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Madhya Pradesh High Court · body

2025 DIGILAW 361 (MP)

Saroj Mishra v. State of M. P.

2025-06-23

ANURADHA SHUKLA

body2025
ORDER 1. This petition, under section 482 of the Code of Criminal Procedure 1973, has been moved against the order passed on 24.7.2015 by the Second Additional Sessions Judge, Mauganj, district Rewa, in Criminal Revision No.0/2015 whereby the revisional court confirmed the order passed on 21.2.2015 by Judicial Magistrate, First Class, Rewa, in an unregistered Complaint Case No.0/2010 (Smt. Saroj Mishra v. Narayan Prasad and others). 2. The facts of the case may be summarized as, on 22.6.2009 prosecutrix/complainant along with her husband and young child was on the way to her house; Ramkumar Singh (Sarpanch) and Shyam Bihari Patel asked her husband to join them for a cup of tea, therefore prosecutrix, with her child in the lap, proceeded ahead simply; respondents Rajendra Prasad Mishra, Harshlal Mishra and Bhupendra Mishra met her and asked about her husband; after replying them, the prosecutrix walked further but she was suddenly blocked and stopped by respondents Narayan Prasad Dwivedi and Radhakrishan; they asked her for sexual favour; respondent Rajendra snatched the child from her lap and she was dragged to a nala by respondents Narayan Prasad Dwivedi and Radhakrishan; they both committed rape with her, but upon hearing the faint sound of footsteps, other three respondents could not commit the sexual act; they all ran away after giving threats to the prosecutrix. 3. Prosecutrix informed her husband about the incident in the night and on next day the police was informed; as a close relative of respondent Narayan Prasad Dwivedi was in police department, therefore police did not take any action; this compelled the prosecutrix to approach the Superintendent of Police, Rewa, and only after his intervention a report was registered and prosecutrix was medically examined; even after registration of report the investigation was not making any headway, therefore, prosecutrix approached the High Court by filing Writ Petition No.7832/2009. Despite the directions issued in writ, police took no serious steps to conclude investigation and in this backdrop complaint is stated to have been filed. 4. After receipt of complaint, the Magistrate Court directed the concerned police station to hold an enquiry and submit a report in this regard, which was filed on 17.1.2011. At the request of counsel for complainant, the statements of prosecutrix and her husband were recorded before the Magistrate Court. 4. After receipt of complaint, the Magistrate Court directed the concerned police station to hold an enquiry and submit a report in this regard, which was filed on 17.1.2011. At the request of counsel for complainant, the statements of prosecutrix and her husband were recorded before the Magistrate Court. The case diary of crime, registered on the basis of report made by prosecutrix, was also produced on 14.8.2014, reflecting that a closure report was prepared in the case. In the same order, the concerned Magistrate considered it necessary to hear the prosecutrix and record her statements on the closure report. On next date fixed for hearing i.e. 15.9.2014 the complainant and her counsel were heard and case diary was summoned thereafter. On 21.2.2015, the Magistrate Court dismissed the complaint. This order was challenged in Revision Petition No.200/2015 but that too was dismissed vide the impugned order. 5. The petitioner is challenging the impugned order on the ground that it is illegal and perverse as the court below failed to appreciate that prosecutrix was consistently putting the same facts whether they be in the FIR, or in the protest petition, or for that matter in the complaint. A prima facie case was made out by the prosecutrix/ complainant and there was sufficient material to proceed against the respondents. The findings and reasons given by learned courts below are not based upon valid propositions and are the results of only conjectures and surmises. The impugned order has resulted in grave miscarriage of justice, therefore a request has been made to allow this petition and direct the concerned Magistrate Court to restore the complaint, duly register it as a criminal case and proceed further for trial. 6. Respondents No.2 to 6 are being represented here through their counsel who has opposed this petition by claiming that both the courts below have reached to a consistent finding that prosecutrix/complainant could not establish the commission of crime and to seek revenge on account of some political dispute, the allegations of gang-rape were made against the respondents. Accordingly, petition is seriously opposed by respondents No.2 to 6. 7. Learned Government Advocate has also opposed the petition. 8. Counsel for both the parties have been heard and the case diary has been gone through. 9. Accordingly, petition is seriously opposed by respondents No.2 to 6. 7. Learned Government Advocate has also opposed the petition. 8. Counsel for both the parties have been heard and the case diary has been gone through. 9. This petition has primarily been argued on the ground that the mandatory procedure prescribed in section 210 Cr.P.C. was not followed by the Magistrate Court and this aspect was not examined even by the revisional court, therefore orders passed by both these courts have no legal effects. Procedure of section 210 Cr.P.C. applies when there is a complaint case and also a police investigation pending in respect of same offence. Here also, on 23.6.2009 prosecutrix had lodged a report in Mahila Thana, Rewa, at Crime No.0/2009 regarding the offence of gang-rape committed on 22.6.2009. Later, on 24.6.2009 a regular crime was registered at Crime No.92/2009 in Police Station, Laur, district Rewa, regarding the same offence. It is also undisputed that prosecutrix/complainant filed a complaint in the Magistrate Court on 10.12.2010 regarding the commission of same offence claiming that despite lodging the FIR and directions given by the High Court, police is not investigating the crime properly. 10. In the facts of the case and in the light of pendency of both - a police investigation and a criminal complaint filed by prosecutrix, the procedure prescribed in section 210 Cr.P.C. was required to be followed in letter and spirit. To understand the procedure it would be convenient to reproduce section 210 Cr.P.C. here: “210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.- (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.” 11. In complaint itself, the prosecutrix had revealed that the police had registered FIR on the basis of her report, however, the Magistrate Court, instead of taking cognizance of this fact, directed the concerned police to hold an enquiry regarding the facts pleaded in complaint and file an enquiry report. The said enquiry report was placed in the Magistrate Court on 17.1.2011 in which it was informed that facts alleged in the FIR were not corroborated by the statements of any other witness and that there was some political and financial dispute between the two sides on account of which false FIR was made. It was also informed that already on 30.12.2010 a closure report was prepared by the police. 12. Record of the Court of Judicial Magistrate First Class, Rewa, reveals that on 22.5.2014 case diary along with an application was presented before the Magistrate seeking an order on the closure report dated 30.12.2010. The order sheet dated 14.8.2014 reveals that the Magistrate Court passed an order to give a hearing to the prosecutrix on this closure report. On next hearing i.e. 15.9.2014 prosecutrix was present before the Court and was heard. On 21.2.2015 when the Magistrate Court dismissed the complaint, no whisper was there in the impugned order about the fate of closure report nor any separate order was passed on the request to allow the closure report. 13. On next hearing i.e. 15.9.2014 prosecutrix was present before the Court and was heard. On 21.2.2015 when the Magistrate Court dismissed the complaint, no whisper was there in the impugned order about the fate of closure report nor any separate order was passed on the request to allow the closure report. 13. Sub-clauses (2) and (3) of section 210 Cr.P.C. make it incumbent upon the Magistrate to try complaint case and the case arising out of police report together if, on the basis of final report of section 173 Cr.P.C., cognizance of an offence is taken by the Magistrate against the accused. However, if the police report does not relate to an accused named in a complaint case, or if the cognizance is being taken of any different offence, the Magistrate shall mandatorily proceed with the enquiry or trial based upon the complaint case. Here, it is not clear whether the Magistrate Court gave any verdict on the closure report submitted by the police. The record is silent whether any order on closure report was passed to take cognizance of offence or was it accepted as a whole. If the Magistrate Court was not keen to take cognizance on the closure report, even then law required it to pass a speaking order to that effect. 14. Now, if this Court assumes that Magistrate Court was not keen to take cognizance of offence against any person in the light of closure report, then it was supposed to proceed with the enquiry that was going on in the complaint case. The allegations made in the complaint were regarding commission of gang-rape, an offence triable by a Sessions Court, and proviso to section 202 Cr.P.C. requires that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his/her witnesses and examine them on oath. This Court does not find compliance of this legal requirement in the entire record of the Magistrate Court. 15. On perusal of record, it is clear that prosecutrix had submitted a list of witnesses in which total four witnesses were named but record of Magistrate Court reveals that only two of them were examined. This Court does not find compliance of this legal requirement in the entire record of the Magistrate Court. 15. On perusal of record, it is clear that prosecutrix had submitted a list of witnesses in which total four witnesses were named but record of Magistrate Court reveals that only two of them were examined. There is no observation in the order-sheets that prosecutrix was asked to examine all the witnesses named in the list and, despite being given an opportunity, she failed to examine them. Thus, the legal requirement prescribed in section 202 Cr.P.C. was completely ignored. It has become relevant to mention here that the two witnesses named in the list, for which no opportunity was given to the prosecutrix to have them examined on oath in the Magistrate Court, were not examined even by the police during investigation held on the basis of FIR. 16. On the basis of this comprehensive assessment of facts and legal mandates, the impugned order as well as the order passed by Judicial Magistrate First Class, Rewa, dismissing the complaint on 21.2.2015 is hereby quashed. 17. The parties are directed to appear before the Court of Chief Judicial Magistrate, Rewa, on 22.7.2025 who shall pass an appropriate order on the closure report submitted by Police Station, Laur, district Rewa, in Crime No.92/2009, if any such an order is still not passed. The Chief Judicial Magistrate, Rewa, shall then ensure compliance of legal requirements mandated in section 210 Cr.P.C. and, if required, proceed further with the remaining enquiry in the complaint case and pass an appropriate order regarding the question of registration of complaint case. 18. The petition is accordingly allowed. 19. A copy of this order along with its record be send to the trial Court for information and necessary compliance.