Bhagwandas Sahu @ Pintu vs The State Of Madhya Pradesh
2021 Latest Caselaw 2839 MP

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        THE HIGH COURT OF MADHYA PRADESH
                    MCRC-31891-2021
     Bhagwandas Sahu @ Pintu Vs. State of MP and another

                   Through Video Conferencing

Gwalior, Dated : 30-06-2021

      Shri Saket Udainiya, Counsel for the applicant.

      Shri Rajiv Upadhyay, Counsel for the State.

      This application under Section 482 of CrPC has been filed for

quashment of FIR in Crime No.26/2021 registered against the

applicant at Police Station Kotwali District Datia for offence under

Sections 376(2)(n), 342, 506, 376(D) of IPC.

      It is submitted by the counsel for the petitioner that the

complainant / respondent No. 2 lodged a FIR on 20.01.2021 against

one Raj Samuriya @ Lekhraj Ahirwar on the allegation that the

prosecutrix is working in a shop. About one year back, she went to

Sagar Saree Centre for purchasing Fall of Saree, where she came in

contact with Raj Samuriya @ Lekhraj Ahirwar, who was also

working in the said shop and he somehow managed to obtain the

mobile number of the prosecutrix. By extending a threat to her life,

on 18.06.2018 at about 04:00 PM, he committed rape on the

prosecutrix. As the prosecutrix was under the threat, therefore, she

could not raise any alarm. The prosecutrix was further threatened by

co-accused Raj Samuriya @ Lekhraj Ahiwar that in case, if she

narrates the incident to anybody, then he would kill her husband and

THE HIGH COURT OF MADHYA PRADESH MCRC-31891-2021 Bhagwandas Sahu @ Pintu Vs. State of MP and another

children and, accordingly, the said fact was never disclosed by the

complainant to her family members. Thereafter, on 18.12.2020 co-

accused Raj Samuriya @ Lekhraj Ahirwar took her to Delhi in a

polythene factory, where he was working and forcibly detained her

from 19.12.2020 to 30.12.2020 and during this period, he had

forcibly committed rape and, thereafter, he left her in Gwalior. After

informing her brother, the prosecutrix came back to her parental

home and informed the incident to her parents as well as to her

husband and, accordingly, the FIR was lodged.

It is submitted that in the entire FIR, there is no allegation

against the applicant and even the name of the applicant is not

mentioned. It is further submitted that the FIR was lodged on the

written report of the prosecutrix and, therefore, it cannot be said that

the entire allegations made by the prosecutrix were not written by the

police in the FIR. However, in her statement under Section 164 of

CrPC, the prosecutrix improved her version and alleged that the

applicant had also committed rape on the prosecutrix and had also

threatened the prosecutrix. It is submitted that since, the prosecutrix

had not alleged against the applicant in the FIR as well as in her

statement under Section 161 of CrPC, then the supplementary

statement as well as the statement of the prosecutrix recorded under

THE HIGH COURT OF MADHYA PRADESH MCRC-31891-2021 Bhagwandas Sahu @ Pintu Vs. State of MP and another

Section 164 of CrPC cannot be relied upon and the registration of

offence against the applicant is liable to be quashed. To buttress his

contention, counsel for the applicant has relied upon the judgment

passed by Allahabad High Court in the case of Sandeep @ Kothari

Upadhyay Vs. State passed in Cr.A. No. 1664 of 2013 on 13-Feb-

2014.

Per contra, the application is vehemently opposed by the

counsel for the State. It is submitted that it is well established

principle of law that for quashing the charge-sheet or FIR, the

defence of an accused cannot be taken into consideration. The

charge-sheet or the FIR can be quashed only if un-controverted

allegations do not make out an offence. Whether the prosecutrix had

improved her version in her statement under Section 164 of CrPC or

not, cannot be considered and adjudicated by this Court at this stage.

Heard the learned counsel for the parties.

The Supreme Court in the case of Padal Venkata Rama

Reddy Vs. Kovuri Satyanarayana Reddy reported in (2012) 12

SCC 437 has held as under :

11. Though the High Court has inherent power and its scope is very wide, it is a rule of practice that it will only be exercised in exceptional cases. Section 482 is a sort of reminder to the High Courts that they are not merely courts of law, but also courts of justice and possess inherent powers to remove injustice. The inherent power of the High

THE HIGH COURT OF MADHYA PRADESH MCRC-31891-2021 Bhagwandas Sahu @ Pintu Vs. State of MP and another

Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under Section 482 is discretionary, therefore the High Court may refuse to exercise the discretion if a party has not approached it with clean hands.

12. In a proceeding under Section 482, the High Court will not enter into any finding of facts, particularly, when the matter has been concluded by concurrent finding of facts of the two courts below. Inherent powers under Section 482 include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. The Court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of the Code. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly, carefully and with caution.

13. It is well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code (vide Kavita v. State and B.S. Joshi v. State of Haryana). If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.

14. The inherent power is to be exercised ex debito justitiae, to do real and substantial justice, for administration of which alone courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. It is, however, not necessary that at this stage there should be a meticulous analysis of the case before the trial to find out

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whether the case ends in conviction or acquittal. (Vide Dhanalakshmi v. R. Prasanna Kumar; Ganesh Narayan Hegde v. S. Bangarappa and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque.)

15. It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code should be exercised. But some attempts have been made in that behalf in some of the decisions of this Court vide State of Haryana v. Bhajan Lal, Janata Dal v. H.S. Chowdhary, Rupan Deol Bajaj v. Kanwar Pal Singh Gill and Indian Oil Corpn. v. NEPC India Ltd.

16. In the landmark case of State of Haryana v. Bhajan Lal this Court considered in detail the provisions of Section 482 and the power of the High Court to quash criminal proceedings or FIR. This Court summarised the legal position by laying down the following guidelines to be followed by the High Courts in exercise of their inherent powers to quash a criminal complaint: (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.

(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

THE HIGH COURT OF MADHYA PRADESH MCRC-31891-2021 Bhagwandas Sahu @ Pintu Vs. State of MP and another

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.

(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."

17. In Indian Oil Corpn. v. NEPC India Ltd. a petition under Section 482 was filed to quash two criminal complaints. The High Court by a common judgment allowed the petition and quashed both the complaints. The order was challenged in appeal to this Court. While deciding the appeal, this Court laid down the following principles: (SCC p. 748, para 12)

1. The High Courts should not exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution.

2. The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence.

3. It was held that a given set of facts may make out:

(a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal

THE HIGH COURT OF MADHYA PRADESH MCRC-31891-2021 Bhagwandas Sahu @ Pintu Vs. State of MP and another

offence.

18. In State of Orissa v. Saroj Kumar Sahoo it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: (SCC p. 550, para 11) "11. ... It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with."

19. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre this Court held as under: (SCC p. 695, para 7) "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

20. This Court, while reconsidering the judgment in Madhavrao Jiwajirao Scindia, has consistently observed that where matters are also of civil nature i.e. matrimonial, family disputes, etc., the Court may consider "special facts", "special features" and quash the criminal proceedings to encourage genuine settlement of disputes between the parties.

21. The said judgment in Madhavrao case was

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reconsidered and explained by this Court in State of Bihar v. P.P. Sharma which reads as under: (SCC p. 271, para 70) "70. Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre also does not help the respondents. In that case the allegations constituted civil wrong as the trustees created tenancy of trust property to favour the third party. A private complaint was laid for the offence under Section 467 read with Section 34 and Section 120-B IPC which the High Court refused to quash under Section 482. This Court allowed the appeal and quashed the proceedings on the ground that even on its own contentions in the complaint, it would be a case of breach of trust or a civil wrong but no ingredients of criminal offence were made out. On those facts and also due to the relation of the settler, the mother, the appellant and his wife, as the son and daughter-in-law, this Court interfered and allowed the appeal. ... Therefore, the ratio therein is of no assistance to the facts in this case. It cannot be considered that this Court laid down as a proposition of law that in every case the court would examine at the preliminary stage whether there would be ultimate chances of conviction on the basis of allegation and exercise of the power under Section 482 or Article 226 to quash the proceedings or the charge-sheet."

22. Thus, the judgment in Madhavrao Jiwajirao Scindia does not lay down a law of universal application. Even as per the law laid down therein, the Court cannot examine the facts/evidence, etc. in every case to find out as to whether there is sufficient material on the basis of which the case would end in conviction. The ratio of Madhavrao Jiwajirao Scindia is applicable in cases where the Court finds that the dispute involved therein is predominantly civil in nature and that the parties should be given a chance to reach a compromise e.g. matrimonial, property and family disputes, etc. etc. The superior courts have been given inherent powers to prevent the abuse of the process of court; where the Court finds that the ends of justice may be met by quashing the proceedings, it may quash the proceedings, as the end of achieving justice is higher than the end of merely following the law. It is not necessary for

THE HIGH COURT OF MADHYA PRADESH MCRC-31891-2021 Bhagwandas Sahu @ Pintu Vs. State of MP and another

the Court to hold a full-fledged inquiry or to appreciate the evidence, collected by the investigating agency to find out whether the case would end in conviction or acquittal.

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 would be justified in quashing the proceedings.

The Supreme Court in the case of M.N. Ojha v. Alok Kumar

Srivastav reported in (2009) 9 SCC 682 has held as under :

30. Interference by the High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the complainant sets the criminal law in motion with a view to exert pressure and

THE HIGH COURT OF MADHYA PRADESH MCRC-31891-2021 Bhagwandas Sahu @ Pintu Vs. State of MP and another

harass the persons arrayed as accused in the complaint.

31. It is well settled and needs no restatement that the saving of inherent power of the High Court in criminal matters is intended to achieve a salutary public purpose "which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. [If such power is not conceded, it may even lead to injustice.]"

(See State of Karnataka v. L. Muniswamy, SCC p. 703, para 7.)

32. We are conscious that "inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases".

(See Kurukshetra University v. State of Haryana, SCC p.

451, para 2.)

The Supreme Court in the case of CBI v. Arvind Khanna

reported in (2019) 10 SCC 686 has held as under :

17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 CrPC, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 CrPC.

18. In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for.

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Thus, it is clear that although this Court cannot make a roving

enquiry at this stage, but if the uncontroverted allegations donot

make out any offence, then this Court can quash the F.I.R.

In the present case, the prosecutrix has levelled the allegations

against the applicant in her statement under Section 164 of CrPC as

well as in her supplementary statement. This Court in exercise of its

power under Section 482 of CrPC cannot hold that the allegations

made by the prosecutrix in her statement under Section 164 of CrPC

or in her supplementary police statement recorded under Section 161

of CrPC are false or cannot be looked into.

So far the judgment relied upon by the Counsel for the

applicant is concerned, it is suffice to say that the said judgment was

passed in post conviction stage. The appreciation of evidence at post

conviction stage and appreciation of material in pre trial stage is

completely different.

Under these circumstances, this Court is of the considered

opinion that in the light of limited scope of interference under

Section 482 of CrPC at the initial stage of the trial, this Court cannot

quash the FIR or consequential proceedings..

Accordingly, this application fails and is hereby dismissed.

                                                         (G.S. Ahluwalia)
Abhi                                                            Judge

        ABHISHEK
        CHATURVEDI
        2021.07.02
        12:00:23 +05'30'