Vijay Singh vs State of M.P.

D.K. Paliwal, J.—With the consent of learned counsel for the parties, they are heard finally. This petition u/s 482 of Cr.P.C. is for quashing the proceedings pending against the petitioner in criminal case No. 11577/2011 before the learned JMFC, Gwalior.

The brief facts of the petition are that complainant lodged a report that on 15.2.2009 at about 1 p.m. she alongwith her niece was in the house. Vijay Singh, Ramsiya, Kalyan and Ballu came to her house and caught hold of Seema. Thereafter, they forcibly took the prosecutrix to a room where gang rape was committed with her. During the incident, her blouse was torn and bangles were broken and she also received some injuries. On the basis of the report lodged by the complainant, a case was registered against the petitioner and co-accused. During investigation, complainant was sent for medical examination, statements of the witnesses were recorded u/s 161 of Cr.P.C. and DNA test was also held. After investigation, the police has found that a false report has been lodged, therefore, E.R. was filed. Thereafter, the complainant has filed a private complaint before the JMFC, Gwalior. The learned Magistrate after recording the statements under Sections 200 and 202 of Cr.P.C., dismissed the complaint. Against which, the complainant has preferred a revision before the Fourth ASJ, Gwalior, in which petitioner and co-accused were not served and ex-parte order was passed whereby the order passed by the learned Magistrate was set aside and matter was remanded for passing fresh order after taking additional evidence, if it is produced. Thereafter, the learned Magistrate has taken cognizance against the petitioner and co-accused u/s 376(2)(g) of IPC. Being aggrieved, the petitioner has preferred this petition u/s 482 of Cr.P.C.

It is submitted by the learned counsel for the petitioner that petitioner is 68 years old person and is not competent to have sexual intercourse. Police has also got the DNA test of the petitioner and other co-accused persons conducted and the report of the test was negative, therefore, the investigating agency has found the case to be suspicious. It is further submitted that even the learned JMFC after holding enquiry under Sections 200 and 202 of Cr.P.C. has dismissed the complaint holding that case is suspicious. Therefore, the proceedings pending against the petitioner deserve to be quashed.

Learned counsel for respondent No. 1 as well as learned Panel Lawyer for respondent No. 2/State have submitted that the learned Magistrate has not committed any illegality in taking cognizance against the petitioner.

Smt. Girja in her statement recorded u/s 200 of Cr.P.C. has stated that Vijay Singh, Ramsiya, Kallu and Ballu entered in her house and tried to take away her niece by force. When she intervened, she was taken to a room where Vijay Singh, Ramsiya, Kallu and Ballu have committed rape with her. She resisted and during this, she received injuries on her person. Seema has corroborated the statement of Girja. According to Harisingh and Shobharam, when they returned from the market, Seema and Girja narrated the incident to them. From the report submitted by the police Bijauli, it appears that on enquiry, it was found that the allegation of gang rape is false.

It is pertinent to mention that learned JMFC vide order dated 10.8.2011 has dismissed the complaint. This order of dismissal of complaint was challenged before Fourth ASJ. Gwalior, in Criminal Revision No. 418/2011. The learned Fourth ASJ by setting aside the order, remanded the matter with the direction that if complainant wants to adduce any evidence, opportunity be given to her and thereafter a fresh order be passed. It is noteworthy that in the revision the petitioner and co-accused have been impleaded as a party, however, no notice has been issued to them. Later on, the learned Magistrate has registered the complaint against the petitioner and co-accused u/s 376(2)(g) of IPC.

From the perusal of the order taking cognizance, it appears that it is not mentioned in it that from the evidence of complainant and witnesses examined in support of the complaint, there exists some grounds to proceed against the petitioner and co-accused u/s 376(2)(g) of IPC, therefore, the case is registered against the accused persons under the aforesaid section. Nowhere it is mentioned that in the light of the order passed in Criminal Revision No. 418/2011, any other evidence was adduced. Therefore, cognizance has been taken by the learned Magistrate on the same material upon which earlier it has refused to take cognizance. In the aforesaid circumstances, continuance of the proceedings against the petitioner would be an abuse of the process of the Court. Consequently, this petition is allowed and the proceedings pending against the petitioner in criminal case No. 11577/2011 before the learned JMFC, Gwalior, are quashed.