Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.S. SHINDE & K.K. SONAWANE, JJ.
Baburao V. Nair (Baburaj V.K. Nair) – Applicant
Versus
The State of Maharashtra – Respondent
Criminal Application No. 5948 of 2016
Decided On : 04-05-2017
It is the submission of the counsel appearing for the applicant that, already respondent No. 2 has filed Criminal Misc. Application No. 1278/2016, seeking direction to the concerned Police Station for registering the FIR and the investigation, has not been entertained by the Judicial Magistrate First Class, Court No. 6, Aurangabad, and therefore, the request for registration of the FIR subsequent to filing of such Misc. Application/complaint should not have been entertained by the concerned Police Station. There is no bar of registering the FIR on disclosure of the cognizable offence on reading the allegations in the First Information Report. On the contrary on disclosure of the cognizable offence, the provisions of Section 154(1) of the Code of Criminal Procedure mandate that, the FIR should be registered, and thereafter, the investigation should be caused. The Hon`ble Supreme Court in the case of Lalita Kumari v. Government of Uttar Pradesh and others, 2014 (2) Mh LJ (Cri) (SC) 16 : (2014) 2 SCC 1, held, the registration of FIR is mandatory under Section 154, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
Indian Penal Code, 1860 - Section 376-Criminal Procedure Code, 1973, Sections 154 and 482-FIR for sexual intercourse without consent.-FIR containing allegations of sexual intercourse without consent or against will of prosecutrix against applicant, cannot be quashed under Section 482 of Code.
Criminal Procedure Code, 1973 - Section 482-Exercise of powers under.-Inherent powers of Court under Section 482 of Code, should be exercised with great care, sparingly and only in appropriate cases.
There is no further progress in the complaint pending before the Judicial Magistrate First Class. Therefore, an investigation can not cause any prejudice to the applicant. On the contrary, after investigation truth will surface on record. Upon careful perusal of the allegations in the FIR, so far as it relates to the offence punishable under Section 376 is concerned, it is stated that the prosecutrix was called at Ahmedabad by the applicant on 17th December, 2013. The applicant and respondent No. 2 stayed at Lodge at Ahmedabad, thereafter, applicant committed forcible sexual intercourse with her for 5 days, with an assurance of marriage with her.
It is alleged in the FIR that, the said sexual intercourse by the applicant with the prosecutrix was without her consent. The said allegations can be tested during trial. It is only after statement of the prosecutrix is tested during trial, it will have to be determined, whether the offence falls in any of the categories mentioned in Section 375 of the Indian Penal Code. In the facts of the present case, when there are allegations of sexual intercourse without consent or against will of respondent No. 2 i.e. prosecutrix, it is not appropriate to quash the FIR by exercising powers under Section 482 of the Criminal Procedure Code. The Hon`ble Supreme Court in catena of decisions has consistently held that, powers under Section 482 of the Criminal Procedure Code should be exercised with great care, sparingly and only in appropriate cases.
S.S. SHINDE, J.
1. Heard.
2. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
3. This Application is filed with prayer to quash and set aside the First Information Report vide Crime No. 118/2016 registered with Harsool Police Station, Aurangabad, for the offence punishable under Section 376 of the Indian Penal Code.
4. The learned counsel appearing for the applicant submits that, the applicant is reputed and married person. He has housewife and two children, aged 13 and 18 years respectively. He is only bread earner in the family. It is submitted that, wife of the applicant filed complaint against respondent no. 2 on 20th March, 2016, alleging that, respondent no. 2 is threatening to file false complaint against applicant and his wife. The said complaint was registered as N.C. Again on 23rd March, 2016, the wife of applicant was required to approach to the Deputy Commissioner of Police due to threat given by respondent no. 2 that, she is going to file false complaint against the applicant as well as his wife. On 12th April, 2016, the applicant had given detailed application to the Commissioner of Police, stating that, respondent no. 2 is demanding money by giving threats of filing false complaint. Accordingly, the Police Inspector was directed to make an enquiry about the said complaint.
It is submitted that, respondent no. 2 filed Criminal Misc. Application No. 1278/2016, alleging that, the applicant has committed offences punishable under Sections 376, 420 and 354 of the Indian Penal Code. It is stated in the said complaint that, the Police Station at Harsool refused to register the FIR and therefore, she has filed said complaint with prayer to issue directions to the Harsool Police Station to register the FIR and for investigation of the allegations in the complaint filed by the respondent no. 2. The court of Judicial Magistrate First Class rejected the prayer for sending the matter for investigation under Section 156 (3) of the Criminal Procedure Code and directed respondent no. 2 to lead evidence under Section 200 of the Criminal Procedure Code. Thereafter, in said court proceedings respondent no. 2 continuously remained absent. Learned counsel appearing for the applicant invites our attention to the fact that, though the complaint filed by respondent no. 2 was listed on more than 11 occasion on various dates, respondent no. 2 did not cause appearance before the Court. Learned counsel invites our attention to the copies of the documents placed along with the application, and further invites our attention to the contents of the said documents and submits that, respondent no. 2 threatened the applicant on different dates. Learned counsel invites our attention to the order passed by the learned Judicial Magistrate First Class, Court No. 6, Aurangabad, below Exh.1 in Criminal Misc. Application No. 1278/2016, filed by respondent no. 2 and submits that, when the said Court declined to give direction to register the FIR so as to investigate the allegations in the complaint filed by respondent no. 2, there was no question of approaching the Harsool Police Station by respondent no. 2 and lodging the FIR. It is submitted that, the FIR should not have been registered by the concerned Police Station in view of the fact that in the Criminal Misc. Application No. 1278/2016 i.e. complaint, filed by respondent no. 2, the Judicial Magistrate First Class declined to issue directions to register the FIR and cause the investigation.
5. It is submitted that, the applicant has not committed any offence as alleged in the complaint. The complainant has falsely implicated the present applicant in a serious crime. If the entire FIR is perused, it shows that, it is nothing but a concocted story made out by respondent no. 2. An accused is a married person and having no any criminal history or antecedents. If the FIR is perused in its entirety, it can be seen that, no offence is made out against the applican
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
