HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No.: 125 of 2006 Decided on: 16.5.2008 Satish Sharma and another ………Petitioners. Versus State of H.P. & another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioners: Mr.G.V. Rao and Mr.Chander Shekhar, Advocates. For respondent No.1: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J (Oral): This judgment shall dispose of the petition filed by the petitioner under Section 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing of FIR registered against them under Section 363 IPC in case No.255/11/06 (FIR No.33/2005) pending before the learned CJM, Solan. Briefly stated that facts of the case, as alleged by the petitioners, are that in August/September 2004, Ms.Chitrakshi Sharma, then aged about 16 years, younger sister of one Namita Sharma came to petitioner No.1 and informed that she was being constantly raped by her brother-in-law Dila Ram Mehta, the husband of her elder sister. The petitioners advised Chitrakshi _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Sharma to firstly inform her elder sister before any action was taken. Thereafter, a complaint was filed by Chitrakshi Sharma and FIR No.310/2004 was registered on 25.9.2004 under Section 376 IPC against the brother-in-law of the complainant, namely, Dila Ram Mehta. It was also alleged that the father of the minor had deserted the family and his wife had specifically mentioned in her Will that her minor daughters including Chitrakshi Sharma should not be handed over to B.K. Vashist, father of the complainant, and she fixed the responsibility of her guardianship on her eldest daughter Namita Sharma, who then was unmarried. The said Namita Sharma’s husband is alleged to have raped Chitrakshi, for which a case was registered and he was being tried. The petitioners have alleged that both the petitioners were witnesses in that case in favour of the prosecution and accordingly after five months, a false complaint was lodged by respondent No.2, the father of the minor, that these petitioners had allegedly kidnapped his daughter from the lawful custody of his father. On the basis of these allegations, the present FIR was registered for which the present petition was filed by the petitioners for quashing the same. I have heard the learned counsel for the petitioners and the learned Law Officer for respondent No.1 and have gone through the record of the case. The submissions made by the learned counsel for the petitioners were that in proceedings pending before this Court in a writ petition, the orders were passed by this Court in regard to her custody. A copy of the said order has also been placed on record by the petitioners. During the course of arguments, it was also argued by the learned counsel for the petitioners that there are observations of the court that the minor was not living with her father before she attained majority. It was, therefore, submitted by the learned counsel for the - 3 - petitioners that continuing of the proceedings before the learned trial Court will amount to abuse of process of the court. I have gone through the said order. There are no conclusions drawn by this Court in the writ petition that the girl was living with her father or not and some directions were in regard to the guardianship or where she should be kept prior to her attaining majority and after that, which shall be relevant in any proceedings initiated for appointment of her guardian. The learned Law Officer for the State, during the course of arguments, had referred to the testimony of one Vishesh Kumar from Haridwar, whose statement had been recorded by the police under Section 161 Cr.P.C., which suggests that both the petitioners had got admitted the girl in the said Ashram. A pertinent question has been raised by the learned Law Officer as to who had authorized the petitioners to take the minor girl to Haridwar and get her admitted there in the Ashram. I do not want to comment upon the said statement of Vishesh Kumar since it may prejudice the case of the petitioners at the time of hearing on charge before the learned trial Court. Needless to say, the girl was minor at the time when she was allegedly kidnapped. Her father, who is the natural guardian, alleges that she was living in her custody at that time. Once the girl was a minor and was allegedly living in the custody of her father, as per the assertions made in the complaint lodged with the police, it is for the court to consider as to the substance of the accusations made by the complainant in that case. No findings can be given in regard to the Will or other pleas raised by the learned counsel for the petitioner since these were in regard to the interim directions issued by this Court for the welfare of the child on some complaint of some women right activists. - 4 - The essential question which arises for consideration is as to whether the minor was kidnapped or was taken from lawful guardianship of her father at that time, which question is to be considered by the learned trial Court after considering the evidence placed on record. There is no dispute that this Court can exercise its powers under Section 482 Cr.P.C. but these powers are to be used sparingly and once the assertions made in the complaint lodged with the police show that a cognizable case was made out, these powers cannot be used by this Court at this stage and it is for the court to consider the evidence and all the pleas raised by the petitioners at the time of consideration of charge. The learned Law Officer has relied upon a decision of the apex court in State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604. Their Lordships have given 7 circumstances in which these powers can be exercised under Section 482 Cr.P.C. A perusal of para 108 of the said judgment shows that it was observed as under: “1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. 3) Where the unconvroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer - 5 - without an order of a Magistrate as contemplated under S.155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” It is, therefore, clear from the above discussion that in view of the fact that a cognizable offence was made out from the assertions made in the complaint and the police had registered the case, which has resulted in filing of the challan as against the petitioners, the evidence is required to be considered by the learned trial Court at the time of consideration of charge but the powers under Section 482 Cr.P.C., in the facts and circumstances of the case, cannot be exercised so as to hold that no prima facie case was made out or the FIR is liable to be quashed by this Court. In view of the above discussion, it is clear that there is no merit in the petition filed by the petitioners and the same is dismissed. However, the petitioners are at liberty to raise all the pleas raised in this petition before the learned trial Court at the time of framing of charge. In case they are aggrieved by the order qua framing of charge passed by the learned trial Court, they can challenge the same again. However, it is made clear that the observations made by this Court, while disposing of this petition, shall not be considered by the - 6 - learned trial Court as any opinion expressed on merits of the case. The parties are directed to appear before the learned trial Court on 7th July, 2008 and the learned trial court shall try to proceed with the case by fixing short dates, being an old case. With these observations the petition stands disposed of. (V.K. Ahuja), May 16, 2008 Judge. (TILAK)