Ajay Jatav vs The State Of Madhya Pradesh
2021 Latest Caselaw 2302 MP

    1         THE HIGH COURT OF MADHYA PRADESH
                      Writ Petition No.9659/2021
                 Ajay Jatav Vs. State of M.P. and others

                 Through Video Conferencing
Gwalior, Dated:14/06/2021

        Shri Awadhesh Sharma, Counsel for petitioner.

        Shri G.K. Agrawal, Counsel for respondent no.1 and 2/State.

Heard on IA No.6618/2021, an application for amendment in

the writ petition.

It is mentioned that in the relief clause the year of crime

number has been mentioned as 2018 in place of 2019. The petitioner

also wanted to add paragraph 5.5.

For the reasons mentioned in the application, the same is

allowed. Let the necessary amendment be carried out within two

weeks from resumption of normal Court functioning.

In the meanwhile, the counsel for the petitioner shall upload

the amended copy of the petition.

Heard on the question of admission.

This petition under Article 226 of the Constitution of India has

been filed seeking following reliefs:-

"i) That this petition may kindly be allowed in the interest of justice.

ii) That, the charge-sheet no. 18 dated 12.02.2021 filed in crime no. 240 of 2018 under section 363, 366, 376 IPC and section 5/6 of POCSO Act 2012, Police Station rannod district shivpuri (M.P.) and its consequential proceedings 2 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

presently pending before learned second Additional District and session Judge (POCSO) District shivpuri (M.P.) vide case no. 19/2021 SC May kindly be quashed.

iii) That, any other order or direction deemed fit in the circumstances of the case be issued in the favour of the petitioner."

It is submitted by the counsel for the petitioner that the bail

application of the petitioner has been rejected and the trial has come

to a halt due to suspension of normal Court functioning. On

23/12/2019 the complainant "A", father of the prosecutrix, lodged a

report that his daughter "X", who is aged about 17 years and six

months, is a student of Class 11 th. On 20/12/2019 she did not go to

the school. She went to sleep in the night alongwith her brothers.

When the complainant woke up at 4 in the morning, then he found

that his daughter was not there. Under an impression that his

daughter might have gone to her mother, he called his wife, then she

informed that the prosecutrix "X" is not with her. Accordingly, he

searched for the prosecutrix "X" in the house of his relatives and at

all other places, however, he could not trace out her. Accordingly, it

was alleged that some person has kidnapped his daughter in the

intervening night of 20th and 21st of December, 2019. It was also

alleged in the complaint that the present petitioner is also missing

from the village, therefore, he has a suspicion that he must have 3 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

kidnapped his daughter.

The prosecutrix "X" was recovered from the possession of the

applicant on 30/1/2021 alongwith her child. The prosecutrix

informed that the child belongs to the present petitioner.

By this writ petition, the petitioner has approached for

quashment of the charge-sheet filed in Crime No.240/2018 registered

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

Act, 2012 at Police Station Rannod, District Shivpuri and its

consequential proceedings pending in ST No.19/2021 before the

Court of Second Additional District & Sessions Judge (POCSO Act),

District Shivpuri. It is submitted by the counsel for the petitioner that

Article 21 of the Constitution of India provides for right to life and

personal liberty to the citizen of India and the petitioner as well as

respondent no.3 (prosecutrix) are the mature couple of 22 years and

19 years respectively and they are fully eligible to take decision with

regard to their remaining life. They have performed their marriage

and are having a male child aged about 7 months. It is further alleged

that the prosecutrix is the best witness of commission of offence and

she has not supported the prosecution case in her statement under

Sections 161 and 164 of Cr.P.C. and she has specifically stated that

she was neither kidnapped or victimized. On the contrary, she has

stated that she is living with the petitioner as his wife and she wants 4 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

to continue to live in the company of the petitioner. Accordingly, it is

prayed that the case of the petitioner is covered by 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 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) and

the 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).

By referring to the statement of the prosecutrix recorded under

Section 161 of Cr.P.C., it is stated that the prosecutrix has stated that

on 20/12/2019 at about 10-11 in the night, the petitioner met her

outside her house. He took her to Bhopal in a bus. From where, they

went to Isanpur, Telangana and at that time, her age was 17 years and

8 months. The petitioner 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 alongwith the petitioner in a rented premises and is

blessed with a son.

5 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

In her statement under Section 164 of Cr.P.C. she has stated

that at about 11 in the intervening night of 20 th and 21st of December,

2019 she came out of her house. She met with the petitioner. She

went to Bhopal alongwith the petitioner on her own, from where they

went to Isanpur, Telangana and started living there. In the month of

March, 2020 they performed marriage. Thereafter, she improved her

statement and again said that the marriage was performed in the

month of February, 2020. From Shivpuri to Isanpur the petitioner did

not have physical relationship with her, but when they reached

Isanpur, they started living together and 10 days after reaching

Isanpur, the petitioner had physical relationship with the prosecutrix

in accordance with her consent. The prosecutrix is blessed with a son.

It was further alleged that the police came to their village Isanpur and

brought back the prosecutrix and the petitioner to Rannod. It was

further alleged that she was not forcibly taken away by the petitioner,

but she voluntarily went alongwith the petitioner as she was in love

with the petitioner and wanted to marry him.

Thus, it is submitted that as the prosecutrix herself has stated

that the petitioner and the prosecutrix were in love with each other,

therefore, they voluntarily went to Isanpur where they had physical

relationship out of her own volition. Therefore, it is submitted that it

cannot be said that the petitioner is guilty of committing rape on the 6 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

prosecutrix or guilty of kidnapping the prosecutrix.

Heard learned counsel for the parties.

From the school record of the prosecutrix, it is clear that her

date of birth is 1/Feb/2002. The prosecutrix eloped with the petitioner

in the intervening night of 20 th and 21st of December, 2019. Thus, it is

clear that the prosecutrix was minor at that time. It is also clear from

the statement of the prosecutrix that they had physical relationship

after reaching Isanpur.

Be that whatever it may.

One thing is clear that the prosecutrix attained majority in the

month of February, 2020. It is the case of the prosecutrix that since

she was in love with the petitioner, therefore, she voluntarily went

with the petitioner to Isanpur. The moot question for consideration is

that-

"Whether it can be said that the petitioner is guilty of

kidnapping the prosecutrix or not?"

The Supreme Court in the case of Anversinh @ Kiransinh

Fatesinh Zala Vs. State of Gujarat in Criminal Appeal No.

1919/2010 decided on 12.01.2021 has held as under:-

"17. The ratio of S. Varadarajan (supra), although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of "taking" and not "enticement". Further, this Court in S. Varadarajan 7 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

(supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

18. Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence. Rather the eyewitnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.

19. It is apparent that instead of being a valid defence, the appellant's vociferous arguments are merely a justification which although evokes our sympathy, but can't change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC."

Thus, where a minor girl is enticed by the accused, then it can

be safely said that the accused is prima facie guilty of kidnapping the

minor girl. It is the case of the prosecutrix herself that she was in love 8 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

with the petitioner and in the intervening night of 20 th and 21st of

December, 2019 she came out of the house and met with the

petitioner and thereafter, they went to Bhopal in a bus and from

Bhopal they went to Isanpur in a train. Under these circumstances,

these allegations are fully covered by the law laid down by the

Supreme Court in the case of Anver Singh (supra). Accordingly, it

cannot be said that the petitioner is not guilty of enticing the minor

girl to elope with him.

According to the prosecutrix, ten days after reaching Isanpur,

they had physical relationship out of their own volition. Thus, it is

clear that the petitioner had physical relationship with the prosecutrix

during her minority. If the prosecutrix is minor, then her consent is

immaterial. It is true that the prosecutrix was on the verge of her

majority but for the purpose of quashment of FIR and the criminal

prosecution, this Court has to consider and accept the prosecution

case in its entirety. Although this petition under Article 226 of the

Constitution of India has been filed for quashment of the FIR and the

proceedings, but it is well established principle of law that this Court

while considering the submission for quashment of the proceedings

has to consider the un-controverted allegations and the defence of the

suspect cannot be taken into consideration.

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

9 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

Kanniammal reported in (2010) 5 SCC 600 has held 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 10 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

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.'*"

The Supreme Court in the case of Sangeeta Agrawal v. State

of U.P., reported in (2019) 2 SCC 336 has held as under :

8. In our view, the Single Judge ought to have first set out the brief facts of the case with a view to understand the factual matrix of the case and then examined the challenge made to the proceedings in the light of the principles of law laid down by this Court and then recorded his finding as to on what basis and reasons, a case is made out for any interference or not.

The Supreme Court in the case of Amit Kapoor v. Ramesh

Chander reported in (2012) 9 SCC 460 has held as under :

27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with 11 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an 12 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. [Ref. State of W.B. v. Swapan Kumar Guha Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre; Janata Dal v. H.S. Chowdhary; Rupan Deol Bajaj v. Kanwar Pal Singh Gill; G. Sagar Suri v. State of U.P.; Ajay Mitra v. State of M.P.; Pepsi Foods Ltd. v. Special Judicial Magistrate; State of U.P. v. O.P. Sharma; Ganesh Narayan Hegde v. S. Bangarappa; Zandu Pharmaceutical Works Ltd. v.

13 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

Mohd. Sharaful Haque; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.; Shakson Belthissor v. State of Kerala; V.V.S. Rama Sharma v. State of U.P.; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu; Sheonandan Paswan v. State of Bihar; State of Bihar v. P.P. Sharma; Lalmuni Devi v. State of Bihar; M. Krishnan v. Vijay Singh; Savita v. State of Rajasthan and S.M. Datta v. State of Gujarat.] 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

28. At this stage, we may also notice that the principle stated by this Court in Madhavrao Jiwajirao Scindia was reconsidered and explained in two subsequent judgments of this Court in State of Bihar v. P.P. Sharma and M.N. Damani v. S.K. Sinha. In the subsequent judgment, the Court held that, that judgment did not declare a law of universal application and what was the principle relating to disputes involving cases of a predominantly civil nature with or without criminal intent.

The Supreme Court in the case of M. Srikanth v. State of

Telangana, reported in (2019) 10 SCC 373 has held as under :

17. It could thus be seen, that this Court has held, that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the Court 14 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.9659/2021 Ajay Jatav Vs. State of M.P. and others

would be justified in quashing the proceedings.

If the allegations made against the petitioner are concerned,

then it is clear that he had kidnapped a minor girl and had physical

relations with her during her minority. According to the petitioner,

the bail application of the petitioner has already been dismissed and

trial is in progress.

Considering the totality of the facts and circumstances of the

case, this Court is of the considered opinion that no case is made out

warranting interference.

Accordingly, this petition fails and is hereby dismissed.

However, it is made clear that any observation made by this

Court in this order shall not prejudice the trial court in any manner

and the trial court shall decide the trial strictly in accordance with

law.

(G.S. Ahluwalia) Judge Arun*

ARUN KUMAR MISHRA 2021.06.18 11:02:50 +05'30'