Bhadari v. P.S. Silao, Distt
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1455 of 2012 ====================================================== Sudha Devi W/O Sri Ashok Kumar Singh, resident of Village- Pawa, P.S.- Deepnagar, District- Nalanda 1. The State of Bihar 2. Khusbu Kumari, daughter of Sudhir Singh, resident of village- Bhadari, Versus P.S. Silao, Distt.- Nalanda. .... .... Petitioner/s .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Nawal Kishore Singh, with Mr. Ravi Bhushan Singh For the Opposite Party No.1 : Mr. Ashok Kumar Singh No.1, APP For the Opposite Party No.2 : None. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER 5 22-11-2013
Legal Reasoning
contention, he has placed reliance on the judgment of this Court in the cases of Dr. Ashok Kumar Jha vs. State of Bihar [2012(3) PLJR 91] and Kamlakant Sinha Vs. State of Bihar [2012(3) PLJR 501]. In order to buttress the aforesaid points he has referred to certain documents, which have been brought on record by way of supplementary affidavit. 4. Learned Additional Public Prosecutor appearing on behalf of the State of Bihar has stoutly opposed the prayer and has submitted that prima facie a case under Sections 366, 366A and 376 read with Section 120B and 34 of the Indian Penal Code is made out against the accused persons including the petitioner, therefore, the order impugned does not require any interference by this Court. It is further contended that victim O.P. No.2, being a minor, offences under Section 9,10 and 11 of The Prohibition of Child Marriage Act, 2006 is clearly made out against the petitioner and other accused persons. 5. After having heard the parties and on consideration of the materials available on record, this Court finds that the opposite party no.2, admittedly a minor girl aged about 14-15 years, lodged an FIR vide Annexure-1 giving rise to Deepnagar P.S. Case No. 36 of 2011 with an allegation that she was kidnapped by the accused persons including her own relation and subsequently she Patna High Court Cr.Misc. No.1455 of 2012 (5) dt.22-11-2013 3/5 was forcibly married with co-accused Ashok Kumar Singh, a very elderly person aged about 55-60 years. It is also alleged in the FIR that the aforesaid co-accused Ashok Kumar Singh forcibly made physical relationship with her and she was subjected to forcible sexual intercourse. It is the case of the informant- O.P. No.2 that she wanted to flee away from that place, but she was kept in illegal confinement by the accused persons for about two months. Subsequently, she succeeded in fleeing away from that place and lodged the aforesaid criminal case. It is not in dispute that the case was thoroughly investigated by the policed and thereafter, charge sheet was submitted for the offences alleged against the accused persons including the petitioner. The victim- Opposite Party no.2 was examined by the medical- board, where her age was assessed to be 16-17 years and allegation of rape was found to be true. On the basis of the aforesaid materials, the learned Chief Judicial Magistrate has taken cognizance by the impugned order dated 18.10.2011 for the offences mentioned above. 6. It is true that the petitioner, being a lady, she cannot be prosecuted for the offence under Section 376 IPC, but then she can be prosecuted for the offence of kinapping and criminal conspiracy punishable under Section 366 and 120B I.P.C. She can also be prosecuted for offences under Sections 10 and 11 of The Prohibition of Child Marriage Act, 2006. Recently the Hon’ble Apex Court in the case of Umesh Kumar vs. State of Andhra Pradesh [2013(4) PLJR 284 (SC)] has once again considered the scheme and scope of Section 482 Cr. P. C. after taking into consideration the large number of previous judgments of the Hon’ble Apex Court and has laid down the law in paragraph-12 of the aforesaid judgment, relevant portion of which is reproduced Patna High Court Cr.Misc. No.1455 of 2012 (5) dt.22-11-2013 4/5 herein below:- for “The scope of Section 482 Cr.P.C. is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Cr.P.C.; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is trial. Any essentially a matter document filed along with the petition labelled as evidence without being tested and proved, cannot be examined. Law does not prohibit entertaining the petition under Section 482 Cr. P. C. for quashing the charge-sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the the application merely on ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the court should not be legitimate stifle exercised prosecution but can be exercised to save the accused to undergo the agony of a criminal trial”. (Emphasis is of mine) the to 7. Admittedly, the informant (victim) is a minor girl. She was kidnapped by the accused persons and was subjected to rape. The documents produced by the petitioner at this stage Patna High Court Cr.Misc. No.1455 of 2012 (5) dt.22-11-2013 5/5 cannot be treated as evidence and are required to be tested at the appropriate stage of trial by the learned trial court and on the basis of these documents, the order taking cognizance and the criminal prosecution against the petitioner cannot be quashed in view of the law laid down by the Hon’ble Apex Court, as referred to above. 8. In the aforesaid facts and circumstances, the application has to fail and is, accordingly, dismissed. 9. The order of stay passed on 13.03.2012 by a Bench of this Court stands vacated. 10. Let this order be communicated to the learned court below forthwith, with a direction to proceed further in accordance with law. (Birendra Prasad Verma, J) BTiwary/-
Arguments
Heard learned counsel for the petitioner and the learned Additional Public Prosecutor appearing on behalf of the State. However, despite service of notice, opposite party no.2 has chosen not to appear. 2. The petitioner has filed the present petition under Section 482 Cr. P. C. invoking the inherent powers of this Court for quashing the order dated 18.10.2011 passed in Deepnagar P.S. Case No. 36 of 2011dated 05.03.2011, corresponding to Trial No. 3012 of 2011 by the learned Chief Judicial Magistrate, Nalanda at Biharsharif, whereby cognizance has been taken for offences under Sections 366, 366A, 376, 120B and 34 I.P.C as also under Sections 9,10 and 11 of The Prohibition of Child Marriage Act, 2006, and the case has been transferred to the court of the learned S.D.J.M., Biharsharif, Nalanda for trial and disposal. 3. Learned counsel for the petitioner submits that the present criminal prosecution is a malicious one and on the face of Patna High Court Cr.Misc. No.1455 of 2012 (5) dt.22-11-2013 2/5 it, allegation disclosed in the FIR vide Annexure-1 appears to be absurd and improbable and, therefore, it is liable to be quashed by this Court. It is contended that the petitioner happens to be the wife of main accused Ashok Kumar Singh @ Ashok Singh, therefore, offences under Section 366A and 376 IPC are not attracted against her. According to him, allegations with respect to other offences are false and concocted one. In support of his above