Kishore Kumar Arya vs The State Of Madhya Pradesh Thr
2022 Latest Caselaw 4930 MP

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             High Court Of Madhya Pradesh
                       Bench Gwalior
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      SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                      MCRC 10486 of 2017
                      Kishore Kumar Arya
                                Vs.
                    State of MP and Another
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Shri HK Shukla, Shri Prakhar Dhengula, Shri DS Tomar and Shri
SK Mishra, counsel for petitioner.
Shri Nitin Goyal, counsel for respondent No.1/State.
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   Reserved on                                    23/03/2022
   Whether approved for reporting                    ..../.......
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                                 ORDER

(Passed on 06/04/2022)

Per Rajeev Kumar Shrivastava, J:-

By invoking the inherent power of this Court, the present petition has been preferred by petitioner seeking quashment of FIR registered at Crime No.73 of 2017 by Maliha Police Station Padav, District Gwalior for offences punishable under Sections 376, 506, 354, 509 of IPC and other proceedings initiated in connection with said Crime.

(2) Factual matrix of the case, in short, is that respondent No.2 filed a written complaint at Mahila Police Station Padav, 23/06/2017 alleging therein that Advocate Kishore Kumar Arya (herein petitioner) committed sinful act with her by doing dirty activities and threatened her to kill as well as to spoil her divorce case pending before the Court. It is further alleged that initially, her father had hired petitioner as her Advocate to contest the divorce case pending between her and her husband since 2013. When, she had a date of appearance before the Court, then the petitioner called her in his Office on Sunday to get some documents signed. When complainant told the petitioner to get

signed, then petitioner asked her that he has no time. Thereafter, complainant told that she has not seen his Office, on that the petitioner gave his Office address. On 15/09/2013, the petitioner met complainant on the way near Kilagate. Thereafter, he took her to his Office and offered sarvat to drink and when she denied to drink, then the petitioner told her ''it is hot, please drink it''. Thereafter, what was happened with the complainant, she did not know. When she became conscious, she came to know that she was alone in the room in a naked condition and frightened and then started crying. Afterwards, she fled away from the place of occurrence. It is further alleged that whenever she went for the date of appearance, the petitioner did dirty activities and talks with her. It is further alleged that the petitioner has sexually as well as physically exploited, betrayed and threatened to kill or throw acid on her. It is further alleged that when complainant did not accept the proposal offered by the petitioner, the petitioner spoiled her divorce case. On this basis, offence under Sections 376, 506, 354, 509 of IPC has been registered at Mahila Police Station, Padav vide Crime No.73 of 2017.

(3) It is contended on behalf of petitioner that the petitioner is a practicing lawyer and advocating before the Sessions Court as well as this High Court since 20 years and there is no criminal antecedent against him. The incident is alleged to have happened with the complainant on 15/09/2013 while the FIR has been lodged belatedly after long day of four years i.e. on 23/06/2017, therefore, delay of almost four years indicates clear motive of the complainant. No sufficient explanation has been given in this regard. The sole witness of case is the prosecutrix herself and her conspicuous silence for four years, prima facie, indicates that it is the motivated case filed against the petitioner just to harass him. It is further submitted that the police authorities, without conducting any enquiry has lodged a false report on the basis of concocted

story narrated by the complainant whereby, the petitioner was arrested by police authorities and remained in custody from 24/06/2017 to 11/07/2017. It is further contended that the contents of FIR depict a serious doubt as nowhere it was mentioned by the complainant regarding offence of rape committed with her by the petitioner. Therefore, the impugned FIR is baseless. It is further contended on that on account of a dispute going on between the petitioner with his maternal uncle and son of his maternal uncle, Crime No.121/2017 was registered under Sections 341, 294, 506, 507 of IPC at Police Station Gwalior. The complainant is the niece of maternal aunt of petitioner, by which prior to four years of incident petitioner was contesting a dowry u/S. 498A of IPC and Section 12 of the Domestic Violence Act and complainant along with her relatives were usually quarreling with the petitioner as a result of which, the petitioner has already handed over the case of the complainant in the year 2014 to the mother and brother of te complainant. It is further contended that on 30/05/2017 and 01/06/2017, complaint has been submitted by the petitioner to SP, Gwalior as well as to IG, Gwalior Range regarding the false implication by the complainant, therefore,it appears that petitioner has falsely been implicated by the complainant and her family members by way of counter-blast. It is further contended that as per MLC report of the complainant, there is no definite opinion given by the doctor regarding commission of rape and in the light of judgments passed by Hon'ble Apex Court in the case of Uday vs. State Karnataka (2003) 4 SCC 46, Tilak Raj vs. State of Himachal Pradesh AIR 2016 SC 406 SC 406 and Deepak Gulati vs. State of Haryana AIR 2013 SC 2071, no case case is made out for commission of offence under Section 376 of IPC. Hence, it is prayed that the impugned FIR deserves to be quashed.

(4) On the other hand, it is submitted on behalf of the State that although the petitioner is a practicing lawyer but the alleged

heinous offence committed by him is not only against the individual but also is against the entire society. It is further submitted that a victim of rape will face hostile discrimination and social ostracisation in the society and such victim or complainant will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in the society like a normal human being. Therefore, as per contents of the FIR and the statements of complainant, no case is made out for quashment of impugned FIR. Hence, prayed for dismissal of this petition.

(5) Heard learned counsel for the parties and perused documents available on record.

(6) The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Ch. Bhajan Lal (1992 Supp (1) 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:-

"(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 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 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."

(7) As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise.The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the Highest Court of a State, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing

the proceeding at any stage. (See: Janata Dal v. H.S.Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1).

(8) It would not be proper for the High Court to analyze 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. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event, there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See:Dhanalakshmi v. R. Prasanna Kumar (1990

Supp SCC 686), State of Bihar v. P. P. Sharma (AIR 1996 SC 309), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194), State of Kerala v. O. C. Kuttan (AIR 1999 SC 1044), State of U.P. v. O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259.

(9) On perusal of FIR as well as statements of the complainant and material collected by police, it is evident that although complainant was the client of present petitioner and her divorce case was pending, but even if facts of the entire case are considered in its entirety, then it is clear that petitioner has persuaded the complainant that he likes her and administered her some ''sarvat'' by which the complainant became unconscious and when she became conscious, she came to know that she was alone in the Office room of the petitioner in a naked condition and during the aforesaid period, offence was committed by petitioner. Reverting to the present matter, the allegations made in FIR, in my considered opinion, do clearly constitute a cognizable offence justifying the registration of case and an investigation thereon and this case does not fall under any one of categories of cases calling for exercise of extraordinary or inherent powers of the High Court to quash impugned FIR. It is settled principle of law that the evidence produced by the accused like petitioner in defence can be looked into by the trial Court and not at this stage. Further, it is the trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 of CrPC for quashing the FIR. It is clear from that if prima facie a case is made out disclosing ingredients of offence alleged against petitioner, then Court cannot quash FIR. Thus, if the allegations made in the F.I.R. are considered in its entirety, this Court is of the considered opinion that the allegations made in the F.I.R against

petitioner do make out a prima facie case.

(10) Considering the nature and gravity of offence alleged to have been committed by the petitioner with a lady, no case is made out for quashment of FIR. Petition lacks merit and is liable to be dismissed. Dismissed accordingly.

(11) Before parting with this order, this Court would like to mention here that the observation in this order has been made in the light of limited scope of interference, at this stage.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.04.06 18:04:00 +05'30'