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HIGH COURT OF MADHYA PRADESH AT JABALPUR
M.Cr.C. No.8976/2018
(Uma Uikey Vs. State of Madhya Pradesh another)
Jabalpur, dated 13.08.2018
Shri Siddharth Radhelal Gupta, Advocate for the
applicant.
Shri S.D. Khan, Government Advocate for the
respondent no.1-State.
None present for the respondent no.2.
Shri Vikas Sharma, Advocate for the
objector/intervenor.
Order passed on I.A. No.8088/2018 separately, signed
and dated.
List the matter after two weeks.
Interim order, if any, shall continue till the next date
of hearing.
(Sushil Kumar Palo)
Judge
RJ
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HIGH COURT OF MADHYA PRADESH AT JABALPUR
M.Cr.C. No.8976/2018
Uma Uikey
Vs.
State of Madhya Pradesh another
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Shri Siddharth Radhelal Gupta, Advocate for the applicant.
Shri S.D. Khan, Government Advocate for the respondent
no.1-State.
None present for the respondent no.2.
Shri Vikas Sharma, Advocate for the objector/intervenor.
————————————————————————-
Present: Hon’ble Shri Justice Sushil Kumar Palo.
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ORDER
(13.08.2018)
The objector has filed an application (I.A.
No.8088/2018) to participate in the case as an intervenor.
2. It would be appropriate to discuss the
background of this case before proceeding to decide the
application. Prosecutrix/respondent no.2 lodged report, on
the basis of which, Crime No.243/2015 was registered at
Police Station Umreth, District Chhindwara for the offence
punishable under Sections 376(2)(i) and 376(2)(d), 363,
343 and 506 of the I.P.C. read with Section 4 of the
Protection of Children from the Sexual Offences Act, 2012.
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3. The prosecutrix respondent no.2 lodged the
report before the Mahila Prakoshtha, Chhindwara which was
subsequently sent to Police Station Umreth. According to
this report, the prosecutrix aged about 16 years at about
4.45 pm on 17.10.2015 lodged the report against (the
proposed intervenes) Jai Shankar @ Deepu Birha S/o
Rooplal Birha, aged about 43 years, village Kheraji, Police
Chauki Rawanwada. The prosecutrix, a resident of Parasiya
was doing labour work. She lost her father. Her mother
Uma Uikey (the applicant in the present case) has been
living and working at Bhopal. Her elder brother Rahul is in
custody in connection with a theft case. The prosecutrix is
living with a known person namely Mamta, to whom she
calls ‘Didi’. On 11.10.2015 at about 5.00 pm, she was going
to Koshmi temple for performing worship. She tried to stop
2-3 auto rickshaws but none stopped, as they were all full
with passengers. A white coloured car came in, which was
being driven by Jai Shankar @ Deepu Birha (proposed
intervenor) and promised her to drop at the temple. She got
into the vehicle. Jai Shankar @ Deepu Birha drove the
vehicle towards Umreth road; when she opposed and said
that this is not the road to Koshmi temple, Jai Shankar @
Deepu Birha told her that he has a little work at a small
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distance, after finishing the same he will drop her. He took
her to Gajandoh jungle and stopped the vehicle. It was
about 6.00 pm. Jai Shankar @ Deepu Birha forcibly took her
out from the vehicle and into the forest and under a
bamboo tree throwing her forcibly committed sexual
intercourse. He told her that she should not disclose this
incident to anyone, if she informs anyone, she will be killed.
When she informed that nobody is there in her family, he
took her into the vehicle and drove towards Umreth.
4. He took her to a house and kept there in
confinement for about 4-5 days. During this period she was
again subjected to sexual intercourse. Because it was night,
she could not know where she was kept. On 16.10.2015 at
about 6.00 pm, she was taken by Jai Shankar @ Deepu
Birha, dropped her near Sai temple, Parasiya. She reached
her home at about 7.00 pm and informed the incident to
Mamta didi. Mamta refused to go to the police station with
her. Therefore, she went to the Mahila Prakoshtha and
lodged the report. This report was transmitted to the Police
Station Umreth and Crime No.243/2015 was registered,
against the applicant Jai Shankar @ Deepu Birha for
offences as mentioned above.
5. It would be appropriate to mention here that, Jai
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Shankar @ Deepu Birha is an officer in the coal mine.
Subsequently, Crime No.19/2018 has been lodged at Police
Station, Parasiya on the report of the same prosecutrix,
wherein she alleged that she has studied upto Class-VII.
She is resident of Khamra Jethu and living at Surajpura
under Police Station Najirabad, Bhopal. Around two and half
years ago in the month of October, 2015 she was living at a
rented Penchveli Chief House, Parasiya owned by Rajendra
Dehariya. She was doing labour work. Accused Bhim Bagde
used to come to the house of Rajendra Dehariya (the land
lord of the prosecutrix) often, therefore, she knew accused
Bhim Bagde. Bhim Bagde called her by phone asked to
come in the evening. She reached to Bhim Bagde. He took
her by his motorcycle to accused Ravi Anna, where accused
Sandeep Taram was also present. All the three accused
persons then discussed for some time. Accused Ravi Anna
said to her that, Jai Shankar @ Deepu Birha (proposed
intervenor) has to be implicated in a case of rape. When the
prosecutrix said that she do not know Jai Shankar @ Deepu
Birha and refused to help them, Ravi Anna shown a
photograph of Jai Shankar @ Deepu Birha. He caught her
neck, tried to strangulate and threatened her that, if she do
not follow his dictates, her and her mother will be killed.
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Ravi Anna then took her to his house, where the accused
Durgabai was living. Bhim Bagde and Sandeep Taram left
for their home. They deliberately left the prosecutrix in the
house of Ravi Anna at village Khirsadoh in the night.
Accused Ravi Anna committed sexual intercourse with her
and threatened her not to inform anyone, otherwise she will
be killed. In the next day Ravi Anna brought new clothes for
her. Thereafter, she was lodged the report at Mahila
Prakoshth, Chhindwara, which later sent to and registered
as Crime No.243/2015 at Police Station Umreth.
6. It is stated by the intervenor that to implicate
him (Jai Shankar @ Deepu Birha) for an offence under
Section 376 of I.P.C., Anees Khan had given Rs.one lakh to
accused Bhim Bagde. Because Anees Khan had to settled
scores with Jai Shankar @ Deepu Birha. In this regard, they
chalked out a conspiracy and planned to implicate Jai
Shankar @ Deepu Birha, who is an officer in coal mine,
where Anees Khan is a contractor. After the false report
lodged, the prosecutrix was taken to Bhopal
7. Ravi Anna asked to Anees Khan and demanded
money but Anees Khan asked him not to come and said he
will send the money. Anees Khan sent money to accused
Chand Khan in four installments to be paid to Ravi Anna. It
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is claimed that conspiracy was hatched by Anees Khan with
the help of Chand Khan. Bhim Bagde and Sandeep Taram
executed the same, using the prosecutrix as an instrument
to implicate the proposed intervenor Jai Shankar @ Deepu
Birha.
8. The present applicant Uma Uikey is the mother
of the prosecutrix, who has filed this application for
quashing Crime No.19/2018. In this petition the State and
the prosecutrix have been impleaded as respondent nos.1
and 2.
9. Proposed intervenor Jai Shankar @ Deepu Birha
has filed this application to intervene in the present case.
This application has been vehemently opposed by the
applicant Uma Uikey mother of the prosecutrix stating that
the proposed intervenor has no locus standi in the present
case, therefore, this application be dismissed.
10. On behalf of the State, it is contended that name
of Jai Shankar @ Deepu Birha is reflected in the FIR and the
conspiracy was hatched out allegedly to implicate Jai
Shankar @ Deepu Birha; therefore, Jai Shankar @ Deepu
Birha may be heard in this case.
11. On behalf of the intervenor, it is claimed that
intervenor is the “aggrieved person” in the present case,
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therefore, the applicant be permitted to intervene in the
proceeding.
12. The circumstances in the present case indicate
that the interest of the applicant/proposed intervenor will
adversely affect, if he is not allowed to participate in the
proceeding. It is necessary to allow his participation,
because he is the affected party. In the criminal justice
delivery mechanism, the complainant should be allowed to
participate in the proceeding, otherwise, it will be travesty
of justice.
13. Heard learned counsel for the parties at length.
14. It is clear that the proposed intervenor is the
affected party and it may be true that the proposed
intervenor according to the FIR is the victim. The State may
or may not be affected but the victim definitely is. Since the
victim was directly and substantially affected, he should be
allowed to participate in the instant case.
15. The issue needs to be addressed is that whether
it makes sense to allow the third party to participate in the
proceeding ?
16. In the opinion of this Court, since the aim of
criminal law is to punish the culprit and if not found guilty to
acquit the accused. It would be appropriate for the better
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adjudication of the case, the proposed intervenor be
allowed to intervene. The Court can examine the intention
of the applicant seeking to intervene and he is bonafide as
is clearly evident from perusal of the prosecution stories. It
seems that the rights guaranteed under the constitution
which are enforciable using public interest litigation as a
tool, why then the person affected by the decision could not
be allowed to participate in the proceeding ?
17. In the case of P.S.R. Sadhantham vs.
Arunachalam and another, reported in 1980 SCC
(Criminal) 649, Hon’ble Justice Krishna Iyer speaking for
himself and Justice Fazal Ali and Justice D.A. Desai
examining the scope of Article 136 vis-à-vis Article 21, said
that:-
“Article 21, in its sublime brevity, guardians
human liberty by insisting on the prescription of
procedure established by law, not fiat as sine qua
non for deprivation of personal freedom. And
those procedures so established must be fair, not
fanciful, nor formal nor flimsy, as laid down in
Maneka Gandhi’s case. So, it is axiomatic that our
constitutional jurisprudence mandates the State
not to deprive a person of his personal liberty
without adherence to fair procedure laid down by
law. The question is whether there is any
procedure, fair or otherwise, which enables a
kindly neighbour who is not a complainant or first
informant, to appeal to the Supreme Court
against an allegedly erroneous acquittal by the
High Court. The corpus juris contains no black-
letter law arming any such purely compassionate
soul to approach this Court, argues Sri Mridul;
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and so, his client’s liberty has been deprived by a
proceeding initiated by someone without any
procedure established by law. We see the
dexterity in the advocacy but reject its efficacy.
Nor are we impressed with the submission that
the brother of the deceased in the case, or any
other high-minded citizen, is an officious meddler
who has no business nor grievance when the
commission of grievous crime is going
unpunished. There is a spiritual sensitivity for our
criminal justice system which approves of the
view that a wrong done to anyone is a wrong
done to oneself, although for pragmatic
considerations the law leashes the right to initiate
proceedings in some situations. Again, ‘justice is
functionally outraged not only when an innocent
person is punished but also when a guilty criminal
gets away with it stultifying the legal system. The
deep concern of the law is to track down, try and
punish the culprit, and if found not guilty, to
acquit the accused.”
18. In a recent judgment delivered by the Apex
Court, namely Dhariwal Industry Ltd. vs. Kishore
Wadhwani and others (2016) 10 SCC 378, wherein the
complainant was allowed to file an application under Section
302 of the Cr.P.C. to grant permission to conduct the
prosecution independently. At paragraph 13 of the Apex
Court has observed that:-
“13. Having carefully perused both the
decisions, we do not perceive any kind of
anomaly either in the analysis or ultimate
conclusion arrived by the Court. We may note
with profit that in Shiv Kumar (supra), the Court
was dealing with the ambit and sweep of
Section 301 CrPC and in that context observed
that Section 302 CrPC is intended only for the
Magistrate’s Court. In J.K. International (supra)
from the passage we have quoted hereinbefore
11it is evident that the Court has expressed the
view that a private person can be permitted to
conduct the prosecution in the Magistrate’s
Court and can engage a counsel to do the
needful on his behalf. The further observation
therein is that when permission is sought to
conduct the prosecution by a private person, it
is open to the court to consider his request. The
Court has proceeded to state that the Court has
to form an opinion that cause of justice would
be best subserved and it is better to grant such
permission. And, it would generally grant such
permission. Thus, there is no cleavage of
opinion.”
19. Though, the present is not a criminal trial but is
the application under Section 482 of Cr.P.C., for quashing of
the FIR, but for the decision of the case it can be
considered. As there is no provision under the Cr.P.C. for
granting permission to the intervenor, but Section 482 of
Cr.P.C. gives ample power to the Court to permit the
complainant to participate in the proceeding to arrive at
better adjudication of the case. There is no provision for
quashing of FIR, but the powers can be exercised under
Section 482 of Cr.P.C. Similarly, the complainant or third
party may be permitted to participate to protect their
interest under the same provision; otherwise it will be a
mockery of justice.
20. The word “intervenor” is nowhere defined in the
Cr.P.C. but whenever participation of the complainant or
third party is raised, Sections 301 and 302 of Cr.P.C.
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come into the mind. Under Section 301 of Cr.P.C. the
Advocate engaged by the private person with the
permission of the Court may be allowed to assist the
prosecution; whereas under Section 302 of the Cr.P.C. the
private party is allowed to conduct the prosecution. The
Magistrate/Court while allowing the same consider the
aspect that whether cause of justice would be served better
in granting such permission.
21. In the Code of Federal Regulation of the United
State of America a provision has been made for the
“intervenor” and there is settled rules codified for the same.
A petition for intervention can be filed by a petitioner who
has statutory right to initiate the proceeding, in which he
wishes to intervene for a petitioner has an interest which is
or may be adversely affected by the outcome with the
proceeding.
22. In the Indian context in many cases, NGOs and
other private bodies, specially in the case of Public Interest
Litigations, large number of human organizations were
granted permission to intervene. In the case of J.R. Anand
vs. Delhi Transport Corporation reported as ILR 1981
Delhi 877, wherein president of Delhi Pariwahan Majdoor
Sangh was allowed to intervene.
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23. Therefore, the question posed by this Court is
answered in affirmative.
24. For the reasons stated above and for better
disposal of the case I.A. No.8088/2018 is allowed. The
applicant is allowed to participate in the case as an
“intervenor”.
(Sushil Kumar Palo)
Judge
RJ
Digitally signed by
RAJESH KUMAR JYOTISHI
Date: 2018.08.14 10:30:48
+05’30’
