Madhya Pradesh High Court

Suo Moto In The Matter Of The State ... vs Complainant/Prosecutrix on 28 March, 2022

Author: Gurpal Singh Ahluwalia

                               1
           THE HIGH COURT OF MADHYA PRADESH
                        CONC-415-2022
            Suo Moto in the matter of State of MP Vs.
              Complainant/Prosecutrix and others

Gwalior, Dated: 28.03.2022

      Shri MPS Raghuvanshi, Additional Advocate General with

Shri C.P. Singh, Counsel for the applicant/State.

      Ms. Kalpana Parmar, Counsel for the respondents.

In compliance of order dated 21.03.2022, respondents have

filed their return, but they are not present.

Respondents in their return have pleaded as under:-

"2. That, initially petitioner/contemnor no.1 Kunwarlal Yadav filed a W.P.NO.5723/2021 for termination of pregnancy of prosecutrix in crime no.25/2021 of police station Civil Line Datia (contemnor no.2).

3. That, at the time of filing of Writ Petition, daughter of petitioner was minor and she was subjected to sexual offence and because of which she was pregnant and therefore she was may having pregnancy of 14 weeks and two days as per the report dated 15.03.2021.

4. That, by the order of Hon'ble Court pregnancy of prosecutrix (Contemnor No.2) was terminated by the Hospital.

5. That, after the pregnancy marriage of the contemnor no.2 was fixed and in the meanwhile, summon from the trial court was received for the evidence.

6. That, thereafter, contemnor's no.1 daughter got engaged as the contemnor belong to rustic villagers society and among the society of contemnor, early marriage are performed as per the rituals and because of the sexual offence against her, contemnor no.1 to avoid the social stigma, her engagement was fixed.

7. That, when the contemnor no.1 and 2 went to the trial court for there evidence, then some counsel/advocate met them and on the discussion

THE HIGH COURT OF MADHYA PRADESH CONC-415-2022 Suo Moto in the matter of State of MP Vs. Complainant/Prosecutrix and others

regarding the evidence, it was advised that if, contemnor told before the court regarding the pregnancy of the contemnor no.2, then the engagement must be broken.

8. That, thereafter contemnor 1 and 2 in the garb of fear of cancellation of marriage, deposed before the trial court that no incident has happened with the prosecutrix/contemnor no.2.

9. That, the statement made by the contemnor no.1 and 2 before the trial court was the outcome of fear of society as well as the fear of broken of relationship (Engagement) and fear of non marriage of contemnor no.2 after disclosure regarding the pregnancy.

10. That, contemnors are not literate enough and having no knowledge of law and therefore, on the basis of advice and fear of society, statement before the trial court has been made by the contemnors.

11. That, the contemnors are apologized before this Hon'ble Court and tendering there unconditional apology.

12. That, in the interest of justice, humble contemnors may kindly be condone and the prayer of the contemnors are bonafidely just and proper."

From the plain reading of this reply, it is clear that respondents

are claiming that they have deposed wrongly before the Trial Court

on the threat / allurement given by the local counsel. Surprisingly, the

respondents have not disclosed the names of the local counsel who

allured them to depose wrongly before the Trial Court. Thus, it is a

matter of enquiry.

However, in view of the reply submitted by the respondents,

this Court cannot shut its eyes from the facts of the case. On one

hand, the respondents had pleaded before this Court that the

THE HIGH COURT OF MADHYA PRADESH CONC-415-2022 Suo Moto in the matter of State of MP Vs. Complainant/Prosecutrix and others

prosecutrix is minor and she is subjected to rape and in the Trial

Court, they had alleged that nothing had happened with the minor

prosecutrix.

Accordingly, this Court is of the considered opinion that it is a

fit case where this Court can exercise its power under Section 482 of

CrPC also in order to do complete justice.

The Supreme Court in the case Zahira Habibulla H. Sheikh

and another Vs. State of Gujarat and others reported in (2004) 4

SCC 158 has held as under:

"35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the "majesty of the law". Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant

THE HIGH COURT OF MADHYA PRADESH CONC-415-2022 Suo Moto in the matter of State of MP Vs. Complainant/Prosecutrix and others

materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

54. Though justice is depicted to be blindfolded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice-delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.

Accordingly, issue notice to Sonu Parihar @ Nathu S/0

Mahendra Singh Parihar, R/o Village Bichhondana, Tehsil, Bhander,

District Datia, who is detained in jail in connection with Crime

No.25/2021 to show cause as to why this Court should not direct the

Trial Court to re-examine the respondents as they have specifically

taken the stand before this Court that the evidence given by them

before the Trial Court is not the correct one and was under duress.

THE HIGH COURT OF MADHYA PRADESH CONC-415-2022 Suo Moto in the matter of State of MP Vs. Complainant/Prosecutrix and others

Now, the next question for consideration is as to whether this

Court should take action against the local counsel who have given a

wrong advise to the respondents to depose falsely before the Trial

Court. In the light of judgment passed by the Supreme Court in case