioner forcefully made physical relation, which resulted into her pregnancy. The petitioner forced her to abort the pregnancy. She also alleged that on 22.03.2018, the petitioner performed marriage with her before Notary and again made physical relation with her. The Police has also collected the Notary paper. Since, it is alleged by the prosecutrix that the petitioner forcefully made physical relation with her various times, even during her pregnancy, therefore, the allegations are found specific and offence of Section 376 (2) (n) and 376 (2) (h) prima-facie made out in the case. All the facts about alleged offence will only be investigated at trial. At this stage, credibility and truthfulness of witnesses cannot be seen. 12. As far as offence of Section 376(3) of IPC is concerned, the same prescribes a penal provision for committing rape upon a women below the age of sixteen years. Section 376(3) IPC is incorporated by the Criminal Law Amendment Act, 2018 which came into force from 21.04.2018. On perusal of case diary, it appears that the FIR was registered on 16.04.2018 i.e. prior to the enforcement of said amendment, which does not have retrospective effect. Therefore, the charge of Section 376(3) IPC framed against the petitioner, is not sustainable in the eye of law and deserves to be set aside. 13. Accordingly, this petition is partly allowed. The petitioner is hereby discharged from the offence of Section 376(3) IPC. The trial shall be continued in respect of charge under Section 376 (2)(n) and 376(2)(h) of IPC as well as Section 5(i) r/w Section 6 of POCSO Act.