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Parwati Bai vs The State Of Madhya Pradesh Thr on 29 August, 2018

1
HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018

Shri R.K. Upadhyay, learned counsel for the
petitioner.
Shri G.S. Chauhan, learned Public Prosecutor for
respondent no.1-State.

Heard.

This petition under Section 482 of the Criminal
Procedure Code (for short ‘Cri.P.C.’) has been filed by
complainant Parwati Bai being aggrieved by order dated
12.06.2018 passed by the learned Special Judge, Vidisha,
whereby the learned Special Judge has quashed the order
passed by Ms. Barbi Juneja, Judicial Magistrate First Class,
Vidisha, taking cognizance against the accused persons
vide order dated 25.10.2017.

2. A perusal of order dated 25.10.2017 reveals that
cognizance has been taken against Dinesh, Kailash, Pooja,
Neeraj and Badki under the provisions of Sections 324,
323, 294, 341, 354, 354B, 394, 506B, 427 read with
Section 34 of the Indian Penal Code (for short ‘IPC’) on a
complaint filed by petitioner Parvati Bai. Copy of such
complaint has been enclosed by petitioner Parvati Bai as
Annexure P/4.

3. It is not in dispute that petitioner Parvati Bai had
approached the Police Station Kotwali on 02.04.2016,
where a report in regard to non-cognizable offence was
lodged against Kailash. The allegation in the report was
that on 02.04.2016, when complainant Parvati Bai was
returning from hospital alongwith her younger son Ajay,
2
HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018

then close to Bajaria Chowki, she had met Kailash Yadav.
Because of old report, he started abusing her and was
preparing to beat her when she left the place alongwith
her son, and thereafter approached the Police alongwith
her husband and Guru Bhai Tilak Singh Kushwah. In this
report, there is no mention of name of other accused
persons except Kailash, but a private complaint was filed
under the provisions of Sections 324, 323, 294, 341, 354,
354B, 394, 506B, 427 read with Section 34 of IPC against
five named persons and three unknown persons. In this
regard, statements of prosecutrix were recorded and she
gave her statements on 22.08.2016 under Section 200,
Cr.P.C. and in her first para, she narrated that on
02.04.2016, close to Bajaria Chowki, Kailash had met her
and had abused her. At that point of time, she had
elaborated the specific abuses, which were hurled by
Kailash to the effect that he had said that why she is
roaming around and he will throw her and then she had
caught hold of her hand and had tried to pull her clothes,
and thereafter, he had run away on his vehicle. In
paragraphs 2, 3 and 4, she has only narrated about the
incident which had taken place on 06.01.2016 and has not
said anything about the incident which had taken place on
02.04.2016.

4. Her son, another person, who was allegedly with her,
PW2 Ajay, who was a student of 7 th Class, was examined
3
HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018

before the trial Court and he narrated that on 02.04.2016,
when he was returning back from the Government Hospital
alongwith his mother, then on way, they had met Kailash
Yadav, who had obstructed the way of his mother and had
abused her and then had tried to pull the clothes of her
mother. Thereafter, Kailash had run away and then he says
that his mother had gone to the Police Station to lodge
report. These two statements contain material
contradictions inasmuch as complainant Parvati Bai has not
given any statement that she had gone with her son to
lodge the report. In fact, the report Annexure P/3 reveals
that she had gone alongwith her husband and Guru Bhai
Tilak Singh Kushwah to report the matter. Therefore, report
Annexure P/3 does not disclose presence of her son Ajay
at the time of lodging of the report. On the basis of such
statements, the Court of JMFC Ms. Barbi Juneja had taken
cognizance against five persons under the provisions of
Sections 324, 323, 294, 341, 354, 354B, 394, 506B, 427
read with Section 34 of IPC.

5. Being aggrieved by the said order, the accused
persons had filed a revision before the Court of the Special
Judge, who has quashed the order of taking cognizance
after recording a finding that none of the ingredients of the
offences alleged against accused persons are made out.

6. At this stage, the learned counsel for the petitioner
when asked, fairly admits that the offences under Sections
4
HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018

294, 341 and 354B of IPC will be made out against Kailash
and cognizance has been wrongly taken under other
Sections and such Sections will be dropped during the trial.

7. In support of such submissions, the learned counsel
for the petitioner has placed reliance on the judgment of
the Madhya Pradesh High Court in the case of Anil Kumar
Sahu Others v. Laxmi Another as reported in
2005 (3) MPLJ 495. The ratio of the judgment is that a
criminal complaint need not be quashed, where ingredients
of the offence are disclosed.

8. Similarly, the learned counsel for the petitioner has
placed reliance on the judgment of the Apex Court in the
case of Mona Panwar v. High Court of Judicature of
Allahabad as reported in (2011) 3 SCC 496. Reliance
has been placed on paragraphs 19 and 20 of the said
judgment, where the phrase “taking cognizance of” has
been defined to mean cognizance of an offence and not of
the offender. Taking cognizance does not involve any
formal action or indeed action of any kind but occurs as
soon as a Magistrate applies his mind to the suspected
commission of an offence. Cognizance, therefore, takes
place at a point when a Magistrate first takes judicial
notice of an offence. It has been held in paragraph 19 that
when the Magistrate had applied his mind only for ordering
an investigation under Section 156 (3) of the Code or
issued a warrant for the purposes of investigation, he
5
HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018

cannot be said to have taken cognizance of an offence. In
paragraph 20, it has been held that taking cognizance is a
different thing from initiation of the proceedings. One of
the objects of examination of the complainant and his
witnesses as mentioned in Section 200 of the Code is to
ascertain whether there is prima facie case against the
person accused of the offence in the complaint and to
prevent the issue of process on a complaint which is either
false or vexatious or intended only to harass such person.
Such examination is provided, therefore, to find out
whether there is or not sufficient ground for proceeding
further.

9. In the light of these judgments when the record of
the case and the impugned order are scrutinized, it is
apparent that in the Police complaint Annexure P/3, the
allegations were made only against one person, i.e.,
Kailash Yadav. There is no mention of other persons Dinesh
Saxena, Pooja Saxena, Neeraj Yadav or Badki Bhoi. In fact,
learned counsel for petitioner admits that Police has
already registered Crime No.22/16; State v. Kailash
Others and Crime No.23/16; State v. Mahesh, and both the
cases are pending before the same JMFC. However, a
private complaint has been filed besides Kailash Yadav
against these persons and three unknown persons, which
prima-faice reveal that the complainant has resorted to a
vexatious and false action intended only to harass persons
6
HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018

against whom a case has been filed on 08.01.2016 and in
regard to which the learned counsel for the petitioner
admits that counter-cases have been filed. Therefore, as
far as other persons except Kailash Yadav are concerned,
cognizance has been wrongly taken by the JMFC and
learned JMFC Ms. Barbi Juneja has failed to apply her
judicial mind and in the opinion of this Court, Ms. Barbi
Juneja has not only failed to apply a judicial mind, but has
also failed to appreciate the legal provisions correctly
before taking cognizance of the complaint and, therefore,
the Registrar General is directed to take cognizance of this
order and initiate appropriate remedial training for the
concerned JMFC on the administrative side after giving
opportunity of hearing to her. For this purpose, Registrar
General may call for complete case papers including
present petition.

10. As far as Kailash Yadav is concerned, it is apparent
from Annexure P/3 that there are no specific abuses
mentioned in the complaint. This fact has been appreciated
by the learned Special Judge and he has categorically
taken note of this fact that in the report it is not mentioned
as to which abuses were hurled by Kailash Yadav and
whether such abuses were offensive or not. In view of
such facts and also the fact that when the Police had not
taken cognizance of the offence, she had not taken any
action under the provisions of Section 154 (3), Cr.P.C. and
7
HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018

had not approached the Superintendent of Police
disbelieving evidence of Ajay her son and that of her
husband Mahesh Prajapati, who had not deposed anything
in regard to the incident, which had taken place on
02.04.2016. In fact, in his statement Mahesh Prajapati has
given the date of the incident as 04.01.2016. He has
mentioned that at about 8.00 AM, he was taking sun bath
when Kailash Yadav and his wife Neeraj were abusing
them. The scrutiny of statement of Mahesh Prajapati
reveals that nowhere in his statement he has narrated
anything about incident which had taken place on
02.04.2016. He has even not mentioned that his wife had
narrated anything about such incident and he had gone to
the Police Station to make report in regard to the incident
which had allegedly taken place on 02.04.2016. Similarly,
Bablu Kushwah has also narrated about some incident
which had taken place on 04.01.2016 at 8.00 PM.
Therefore, two of the witnesses, which had been examined
in support of the complainant, i.e., Mahesh Prajapati and
Bablu Kushwah are not reliable witnesses.

11. As far as Ajay is concerned, Ajay too is not reliable
witness inasmuch as Ajay has narrated that from the place
of the incident, he had gone to the Police Station alongwith
his mother and thereafter the Police caught hold of Kailash
Yadav and had brought him to the Police Station, where he
was put behind the lock up and thereafter he was
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HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018

released. It is apparent that when the Police had recorded
a complaint for non-cognizable offence, then there was no
justification for the Police to have apprehended Kailash and
put him behind the lock up. Therefore, the statements of
Ajay also do not inspire any confidence.

12. As far as the complainant is concerned, the
complainant in her Police report has not narrated the
specific abuses and has also not mentioned that Kailash
had intercepted her or had tried to obstruct her, therefore,
none of the ingredients under Section 341 of IPC are
available inasmuch Section 341 of IPC prescribes
punishment for wrongful restraint. In the Police complaint,
there is no mention of any wrongful restraint and which is
a further improvement in her complaint and in her
statements.

13. Similarly, Section 294 of IPC deals with obscene acts
and songs. In the Police complaint, there is no mention of
any obscene acts committed by Kailash. It is only
mentioned that he had abused and was preparing to beat
them. Therefore, the offence under Section 294 of IPC will
also not be made out.

14. Similarly, to constitute an offence under Section 354B
of IPC, there should be an assault or use of criminal force
to woman with intent to disrobe. None of the ingredients
under Section 354B of IPC have been mentioned in the
Police complaint Annexure P/3, therefore, cognizance could
9
HIGH COURT OF MADHYA PRADESH
MCRC No.29247/2018
(Parwati Bai v. State of MP)
Gwalior, Dated : 29.08.2018

not have been taken even under Section 354B of IPC. As is
apparent from the deposition of Mahesh Prajapati as is
available on page 27 of this petition, the Special Judge has
rightly quashed the impugned order. Therefore, the learned
Special Judge has rightly appreciated the evidence and the
material on record and has quashed the order passed by
the JMFC taking cognizance against all the accused
persons under Sections 324, 323, 294, 341, 354, 354B,
394, 506B, 427 read with Section 34 of IPC. Thus, there is
no illegality or irregularity in the impugned order passed by
the learned Special Judge, Vidisha, who has rightly set
aside the illegal order passed by the JMFC.

15. In view of such facts, this Court is not required to
exercise its inherent jurisdiction under Section 482, Cr.P.C.
to quash the impugned order. Thus, the petition fails and is
dismissed with costs of Rs.2,000/- to be paid by the
petitioner to accused Kailash for filing a vexatious
complaint.

16. Let a copy of this order be sent by the Registry to
the Registrar General for necessary action.

(Vivek Agarwal)
Judge
meh/-

Digitally signed by MEHFOOZ AHMED
Date: 2018.08.30 10:57:46 +05’30’

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