Madhya Pradesh High Court

Rohit Panchal (Ojha) vs The State Of Madhya Pradesh on 19 March, 2021

Author: Gurpal Singh Ahluwalia

   1     THE HIGH COURT OF MADHYA PRADESH
                        CRR-311-2021
        Rohit Panchal (Ojha) Vs. State of MP and another

Gwalior, Dated: 19-03-2021

       Shri Rinku Shakya, Counsel for the applicant.

       Smt. Uma Kushwaha, Panel Lawyer for the State.

       This criminal revision under Sections 397, 401 of Cr.P.C. has

been filed against the order dated 14.11.2019 passed by the First

Additional District Judge, Ashoknagar in Special Sessions Trial No.

30/2019, by which the charges under Sections 363, 366-A, 376(2)(N)

of IPC read with Section 5/6 of POCSO Act have been framed.

       It is the case of the prosecution that on the report of Radhe

Yadav dated 27.06.2019, the police registered Crime No. 179/2019 at

Police Station Shahdhora, District Ashoknagar for offence under

Section 363 of IPC on the ground that the prosecutrix, who is minor,

is missing. Thereafter, the prosecutrix was recovered from

Ahmedabad and her statement under Section 161 and 164 of Cr.P.C.

were recorded. As per FSL report, human semen and sperms were

found on the clothes of the prosecutrix. In her statement recorded

under Section 161 of Cr.P.C., it was stated by the prosecutrix that she

was in love with the applicant and, therefore, she went to Ahmedabad

along with the applicant, where they have got married in the Court

and after marriage, they stayed there as husband and wife and on

various occasions, the applicant had physical relationship with her.

On 08.07.2019, the police along with her family members came there

and thereafter, she was recovered. However, in her statement
    2     THE HIGH COURT OF MADHYA PRADESH
                        CRR-311-2021
        Rohit Panchal (Ojha) Vs. State of MP and another

recorded under Section 161 of Cr.P.C., she stated that on 21.01.2019

she had married the applicant in the Court and on 27.06.2019 she

eloped with the applicant. However, the applicant never forcibly

committed "Bura Kaam" and she was not kidnapped, but she

voluntarily went to Ahmedabad. The police has collected the school

record of the prosecutrix. According to which, her date of birth is

16.02.2002, whereas she eloped on 27.06.2019. Thus, it is clear that

on the date of incident, she was minor. It is submitted by the counsel

for the applicant that since the prosecutrix has stated that she had

voluntarily gone with the applicant and she was not seduced by him

and, therefore, no offence under Sections 363, 366-A of IPC would

be made out.

       Considered the submissions.

       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:-

              "14. Behind all the chaff of legalese, the
        appellant has failed to propound how the elements of
        kidnapping have not been made out. His core
        contention appears to be that in view of consensual
        affair between them, the prosecutrix joined his
        company voluntarily. Such a plea, in our opinion,
        cannot be acceded to given the unambiguous language
        of the statute as the prosecutrix was admittedly below
        18 years of age.
              15. A bare perusal of the relevant legal
        provisions, as extracted above, show that consent of
        the minor is immaterial for purposes of Section 361 of
 3    THE HIGH COURT OF MADHYA PRADESH
                    CRR-311-2021
    Rohit Panchal (Ojha) Vs. State of MP and another

    IPC. Indeed, as borne out through various other
    provisions in the IPC and other laws like the Indian
    Contract Act, 1872, minors are deemed incapable of
    giving lawful consent. Section 361 IPC, particularly,
    goes beyond this simple presumption. It bestows the
    ability to make crucial decisions regarding a minor's
    physical safety upon his/her guardians. Therefore, a
    minor girl's infatuation with her alleged kidnapper
    cannot by itself be allowed as a defence, for the same
    would amount to surreptitiously undermining the
    protective essence of the offence of kidnapping.
           16. Similarly, Section 366 of IPC postulates
    that once the prosecution leads evidence to show that
    the kidnapping was with the intention/knowledge to
    compel marriage of the girl or to force/induce her to
    have illicit intercourse, the enhanced punishment of 10
    years as provided thereunder would stand attracted.
           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
    (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
    4     THE HIGH COURT OF MADHYA PRADESH
                        CRR-311-2021
        Rohit Panchal (Ojha) Vs. State of MP and another

        the influence of her parents as claimed by the
        appellant, at the very least indicates that she had not
        thought her actions through fully."

       If the statement of the prosecutrix is considered, then she has

stated that she had already married the applicant on 21.01.2019 in the

Court at Ahmedabad. Thus, if the facts of the present case are

considered in the light of the judgment passed by the Supreme Court

in the case of Anversinh (Supra), then it is clear that the prosecutrix

was certainly seduced by the applicant to leave her parental home on

the ground that they both are husband and wife. The prosecution has

collected the affidavit, which was sworn by the applicant as well as

the prosecutrix at Ahmedabad to declare them as husband and wife.

Although the affidavit is in Gujarati, but the English translation of

the same has also been filed by the prosecution along with the

charge-sheet. The affidavit reads as under:-

                            "AFFIDAVIT

               We the undersigned, ROHIT PRAHLADBHAI
        PANCHAL and SONIKA SHIVAJU YADAV, both
        Hindu by Religion, aged adults, Residing at present
        at : 596, Panchal Vas, Shertha, District - Gandhinagar,
        Gujarat, do hereby solemnly affirm and declare on
        oath as under:
              1.

That we both are residing at above mentioned address.

2. That we both have got married on date :

22/01/2019 at Nilkanth Mahadev, Gulab Tower, Ghatlodie, Ahmedabad, and at present we are husband and wife. Thus, SONIKA SHIVAJU YADAV IS MAIDEN NAME AND SONIKA ROHIT PANCHAL is married name.

    5     THE HIGH COURT OF MADHYA PRADESH
                        CRR-311-2021

Rohit Panchal (Ojha) Vs. State of MP and another

3. That this affidavit is made for the proof of our marriage, as we have no any documentary proof regarding our marriage.

What is stated above is true to the best of our knowledge and belief.

Ahmedabad.

              Date: 31/05/2019                       Rohit
                                                     Sonika"

This affidavit was executed at Ahmedabad, in which it is

mentioned that the applicant and the prosecutrix have got married on

22.01.2019 at Nilkanth Mahadev, Gulab Tower, Ghatlodie,

Ahmedabad and, there is no documentary proof regarding their

marriage. In the affidavit, the prosecutrix has deliberately not

disclosed her age. Furthermore, it is not the case of the applicant that

the marriage was performed in accordance with Hindu Rites and

Rituals. The marriages are never performed by execution of marriage

affidavit. Date of birth of the prosecutrix is 16.02.2002 and,

therefore, she was minor on 22.01.2019 as well as on 27.06.2019

when she eloped with the applicant.

The Supreme Court in the case of Independent Thought Vs.

Union of India and another reported in (2017) 10 SCC 800 has

read down exception 2 of Section 375 of IPC. Accordingly, the

physical relationship with minor wife below the age of 18 years is

also an offence punishable under Section 376 of IPC. In her

statement recorded under Section 161 of Cr.P.C., the prosecutrix had 6 THE HIGH COURT OF MADHYA PRADESH CRR-311-2021 Rohit Panchal (Ojha) Vs. State of MP and another

specifically stated that after the marriage, they had resided as the

husband and wife. However, in her statement recorded under Section

164 of Cr.P.C., she had stated that the applicant had not committed

any "Bura Kaam". If the statements of the prosecutrix, which were

recorded under Section 161 of CrPC and Section 164 of CrPC are

read conjointly, then it is clear that solitary intention behind making

the statement under Section 164 of Cr.P.C. was that she was not

forced to indulge in physical relationship.

Be that as it may.

This Court cannot give preference to the statement recorded

under Section 164 of Cr.P.C. over and above the statement recorded

under Section 161 of Cr.P.C. At the stage of framing of issues, the

Trial Court is merely required to consider as to whether the material

collected against the accused prima facie discloses the commission of

offence or not. No roving enquiry is required.

The Supreme Court in the case of State of Tamil Nadu Vs. N.

Suresh Rajan and others reported in (2014) 11 SCC 709, has held

as under:-

"31. Now reverting to the decisions of this Court in the case Sajjan Kumar (supra) and Dilawar Balu Kurane (supra), relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the Court can not make a roving enquiry into the pros and cons of the matter 7 THE HIGH COURT OF MADHYA PRADESH CRR-311-2021 Rohit Panchal (Ojha) Vs. State of MP and another

and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused.

31.1. Under Section 227 of the Code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction".

31.2. Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken.

31.3. Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716. The same reads as follows:

"43...Notwithstanding this difference in the position there is no scope for doubt that the stage at which the magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie"

           8         THE HIGH COURT OF MADHYA PRADESH
                                   CRR-311-2021

Rohit Panchal (Ojha) Vs. State of MP and another

case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial court is satisfied that a prima facie case is made out, charge has to be framed."

If the impugned order is considered in the light of the

allegations made against the applicant, then this Court is of the

considered opinion that there is a prima facie material available

against him warranting framing of charges. Accordingly, the order

dated 14.11.2019 passed by the First Additional District Judge,

Ashoknagar in Special Sessions Trial No. 30/2019 is hereby affirmed.

Before parting with this revision, this Court would like to issue

a word of "caution" to the Trial Court that the observations, which

have been made by this Court, have been made in the light of the

limited scope of interference. The Trial must be decided strictly in

accordance with law on the basis of the evidence, which would come

on record tested on the anvil to the cross-examination. Therefore, the

Trial Court is requested to decide the trial strictly in accordance with

law without getting influenced or prejudiced by this order.