Nirmala Devi vs State of U.P.

D.C. Srivastava, J.—Heard learned Counsel for the Petitioner and learned A.G.A. The petition can be finally disposed of at this stage.

The prayer in this petition u/s 482, Code of Criminal Procedure is for quashing the entire proceedings in Criminal Case No. 539 of 1996 under Sections 363, 366, 368 and 406, I.P.C. pending in the Court of C.J.M., Hathras, District Aligarh.

There is no specific prayer in the petition for quashing the charge-sheets. Two charge-sheets were submitted on two different dates, one against two accused Babloo and Anil and the other against the Petitioner whose name is Nirmala Devi alias Urmila.

F.I.R. (Annexure 4 to the petition) has been examined. In this F.I.R., Babloo and Anil are named as accused and prima facie commission of offence against them is disclosed in the F.I.R.

It has been contended by the learned Counsel for the Petitioner that this F.I.R. is mala fide and it discloses commission of no offence. Several documents have been filed to show that the prosecutrix was major on the date of occurrence and that she went in the company of two named offenders of her own free will and in view of this consent, no offence u/s 366, I.P.C. is made out because evidently the prosecutrix was major.

It was rightly objected by the learned A.G.A. that the defence cannot be seen in proceedings u/s 482, Code of Criminal Procedure.

Learned Counsel for the Petitioner has, however, cited two Supreme Court decisions in support of his contention that the defence can be seen even in these proceedings.

The first case is P.S. Rajya v. State of Bihar 1996 (4) SC 455. I have carefully gone through this judgment and I am afraid that the Hon''ble Supreme Court has anywhere laid down in this case that the High Court in exercise of inherent jurisdiction u/s 482, Code of Criminal Procedure can look into the defence. On facts also, this case is distinguishable. What happened in this case was that the Appellant was departmentally charge-sheeted. Departmental enquiry proceeded and the enquiry was conducted by Central Vigilance Commission, detailed report was submitted which was considered by the Union Public Service Commission which agreed with the said report. The President of India also endorsed these two reports and ultimately the Appellant in that case was exonerated. It was a case mainly regarding the valuation of the house alleged to have been constructed by the Appellant from funds beyond his legitimate source of income. On the subsequent complaint, a criminal prosecution was also lodged. The criminal prosecution was challenged and it was alleged that since on the same charge, the Appellant was departmentally exonerated, there is no use in proceeding against him in the criminal prosecution. This contention was accepted by the Hon''ble Supreme Court and not that it was held that defence can be seen at this stage if in a proceeding u/s 482, Code of Criminal Procedure.

The other case is Cosato Fernandes v. State of Bombay 1996 JIC 562 (SC). In this case also, it was nowhere laid down that the High Court while exercising Jurisdiction u/s 482, Code of Criminal Procedure can consider the defence of the accused Petitioner. On the other hand, the question involved in this case was regarding claim of protection u/s 155 of Customs Act. The prosecution u/s 302, I.P.C. was quashed but not after considering the defence. Moreover, it was a case of appeal and not of proceedings u/s 482, Code of Criminal Procedure.

The plea of consent and majority of the prosecutrix can be raised at the time of trial. Two charge-sheets have been submitted after collecting evidence. The statement of prosecutrix u/s 161, Code of Criminal Procedure shows that the Petitioner was although present in her house and the prosecutrix was detained in the said house against her will for 8 to 10 days and was raped several times by Babloo who is none else than the son of the Petitioner. In these circumstances, it cannot be said that the submission of charge-sheets, inter alia u/s 368, I.P.C. against the Petitioner is not justified.

Regarding marriage of the prosecutrix with Petitioner''s son Babloo, the statement of the prosecutrix u/s 161, Code of Criminal Procedure tells entirely a different story. Medical examination was not conducted on the request of the police after recovery of the prosecutrix but it was a case of private medical examination. Consequently, these two different stands have to be examined by the trial court at length and not by this Court at this stage.

In the result, I do not find any good ground for quashing the charge-sheets or for quashing the criminal case pending in the Court of A.C.J.M., Hathras, district Aligarh. The petition is accordingly dismissed.