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Akhilesh Saket vs The State Of Madhya Pradesh on 4 October, 2019

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MCrC-10105-2019

THE HIGH COURT OF MADHYA PRADESH : JABALPUR

………………………………………………………………………………………………………………………………………………………………………………………………………………………………..

Single Bench
HON’BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA
………………………………………………………………………………………………………………………………………………………………………………………………………………………………..

MCrC No.10105/2019

Akhilesh Saket Applicant
versus
State of M.P. Anr. Respondents

………………………………………………………………………………………………………………………………………………………………………………………………………………………………..

Present:

Shri Kabeer Paul, learned counsel for the applicant.

Shri R.P. Singh, learned Panel Lawyer for the respondent-State.

Shri Arun Kumar Singh, learned counsel for Respondent No.2.
………………………………………………………………………………………………………………………………………………………………………………………………………………………………..

Whether Approved for Reporting : Yes/No
………………………………………………………………………………………………………………………………………………………………………………………………………………………………..

Law Laid Down : See. Para 6 8

Significant Paragraph No. 7
……………………………………………………………………………………………………………………………………………………………………………………………………………………

Order reserved on : 29-08-2019
……………………………………………………………………………………………………………………………………………………………………………………………………………………

ORDER

(04.10.2019)

This petition under Sectionsection 482 of Cr.P.C has been filed by the
applicant seeking quashment of the FIR dated 21.05.2018 registered as
crime No.22/2018 in police station Mahila Thana, Civil Lines, District
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Rewa and further consequential proceedings pending in the Court of
5th Additional District Judge, Rewa in S.T. No.310/18 whereby the
offence under Sectionsections 376 and Section506 of IPC has been registered against
him.

2. The prosecution story in brief is that the prosecutrix, who is
married lady, has lodged an FIR dated 21.05.2018 that on 19.04.2019
when she was performing her household work, the applicant, who is
near relative of her came from behind and caught hold her. She cried
and raised alarm for help. Subsequently, the applicant/accused pointed
knife on her neck and threatened to cause death and thereafter
committed rape upon her, thereafter, he fled away from the spot after
making threat to her with dire consequences on disclosure of the
incident to anyone, therefore, the aforesaid offence has been registered
against him.

3. Learned counsel for the applicant submits that no offence has
been committed by the applicant. It is further submitted that there was
previous enmity between the prosecutrix, her family and relatives and
applicant, therefore, a false case has been registered against him. She
has lodged the FIR belatedly after a delay of more than one month
which clearly indicates that the present case is nothing but concocted
and false story to implicate the applicant in criminal case to settle the
dispute between them which is running since long time. The medical
reports makes it evident that no injuries were found on the body of the
prosecutrix and on the body of the applicant. The doctor has not given
any definite opinion regarding sexual intercourse after examining the
prosecutrix. Even no internal injury on the private parts is found. FSL
report is also not positive. It is further submitted that wife of the
applicant made a complaint on 16.05.2018 against the prosecutrix and
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her father, thereafter, as a counterblast on 21.05.2018, the said FIR has
been lodged against the husband/applicant. The said report is annexed
herewith as Annexure A/2. Regarding dispute between the family
members of the prosecutrix and applicant, a punchnama has been
signed by various villagers of the locality which is annexed herewith
as Annexure P/7 in which it is mentioned that in the year 2008, a
compromise as also entered between the family of the applicant and
prosecutrix which was decided not to encroach upon the property of
their possessions by any of the party and the copy of that compromise
dated 05.07.2008 is also annexed herewith as Annexure P/8. Under
such circumstances, prayer is made to quash the FIR as crime
No.22/2018 lodged against the applicant. Learned counsel has also
relied upon the judgment of Apex Court in the case of SectionPrashant
Bharti vs. State (NCT of Delhi) reported in (2013) 9 SCC 293 and
also that of this Court in the case of SectionRavindra Patel @ Rabbu Patel
vs. The State of M.P. Anr. passed in M.Cr.C. No.3243/2015.

4. Learned Government Advocate appearing for the State as well
as counsel for the respondent No.2 has opposed the prayer for
quashment of FIR stating that applicant has a right to raise the ground
which can be taken in defence at the stage of defence during trial.
Therefore, the petition has no substance and it be dismissed.

5. With the consent of learned counsel for the both the parties, the
matter is heard finally at motion stage.

6. The scope of Sectionsection 482 of Cr.P.C. has been discussed by the
Apex court in the case of Rishipal Singh Vs. State of Uttar Pradesh
and another, reported in (2014)7 SCC 215 extensively. The relevant
paras are reproduced herein :-

“10. Before we deal with the respective contentions
advanced on either side, we deem it appropriate to have a
thorough look at Section 482 CrPC, which reads:

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482.Saving of inherent powers 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.

A bare perusal of Section 482 CrPC makes it crystal
clear that the object of exercise of power under this
section is to prevent abuse of process of court and to
secure ends of justice. There are no hard-and-fast rules
that can be laid down for the exercise of the extraordinary
jurisdiction, but exercising the same is an exception, but
not a rule of law. It is no doubt true that there can be no
straitjacket formula nor defined parameters to enable a
court to invoke or exercise its inherent powers. It will
always depend upon the facts and circumstances of each
case. The courts have to be very circumspect while
exercising jurisdiction under Section 482 CrPC.

11. This Court in SectionMedchl Chemicals Pharma (P)
Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC
(Cri) 615] has discussed at length about the scope and
ambit while exercising power under Section 482 CrPC
and how cautious and careful the approach of the courts
should be. We deem it apt to extract the relevant portion
from that judgment, which reads: (SCC p. 272, para 2)

2. Exercise of jurisdiction under the inherent power
as envisaged in Section 482 of the Code to have the
complaint or the charge-sheet quashed is an exception
rather than a rule and the case for quashing at the initial
stage must have to be treated as the rarest of rare so as not
to scuttle the prosecution. With the lodgement of first
information report the ball is set to roll and thenceforth
the law takes its own course and the investigation ensues
in accordance with the provisions of law. The jurisdiction
as such is rather limited and restricted and its undue
expansion is neither practicable nor warranted. In the
event, however, the court on a perusal of the complaint
comes to a conclusion that the allegations levelled in the
complaint or charge-sheet on the face of it does not
constitute or disclose any offence as alleged, there ought
not to be any hesitation to rise up to the expectation of the
people and deal with the situation as is required under the
law. Frustrated litigants ought not to be indulged to give
vent to their vindictiveness through a legal process and
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such an investigation ought not to be allowed to be
continued since the same is opposed to the concept of
justice, which is paramount.

12. This Court in a plethora of judgments has laid
down the guidelines with regard to exercise of
jurisdiction by the courts under Section 482 CrPC. SectionIn
State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] this Court has listed the categories
of cases when the power under Section 482 can be
exercised by the Court. These principles or the guidelines
were reiterated by this Court in (1) SectionCBI v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri)
1045] , (2) SectionRajesh Bajaj v. State (NCT of Delhi) [(1999) 3
SCC 259 : 1999 SCC (Cri) 401] and (3) SectionZandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque
[(2005) 1 SCC 122 : 2005 SCC (Cri) 283] . This Court in
Zandu Pharmaceutical Works Ltd. [(2005) 1 SCC 122 :
2005 SCC
(Cri) 283] observed that:

The power under Section 482 of the Code should be
used sparingly and with circumspection to prevent abuse
of process of court, but not to stifle legitimate
prosecution. There can be no two opinions on this, but, if
it appears to the trained judicial mind that continuation of
a prosecution would lead to abuse of process of court, the
power under Section 482 of the Code must be exercised
and proceedings must be quashed.

Also see SectionOm Prakash v. State of Jharkhand [(2012)
12 SCC 72 : (2013) 3 SCC (Cri) 472] , SCC p. 95, para

43.

13. What emerges from the above judgments is that when
a prosecution at the initial stage is asked to be quashed,
the test to be applied by the court is as to whether the
uncontroverted allegations as made in the complaint
prima facie establish the case. The courts have to see
whether the continuation of the complaint amounts to
abuse of process of law and whether continuation of the
criminal proceeding results in miscarriage of justice or
when the court comes to a conclusion that quashing these
proceedings would otherwise serve the ends of justice,
then the court can exercise the power under Section 482
CrPC. While exercising the power under the provision,
the courts have to only look at the uncontroverted
allegation in the complaint whether prima facie discloses
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an offence or not, but it should not convert itself to that of
a trial court and dwell into the disputed questions of fact.”

7. On coming to the present case, considering rival contentions of
learned counsel for both the parties and on perusal of record, in view
of this Court, the FIR discloses all necessary ingredients constituting
the prima-facie offence under Sectionsections 376 and Section506 of IPC. Presently,
the contentions raised by learned counsel for the applicant are of
matter of evidence that cannot be considered at this stage since the
evidence has not been lead and produced before the court and the
issues involved are of such nature which can be taken into
consideration in defence at the stage of trial. The grounds advanced in
defence is required to be proved during trial. Whether FIR has been
lodged with malafide intention will be tested only when the evidence
is lead. At this stage the allegation levelled against the applicant by the
complainant cannot be thrown away at the threshold. So far as the
citation SectionPrashant Bharti vs. State (NCT of Delhi) and SectionRavindra
Patel @ Rabbu Patel vs. The State of M.P. Anr. (supra) relied by
the counsel for the applicant are concerned, that is not relevant to the
present case. Factual matrix of this case is entirely different with the
cited cases relied by the learned counsel for the applicant. Hence, the
FIR dated 21.05.2018 registered as Crime No.22/2018 in police station
Mahila Thana, Civil Lines, District Rewa and further consequential
proceedings pending in the Court of 5 th Additional District Judge,
Rewa in S.T. No.310/18 whereby the offence under Sectionsections 376 and
Section506 of IPC has been registered against the applicant cannot be quashed
on the grounds raised by the applicant.

8. The Apex Court in the case of J.P. Sharma Vs. Vinod Kumar
Jain and others reported in (1986) 3 SCC 67 has held that if prima
facie offences made out on the basis of the allegations made in the
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complaint without going into truth or otherwise of the allegations,
High Court cannot exercise its power under Section 482.

9. Considering the aforesaid legal positions and the material
available on record, this petition being devoid of merits stands
dismissed.

A copy of this order be sent to the concerning court, P.S. Mahila
Thana, Civil Lines, Rewa, District Rewa (M.P.) for information and
compliance.

(AKHIL KUMAR SRIVASTAVA)
JUDGE
kafeel

Digitally signed by
KAFEEL AHMED ANSARI
Date: 2019.10.04
04:36:20 -07’00’

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