Sahab Singh vs Smt. Guddi Bai
2023 Latest Caselaw 11698 MP

                            1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                          BEFORE
     HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
                   ON THE 26 th OF JULY, 2023
             MISC. CRIMINAL CASE No. 52936 of 2019

BETWEEN:-
1.    SAHAB SINGH S/O SHRI MOHAN SINGH, AGED
      ABOUT 55 YEARS, R/O SIDDH NAGAR, DISTRICT
      MORENA (MADHYA PRADESH)

2.    RUSTAM SINGH S/O SHRI SAHAB SINGH, AGED
      ABOUT 35 YEARS R /O SIDDH NAGAR, DISTRICT
      MORENA (MADHYA PRADESH),

3.    NARENDRA SINGH S/O SHRI SAHAB SINGH, AGED
      ABOUT 30 YEARS R /O SIDDH NAGAR, DISTRICT
      MORENA (MADHYA PRADESH),

4.    AKASH SINGH S/O SHRI RUSTAM SINGH, AGED
      ABOUT 18 YEARS, R/O SIDDH NAGAR, DISTRICT
      MORENA (MADHYA PRADESH)

5.    DHYNEDRA @ SONU SINGH GURJAR S/O SHRI
      SAHAB SINGH, AGED ABOUT 25 YEARS R/O SIDDH
      NAGAR,    DISTRICT   MORENA      (MADHYA
      PRADESH),

                                                    .....PETITIONERS
(BY SHRI RAJKUMAR SHRIVASTAVA AND SHRI VIJAY JHA - ADVOCATES
)

AND
1.    SMT. GUDDI BAI W/O SHRI VASHUDEV SINGH
      GURJAR, AGED ABOUT 25 YEARS, R/O SIDDH
      NAGAR MORENA THANA CITY KOTWALI,
      DISTRICT MORENA (MADHYA PRADESH)

2.    STATE OF M.P. THROUGH PS CITY KOTWALI
      MORENA (MADHYA PRADESH)

                                                   .....RESPONDENTS
(RESPONDENT NO. 2/STATE BY SHRI NIRMAL KUMAR SHARMA - PP)
                                    2
      This petition coming on for admission this day, th e court passed the
following:
                                    ORDER

Petitioners have filed this petition under Section 482 of Cr.P.C. for quashing of the Criminal Complaint No. 1607/2019 RCT which is pending before the JMFC, Morena and order dated 27/9/2019 for taking cognizance against the offence under Sections 452, 427, 323/34 of IPC.

Briefly stated facts of the case are that respondent No. 1 filed a complaint under Section 200 of Cr.P.C for registering the case under Section 354, 452, 427, 323, 294, 506-B and 34 of IPC against the petitioners for an incident dated 10/1/2017 as accordingly to complainant, petitioners get entered into her house

and caught hold of her husband and thereafter they beaten her husband and during all this incident, petitioners Narendra and Rustam Singh caught the complainant and use the criminal force with intent to outrage her modesty.

It is the submission of learned counsel for the petitioners that as per complaint, police report and statement recorded by learned trial Court there is no prima facie evidence against the petitioners for commission of offence as there are material contradictions about timing of incident and independent witnesses have not supported the incident. Magistrate overlooked the provisions of Section 197 of Cr.P.C. before taking cognizance as petitioner No. 2 is a Govt. Servant and. It is in the counter blast of the case lodged by the police and delay has not been properly explained. No affidavit in support of complaint was filed by respondent No. 1 and therefore, complaint itself was not maintainable. In support of his submissions he cited decision of Apex Court in the case of State of Haryana Vs. Bhajan Lal & Ors. 1992 Supl (1) SCC 335, Babu Venkatesh and Ors. Vs. State of Karnataka and Anr., (SLP

(Cri.) No. 2183/2021 decided on 18/2/2022), Priyanka Srivastava and Anr. Vs. State of U.P. and Ors., (2015) 6 SCC 287 and Vineet Kumar and Ors. Vs. State of U.P. and Ors. AIR 2017 SC 1884.

On the other hand, learned counsel for the State opposed the prayer and prayed for dismissal of the petition.

From perusal of impugned order dated 27/9/2019, it is evident that cognizance for the offence under Section 452, 427 and 323/34 of IPC has been taken against the petitioners on the private complaint filed by respondent No. 1 under Section 200-202 of Cr.P.C. after due investigation by the Magistrate and recording evidence. Against the order of cognizance though revision lie but petitioners choose to directly approach this Court. Trial is going on. At this stage, the entire proceedings cannot be put to stake on the ground that earlier an FIR was lodged by petitioners against respondent No. 1 regarding a fighting between them and therefore, in counter blast the aforesaid private complaint has been filed. As regarding ground taken by petitioners regarding non-filing of affidavit in support of complaint is concerned, from perusal of record it is clear that the day the complaint was filed, the statement of complainant was recorded and in such a situation non-filing of affidavit will cause no adversity to the complainant.

Scope of Section 482 of Cr.P.C. is very limited and it can be exercised

sparingly under the extraordinary jurisdiction. Hon'ble Supreme Court in the matter of Taramani Parakh Vs. State of M.P. & Ors., 2015 Cr.L.J. (SC) 2 0 3 1 h a s held that quashing of a charge is an exception to the rule of continuous prosecution. When the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at the initial stage. The Court is not expected to marshel the records

with a view to decide admissibility and reliability of the documents on records but is an opinion formed prima facie.

In the opinion of this Court disputed question of facts cannot be decided while exercising powers under Section 482 Cr.P.C. The Court has to accept all the allegations as true and thereafter, has to come to a conclusion. The defence raised by the accused persons cannot be considered at the stage of exercising powers under Section 482 of Cr.P.C. and the legitimate prosecution should be be stifled at such an early stage. In the case of Vinod Raghuvanshi Vs. Ajay Arora, (2013) 10 SCC 581, Apex Court has held that it is a settled legal proposition that while considering the case for quashing of the criminal proceedings the Court should not "Kill a stillborn child", and appropriate prosecution should not be stifled unless there are compelling circumstances to do so.

So far as judgments cited by learned counsel for the petitioners, in the opinion of this Court they are not applicable in the facts and circumstances of the case as they move in different factual realm in light of discussion made hereinabove.

In light of aforesaid discussion the allegation made against the petitioners do prima facie make out an offence of which cognizance has been taken by learned Magistrate referred above. Further in the case in hand, trial is going on, therefore, petitioners may plead their part of innocence by leading evidence oral as well as documentary in accordance with law in trial. At this stage no indulgence can be shown, case has to be seen on its own merits.

(ROOPESH CHANDRA VARSHNEY)

JUDGE JPS/-

JAI Digitally signed by JAI PRAKASH SOLANKI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya

PRAKASH Pradesh, 2.5.4.20=287738d30aabaeda9b10cecdf179c ec865c7633f4cfb9e38ce14fcbb05b9522a, pseudonym=560BC50AD082B9BE54EE290E C8CB2193780D8357,

SOLANKI serialNumber=8D6BC1C9FCE36623D0BD6B8 072A2D8C01433EBD48AE4F609F108CA8F8 DE6B522, cn=JAI PRAKASH SOLANKI Date: 2023.07.28 10:22:25 +05'30'