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Deepesh Bain vs The State Of Madhya Pradesh on 25 September, 2019

1 M.Cr.C.No.16161/2019

HIGH COURT OF MADHYA PRADESH :JABALPUR
MISCELLANEOUS CRIMINAL CASE NO. 16161/2019
Deepesh Bain
-V/s-
State of Madhya Pradesh and another
…………………………………………………………………………………
Present:- Hon’ble Shri Justice Vishnu Pratap Singh Chauhan
………………………………………………………………………………….
Shri Ghanshyam Pandey, counsel for the applicant.
Shri Akshay Jha, counsel for the respondent no.2.
Shri Alok Gupta, Panel Lawyer for the respondent
no.1/State.
………………………………………………………………………………….
ORDER

(25-09-2019)

1. Applicant has filed this application under Section 482 of
the Code of Criminal Procedure for quashing the FIR and
entire charge sheet of Crime No.137/2019 registered at P.S.
Gwarighat, District Jabalpur.

2. The facts giving rise to this application in short is that
respondent no.2 lodged a report before the police station,
Gwarighat, Jabalpur in Crime No.137/2019 registered against
the applicant for the offence punishable under Section 376(2)

(n) of the Indian Penal Code alleging therein that the
applicant is her neighbour. For the last 14 years, he
committed sexual intercourse upon the prosecutrix on the
pretext of marriage. When first time the accused committed
forcible rape upon her, she was minor and her parents went
outside. At that time, the applicant availed the opportunity of
2 M.Cr.C.No.16161/2019

loneliness of the prosecutrix and committed rape upon her and
assured the prosecutrix that he would marry with her. On the
pretext of marriage, he started repeated sex with her but he
denied for solemnizing the marriage with the prosecutrix on
the pretext that as soon as he get the job he will marry with
her and ultimately contracted the marriage with another girl.
Then the prosecutrix lodged a report against the applicant.
After investigation, in Crime No.137/2019 charge sheet has
been filed against the applicant.

3. Applicant has prayed to quash the FIR as well as all
criminal proceedings emanating thereto on the ground that the
prosecutrix with mala fide intention and with ulterior motive,
lodged police report against the applicant after delay of 14
years. Without scientific evidence the police erred in lodging
the report against the applicant. The sister of the prosecutrix
adopted the Muslim religion. The prosecutrix as well as her
sister were having habit of catching innocent persons on net
and get married with them. No marks of injury were found in
the private parts of the prosecutrix. No FSL report and DNA
report supported the case of the prosecutrix against the
applicant. After perusal of the whole evidence collected
during investigation, no case is made out against the
applicant, prayed to allow the petition.

4. Learned Panel Lawyer for the respondent/State on the
other hand submitted that there are sufficient material
available on record against the applicant and supported the
impugned order. Hence, prayed to dismiss the petition.

3 M.Cr.C.No.16161/2019

5. Heard both the counsel for the parties, perused the
documents filed along with the petition and also perused the
case diary of Crime No.137/2019 registered at P.S.
Gwarighat, Jabalpur.

6. The age of the prosecutrix at the time of lodging report
was 27 years old and counting 14 years back, the age of the
prosecutrix is estimated about 14-15 years. No doubt, at that
time, the prosecutrix was minor, she was below the age of 16
years. Consent given by the prosecutrix is of no material.
Whether it is a case of consensual sex or consent received on
misconception is to be decided on merits after recording of
the evidence during trial.

7. Perused the statement of prosecutrix recorded under
Sections 161 and 164 of Cr.P.C. and statements of other
witnesses, it is prima facie reflected that the applicant is
neighbour of the prosecutrix. Both are well known to each
other and the prosecutrix on the pretext of marriage, provided
consent on misconception. Later on the applicant refused to
marry with the prosecutrix.

8. Learned counsel appearing for the applicant submits that
the prosecutrix filed an affidavit and settled the matter
outside the Court and on that basis prayed to dismiss the
whole criminal proceedings arising on the basis of FIR lodged
by the prosecutrix. Perused the affidavit. This Court is not
inclined to quash the criminal proceedings simply on that
count. Learned counsel for the applicant further submits that
the prosecutrix got married with another man and after
marriage filed a divorce petition under Section 13-B of the
4 M.Cr.C.No.16161/2019

Hindu Marriage Act. This fact has not been mentioned in the
petition. This may be a matter of defence. The Court is not
inclined to consider this fact at this stage.

9. After perusal of the case diary and material collected
during investigation and also section 90 of the IPC, this Court
is of the view that there is sufficient material available on
record against the applicant to proceed with the offence
registered against him.

10. Hon’ble Apex Court in the case of State of Telangana
vs Habib Abdullah Jeelani and others, AIR 2017 SC 373 , in
the same circumstances as in this case, held in this situation
that for quashing of the FIR, the inherent powers envisaged
under Section 482 of the Cr.P.C. should not be used. Paras 12
to 14 are relevant, which are reproduced as hereunder:

“12. There can be no dispute over the proposition that inherent
power in a matter of quashment of FIR has to be exercised sparingly and
with caution and when and only when such exercise is justified by the test
specifically laid down in the provision itself. There is no denial of the fact
that the power under Section 482 CrPC is very wide but it needs no
special emphasis to state that conferment of wide power requires the court
to be more cautious. It casts an onerous and more diligent duty on the
Court.

13. In this regard, it would be seemly to reproduce a passage from
Kurukshetra University (AIR 1977 SC 2229)(supra) wherein
Chandrachud, J. (as His Lordship then was) opined thus:-

“2. It surprises us in the extreme that the High Court thought that in the
exercise of its inherent powers under Section 482 of the Code of Criminal
Procedure, it could quash a first information report. The police had not
even commenced investigation into the complaint filed by the Warden of
the University and no proceeding at all was pending in any court in
pursuance of the FIR. It ought to be realised that inherent powers do not
confer an arbitrary jurisdiction on the High Court to act according to
whim or caprice. That statutory power has to be exercised sparingly, with
circumspection and in the rarest of rare cases.”

We have referred to the said decisions only to stress upon the issue, how
the exercise of jurisdiction by the High Court in a proceeding relating to
5 M.Cr.C.No.16161/2019

quashment of FIR can be justified. We repeat even at the cost of
repetition that the said power has to be exercised in a very sparing
manner and is not to be used to choke or smother the prosecution that is
legitimate. The surprise that was expressed almost four decades ago in
Kurukshetra University’s (AIR 1977 SC 2229) case compels us to
observe that we are also surprised by the impugned order.”

11. Learned counsel appearing for the applicant has
placed reliance on the case of Prashant Bharti vs. State
(NCT of Delhi), (2013) 9 SCC 293 . In this case, the
Hon’ble Apex Court after considering the evidence filed
along with charge sheet found that nothing incriminating
statement and other evidence found supporting the
prosecution case and quashed the criminal proceedings.
Hon’ble Apex Court in the case of Deepak Gulati vs.
State of Haryana, (2013) 7 SCC 675 held that the
prosecutrix was 19 years old at the time of the incident
and she had an inclination towards the appellant and on
that assurance the prosecutrix left her home, went with the
appellant and lived at so many places with the appellant as
his wife and in these circumstances, Hon’ble Apex Court
found that it is not a false promise of marriage but it is a
case of consensual sex but in this present case prosecutrix
lived at her home. The applicant being a neighbour
developed friendship with her and on the pretext of
marriage repeatedly committed sex with her and ultimately
denied for the marriage and betrayed her.

12. Hon’ble Apex Court in the case of Deepak Gulati vs.
State of Haryana(supra)discussed the gravity and impact of
rape upon the prosecutrix in paragraph 20 as hereunder:-

6 M.Cr.C.No.16161/2019

“20. Rape is the most morally and physically reprehensible crime in a
society, as it is an assault on the body, mind and privacy of the victim.
While a murderer destroys the physical frame of the victim, a rapist
degrades and defiles the soul of a helpless female. Rape reduces a woman to
an animal, as it shakes the very core of her life. By no means can a rape
victim be called an accomplice. Rape leaves a permanent scar on the life of
the victim, and therefore a rape victim is placed on a higher pedestal than an
injured witness. Rape is a crime against the entire society and violates the
human rights of the victim. Being the most hated crime, rape tantamounts to
a serious blow to the supreme honour of a woman, and offends both, her
esteem and dignity. It causes psychological and physical harm to the victim,
leaving upon her indelible marks.”

13. After considering the foregoing discussion and also
considering the proposition of law laid down by the Apex
Court in the above mentioned cases, this Court is of the
view that when there is material available on record, this
Court is not inclined to invoke the inherent powers under
Section 482 of the Cr.P.C. for quashing the FIR as well as
criminal proceedings. Hence, this petition deserves to be
and is dismissed. No order as to costs.

(Vishnu Pratap Singh Chauhan)
Digitally

b
signed by BIJU
Date:

2019.09.27
Judge
10:57:33
+05’30’
HIGH COURT OF MADHYA PRADESH :JABALPUR
MISCELLANEOUS CRIMINAL CASE NO. 16161/2019
Deepesh Bain

-V/s-

State of Madhya Pradesh and another

ORDER

Post for: /09/2019

(Vishnu Pratap Singh Chauhan)
Judge

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