Application U/S 482 No.9778 of 2017

3rd April, 2017.

Petitioner Counsel: SHAILESH KUMAR TRIPATHI

Cases Cited:
Chandra Deo Singh Vs. Prokash Chandra Bose and Anr, AIR 1963 SC 1430 [Para 14]
Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker, AIR 1960 SC 1113 [Para 14]
Smt. Nagawwa Vs. Veeranna Shivallngappa Konjalgi, 2014 ALL SCR (O.C.C.) 225=(1976) 3 SCC 736 [Para 14,15,17]
State of Haryana Vs. Bhajan Lal, 2013 ALL SCR (O.C.C.) 1=1992 SCC (Cr.) 426 [Para 16,17]

JUDGMENT

Surya Prakash Kesarwani, J. :- Heard learned counsel for the applicant and the learned A.G.A.

2. This criminal misc. application under Section 482 Cr.P.C. has been filed praying to quash the order dated 17.01.2017 in Case No. 52 of 2016 (Manju Devi Vs. Sanjay Yadav and others) passed by the Court of Additional Session Judge, Court No. 9, Varanasi under Section 376-D, 323, 506 IPC and Section 4 of Protection of Children from Sexual Offences Act, (hereinafter to be referred as 'POCSO Act'), P.S. Jansa, District Varanasi

3. Briefly stated facts of the present case are that on an application dated 06.07.2016 was filed by the applicant under Section 156(3) of the Criminal Procedure Code (hereinafter to be referred as 'Cr.P.C.') a complaint case being Case No. 52 of 2016 was registered. The aforesaid case has been rejected by the impugned order dated 17.01.2017 on the ground that there is no evidence of sexual assault by the accused, it is not clear from the medical examination report that the applicant has been sexually assaulted and the applicant could not clarify that what she did mean by the allegation of "Galat Kaam".

4. Learned counsel for the applicant submits that in para 10 of the application, the applicant has made clear averments of rape on 29.06.2016 by the accused. He submits that the statement of facts made in the application was supported by the statement of complainant recorded under Section 200 Cr.P.C. and the statement of witnesses recorded under Section 202 Cr.P.C. He submits that at this stage, the Magistrate has to see as to whether there is prima-facie evidence in support of the allegations of the complaint and not whether the evidence is sufficient to warrant a conviction. The inquiry under Section 202 Cr.P.C. is not to be linked to a trial which can only take place after process is issued. He further submits that dismissal of the complaint by the court below is contradictory to the provisions of Section 203 Cr.P.C.

5. Learned A.G.A. supports the impugned order.

6. I have carefully considered the submissions of learned counsel for the appellant and the learned A.G.A.

7. Briefly stated facts of the present case are that according to the applicant, she along with her minor daughter (Neha Bind) was returning at about 9.00 p.m. on 29.06.2016 from the Clinic of a doctor. While she was about 1/2 km away from her home, the accused Sanjay Yadav, Shrinath Singh and Jai Prakash Singh came on motorcycle and intercepted her and her daughter on the brick road, terrorized them on gun point and forcibly carried them to a nearby closed brick kiln where they raped her and her daughter and threatened them to kill, if the open their mouth. The submissions made in para 1 of the complaint application dated 06.07.2016 is reproduced below:

"1& ;g fd ifjokfnuh eUtwnsoh iRuh fot; dqekj fuokfluh xzke jk[kh Fkkuk tUlk okjk.klh fnukad 29-06-2016 dks jkr djhc 9 cts viuh ukckfyx iq=h usgk fcUn dks MkW0 lkgc ds ;gka ls fn[kk dj nok ysdj ?kj vk jgh Fkh fd ?kj ls yxHkx vk/kk fd0eh0 igys [kM+Utk ekxZ ij foi{khx.k lat; ;kno o JhukFk flag o t; izdk'k flag eksVj lkbfdy ls ihNs ls vpkud vkdj cUnwd dh uksd ij vkrafdr dj tcjnLrh esjs o esjh ukckfyx iq=h usgk ds lkFk ikl ds cUn HkV~Bk ds ikl ys tkdj xyr dke ¼nq"deZ½ fd;s] tkrs oDr /kedh fn;s fd vxj eqag [kksyk rks cnuke dj tku ls ekj Mkysaxs"

8. It has further been stated in para 2 and 3 of the application by the applicant that in the night of the same day after occurrence of the aforesaid incident, she along with her daughter and husband, went to police station Jansa, district Varanasi to report the incident but the Inspector of the police station returned them saying that "first go and get the medical examination of the injuries". On the next date i.e. on 30.06.2016, she got her injuries medically examined and again went to the police station but her FIR was not registered. Therefore, she moved an application on 01.07.2016 before the Superintendent of Police, Varanasi but her FIR was not registered. Consequently, she moved the application on 06.07.2016 before the court below. On 29.07.2016 the statement of the applicant Smt. Manju Devi was recorded under Section 200 Cr.P.C. which clearly supports the averments made in the application. Statement of Km. Neha Bind (daughter of the applicant) was also recorded under Section 202 Cr.P.C. which also supports the allegations made in the aforesaid application. The court below also recorded the statement of witnesses namely Vijay Kumar Bind (husband of the applicant), Subhash son of Chhote Lal and Majnu son of Ragru. Dr. Om Prakash, Emergency Medical Officer, Sri Shiv Prasad Gupta Divisional District Hospital was also examined on 15.11.2016 with respect to the injury report who affirmed the medical examination of injuries of the applicant and her daughter on 30.06.2016. He stated that he has examined the injuries of the applicant on 30.06.2016 and found injuries on the left side of the head, on the mid of the chest, injury in the left hand, injry on the back side of chest. He gave description of injuries of the applicant in his statement. He also described the injuries of Km. Neha Bind found in the medical examination on 30.06.2016 at about 2.45 hrs. The injuries were found on the left face, right palm, back of the chest, middle of the inner side of the left thigh and also noted that she complained pain on the back of the neck but no visible sign of injury was appearing.

9. However, the court below rejected the complaint on the ground that the applicant could not clarify that what she mean by the words "Galat Kaam" alleged against the accused. He did not agree with the submissions of learned counsel for the applicant that "Galat Kaam" means rape. He opined that the doctor has neither medically examined the applicant regarding rape nor has given any report in this regard but has merely given medical examination report with respect to the injuries on the body of the applicant. For these reasons, he came to the conclusion that there is no evidence of sexual assault by the accused upon the applicant and her daughter and therefore, he found that there was no commission of offence under the POCSO Act.

10. Section 203 Cr.P.C. provides for dismissal of complaint as under:

"Section 203.--Dismissal of complaint.--If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."

11. The provision of Section 203 Cr.P.C. clearly provides that a complaint shall be dismissed for reasons to be recorded briefly, if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202 Cr.P.C. the Magistrate is of the opinion that there is no sufficient ground for proceeding. The court below, although noted the fact of statement on oath of the complainant and the witnesses but completely failed to consider it in the impugned order. Thus, the impugned order is in breach of the mandate of the provisions of Section 203 Cr.P.C. that the Magistrate shall consider the statement on oath (if any) of the complainant and of the witnesses and the result of investigation (if any) under Section 202 Cr.P.C. Therefore, the impugned order passed by the court below cannot be sustained.

12. The law regarding sufficiency of material to justify the summoning of accused and court's decision to proceed against the accused in a given case is well settled. At the summoning stage, only a prima-facie satisfaction of the court for existence of sufficient ground to proceed in the matter is required. At this stage the Magistrate has to see as to whether there is evidence in support of the allegations in the complaint and not whether the evidence is sufficient to warrant a conviction.

13. The object of the inquiry under Section 202(1) Cr.P.C. is to ascertain the truth or falsehood of the complaint, but the magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant.

14. The scope of Section 202 Cr.P.C. has been well explained by Hon'ble Supreme Court in the case of Chandra Deo Singh Vs. Prokash Chandra Bose and Anr AIR 1963 SC 1430, Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and Smt. Nagawwa Vs. Veeranna Shivallngappa Konjalgi (1976) 3 SCC 736 : [2014 ALL SCR (O.C.C.) 225] in which it has been held that the scope of an inquiry under Section 202 Cr.P.C. is limited to find out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at the stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has been issued and he is put on trial."

15. In the case of Smt. Nagawwa [2014 ALL SCR (O.C.C.) 225] (supra) the Hon'ble Apex Court had held as follows:

"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."

16. In the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 : [2013 ALL SCR (O.C.C.) 1] Hon'ble Supreme Court illustrated the following cases where inherent powers under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of process of any court and otherwise to secure the ends of justice:

"(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 F.I.R. 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 prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) where there is an express legal bar engrafted in any of the provisions of the Code or 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 mala fide 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."

17. Perusal of the facts and the case as briefly noted above do not disclose existence of any of the circumstances illustrated in the judgments of Hon'ble Supreme Court in the case of Smt. Nagawwa [2014 ALL SCR (O.C.C.) 225] (supra) and Bhajan Lal [2013 ALL SCR (O.C.C.) 1] (supra), in the present case so as to justify the action of the court below in not issuing the process against the accused.

18. The conclusion of the court below that the complainant could not disclose that what she mean by the word "Galat Kaam", appears to be in ignorance of the specific averment made by the complainant in para 1 of her complaint application which has been extracted in para 7 above which shows that she specifically used the word "Dushkarm" in bracket after the word "Galat Kaam". This significant word "Dushkarm" specifically averred in the application of the applicant could not be noticed by the court below while passing the impugned order.

19. In view of the aforesaid, the impugned order dated 17.01.2017 in Case No. 52 of 2016 (Manju Devi Vs. Sanjay Yadav and others) passed by the Court of Additional Session Judge, Court No. 9, Varanasi is quashed and the matter is remitted back to the court concerned to pass an order afresh in accordance with law, expeditiously, preferably within two months from the date of presentation of certified copy of this order, without being influenced by any of the observations made in the body of this order.

20. The application is disposed of with the directions as aforesaid.

Ordered accordingly.