IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.44808 of 2008 SHAMBHU PRASAD @ SHAMBHU LAL Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. Indradeo Prasad, Advocate For the State : Mr. Nawal Kishore Prasad, APP O r d e r 10 11.08.2010 The petitioner has challenged the order, dated 20.9.2008 passed by the Chief Judicial Magistrate, Nawadah, whereby he remanded him to judicial custody in Rajauli P.S. Case No.86 of 2008, arising out of Complaint Case No.485 of 2008, registered under sections 376 of the Penal Code and section 3(x) of the SC/ST Act. The Respondent no.9, one Mamta Devi initially filed a complaint on 15.5.2008, before the Chief Judicial Magistrate, Nawadah, bearing Complaint Case No.485 of 2008, which was referred to the police under section 156(3) Cr.P.C., for institution of regular F.I.R. and investigation. The informant in her complaint stated that on 11.5.2008, at about 10 A.M., she had come to Rajauli Bus stand for going to Nawadah. In the meanwhile, the petitioner who is resident of Laund, P.S. Sirdala, District Nawadah and was riding a motor cycle, came near her and enquired as to where she was going. On coming to know that she too was going to Nawadah, he offered her lift on his bike. As she knew the petitioner Shambhu Prasad from before, she agreed to his offer to come on his motor cycle. The informant alleged that as petitioner speeded his bike, 2 she could not make out the ways. After some time, the petitioner Shambhu Prasad stopped the motor cycle at a lonely place in village Ghasiadih within Rajauli block. At that time it was 12 noon. Taking advantage of loneliness of the place, he forcibly lifted her to nearby Badhar and committed rape. The petitioner submits that the prosecution case is maliciously concocted and when he came to learn about his false implication, he filed a detailed representation to the D.G.P. Bihar on 3.7.2008 contained in Annexure-4. On 4.7.2008 and 7.7.2008 he personally handed over a written application to the D.I.G. Magadh Range, Gaya as well as Chief Minister, Bihar. He also filed a Criminal Writ application, bearing Cr.W.J.C.No.621 of 2008, in this court for re-investigation, which was dismissed with certain observations vide order dated 26.2.2009. The petitioner thereafter also filed an application before the Chief Judicial Magistrate, Nawadah dated 28.7.2008 that the police has obtained an order of warrant of arrest as well as declaration of being an absconder, by suppressing material facts. A copy of the application dated 28.7.2008 filed before the Chief Judicial Magistrate, Nawadah in Rajauli P.S. Case No.86 of 2008 is annexed as Annexure 3 to the writ application. The petitioner alleges that while he had come to this Court on 19.9.2008, for making pairvi in Cr.W.J.C.No.621 of 2008 (which has been wrongly typed as 629 of 2008 in order dated 7.7.2010), he was arrested from the south western gate of the High Court. He was produced before the Chief Judicial Magistrate, 3 Nawadah on 20.9.2008, on which date he was remanded to the judicial custody. The petitioner filed an application before the Chief Judicial Magistrate, Nawadah from jail, detailing his false implication. He also made representation to the D.G.P. Bihar on 22.9.2008, contained in Annexure-5. In the meantime, the police submitted charge sheet bearing No.107/08, dated 17.10.2008 under section 376 of the Penal Code and section 3(x) of the SC and ST Act. A copy of charge sheet has been annexed as Annexure-A to the State affidavit. The Chief Judicial Magistrate, Nawadah took cognizance of offence on 20.12.2008. Being aggrieved by the aforesaid order taking cognizance, the petitioner filed Criminal Revision No.230 of 2009. On 3.3.2009 this court issued notice to the informant Mamta Devi, who appeared and filed a counter affidavit. In her affidavit, she denied of having filed any case of rape or any rape being committed or any medical examination having been conducted on her. In view of the affidavit of the informant, this court directed for further investigation which was to be completed within two months and the Criminal Revision was disposed of in the aforesaid term. The petitioner in the meantime filed a Contempt application as further proceeding was not completed within two months. In the show cause, the respondents annexed the affidavit sworn by one Meena Devi wife of late Chamari Paswan, resident of Kunharua, P.S.Rajauli, District Nawadah stating that on account 4 of public shame, she filed the instant complaint under section 376 of the Penal Code in the name of Mamta Devi wife of Baliram Paswan of village Rajauli. She stated that her husband is dead and her son Dharmendra Kumar has been appointed as Chawkidar in local police station, in place of her late husband Chamru Paswan. A copy of the affidavit annexed to the show cause, is also annexed as Annexure-23 in the I.A.No.86 of 2010, filed by the petitioner. In the I.A. No.86 of 2010, the petitioner has prayed for adding further prayer of quashing of entire criminal prosecution on the ground that Mamta Devi, who filed the Complaint Case No.485 of 2008 giving rise to Rajauli P.S. Case No.86 of 2008, dated 28.6.2008 under section 376 of the Penal Code and section 3(x) of the SC and ST Act, is a fake lady. In support of his contention, the petitioner stated that the informant in her counter affidavit filed in Criminal Revision No.230 of 2009 had denied having filed any case against the petitioner much less under section 376 of the Penal Code. The police in the Contempt application bearing M.J.C.No.2132 of 2009 filed an affidavit sworn by one Meena Devi wife of Chamru Paswan, who stated that on account of public shame she filed the case in another name. He submits that falsity of prosecution case is apparent from the fact that age of Meena Devi would be at least 40 to 45 years as she admittedly has a grown up employed son, whereas the age of woman, whose medical examination is incorporated in the case diary, is aged just above 19 years. The medical report has been annexed as Annexure-12. The petitioner further submits that as per 5 the case diary, there is only one corroborative witness namely Sajju Singh, who stated that he saw the victim going on motor cycle of the petitioner from Rajauli Bus stand on the date of occurrence. However, the fact is that said Sajju Singh, on the relevant date, was in judicial lock up. Thus, the petitioner submits that his remand in the case on 19.9.2008 is based on no materials and is fit to be quashed. In support of his submissions, he has relied upon decisions reported in the case of Joginder Kumar Vs State of U.P.& Ors, reported in 1994 SC 1349; Ajay Kumar Poddar Vs State of Bihar, reported in 2009(2) BLJ 135; Kailash Singh Vs State of Bihar, reported in 2009(2) BLJ 203; Md. Zahid Vs Govt. of N.C.P. Delhi, reported in 1998 Cr.L.J.2908 and Som Mittal Vs State of Karnataka, reported in 2008(2) CCSC 693. Counsel for the State submits that the F.I.R. disclosed cognizable offence under section 376 of the Penal Code against the petitioner and as such he was arrested and produced before the Chief Judicial Magistrate, Nawadah on 20.9.2008 for remand to judicial custody. He submits that there was ample material for his remand to judicial custody. At the stage of remand, the court has merely to ascertain whether there is an adequate ground for remand. At this stage, the court will not examine the matter meticulously to come to a decision whether the accused has been rightly or wrongly remanded. He further submits that after investigation of the case, charge sheet was submitted against the petitioner and cognizance has been taken. First of all I would take up the Interlocutory Application 6 bearing I.A.No.86 of 2010 for amendment in the prayer portion for adding further relief of quashing the criminal prosecution. In the facts and circumstances of the case, I deem it expedient to allow the amendment for addition of relief, for quashing of the criminal prosecution. Both the issue praying for quashing the remand order dated 20.9.2008 and for quashing the criminal prosecution are taken up together for disposal. It would appear from the record of the case that the F.I.R. was instituted on 28.6.2008. It is alleged in the F.I.R. that the petitioner committed rape on her. On the basis of the prosecution case, the police finding prima facie involvement of the petitioner in the case, arrested him on 19.9.2008 and produced him before the learned Magistrate on 20.9.2008. The learned Magistrate on the basis of the materials appearing in the prosecution case remanded him to judicial custody. It cannot be said that the prosecution case does not disclose a heinous and cognizable offence and there was no adequate ground for his remand. Thus, remand of the petitioner to judicial custody does not suffer from any illegality. The remand of an accused at the relevant time is to be considered on the basis of the materials on record and not on the basis of the subsequent materials which may come on record. The police after investigation submitted charge sheet in the instant case under section 376 of the Penal Code and section 3(x) of the SC/ST Act on 17.12.2008. The learned Magistrate took cognizance on 20.12.2008. The petitioner preferred Criminal Revision No.230 of 7 2009, against the order taking cognizance under section 376 of the Penal Code and section 3(x) of the SC/ST Act. The informant Mamta Devi filed counter affidavit stating that she has not filed any case, nor she was subjected to any rape, nor she was medically examined. In light of the affidavit of Mamta Devi, this court directed for further investigation under section 173(8) Cr.P.C. The police after further investigation submitted a report stating therein that one Meena Devi, out of public shame in fact had filed a complaint in the name of Mamta Devi. The petitioner states that one Sajju Singh has been set up as a corroborative witness. Even if it is assumed that Sajju Singh faked himself as witness, the prosecution case would not fall alone on that count, as conviction in case of rape is possible on the statement of victim itself, if it is unimpeachable otherwise. The petitioner in support of his contention has relied upon number of decisions noted above. I would now take up the cases one by one. In the case of Joginder Kumar (supra), the Hon’ble Apex Court was dealing with right of an arrestee e.g. the right to have some one informed about his arrest and his right to consult privately with lawyers, etc. The court also emphasized the corresponding duties of the police officer making arrest. The Hon’ble Apex Court further observed that the police officer making arrest must have some reasonable justification for doing so. He must be reasonably sure that the arrest is necessary and justified. Except in heinous offences, the arrest must be avoided as far as possible. It would be apt to quote relevant passage of 8 paragraph 24 of the judgment, which reads as under: “24……….It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave Station without permission would go”. The instant case is one under section 376 of the Penal Code and would fall in category of heinous crimes. The injury causes an inroad into privacy of a woman and brings shame and stigma to her and her family and society. The F.I.R. discloses commission of non bailable offence. Thus, the police was justified in arresting him. Nonetheless, not only the petitioner, but any person being arrested would be entitled to protection provided by our laws and guidelines laid down by the Hon’ble Apex Court. The police officials effecting arrest are duty bound to follow the directions contained in the case of Joginder Kumar (supra), failing which 9 they would become liable to be proceeded with. The petitioner has next relied upon in the case of Som Mittal (supra). In the aforesaid case, the Hon’ble Apex Court was considering the correctness of order taking cognizance under section 25 read with section 30(3) of Karnataka Shops Commercial and Establishment Act, 1961 by Metropolitan Magistrate. The High Court altered the cognizance into one under section25 read with section 30(1) of the Act, as against section 25 read with section 30(3) of the Act, passed by the learned Magistrate. The Hon’ble Apex Court in paragraph 10 has held that if there is grave miscarriage of justice and the accused is unnecessarily harassed and if it prima facie appears that trial would likely to end in acquittal, the inherent power under section 482 Cr.P.C. can be exercised to quash such prosecution. However, the Hon’ble Apex Court in paragraph11 of the aforesaid judgment cautioned that inherent power should be exercised very sparingly and with circumspection when it comes to quashing of criminal prosecution. The High Court will not be justified in embarking upon enquiry, as to the reliability or genuineness or otherwise of the allegation made in the F.I.R. or complaint. The High Court would not make an observation on seriously disputed question of fact taking its cue from affidavits which in such a situation would hardly provide any reliable materials. The High Court would also not ordinarily enquiry whether the evidence is reliable or not while the investigation is going on. It would also not embark upon the enquiry whether the 10 allegations in the complaint is likely to be established by evidence or not. It is true that the informant in her affidavit in Criminal Revision No.86 of 2008 stated that she has not filed any case under section 376 of the Penal Code and section 3(x) of the SC/ST Act, nor she has been medically examined. It has also come on record that one Meena Devi stated that she filed a case in the name of another woman on account of public shame. There also seems discrepancy in the age of woman who was medicially examined and that of one Meena Devi who stated that she has filed the case in the name of Mamta Devi. On the basis of these affidavits, it would not be appropriate to quash the prosecution case in view of the allegations leveled in the F.I.R. and materials coming in the charge sheet. The Apex Court in case of State of Bihar and another Vs P.P. Sharma, reported in 1991 SC 1260 has deprecated quashing of criminal prosecution on the basis of affidavits and documents brought thereof. The case laws relied by the petitioner in the case of Ajay Kumar Poddar (supra) would not be of any help to him as the same relates to the jurisdiction of the Judge trying an offence under sections 262, 265 and 326(3) Cr.P.C. The petitioner next relied upon the case of Kailash Singh (supra). In the aforesaid case, the informant lodged a case under section 304B/34 of the Penal Code, as her daughter was missing. The informant believed that the accused persons has killed her 11 KHAN A.F.R. daughter and disposed of her dead body. The police submitted charge sheet under section 364, 304B and 201/34 of the Penal Code. On coming to know that the girl was alive, the police prayed for alteration in the charge sheet. I am afraid that the factual aspect of the instant case is different, as in the instant case the informant herself alleged in the F.I.R. that she was raped. Lateron, she makes two different statements in her affidavit; in one affidavit she denies of having been raped and in other affidavit she does not deny of rape. She admits that she filed the case in the name of Mamta Devi on account of public shame. Thus she does not deny rape outright, though she has made deviations in her statements. At a stage, when charges have already been framed and even the stage of filing discharge petition under section 227 Cr.P.C. is over, the prayer to quash criminal prosecution in a case like section 376 I.P.C. is wholly misconceived. In such circumstances, the remedy available to the petitioner would be one of challenging the order framing charge itself. With the aforesaid liberty, this application is dismissed. (Samarendra Pratap Singh,J)