Madhya Pradesh High Court
Hari Kushwah vs The State Of Madhya Pradesh on 9 February, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 9 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 4566 of 2024
BETWEEN:-
HARI KUSHWAH S/O PARSHOTTAM KUSHWAH, AGED
ABOUT 25 YEARS, OCCUPATION: LABOR VILLAGE
KUTGHAN SABALGARH TEH SABALGARH POLICE
STATION SABALGARH DISTRICT MORENA MP
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI J.P. KUSHWAH - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. SUPERINTENDENT OF POLICE MORENA
(MADHYA PRADESH)
3. THE POLICE STATION HOUSE OFFICE THROUGH
POLICE STATION SABALGARH, MORENA
MORENA (MADHYA PRADESH)
4. PR OS ECUTR IX THROUGH POLICE STATION
SABALGARH, MORENA MORENA (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI K.S. TOMAR - PUBLIC PROSECUTOR FOR STATE)
This application coming on for admission this day, the court passed the
following:
ORDER
The present petition, under Section 482 of the Code of Criminal
Procedure, 1973, has been filed by the petitioner for quashing of F.I.R. bearing
Crime No.245 of 2023 as well as the charge-sheet filed for the offence under
Sections 363, 366-A, 376, 376(2)(n), 376(2)(i), 376(D) of the IPC and Sections
3, 4 of the Protection of Children from Sexual Offences Act with all
consequential criminal proceedings thereto.
2 . Factual matrix of the case are that the complainant had lodged a
missing person's report on 19.5.2023 at Police Station Sabalgarh to the effect
that on 18.05.2023 at around 8.00 PM after having food, his minor daughter
alongwith his family went for sleeping and at 12 in the night when his wife woke
up to attend the call of nature, saw that his daughter without informing anybody
had left the house. Thereafter, he alongwith his family members searched his
daughter here and there but could not trace her. He suspected that Mahendra
Kushwah S/o Parshottam Kushwah, has allured and taken his daughter. On
such allegations, F.I.R. bearing Crime No.245 of 2023 was registered on
21.05.2023 for the offence under Section 363 of the IPC against Mahendra
Kushwah (brother of the petitioner). Thereafter, the matter was investigated and
during investigation, the victim was recovered on 21.05.2023. Her statements
under Sections 161 and 164 CrPC were recorded. The victim in her statements
deposed that she had gone voluntarily. Thereafter, the victim was produced
before the Office of CWC, where during counselling, she told that near
Panchamukhi Mandir, Sabalgarh, Mahendra Kushwah and his brother Hari
Kushwah (present petitioner), Pinki Sharma and two other persons had forced
her to go on a four wheeler. All of them took her in the vehicle to Dholpur
where Mahendra Kushwah and the petitioner misbehaved with her. The victim
and her family members were being threatened by Mahendra Kushwah and his
companions that if she makes statement against them, they will kill her brother
and father. On the basis of said counselling, the CWC ordered to take further
action in the matter. In compliance of which, again statement under Section 161
of the CrPC of victim was recorded before Police Station Kailaras and
thereafter, her statement under Section 164 of CrPC was recorded before
competent Court of Criminal jurisdiction. The victim was medically examined.
In her repeated statements, the victim alleged that Mahendra Kushwah and co-
accused Shivam Jadon had offered her cold drink and after that, she started
feeling dizzy. The co-accused Shivam Jodon took her to Choleshwar Mandir
where accused Mahendra Kushwah forcibly committed rape on her in a cave.
Thereafter, Mahendra Kushwah, Hari Kushwah, Shivam Jaodon and Pinki
Sharma were arrested. On the basis of memorandum of Mahendra Kushwah,
Hari Kushwah, Pinki Sharma and other two companions Akash Kushwah
(juvenile) and Vicky Kushwah were arrested because of their involvement in the
alleged crime. Blood samples of the petitioner, co-accused Mahendra Kushwah
and the victim were sent for DNA examination and the report of which was
found negative. Statements of the parents of the victim were recorded. After
completion of investigation and other formalities, charge-sheet had been filed on
06.11.2023 before the competent Court of criminal jurisdiction under Section
363, 366-A, 376, 376(2)(n), 376(2)(i), 376(D) of IPC and Section 3/4 of
POCSO Act.
3. Challenging the impugned FIR as well as the charge-sheet, it was
submitted by the counsel for the petitioner that he has falsely been implicated in
the matter on the basis of memorandum of co-accused and initially in the said
F.I.R., name of the petitioner was not mentioned.
4. It was further submitted that as per the contents of the F.I.R. as well
as the charge-sheet, there is no direct or indirect evidence available against the
petitioner with regard to commission of alleged crime. The victim being
dissatisfied with her marriage had left her house without informing anybody
which is apparent from the initial statement of the victim under Sections 161/164
of the CrPC, therefore, no offence of allurement and forcibly taken her is made
out. Under the pressure of the parents of the victim, false F.I.R. was lodged
against the petitioner.
5. It was further submitted that the police without conducting the
investigation fairly and squarely, had filed the charge-sheet against the petitioner
merely on the basis that he is the brother of co-accused Mahehdra Kushwah. In
support of his contentions, he has placed reliance in the matters of Vinay
Tyagi vs. Irshad Ali @ Deepak & Others reported in (2013) 5 SCC 762
and Babubhai vs. State of Gujarat reported in (2010) 12 SCC 254.
6. It was further submitted that as the petitioner was not present at the
place of incident, therefore, also on account of the plea of alibi, quashment of
FIR has been sought.
7. On the basis of the above arguments, it was prayed that the present
petition deserves to be allowed and the impugned F.I.R. as well as charge-sheet
be quashed.
8. Per contra, learned State Counsel has opposed the prayer so made by
counsel for the petitioner and it was submitted that so far as the allegations
made in the FIR as well as in the charge-sheet are concerned, they disclose the
commission of alleged offence. So far as the plea of alibi is concerned, it is a
disputed question of fact, which is required to be proved by the petitioner in the
trial. He further submitted that it can be a case of false case and thereafter
registration of FIR and filing of charge-sheet; however, to prove their respective
innocence, trial is necessary. Thus it was submitted that the present petition be
dismissed.
9. Heard learned counsel for the parties and perused the record.
10. In the matter of Neeharika Infrastructure v. State of
Maharashtra (2021) 19 SCC 401, a three-Judge Bench of Hon'ble Supreme
Court analyzed the precedent and culled out the relevant principles that govern
the law on quashing of a First Information Report under Section 482 of the
CrPC as under:-
"13. From the aforesaid decisions of this Court, right from the
decision of the Privy Council in the case of Khawaja Nazir
Ahmad (supra), the following principles of law emerge:
13.1. Police has the statutory right and duty under the relevant
provisions of the Code of Criminal Procedure contained in
Chapter XIV of the Code to investigate into cognizable
offences;
13.2. Courts would not thwart any investigation into the
cognizable offences;
13.3. However, in cases where no cognizable offence or offence
of any kind is disclosed in the first information report the Court
will not permit an investigation to go on;
13.4. The power of quashing should be exercised sparingly with
circumspection, in the 'rarest of rare cases'. (The rarest of rare
cases standard in its application for quashing under Section 482
Cr.P.C. is not to be confused with the norm which has been
formulated in the context of the death penalty, as explained
previously by this Court);
13.5. While examining an FIR/complaint, quashing of which is
sought, the court cannot embark upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in
the FIR/complaint;
13.6. Criminal proceedings ought not to be scuttled at the initial
stage;
13.7. Quashing of a complaint/FIR should be an exception and
a rarity than an ordinary rule;
13.8. Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State
operate in two specific spheres of activities. The inherent power
of the court is, however, recognised to secure the ends of justice
or prevent the above of the process by Section 482 Cr.P.C.
13.9. The functions of the judiciary and the police are
complementary, not overlapping;
13.10. Save in exceptional cases where non-interference would
result in miscarriage of justice, the Court and the judicial process
should not interfere at the stage of investigation of offences;
13.11. Extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act according to
its whims or caprice;
13.12. The first information report is not an encyclopaedia
which must disclose all facts and details relating to the offence
reported. Therefore, when the investigation by the police is in
progress, the court should not go into the merits of the
allegations in the FIR. Police must be permitted to complete the
investigation. It would be premature to pronounce the
conclusion based on hazy facts that the complaint/FIR does not
deserve to be investigated or that it amounts to abuse of process
of law. During or after investigation, if the investigating officer
finds that there is no substance in the application made by the
complainant, the investigating officer may file an appropriate
report/summary before the learned Magistrate which may be
considered by the learned Magistrate in accordance with the
known procedure;
13.13. The power under Section 482 Cr.P.C. is very wide, but
conferment of wide power requires the court to be cautious. It
casts an onerous and more diligent duty on the court;
13.14. However, at the same time, the court, if it thinks fit,
regard being had to the parameters of quashing and the self-
restraint imposed by law, more particularly the parameters laid
down by this Court in the cases of R.P. Kapur (supra) and
Bhajan Lal(supra), has the jurisdiction to quash the
FIR/complaint; and
13.15. When a prayer for quashing the FIR is made by the
alleged accused, the court when it exercises the power under
Section 482 Cr.P.C., only has to consider whether or not the
allegations in the FIR disclose the commission of a cognizable
offence and is not required to consider on merits whether the
allegations make out a cognizable offence or not and the court
has to permit the investigating agency/police to investigate the
allegations in the FIR."
11. The parameters for quashing an FIR have been laid down by a two-
Judge Bench of Hon'ble Supreme Court in the matter of State of Haryana v.
Bhajan Lal reported in 1992 Supp (1) SCC 335 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,
c learly 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
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 concerned Act (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 concerned Act, 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."
12. So far as the contention of the petitioner is that the police without
conducting the investigation fairly and squarely in the matter has filed the
charge-sheet is concerned, in the light of judgments rendered by the Hon'ble
Apex Court in the case of Aleque Padamsee and others Vs. Union of India
and others reported in (2007) 6 SCC 171, Sakiri Vasu Vs. State of U.P.,
reported in 2008 AIR SCW 309 and Shweta Bhadauria Vs. State of M.P.
& Others reported in 2017 (1) MPJR 247, the petitioner ought to have
approached the competent Court of criminal jurisdiction under the provisions of
Cr.P.C. for availing the said remedy. Therefore, the said contention has no
force.
13. So far as the contention of the petitioner with regard to plea of alibi is
concerned, it is a matter of evidence which has to be decided during trial as to
the presence or absence of the petitioner at the place where such incident had
taken place in regard to which the said crime has been registered. Therefore, the
said contention has no force.
14. The Hon'ble Supreme Court in the matter of Taramani Parakh Vs.
State of M.P. & Ors., 2015 Cr.L.J. (SC) 2031 has 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 marshal the records with a view to decide admissibility
and reliability of the documents on records but is an opinion formed prima
facie.
15. Section 482 of the Code of Criminal Procedure reads as under:-
"482. Saving for inherent power of High Court. Nothing in this
Code shall be deemed to limit or affect the inherent powers of
the High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of
justice."
16. The powers of High Court under Section 482 of CrPC are partly
administrative and partly judicial. The Hon'ble Apex Court in State of
Karnataka vs. Muniswami [AIR 1977 SC 1489] had held that the section
envisages three circumstances in which the inherent jurisdiction may be
exercised, namely, "to give effect to an order under CrPC, to prevent abuse of
the process of the court, and to secure the ends of justice."
17. The jurisdiction under Section 482 CrPC is discretionary. The Court
depending upon the facts of a given case, can always take note of any
miscarriage of justice and prevent the same by exercising its powers under
Section 482 of CrPC. It is true that the said powers are neither limited nor
curtailed by any other provisions of the Code, however, such inherent powers
are to be exercised sparingly and with caution.
18. It is also settled law that the inherent power under Section 482 of
C rP C has to be exercised for the ends of the justice and should not be
arbitrarily exercised to cut short the normal process of a criminal trial. Authority
of the Court exists for the advancement of justice. If any abuse of the process
leading to injustice is brought to the notice of the court, then the Court would
be justified in preventing injustice by invoking inherent powers in absence of
specific provisions in the Statute.
19. Looking to the ingredients of FIR as well as law laid down by
Hon'ble Apex Court in the above cited cases, it is evident that the Court should
not interfere at the initial stage as it is a matter of evidence. The criminal
proceedings should not be scuttled in mid-way and the Court cannot embark
upon an enquiry as to reliability or genuineness of the allegations made by
complainant in the impugned FIR. The police has statutory right and duty under
relevant provisions of CrPC to first investigate into cognizable offence as to
whether any offence is made out against accused like petitioner or not.
20. Thus, in view of the aforesaid and considering the facts and
circumstances of the case, this Court doesn't find any justifiable reason to
quash the impugned F.I.R. as well as charge-sheet.
21. Accordingly, the present petition fails and is hereby dismissed.
(MILIND RAMESH PHADKE)
JUDGE
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