Ajay Jatav vs The State Of Madhya Pradesh
2021 Latest Caselaw 4581 MP

             1                                    W.A.No.753/2021

                 THE HIGH COURT OF MADHYA PRADESH

                         BENCH AT GWALIOR

                            DIVISION BENCH

                      ( JUSTICE SHEEL NAGU &
                 JUSTICE DEEPAK KUMAR AGARWAL)
                         Writ Appeal No.753/2021
                                Ajay Jatav
                                    Vs.
                          State of M.P. & Ors.
--------------------------------------------------------------------------------
       Shri Avdhesh Kumar              Sharma, learned counsel for the
appellant.
       Shri Ankur Mody, learned Additional Advocate General for
the respondents/State.
 --------------------------------------------------------------------------------

                               ***********
                                ORDER

[Passed on this 24th day of August, 2021]

Per Justice Deepak Kumar Agarwal

This writ appeal has been filed against the order dated

14.6.2021 passed by the learned Single Judge in W.P.No.9659/2021

whereby the petition of the petitioner for quashing the charge-sheet

filed under Sections 363, 366, 376 of IPC and Sections 5/6 of the

POCSO Act and its consequential proceedings presently pending

before learned 2nd ASJ (POCSO) Shivpuri, has been dismissed.

2. In brief, the case of the prosecution is that on 23.12.2019

father of the prosecutrix lodged a report on suspicion against

appellant Ajay Jatav saying that in the intervening night between

20.12.2019 & 21.12.2019 her daughter was missing. He searched

her here and there, but she could not be traced. Appellant, who is

also of the same village, was also missing. He suspected that

appellant had kidnapped his 17 years old daughter. Thereafter, on

30.1.2021 prosecutrix along with her child was recovered who

informed that child belongs to present 0appellant. Her statement

was recorded by the police and thereafter Crime No.240/2018 was

registered at police Station, Rannaud, Distt. Shivpuri, for the

offence punishable under Sections 363, 366, 376 of IPC and

Sections 5/6 of the POCSO Act. After investigation, charge-sheet

was filed and case registered as Special Case No.19/2021.

3. Learned counsel for the appellant submits that prosecutrix is

aged about 19 years. They have performed marriage as per their

own volition. They have one child of seven month. Prosecutrix is

the main witness who has not supported the prosecution case during

trial, on the contrary, she has stated that she wants to cohabit with

the appellant. In support of his contention, learned counsel for the

appellant relied on the judgment passed by the Supreme Court in

the case of State of Haryana and Others vs. Ch. Bhajanlal and

Others reported in AIR 1992 SC 604 as well as the judgment

dated 23/7/2015 passed by the Allahabad High Court (Lucknow

Bench) in Writ Petition No.3519/2015 (Shaheen Parveen Vs.

State of UP), judgment dated 17/11/2017 passed by the Allahabad

High Court in case No.18331/2016 (Asha and another vs. State of

U.P. & another), judgment dated 6/3/2013 passed by the High

Court of Delhi in Criminal MC No.2234/2012 (Prawin Prakhar

and another Vs. State Govt. NCT of Delhi), judgment dated

27/7/2012 passed by the Delhi High Court in Writ Petition

No.338/2008 Court on its own motion (Lajja.... Vs. State) and

the judgment dated 16.7.2018 passed by the Bombay High Court

(Aurangabad Bench) in Criminal Appeal No.7038/2016 (Ashok

Dhondiba Kale vs. State of Maharashtra & Ors.).

4. Learned Additional Advocate General for the State submits

that on the basis of statement under Section 161 of Cr.P.C. crime

was registered and matter was investigated and charge-sheet has

been filed. There is no provision in Cr.P.C. that when prosecutrix

has not supported the prosecution version, crime as well as criminal

proceedings be quashed. Hence prayed that appeal be dismissed.

5. Heard learned counsel for the rival parties and perused the

available record.

6. On going through the record, it emerges that in her statements

under Sections 161 and 164 of Cr.P.C. recorded after her recovery,

prosecutrix has categorically stated that in the night of 20.12.2019

at about 10-11 appellant met her outside her house and took her to

Bhopal by bus and then Ishanpura, Telangana and at that time she

was 17 years and eight months of age. Appellant took her on the

pretext of marrying her. After reaching Telangana, they performed

marriage in a temple and thereafter they had physical relationship.

From the date of marriage, she is residing along with appellant in a

rented premises and she is blessed with a son.

7. From the school record of the prosecutrix, it is evident that

her date of birth is 1 st February, 2002. She eloped with the appellant

in the intervening night of 20/21 st December, 2019. Therefore, it is

clear that at that time prosecutrix was below 18 years of age.

8. The Supreme Court in the case of S.Khushboo v.

Kanniammal, (2010) 5 SCC 600 in paras 17, 18, 19 and 20 has

reiterated the guidelines for the exercise of inherent power by the

High Court which are reproduced as under :-

17. In the past, this Court has even laid down some guidelines for the exercise of inherent power by the High Courts to quash criminal proceedings in such exceptional cases. We can refer to the decision in State of Haryana v. Bhajan Lal to take note of two such guidelines which are relevant for the present case: (SCC pp. 378-79, para 102)

"(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.

* * * (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."

18. It is of course a settled legal proposition that in a case where there is sufficient evidence against the accused, which may establish the charge against him/her, the proceedings cannot be quashed. In Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. this Court observed that a criminal complaint or a charge-sheet can only be quashed by superior courts in exceptional circumstances, such as when the allegations in a complaint do not support a prima facie case for an offence.

19. Similarly, in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque this Court has held that criminal proceedings can be quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves. It was further observed that superior courts "may examine the questions of fact" when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice.

20. In Shakson Belthissor v. State of Kerala this Court relied on earlier precedents to clarify that a High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate cases. In fact it was observed: (SCC pp. 478, para 25) "25. ... '16. ... One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.'*"

9. There is no provision in Cr.P.C. that when prosecutrix or

complainant has not supported the prosecution case, the crime as

well as criminal proceedings be quashed. In the light of the

judgment of the Supreme Court in the case of S.Khusboo (supra)

this case does not appear to be of such nature where inherent

powers should be used by this Court. In the considered opinion of

this Court, the learned Single Judge has not committed any error in

dismissing the writ petition. Accordingly, this appeal sans merits is

hereby dismissed.

                                                  (Sheel Nagu)                   (Deepak Kumar Agarwal)
                                                       Judge                                Judge


                        ms/-


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            COURT OF MADHYA PRADESH BENCH
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            Date: 2021.08.31 15:01:43 +05'00'