Madhya Pradesh High Court
Rakesh Giri Goswami vs Yadvendra Singh on 21 August, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 21st OF AUGUST, 2023
MISC. CRIMINAL CASE No. 11541 of 2018
BETWEEN:-
RAKESH GIRI GOSWAMI S/O NATHURAM
GOSWAMI, AGED ABOUT 42 YEARS, R/O
RORIAYA DARWAJA, TIKAMGARH (M.P)
.....APPLICANT
(BY SHRI SANJAY K AGRAWAL -ADVOCATE WITH SHRI RAHUL
RAWAT -ADVOCATE)
AND
YADVENDRA SINGH S/O LATE SHRI SARDAR
SINGH THAKUR, AGED ABOUT 58 YEARS,
1. OCCUPATION: EX MEMBER OF LEGISLATIVE
ASSEMBLY CONSTITUENCY TIKAMGARH
TIKAMGARH (M.P)
STATE OF MADHYA PRADESH THROUGH
2. STATION HOUSE OFFICER DISTT-
TIKAMGARH (M.P)
.....RESPONDENTS
(BY SHRI YOGESH DHANDE -G.A FOR RESPONDENT NO.2/STATE, SHRI
AAKASH KAUSHAL -ADVOCATE FOR RESPONDENT NO.1)
MISC. CRIMINAL CASE No. 2143 of 2018
BETWEEN:-
NAND KISHORE NAPIT S/O SHRI RAMDAYAL
NAPIT, AGED ABOUT 52 YEARS, OCCUPATION:
EX-PRESIDENT DISTRICT BHARTIYA JANTA
PARTY TIKAMGARH R/O GRAM TARICHAR
KALA TEHSIL MIVADI, DIST. TIKAMGARH (MP)
EX, PRESIDENT DIST. BHARTIYA JANTA PARTY
(M.P)
.....APPLICANT
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/21/2023
5:49:46 PM
2
(BY SHRI SANJAY K AGRAWAL -ADVOCATE WITH SHRI SIDHARTH
KUMAR SHARMA -ADVOCATE)
AND
YADVENDRA SINGH S/O LATE SHRI SARDAR
SINGH THAKUR, AGED ABOUT 58 YEARS,
1.
OCCUPATION: EX MEMBER OF LEGISLATIVE
ASSEMBLY CONSTITUENCY TIKAMGARH (MP)
STATE OF MP THROUGH STATION HOUSE
2.
OFFICER TIKAMGARH (M.P)
.....RESPONDENTS
(BY SHRI YOGESH DHANDE -G.A FOR RESPONDENT NO.2/STATE, SHRI
AAKASH KAUSHAL -ADVOCATE FOR RESPONDENT NO.1)
MISC. CRIMINAL CASE No. 1716 of 2018
BETWEEN:-
HARI SHANKAR KHATIK S/O BHAGWAN DAS
KHATIK, AGED ABOUT 49 YEARS, WARD NO. 10
PURANA BAZAAR PALERA TEH.AND POST PALERA
(M.P)
.....APPLICANT
(BY SHRI K.C GHILDIYAL -SENIOR ADVOCATE WITH
SHRI ADITYA VEER SINGH)
AND
YADVENDRA SINGH S/O LATE SARDAR SINGH
THAKUR OCCUPATION: EX MEMBER OF
LEGISLATIVE ASSEMBLY R/O TIKAMGRAGH
DISTRICT TIKAMGARH (M.P)
.....RESPONDENTS
(BY SHRI AAKASH KAUSHAL -ADVOCATE FOR
COMPLAINANT, SHRI YOGESH DHANDE -G.A FOR STATE)
...............................................................................................................................................
Reserved on: 14.08.2023
Pronounced on: 21.08.2023
These petitions having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/21/2023
5:49:46 PM
3
ORDER
These applications filed under section 482 of the Cr.P.C for
quashing the order dated 23.09.2017 passed in Criminal Case No.2140
of 2017, whereby the Judicial Magistrate First Class, Tikamgarh has
taken cognizance of the complaint filed by the respondent no.1 and
registered an offence under section 10, 11 of Prohibition of Child
Marriage Act, 2006 (in short 'Act of 2006).
2. The challenge is basically founded mainly on the ground
that there was no material available against the present applicant
produced by the complainant so as to constitute offence under section 9,
10, 11 of the Act of 2006. Shri K.C Ghildiyal and Sanjay K Agrawal
appearing for applicants submits that from the perusal of the complaint
made and filed by the complainant before the court below and statement
of witnesses recorded in support of the said complaint makes it clear
that the material ingredient for constituting offence against the present
applicants under respective provisions is not available and therefore,
cognizance could not have been taken against the present applicants.
3. All these cases arising out of the same order and challenge
is also made by parties on the same ground and counsel for the parties
also contended the same ground challenging the order mainly on the
ground that ingredients of respective provisions i.e section 9, 10, 11 of
the Act of 2006 is not available and as such offence under said
provisions is not made out. As per submission made by counsel for the
parties that they were present in the public function in which marriages
were being performed. Husband of one lady namely Mithala was also
entering into the marriage with one child ("X") and as such she made
complaint to the complainant who being a public leader and was
Member of Legislative Assembly. The offence was registered as per the
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/21/2023
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provision of section 9 to 11 of Act of 2006 for the reasons that "X" was
a child and was aged about 15 years, 11 months and 14 days and
applicants were present in the said function and was organizers and
therefore they have been made accused.
4. However, it is contended by counsel for the applicants that
neither in the complaint nor in the statement of witnesses recorded by
the court below it has come that the applicants were aware of the fact
that "X" was a child and marriage which was being performed by
Ramesh with her was a child marriage. In absence of such material or
not knowledge about the age of the girl "X", offence is not made out
against the present applicants. It is also contended that the complainant
has stated that Mithala has informed him about the fact that it was a
child marriage but in the statement of Mithala even she has not
disclosed this fact that she was also aware of the fact about age of girl
"X". Counsel for the applicants have submitted that in absence of
specific averment about the knowledge of age of girl "X" no offence is
made out and therefore, they have claimed that the charge framed
against them is liable to be quashed.
5. Shri Aakash Kaushal appearing for the respondent
no.1/complainant submits that under the facts and circumstances of the
case at this stage entertaining this petition under section 482 of Cr.P.C,
this Court cannot examine statement of the witnesses and the same
cannot be made basis for quashing FIR. He submits that court has taken
cognizance of a complaint only and as such this is not a proper stage
when 482 petition can be entertained. He submits that there is sufficient
material produced by the complainant and as such cognizance was
rightly taken by the court. He submits that revisional court has
considered this aspect and found that the offence cognizance has rightly
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/21/2023
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been taken against the present applicants because there is sufficient
material indicating that the applicants participated in the said public
function and was one of the organizers as such he submits that there is
nothing in the petition. According to him, the petition deserve to be
dismissed. He relied upon on judgment of the Supreme Court passed in
case of Kaptan Singh Vs. The State of Uttar Pradesh & Ors. (Criminal
Appeal No.787 of 2021, decided on 13.08.2021).
6. Heard the submission made by learned counsel for the
parties and also perused the record, the application has been filed under
section 156(3) of Cr.P.C read with section 190 of Cr.P.C before the
JMFC mentioning therein that the Superintendent of Police and
Collector Tikamgarh have been apprised about the incident which took
place and to initiate proceeding against the persons who are non-
applicants in the said complaint, but nothing has been done. Hence, the
complainant approached the Court by moving appropriate application.
The complainant was the then Member of the Legislative Assembly
alleging in the complaint that the applicant being a public representative,
he is drawing attention of this Court towards the incident which took
place and offence committed by the non-applicants and as such offence
be registered against them. It is alleged that "X" was minor girl below
16 years of age. He in a public function organized for solemnizing the
marriages. The marriage of "X" was also been solemnized, who was
about 15 years, 11 months and 14 days on 25.04.2012 on the date when
this function was arranged and "X" was married with one Ramesh
Adhiwasi. The present applicant was one of the organizers and his name
was printed in the invitation card and as such he has committed an
offence under the provisions of Act of 2006. As per the complaint, it is
averred that Ramesh was already married with one Mithala and she has
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/21/2023
5:49:46 PM
informed the complainant orally that her 1st marriage still exists, she has
asked for help to restrict her husband for carrying out 2nd marriage and
according to her she had already approached the Superintendent of
Police and Collector, but nobody helped her and therefore, the complaint
was made initiating action against the erring persons, who are non-
applicants according to the complainant.
7. The statement of complainant and other witnesses recorded
by the JMFC and thereafter an order has been passed on 11.11.2013.
The complaint was rejected by the Court after considering all existing
material on record and found that on the basis of said material it is
difficult to determine that the present applicants were aware of the fact
that on the date of solemnizing marriage of "X", she was minor and
even after knowing this fact that she come within definition of child as
per provisions of section 2(a) Act of 2006 and therefore, they cannot be
held guilty of any offence as such prima facie no ground is available to
proceed against the present applicants under section 9, 10, 11 of Act of
2006, the complaint was therefore closed. The revision preferred before
the Additional Session Judge and vide order dated 14.07.2015 the
Revisional Court set aside the order passed by the JMFC on 11.11.2013
and matter was remanded back directing that case be decided again
after giving opportunity of hearing to the complainant. Thereafter the
complainant was heard and JMFC, Tikamgarh vide order dated
23.09.2017 passed in Criminal Case No.2140/2017 come to the
conclusion that prima facie there is sufficient material available on
record to proceed against the present applicants under section 10, 11 of
Act of 2006 and as such issued summons to the present applicants.
8. The said order of issuance of summon was assailed by filing
the revision and that revision was decided vide order dated 22.12.2017
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/21/2023
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by the Revisional Court dismissing the revision upholding the order
passed by the JMFC, initiating proceeding under section 10, 11 of Act of
2006. On 14.02.2018, the Court entertained the application (M.Cr.C
No.2143 of 2018) and stayed the further proceeding of complaint case.
There are other connected applications filed by other accused persons
and all those applications are connected and therefore analogously
heard. Those petitions are M.Cr.C No. 11541 of 2018 and M.Cr.C No.
1716 of 2018. In all the petitions ground of challenge are similar and
identical.
9. Shri K.C Ghildiyal and Sanjay K Agrawal appearing for the
present applicants have submitted that so far as section 10 of Act of
2006 is concerned, no case is made out against the present applicants of
Section 10, but applicants can be charged at the most under section 11 of
Act of 2006 because they were present at the time of function in which
marriage of "X" was solemnized but counsel for applicants submits that
if contents of complaint and statement of witnesses recorded in support
of the complaint are considered as it is and treated to be true at their face
value, even then the offence of section 10, 11 of Act of 2006 is not made
out against the present applicants. To resolve the controversy involved
in the case to answer the ground raised by the counsel for the applicants
and requirement for registration of offence it is apt to reproduce section
10, 11 of Act of 2006 as under:-
"10. Punishment for solemnising a child marriage.--
Whoever performs, conducts, directs or abets any child
marriage shall be punishable with rigorous imprisonment
which may extend to two years and shall be liable to fine
which may extend to one lakh rupees unless he proves that
he had reasons to believe that the marriage was not a child
marriage.
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SALUNKE
Signing time: 8/21/2023
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11. Punishment for promoting or permitting
solemnisation of child marriages.--(1) Where a child
contracts a child marriage, any person having charge of the
child, whether as parent or guardian or any other person or
in any other capacity, lawful or unlawful, including any
member of an organisation or association of persons who
does any act to promote the marriage or permits it to be
solemnised, or negligently fails to prevent it from being
solemnised, including attending or participating in a child
marriage, shall be punishable with rigorous imprisonment
which may extend to two years and shall also be liable to
fine which may extend up to one lakh rupees:
Provided that no woman shall be punishable with
imprisonment.
(2) For the purposes of this section, it shall be presumed,
unless and until the contrary is proved, that where a minor
child has contracted a marriage, the person having charge of
such minor child has negligently failed to prevent the
marriage from being solemnised."
10. I have perused the complaint and also examine the averment
made therein. I find substance in the submissions made by the counsel
for the parties that in the whole complaint nowhere it is pointed out that
the applicants were aware of this fact that girl "X" was a child and was
below 16 years of age. The statement of witnesses recorded have also
been perused and even in the statement of the complainant, he has not
stated that the present applicant was aware of the fact that girl "X" was
minor and was a child and even then the applicant did not stop the
function of marriage of "X". According to the complainant, he gathered
this information from lady Mithala claiming herself to be wife of
Ramesh with whom "X" was being married but in the statement of
Mithala she has not stated that the present applicants were aware of the
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/21/2023
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fact that "X" was minor and was below 18 years of age. In the statement
of Mithala she has only tried to stop the function of marriage of her
husband Ramesh because he was already married. Therefore, she was
moving from pillar to post to somehow stop her husband performing
2nd marriage. In her statement, she has not narrated this fact that
applicant was ever informed about the fact that girl "X" was a child and
below 18 years of age. The statement of other witnesses namely Ramdas
Kushwaha and Rajendra Singh have also recorded but nobody has stated
that present applicants were aware of the fact that "X" was a child and
below 18 years of age and this fact was very much in knowledge of
present applicants. Although they have acknowledged the presence of
present applicant in the said function, but as contended by counsel for
the applicants that in absence of knowledge of the fact that whether the
girl "X" was a child and even though the present applicant participated
in the said function and not opposed the same, offence of section 11 is
not made out.
11. In my opinion that there is substance in the submission
made by counsel for the applicants because section 11 of Act of 2006
starts with situation where a child contract a child marriage meaning
thereby if a person who has to be made an accused under section 11 of
Act of 2006 must have knowledge that it is a child marriage but in
absence of said particulars of fact, the basic requirement and ingredient
of section 11 is not made out.
12. However, Shri Akash Kaushal appearing for the
complainant submits that in a petition under section 482 of Cr.P.C the
court cannot examine and scrutinize the statement of the witnesses and
cannot quash the FIR after considering the statement of the witnesses.
However his submission is misconceived for the reason that statement
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SALUNKE
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of witnesses are not being appreciated for the purpose that the petitioner
is not at fault but it is being considered to see whether proper ingredients
to constitute the offence under which petitioner is being charged are
available or not. The law laid down by the Supreme Court and yard stick
for quashing the FIR are determined in case of State of Haryana & ors
Vs. Bhajan Lal & ors reported in (1992) Supp (1) SCC 335. The
Supreme Court has formulated guidelines as to under what
circumstances FIR can be quashed exercising power provided under
section 482 of Cr.P.C and Article 226 of Constitution of India as under:-
"102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of
law enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following categories
of cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of cases wherein such power
should be exercised.
(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
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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 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."
In view of the guidelines no.1 and 2 formulated by the Supreme
Court in case of Bhajanlal (supra) the FIR or complaint can be quashed.
13. In view of the above, it is clear that the FIR cannot be
quashed on the basis of fact if the contents of the same are treated to be
proved at their face value and offence even though is not made out
because of insufficient material the same cannot be quashed.
14. Here in this case, from the contents of complaint and on the
basis of statement of witnesses, it is clear that the present applicants
were not aware and had no knowledge about the fact that the child
marriage is being performed. The JMFC at the first occasion dismissed
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Signed by: TARUN KUMAR
SALUNKE
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the complaint on the ground that no ingredients of section 10, 11 are
available and there was no material indicating that the applicant had any
knowledge about the fact that "X" was a child and below 18 years of
age and therefore, the complaint was dismissed but Revisional Court has
considered the fact that Mithala, first wife of Ramesh who entered into
the marriage with "X", has informed everybody about conducting of 2nd
marriage by Ramesh but nobody took cognizance of the same and
therefore the petitioner and other accused person cannot be given clean
chit. However, the Revisional Court has also observed that on the basis
of physic of "X", it can be presumed that she was a child and therefore
rejected the order of the court below. From perusal of the whole order of
the Revisional Court no where it is observed and took note of the fact
that the applicants and other persons, who were present and was said to
be organizers were aware of the fact that "X" was child and as such
requirement and ingredient of section 11 is not available and as such
applicants cannot be made accused and proceeding of section 10, 11 of
Act of 2006 cannot be initiated.
15. The Supreme Court in case of Pepsi Foods Ltd. & anr Vs.
Special Judicial Magistrate & ors reported in (1998) 5 SCC 749 has
considered the scope of section 482 of Cr.P.C and observed that it has
ample power to prevent abuse of process of any court or otherwise to
secure the ends of justice. The Supreme Court also in case of Bhajan
(supra) has also considered the scope of exercising power provided
under section 482 of Cr.P.C and observed that such power can be
exercised either to prevent abuse of the process of any court or
otherwise to secure ends of justice. Thus, I am of the opinion that it is a
fit case in which this Court can exercise the power given under section
482 of Cr.P.C as prima facie it appears that due to political rivalry the
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Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/21/2023
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complaint has been filed by the local MLA only on the basis of
information given by Mithala just to prevent her husband from entering
into 2nd marriage the said complaint was filed to implicate the political
persons of opposite party. Therefore, the impugned order dated
23.09.2017 passed in Criminal Case No. 2140/2017 by the court below
for issue of summons to the present petitioners is set aside and the
complaint filed by respondent no.1 is accordingly dismissed.
(SANJAY DWIVEDI)
JUDGE
tarun
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 8/21/2023
5:49:46 PM
