CRM No.M-3545 of 2013(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.M-3545 of 2013(O&M) Date of Decision:30.09.2013 Rajesh Kumar @ Rafiq Mohd. .....Petitioner Versus State of Punjab and another .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Preetwinder Singh Dhaliwal, Advocate, for the petitioner. Mr.Jaspreet Singh, Assistant Advocate General, Punjab. Ms.Gurpal Kaur Dulat, Advocate, for respondent No.2. **** MEHINDER SINGH SULLAR , J.(oral) The contour of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record is that on 06.01.2013, accused Rajesh Kumar @ Rafiq Mohd.(already married), son of Puran Chand, was stated to have procured and kidnapped the minor daughter of Sukh Lal, (prosecutrix)(name intentionally withheld). According to the prosecutrix, he took her to the house of his relative Matwinder Singh at Phillaur and forcibly committed rape without her consent. Two days thereafter, he took her from Phillaur to Barnala and threatened her to kill, in case, she would disclose the incident to anybody. She remained under fear, coercion and threat. Subsequently, she narrated the entire tale of woe to her mother Saroj Devi and reported the matter to the police.
2. Levelling a variety of allegations and narrating the sequence of events, in all, the prosecutrix claimed that she was minor. Petitioner- Rani Seema S201310.08 11:01 I attest to the accuracy and integrity of this document High Court Chandigarh CRM No.M-3545 of 2013(O&M) 2 accused Rajesh Kumar has kidnapped her and repeatedly committed sexual intercourse with her against her wishes and threatened her with dire consequences of elimination. In the background of these allegations and in the wake of complaint of the prosecutrix, the present criminal case was registered against the petitioner-accused, vide FIR No.11 dated 06.01.2013(Annexure P-5), on accusation of having committed the offences punishable under Sections 366-A and 376 IPC, by the police of Police Station Phillaur, District Jalandhar, in the manner depicted here- in-above.
3. Sequelly, instead of submitting to the jurisdiction of the trial Court, now the petitioner-accused has straightway jumped to prefer the present petition, to quash the impugned FIR(Annexure P-5) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.P.C.
4. The case set-up by the petitioner, in brief, insofar as relevant is that, although he(petitioner) was already married with some other girl, but since, he and the prosecutrix have changed their religion, embraced Islam and performed the marriage on 01.10.2012, so, he has been falsely implicated in the present case. It was alleged that after solemnization of the marriage, they moved an application(Annexure P-7) for protection to the SSP, Barnala, at the first instance. Then they have filed the protection-petition(Annexure P-3) in this Court. Therefore, no pointed offences are made out against him in this respect. On the strength of aforesaid grounds, the petitioner-accused sought to quash the impugned FIR(Annexure P-5) and all other subsequent proceedings arising Rani Seema S201310.08 11:01 I attest to the accuracy and integrity of this document High Court Chandigarh CRM No.M-3545 of 2013(O&M) 3 therefrom, in the manner indicated here-in-above.
5. The respondent-State refuted the claim of the petitioner and filed the reply, inter alia, pleading certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioner. It was alleged that the prosecutrix was minor and since, the petitioner was already married, so, he was not competent to perform second marriage with her. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. by the Magistrate. The matter was investigated and after completion of the investigation, final police report(challan) was submitted against the petitioner-accused in the trial Court. Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that the respondent-State has reiterated the contents, contained in the FIR(Annexure P-5). It will not be out of place to mention here that the respondent-State has stoutly denied all other allegations contained in the main petition and prayed for its dismissal.
6. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant petition in this context.
7. At the very outset, what cannot possibly be disputed here is that the Hon'ble Apex Court has authoritatively held, in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR1992Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka, 2008(2) R.C.R. (Criminal)92, that the criminal prosecution can only be quashed in rarest Rani Seema S201310.08 11:01 I attest to the accuracy and integrity of this document High Court Chandigarh CRM No.M-3545 of 2013(O&M) 4 of rare case at the initial stage as per the following conditions:- “(i) 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. (ii) 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 S.156(1) of the Code except under an order of a Magistrate within the purview of S.155 (2) of the Code. (iii)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. (iv) Where, the allegations in the F.I.R. 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 S.155(2) of the Code. (v) 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. (vi) 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. (vii) 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.”. 8. Not only that, again the Hon'ble Supreme Court in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R.(Criminal) 183, having interpreted the scope of section 482 Cr.PC, has ruled (para 16) as under:-
“16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself 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 process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.”
. Rani Seema S201310.08 11:01 I attest to the accuracy and integrity of this document High Court Chandigarh CRM No.M-3545 of 2013(O&M) 5 9. Ex facie, the argument of the learned counsel that, having embraced Islam, the petitioner has performed the marriage with the prosecutrix, so, no pointed offences are made out against him, is not only devoid of merit but misplaced as well.
10. As is evident from the record that, the petitioner was earlier married with some other girl. He has kidnapped and committed rape on the prosecutrix. The mere fact that they were stated to have changed their religion and sought protection(Annexure P-3) from this Court, ipso facto, are not the grounds, much less cogent, to legalize their marriage and to exonerate the petitioner from the heinous offences of kidnapping and rape, particularly when, it has been specifically mentioned by the prosecutrix in the FIR that, the petitioner-accused has threatened her with dire consequences of elimination, in case, the matter was reported to anybody. In that eventuality, it has yet to be decided by the trial Court that the consent given by the victim or second marriage performed by the petitioner, was valid, genuine or otherwise. It cannot possibly be denied that there is every chance that she might have been pressurized by the petitioner-accused as well. Therefore, to my mind, no ground for quashing the impugned FIR(Annexure P-5) is made out, containing specific allegations of kidnapping and rape. This matter is no more res integra and is now well-settled.
11. An identical question came to be decided by the Hon'ble Apex Court in case Shimbhu and another Versus State of Haryana, 2013(10) SCALE595 Having considered the relevant provisions, it was ruled as under(paras 21 to 23):- Rani Seema S201310.08 11:01 I attest to the accuracy and integrity of this document High Court Chandigarh CRM No.M-3545 of 2013(O&M) 6 “Thus, the law on the issue can be summarized to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute. The power under the proviso should not be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation. Further, a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC. It is imperative to mention that the legislature through the Criminal Law(Amendment) Act, 2013 has deleted this proviso in the wake of increasing crimes against women. Though, the said amendment will not come in the way of exercising discretion in this case, on perusal of the above legislative provision and catena of cases on the issue, we feel that the present case fails to fall within the ambit of exceptional case where the Court shall use its extraordinary discretion to reduce the period of sentence than the minimum prescribed.”. 12. Meaning thereby, no ground for quashing the impugned FIR (Annexure P-5) in such cases of grave and heinous offences of kidnapping and rape(crime against society), is made out. The ratio of law laid down in the aforesaid judgments “mutatis-mutandis”. is applicable to the facts of the present case and is the complete answer to the problem in hand.
13. Moreover, it is now well settled principle of law that the High Court should not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained, are the functions of the trial Judge to do so. The High Court must be careful to see that its Rani Seema S201310.08 11:01 I attest to the accuracy and integrity of this document High Court Chandigarh CRM No.M-3545 of 2013(O&M) 7 decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. Reliance in this connection can be placed upon the judgment of Hon'ble Supreme Court in case U.P.Pollution Control Board v. Dr.Bhupendra Kumar Modi and another (2009) 2 SCC147 14. Above all, whether second marriage of the petitioner is valid, genuine or otherwise or what would be the effect of their conversion into Islam and all such intricate questions, which require determination by the trial Court, are to be decided by this Court, in the absence of any evidence in this respect, in the garb of petition under section 482 Cr.PC, then to me, the sanctity of the trial would pale into insignificance and amount to nullify the statutory procedure of trial as envisaged under the Code of Criminal Procedure, which is not legally permissible.
15. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
16. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed as such in the obtaining circumstances of the case. Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits of the main case, as the same has been so recorded for a limited purpose of deciding the present petition. September 30, 2013 (MEHINDER SINGH SULLAR) seema JUDGE Rani Seema S201310.08 11:01 I attest to the accuracy and integrity of this document High Court Chandigarh