1. This Criminal Misc. Application under Section 482 Cr.P.C. has been preferred with prayer to quash the entire proceeding of Case No. 3363 of 2012 (State Vs. Mauni Baba), under Sections 363 and 366 I.P.C., Police Station-Highway, District-Mathura pending in the court of Additional Chief Judicial Magistrate, Mathura and stay the further proceedings.
2. I have heard learned counsel for the parties.
3. Learned Senior counsel Shri A.B.L. Gour, has submitted that since the continuance of the proceedings would be an abuse of the process of the court, hence no useful purpose would be solved in continuing with the proceedings of Case No. 3363 of 2012 (State Vs. Mauni Baba) under Section 363 and 366 I.P.C., Police Station-Highway, District Mathura.
4. Before coming to the merits of the application the law laid down by Hon'ble Apex has to be looked into. In this regard learned counsel for the complainant has argued that the court should be very cautious while exercising jurisdiction under Section 482 Cr.P.C. No intricate questions can be decided in jurisdiction exercised under Section 482 Cr.P.C.
5. As far as the inherent powers of the court are concerned, the inherent powers of the High Court have been laid down by the Apex Court in AIR 1989 Supreme Court 1, State of Bihar Vs. Murad Ali Khan and others, in which it has been held as under:-
"6. The second-ground takes into consideration the merits of the matter. It cannot be said that the complaint does not spell-out the ingredients of the offence alleged. A complaint only means any allegation made orally or in writing to a Magistrate. with a view to his taking action, that some person, whether known or unknown, has 'committed an offence.
It is trite jurisdiction under Section 482 Cr.P.C. which saves the inherent power of the High court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet do not in law constitute or spell-out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not."
In Municipal Corporation of Delhi v. R.K. Rohtagi, [1983] 1 SCR 884 at p. 890:(AIR 1983 SC 67 at p.70) it is reiterated:
"It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code."
In Municipal Corporation of Delhi v. P.D. Jhunjunwala, [1983] 1 SCR p. 895 : (AIR 1983 SC 158 at p. 159) it was further made clear:
" . . . As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. We have already held that for purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further."
6. The scope of Section 482 has also been given in AIR 2004 Supreme Court 517, State of M.P. Vs. Awadh Kishore Gupta and others, in which it has been held that the High Court cannot appreciate the evidence to conclude whether the material produced are sufficient or not for convicting the accused. The inquiry as to the probability, reliability, genuineness of allegations in the F.I.R. is totally beyond the scope of Section 482 as has been laid down in 2000 CRLJ 2256, Udaipal Singh and others Vs. State of U.P. and another.
7. In the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi (1983) 1 SCC 1, this Court relying upon the earlier decision in Madhu Limaye case (supra) observed:-
"5. After the coming into force of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "present Code"), there was a serious divergence of judicial opinion on the question as to whether where a power is exercised under Section 397 of the present Code, the High Court could exercise those very powers under Section 482 of the present Code. It is true that Section 397(2) clearly bars the jurisdiction of the court in respect of interlocutory orders passed in appeal, enquiry or other proceedings. The matter is, however, no longer res integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye v. State of Maharashtra (1978) 1 SCR 749 where this Court pointed out that Section 482 of the present Code had a different parameter and was a provision independent of Section 397(2). This Court further held that while Section 397(2) applied to the exercise of revisional powers of the High Court, Section 482 regulated the inherent powers of the court to pass orders necessary in order to prevent the abuse of the process of the court. In this connection, Untwalia, J. speaking for the Court observed as follows: [SCC para 10, pp. 555-56: SCC (Cri) P. 15] "On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub- section (2) of Section 397 also, 'shall be deemed to limit or affect the inherent powers of the High Court'. But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers...."
8. Learned counsel for the applicant has submitted that the victim married the applicant on her own free will. She has lived with the applicant as his wife. Two sons were born out of wedlock of the applicant and the victim, who were having love affairs, due to which on 25.7.2003 victim (wife of the applicant) left her paternal home to marry the applicant. The applicant and victim were married. In support copies of the identity cards of both the sons have been annexed as Annexure 3 to the affidavit. Further it has been submitted that vast properties were purchased for the victim by the applicant and the victim and her family members were extended all hospitalizes of life as is evident from the annexures filed to the affidavit.
9. It has also been submitted that the victim was using many luxary cars and in the certificate of Registration of Honda Siel Cars bearing Registration No. UP 65 AU 3225, the name of the applicant is mentioned to be as the husband of the victim. In the same manner in the insurance cover note of LXL Alto Car, the address of the victim has to be given to be A-44 Swastik Tawar Lanka, Varanasi, which was purchased by the applicant in the name of the victim.
10. It has also been contended that the victim was holding huge amounts in her bank deposits and was travelling by Air, but since the applicant developed blood cancer, he was diabetic with Chronic Myeloid Leukemia, hence the victim left her ailing husband, although, she was the married wife of the applicant.
11. It has also been contended that the statement of the victim was recorded under Section 164 Cr.P.C. before the Magistrate. In the present case copy of which is Annexure 10 in which she has stated that she has married the applicant and she went on her own accord, besides she stated her age to be 30 years as on 16.7.2014. Thus, she was a major, hence no case under Section 363 and 366 I.P.C. could be made out inasmuch as even the copy of the Passport and Pan Card, which are Annexure 7 to the affidavit, show the date of birth of the victim to be 26.7.1982. Hence, since at the time of the occurrence also she was major and had deposed that she went on her own accord with the accused. Hence, proceedings in the case tantamount to abuse of the process of law.
12. Learned counsel for the informant and A.G.A. have submitted that the F.I.R. was lodged in the year 2003 and since then the accused is absconding. Inspite of the fact that process under Sections 82 and 83 Cr.P.C. have been issued against the applicant, who is misusing the process of law. It has further been submitted that even letters were written to the Principal Secretary Home, for arresting the applicant.
13. Learned counsel for the applicant while relying on Juhi Devi Vs. State of Bihar and Others (2005) 13 SCC Page 376, but this does not help the applicant inasmuch as in the case before Hon'ble Apex Court the matter was regarding the stay of the victim at the remand home. Learned counsel for the applicant has also placed reliance upon 2014 (86) ACC Page 730 Asmat Jahan and Another Vs. State of U.P. In which it has been stated that the procedure mentioned in the Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2007 is not meant for determination of the age of the prosecutrix.
14. Learned A.G.A. and learned counsel for the complainant have placed reliance on (2013) 14 SCC Page 637 Mahadeo Vs. State of Maharashtra and Another, in which it has been held that for determining the age of the victim the same-yard stick can be followed by the court as mentioned in Rule 12. In criminal Appeal No. 1209 of 2010 Jarnail Singh Vs. State of Haryana decided on 1st July, 2013 the Hon'ble Apex Court has laid down :-
"Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime.
Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above."
15. This court is staying its hands to give any finding on any intrinsic question of fact, but from the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court while exercising jurisdiction under Section 482 Cr.P.C. At this stage, only prima facie case is to be seen in the light of the law laid by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.
16. Learned counsel for the complainant has also submitted that the co-accused Bacchu has already been convicted. As per the High School certificate of the victim, which is Annexure 4 to the counter affidavit the date of birth of the victim has been mentioned to be 20.9.1989, due to which at the time of the occurrence the age of the victim comes to be about 14 years.
17. Thus, on the basis of the aforesaid discussions, the application has no force and is liable to be dismissed.
18. The application is, accordingly, dismissed.
Order Date :- 9.2.2016 Anurag/-