Criminal Misc. No. M-11582 of 2010 v. State of Punjab

Judgment

2. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.S. Bhalla, Advocate, for the petitioner. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 190, dated 02.12.06, under Sections 363 and 366 read with Section 34 IPC, P.S. City Tarn Taran, and the subsequent

proceedings, arising out of the same, has been filed by the petitioner (prosecutrix).

2. The facts, in brief, are that, on 15.11.06, Rajesh Kumar one of the sons of the complainant, was admitted, in Ajit Hospital, on account of injuries. It was stated that, as such, the complainant and his wife were looking after him, in the hospital. It was further stated Criminal Misc. No. M-11582 of 2010 2 that, Rajesh, the other son of the complainant, had gone to his shop, whereas, the prosecutrix, was alone, in the house, at the relevant time. It was further stated that, in the absence of the complainant, Dalip Kumar, accused and his co-accused came to his house and took his daughter (prosecutrix) alongwith them on a motorcycle. It was further stated that, while Dalip Kumar and his co-accused alongwith the prosecutrix, were going away, Narinder Kumar, the other son of the complainant and his friend namely Jabb, saw them. It was further stated that, even Narinder Kumar, called them to stop, but in vain. It was further stated that, in the evening, when the complainant, returned home, he was informed by his son, that Dalip Kumar and his co-accused, took away the prosecutrix alongwith them. It was further stated that, in the first instance, on account of being ashamed, the complainant, did not report the matter, to the Police, and searched his daughter, but to no avail. Ultimately, the aforesaid FIR, was got registered, by the complainant/respondent No. 2.

3. I have heard the Counsel for the petitioner, and, have gone through the documents, on record, carefully.

4. The Counsel for the petitioner, submitted that, the petitioner, was major, at the relevant time, as her date of birth, is

10.04.90. He further submitted that, the petitioner, fell in love with Dalip Kumar and decided to marry him. He further submitted that, when the petitioner, expressed her desire, to marry Dalip Kumar, before her parents, the same, was turned down by them. He further submitted that, thereafter, the petitioner, decided to leave the house Criminal Misc. No. M-11582 of 2010 3 of her parents and came to live with Dalip Kumar. He further submitted that, against the wishes of her parents, the petitioner, performed marriage with Dalip Kumar, and started living with him, as his wife. He further submitted that the petitioner, sought protection, from this Court, by filing an application, under Section 482 Cr.P.C., but, she was not granted the same. He further submitted that, respondent No. 2, i.e. the father of the petitioner, lodged a false report. He further submitted that the petitioner, has given birth to a child. He further submitted that, the offences, punishable under Sections 363 and 366 read with Section 34 IPC, are not constituted.

5. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioner, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is evident, that earlier, Gamma @ Dalip Kumar and Veera Sharma, accused, filed a petition, under Section 482 Cr.P.C., for quashing the instant FIR, which was dismissed, on merits, vide order dated 25.02.2010. It is evident, that the date of birth of the petitioner, as recorded, in the FIR, is

10.04.90. The alleged occurrence, took place, on 15.11.06, when she was below 18 years of age, and, as such, was minor. As such, the consent of the petitioner, at that time, was of no consequence, in the eyes of law, she being minor. From the allegations, contained in the FIR, it was prima-facie established, that the accused, allegedly kidnapped the petitioner (prosecutrix), with an intent to induce her to illicit intercourse. The disputed facts, as to whether, the prosecutrix, Criminal Misc. No. M-11582 of 2010 4 herself went with the accused, or, was given allurement, or, was forced, to accompany them, are to be proved, during the trial of the case. The disputed facts, cannot be decided, at this stage. In Surendra Nath Mohanty and another Vs. State of Maharashtra 1999(2) RCR (Criminal) 683 (S.C.), a three Judge Bench of the Apex Court, held that the High Court cannot order the composition of offences, which are non-compoundable, as per Section 320 Cr.P.C., in exercise of its inherent powers, under Section 482 Cr.P.C. In the case of Inspector of Police Vs. B. Raja Gopal and Others (2002)9 SCC, 533, the Apex Court, while setting aside the High Court order of quashing the criminal proceedings, held that merely because the parties had compromised the case, and the payment was made, in proceedings, under Sections 420, 468 and 471 of the Indian Penal Code, the premature quashing, made by the High Court, was not in accordance with law. While defining the powers of the High Court, under Section 482 Cr.P.C., the Apex Court summed up its conclusions, in case, State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and others 2003(2) RCR (Criminal) 860 (SC), in para Nos.28 and 29, which read as follows : "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the Criminal Misc. No. M-11582 of 2010 5 State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms propose to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal is disguise." Criminal Misc. No. M-11582 of 2010 6

29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However, as is set out in Satya Narayanan Sharma's case (supra) this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of the justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without Criminal Misc. No. M-11582 of 2010 7 jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."

6. In view of the enunciation of the principle of law, made in the aforesaid cases, the power under Section 482 Cr.P.C., cannot be exercised, in this case, as there is a specific bar created by Section 320 Cr.P.C., for the composition of offences, punishable under Sections 363 and 366 of the Indian Penal Code. The crime allegedly committed by the accused, is not only against the society, but also against the public policy. If the power, under Section 482 Cr.P.C., is exercised, in such like cases, where the prosecutrix was minor, at the time of alleged occurrence, then the accused, shall feel encouraged, in indulging into such like crimes. Exercise of power, under Section 482 Cr.P.C., in such like cases, will create lawlessness, in the society. No ground, therefore, is made out for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings. Criminal Misc. No. M-11582 of 2010 8

7. Even, in my considered opinion, the petitioner, who is the prosecutrix has no locus standi to file the instant petition for quashing. The aggrieved persons are the accused, against whom the FIR was registered. They filed Criminal Misc. No. M-5266 of 2009, for quashing the FIR, which was dismissed, on merits, on

25.02.2010. The relief, which the accused could not obtain, by filing a petition, under Section 482 Cr.P.C., is sought by putting up the prosecutrix as a petitioner. What the accused, could not achieve directly, they wanted to achieve indirectly, by adopting a novel method. This petition, is, thus, nothing but a classic example of mockery of justice. The petition is also not maintainable, on account of this reason.

8. For the reasons recorded above, Criminal Misc. No. M-11582 of 2010, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

9. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned.

26.04.2010 Amodh (SHAM SUNDER) JUDGE