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Jaydeep Khanuja vs The State Of Madhya Pradesh on 10 February, 2020

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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.43186/2019
(Jaydeep Khanuja Ors. Vs. State of M.P. Ors.)

Shri S.S. Nahar, learned counsel for the applicant.
Shri Vinit Hardia, learend Public Prosecutor for the
respondent No.1/State
Smt. Anamika Sen, learned counsel for the respondent
No.2/complainant.
ORDER

(10 /02/2020)
The applicants/accused have preferred this petition under
Section 482 of CR.P.C. for quashment of FIR bearing crime
No. 72/2019 registered at Police Station- Mahila Thana, Indore,
District Indore for the offence punishable under Sections 376,
376(2)(n), 506, 294 and 323/34 of the IPC against the applicant
No.1 and under Sections 323, 294 and 456/34 of the IPC
against the applicant Nos. 2 and 3 and consequential
proceedings relating thereto.

2. The facts leading to filing of the instant matter commence
with complaint dated 18.04.2019 filed by the prosecutrix before
the Police Station- Mahila Thana, Indore. Event has narrated in
the complaint indicates that around five and half years back, the
prosecutrix and the applicant No.1 met in Gym situated at
Palsikar Colony, Indore. After sometime, they developed
intimacy so much so that the applicant No.1 invited the
prosecutrix to his house situated at 376-A, Usha Nagar
Extension, Indore attending the birthday party of his mother. It
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is born out from the record that the prosecutrix attended the
birth day party and after the cake cutting ceremony, the mother
of the applicant No.1 left the house for attending the kitty party
elsewhere, leaving behind the applicant No.1 and the
prosecutrix alone in the house. The applicant No.1, thereafter
proposed for marriage to the prosecutrix. Later on the day they
engaged in sexual intercourse at the house of the applicant
No.1. It is further alleged that since the prosecutrix believed on
the promise of marriage made by the applicant No.1, they
repeatedly had sexual intercourse till the year 2018. It is alleged
that during the course of their relationship, the applicant incite
the prosecutrix into giving her money, gold bracelet, rings,
chains and several other items. After sometime, she insisted the
applicant No.1 for marriage which lead to his annoyance and
not only abused her but also manhandled her. Infact, on
06.11.2018 at about 08:00 pm, the applicant No.1 came to her
house alongwith his parents and subjected her to assault due to
which she received injury on her hand. Even, thereafter she
tried to reconcile with the applicant No.1, however, he
emphatically declined to marry her and in the process
threatened to kill her. Consequently, upon gathered true
intention of the applicant No.1 that to physically abused her,
she made complaint to the police leading to registration of FIR
bearing Crime No.72/2019 for commission of offence under
Section 376, 376 (2) (n), 506, 294 and 323/34 of I.P.C. against
applicant No.1 and for offence punishable under Section 323,
294 and 456/34 of I.P.C. so far as remaining applicants are
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concerned.

3. Learned counsel for the applicants invited the attention of this
Court to the delay caused in making the complaint before the
police which is 3 years and 8 months. In this context, he
submitted that no explanation has been offered by the
prosecutrix for delay in making the complaint before the police.
He further submitted that the prosecutrix is aged about 33 years
and it was her to be friended the applicant No.1 and later
insisted for sexual intercourse. The learned counsel for the
applicant further referred to the fact that prosecutrix was already
engaged for marriage with another person namely Hony,
however, the engagement was called-off, due to which she
started pressurizing the applicant No.1 for marriage. On the
basis of these submissions, the learned counsel for the applicant
No.1 tried to highlight that since the prosecutrix engagement
was called-off on 18.04.2018 which indicates that the
prosecutrix was in relationship with some other person, the
allegation of rape made against the applicant No.1 can be safely
deduced to be false. Moreover learned counsel for the
applicants pointed out that both the parties belong to different
religions and the fact that the applicant No.1 is aged about 30
years whereas the prosecutrix is aged about 33 years and the
fact that she is an alcoholic, therefore it was not possible for the
applicant No.1 to marry her.

4. Learned counsel for the applicant further attempted to point
out that the prosecutrix was in the habit of humiliating the
applicant No.1 and his mother as she used to send messages
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from her mobile containing filthy language. In this context, it
has been submitted that the applicants per-empted that the
intention of the prosecutrix was to malign the image of the
applicants and for doing so, she lodge false complaint against
them. Consequently, on 10.12.2018, the applicant No.1 made a
complaint to Superintendent of Police Indore requesting him not
to entertain any complaint made by prosecutrix and before
proceeding to take any coercive action against them, the
applicants may be given an audience or to be permitted to
clarify factual scenario. Cumulatively, it has been submitted that
a false complaint has been lodged against the present applicants,
which is clearly an abuse of process of law and there is no
rhyme of truth in the complaint made by the prosecutrix.
Therefore, by placing reliance on the pronouncement of the
Apex Court in the case of Kishan Singh (D) through L.Rs. Vs.
Gopal Singh Ors., delivered on 12/08/2010 in Criminal
Appeal No. 1500/2010, it has been submitted that application may
be allowed and the proceedings pending against the applicants be
quashed.

5. Per contra, learned Public Prosecutor vehemently opposes the
prayer made by the applicants and submitted that the
contentions canvased by the applicants are in the nature of their
defence which cannot be believed without affording opportunity
to the prosecutrix to present her case before the trial court and
to explain the material brought on record by the applicants.

6. Learned counsel for the complainant/prosecutrix also
opposes the instant application on similar grounds and submitted
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that prosecutrix as narrated her ordeal before the police and only
after finding prima facie case against the applicants an FIR was
registered. Therefore, dismissal of the application has been
prayed for.

7. I have heard learned counsel for the parties and perused the
record.

8. Before entered into the facts and circumstances of the
present case, it is necessary to consider the ambit and scope of
the jurisdiction provided under Section 482 of the Cr.P.C. It is
well settled that exercise of powers under Section 482 of the
Cr.P.C is the exception and not the rule. Under this section, the
High Court has inherent powers to make such orders as may be
necessary go give effect to any order under the Code or to
prevent the abuse of process of any court or otherwise to secure
the ends of justice. But the expressions “abuse of process of law”
or “to secure the ends of justice” do not confer unlimited
jurisdiction on the High Court and the alleged abuse of process
of law or the ends of justice could only be secured in accordance
with law, including procedural law and not otherwise.

9. In the case of State of Haryana and Ors.v. Bhajan Lal
and Ors. 1992 Supp (1) SCC 335, apex Court has elaborately
considered the scope and ambit of section 482 Cr.P.C. Seven
categories of cases have been enumerated where power can be
exercised under Section 482 of Cr.P.C. Para 102 thus reads;

” 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
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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 suffiiently 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
prudentperson can ever reach a just conclusion
thatthere is sufficient ground for proceeding
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against the accused.

(6) Where there is an express legal bar engrafted
in any of the provisions of the Codeor 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 malafide 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.”

10. In another case in Priya Vrat Singh Vs. Shyam Ji Sahai
(2008) 8 SCC 232, the Hon’ble apex Court has held as under:-

“8. Further, it is pointed out that the allegation of
alleged demand for dowry was made for the first time
in December 1994. In the complaint filed, the
allegation is that the dowry torture was made
sometime in 1992. It has not been explained as to why
for more than two years no action was taken.

10. The parameters for exercise of power under
Section 482 Cr.P.C. have been laid down by this
Court in several cases. Ed: The reference seems inter
alia to be to Sunder Babu V. State of T.N. (2009) 14
SCC 244 : (2010) 1 SCC (Cri.) 1349 and Engg.

Export Promotion Council Vs. Usha Anand, (2013)
12 SCC 620 : (2014) 4 SCC (Cri.) 441

11. The section does not confer any new power on
the High Court. It only saves the inherent power
which the Court possessed before the enactment of
the Code. It envisages three circumstances under
which the inherent jurisdiction may be exercised,
namely, (i) to give effect to an order under the Code,

(ii) to prevent abuse of the process of Court, and (iii)
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to otherwise secure the ends of justice. It is neither
possible or desirable to lay down any inflexible rule
which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with
procedure can provide for all cases that may possibly
arise. Courts, therefore, have inherent powers apart
from express provisions of law which are necessary
for jdk 19 4.r.crwp.97.18.j.doc proper discharge of
functions and duties imposed upon them by law. That
is the doctrine which finds expression in the section
which merely recognizes and preserves inherent
powers of the High Courts. All courts, whether civil
or criminal, possess, in the absence of any express
provision, as inherent in their constitution, all such
powers as are necessary to do the right and to undo a
wrong in course of administration of justice on the
principle quando lex aliquid alicui concedit,
concedere videtur id sine quo res ipsa esse non potest
(when the law gives a person anything it gives him
that without which it cannot exist). While exercising
powers under the section, the Court does not function
as a court of appeal or revision. Inherent jurisdiction
under the section though wide has to be exercised
sparingly, carefully and with caution and only when
such exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex
debito justitiae to do real and substantial justice for
the administration of which alone courts exist.
Authority of the court exists for advancement of
justice and if any attempt is made to abuse that
authority so as to produce injustice, the court has jdk
20 4.r.crwp.97.18.j.doc power to prevent abuse. It
would be an abuse of process of the court to allow
any action which would result in injustice and
prevent promotion of justice. In exercise of the
powers court would be justified to quash any
proceeding if it finds that initiation / continuance of it
amounts to abuse of the process of court or quashing
of these proceedings would otherwise serve the ends
of justice.”

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11. In the case of Suryalakshmi Cotton Mills Ltd. Vs. Rajvir
Industries Ltd. (2008) 13 SCC 678 , Hon’ble Apex Court has
been made following observations explaining the parameters of
jurisdiction of the Hihg Court in exercising its jurisdiction under
Section 482 of the Code of Criminal Procedure.

“22 Ordinarily, a defence of an accused although
appears to be plausible should not be taken into
consideration for exercise of the said jurisdiction.
Yet again, the High Court at that stage would not
ordinarily enter into a disputed question of fact. It,
however, does not mean that documents of
unimpeachable character should not be taken into
consideration at any cost for the purpose of finding
out as to whether continuance of the criminal
proceedings would amount to an abuse of the
process of Court or that the complaint petition is
filed for causing mere harassment to the accused.
While we are not oblivious of the fact that although
a large number of disputes should ordinarily be
determined only by the civil courts, but criminal
cases are filed only for achieving the ultimate goal
namely to force the accused to pay the amount due
to the complainant immediately. The Courts on the
one hand should not encourage such a practice; but,
on the other, cannot also travel beyond its
jurisdiction to interfere with the proceeding which is
otherwise genuine. The Courts cannot also lose
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sight of the fact that in certain matters, both civil
proceedings and criminal proceedings would be
maintainable.”

12. In the context of law laid down by the Hon’ble Apex
Court, it is apparent that for quashing the proceedings,
meticulous analysis of factum of taking cognizance of an
offence by the Magistrate is not called for. Appreciation of
evidence is also not permissible in exercise of inherent powers.
If the allegations set out in the complaint do not constitute the
offence of which cognizance has been taken, it is open to the
High Court to quash the same in exercise of the inherent
powers.

13. The appreciation of the facts of the instant case in the
context of the legal position discussed hereinabove clearly
reflect that even though, the first cause for making complaint
arose on 03.08.2015, but the contents of the complaint indicate
that the applicant No.1 and the prosecutrix were in relationship
till the year 2018 for which the prosecutrix has cited the promise
to marry as a reasons behind her continuance in the relationship.
The narration of the applicant No.1 with respect to said period
may be different, but the same is clearly his defence which
cannot be subject matter of consideration at this juncture. While
it is true that some unimpeachable material can be gone into by
the court while exercising power under Section 482 of Cr.P.C.,
but when court is expected to adopt the process of reasonsings
(discussion) to arrive at a conclusion of non involvement of
accused persons, in that scenario, it is a case in which both
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parties will have to be given opportunity to adduce evidence,
producing material to establish their respective stand before the
trial court. So far as the submission of learned counsel for the
applicant No.1 with respect to delay in lodging the FIR is
concerned, it will suffice to observe that the contents of FIR
cannot be treated as in encyclopedia of the events which led to
commission of offence and the prosecutrix can state her version
by entering the witness box, therefore, the trial court, and it is at
that stage the accused persons shall have right to seek
explanation and confront the prosecutrix with other contradictory
material. It has already been stated in the preceding paragraphs
that allegedly applicant No.1 and the prosecutrix were in
relationship till the year 2018. Further, the submission of learned
counsel for the applicant about the engagement of the
prosecutrix with some other boy is again a disputed question of
fact and the same is required to be established before the trial
court by adopting due procedure.

14. The apex Court in the case of Rajiv Thapar Vs. Madan
Lal Kapoor (2013) 3 SCC 330, has cautioned the High Court
while exercising the power under Section 482 of the Cr.P.C. in
the following manner :-

“22. The issue being examined in the instant
case is the jurisdiction of the High Court under
Section 482 of the Cr.P.C., if it choses to quash the
initiation of the prosecution against an accused, at
the stage of issuing process, or at the stage of
committal, or even at the stage of framing of
charges. These are all stages before the
commencement of the actual trial. The same
parameters would naturally be available for later
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stages as well. The power vested in the High Court
under Section 482 of the Cr.P.C., at the stages
referred to hereinabove, would have far reaching
consequences, in as much as, it would negate the
prosectuion’s/ complainant’s case without allowing
the prosecution/complainant to lead evidence. Such a
determination must always be rendered with caution,
care and circumspection. To invoke its inherent
jursidiction under Section 482 of the Cr.P.C. the
High Court has to be fully satisfied, that the material
produced by the accused is such, that would lead to
conclusion, that his/their defence is based on sound,
reasonable, and indubitable facts; the material
produced is such, as would clearly reject and
overrule the veracity of the allegations contained in
the accusations levelled by the
prosecution/complaint. It should be sufficient to to
rule out, reject and discard the accusations levelled
by the prosecution /complainant, without the
necessity of recording any evidence. For this the
material relied upon by the defence should not have
been refuted, or alternatively, cannot be justifiably
refuted, being material of sterling and impeccable
quality. The material relied upon by the accused
should be such, as would persuade a reasonable
person to dismiss and condemn the actual basis of
the accusasations are false. In such a situation, the
judicial conscience of the High Court would
persuade it to exercise its power under Section 482
of the Cr.P.C. to quash such criminal proceedings,
for that would prevent abuse of process of the court,
and secure the ends of justice.”

15. Before parting, it would be appropriate to deal with the
judgment relied upon the applicants which was pronounced in
the case of Kishan Singh (supra). The same is clearly
distinguishable on the facts as in that case the Apex Court
recorded the findings after the evidence was adduced by the
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parties before the trial court which is absent in the present case.

16. Having carefully examined the law laid down by the
Hon’ble Apex Court in the case of Rajiv Thapar (supra) and
consideration of material brought on record by the applicant, it is
clear that the interference under Section 482 is not warranted.
Further detail discussion on the material furnished by the
applicant will prejudice his defence before the trial Court.
Accordingly, this application is dismissed with direction to the
trial Court to give consideration to the material brought on
record by the applicant without being influenced by the
observations made in this order.

17. Consequently, this application is disposed of with the
aforesaid observations.

18. Let a copy of the order be sent to the trial Court for
information.

Certified copy as per rules.

(S. K. Awasthi)
Judge
skt

Santosh Digitally signed by Santosh Kumar Tiwari
DN: cIN, oHigh Court of Madhya
Pradesh Bench Indore,

Kumar
postalCode452001, stMadhya Pradesh,
2.5.4.206786ce47881242387139baa850
6120a45637ac1466d1353133b8571c8d1a
1a9b,
serialNumber0df066b5d65485a7dc86ff

Tiwari
bbe7a15909648313981e4d77f8cf9b0cfee
0d9386d, cnSantosh Kumar Tiwari
Date: 2020.02.10 11:39:59 -12’00’

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