Uma Uikey vs State Of Madhya Pradesh & Another

The objector has filed an application (I.A.No.8088/2018) to participate in the case as an intervenor.

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.

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 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.

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.

It would be appropriate to mention here that, Jai 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.

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.

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

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 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.

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.

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.

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.

On behalf of the intervenor, it is claimed that intervenor is the “aggrieved person†in the present case, therefore, the applicant be permitted to

intervene in the proceeding.

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.

Heard learned counsel for the parties at length.

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.

The issue needs to be addressed is that whether it makes sense to allow the third party to participate in the proceeding ?

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 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 ?

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-Ã -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;

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.â€​

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

it 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.â€​

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.

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. 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.

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.

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.

Therefore, the question posed by this Court is answered in affirmative.

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 “intervenorâ€​.