Madhya Pradesh High Court
Miny Raj Modi vs The State Of Madhya Pradesh on 2 May, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE APRIL, 2025
MISCELLANEOUS CRIMINAL CASE NO. 4367 OF 2025
MINY RAJ MODI
Versus
STATE OF MADHYA PRADESH AND ANOTHER
--------------------------------------------------------------------------------------------------------------
Appearance :
Shri Amit Dave - Advocate for the petitioner.
Shri B.K. Upadhyay - Government Advocate for the respondent No.1-State.
Shri Vikas Mahawar - Advocate for the respondent No.2.
---------------------------------------------------------------------------------------------------------------
&
MISCELLANEOUS CRIMINAL CASE NO. 46701 OF 2024
PRAKASH SINGH RAJPUT
Versus
STATE OF MADHYA PRADESH AND ANOTHER
--------------------------------------------------------------------------------------------------------------
Appearance :
Shri Eshaan Datt - Advocate for the petitioner.
Shri B.K. Upadhyay - Government Advocate for the respondent No.1-State.
Shri Vikas Mahawar - Advocate for the respondent No.2.
---------------------------------------------------------------------------------------------------------------
Reserved on : 18/03/2025
Pronounced on : 02/05/2025
-2-
ORDER
Since both the petitions are having common factual background and
reliefs claimed by the petitioners in both the petitions are same, therefore,
this common order is being passed governing disposal of both the
petitions.
2. In both the cases, filed under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (in short ‘BNSS’), petitioners have claimed that a
crime has been registered against them vide Crime No.0155/2024 at
Police Station Misrod, District Bhopal on 30.04.2024 for commission of
offence punishable under Sections 376, 376(3) and Section 190 of the
Indian Penal Code, 1860 (hereinafter referred as ‘IPC‘) and Sections 5(f),
5(m) and 6 of the Prevention of Children against Sexual Offences Act,
2012 (for brevity ‘POCSO Act‘). However, the role of the petitioners in
both the petitions is different but the basic challenge is same, therefore,
for the purpose of convenience, facts of M.Cr.C. No.4367/2025 are being
taken for consideration to resolve the controversy involved in case.
3. Petitioner in M.Cr.C. No.4367/2025 is alleged to have committed
aggravated penetration sexual assault whereas in M.Cr.C. No.46701/2024,
it is alleged against the petitioner that he threatened the prosecutrix and
her mother so as to refrain/desist them from making any complaint
against him.
4. As per the prosecution story, in Police Station Misrod, an undated
written complaint was made by the mother of the prosecutrix mentioning
that she is a home maker and her husband is a businessman. The
prosecutrix is her only child aged about 08 years and studies in Gyan
-3-
Ganga School and resides in the school hostel. The child got admitted in
the school around 15 days prior to the incident and as per the policy of the
school, she was permitted to meet and speak to her child on every Sunday
and as per the mother of the prosecutrix, when she visited school to meet
her child, school management asked her to take the prosecutrix for outing
then she took her to The Ashima Mall and dropped her back to the school.
4.2 It is also mentioned in the complaint that on 28.04.2024 i.e. Sunday,
in the afternoon she madc a phone call to the school to speak to her child.
However, she could not talk to her child as she was informed that she is
sleeping and at around 5 P.M., when she again attempted to talk to her
child (prosecutrix) then only the Warden of the hostel arranged a short
conversation of about two minutes. During this period, the prosecutrix
started crying and when she made a video call then the prosecutrix wanted
to tell her something but the Wanden immediately disconnected the call
and the mobile was switched off.
4.3 It is further mentioned in the undated complaint that the mother left
for Bhopal from Indore on 29.04.2024 and reached school on the same
day. She picked her child and took her to Ashima Mall. In the car, the
prosecutrix informed her mother that around 04-05 days back when she
finished her meal in the mess, one Warden aunty took her to a room on the
ground floor and forcefully fed her dal chawal and after eating the same,
she did not remember anything. However, when she woke up in the night,
she found one uncle lying over her and she was not in her room but lying
on the floor of some other room and her hands and legs were held by the
said uncle. The prosecutrix also described the face of that person and
further informed that one uncle was also standing near her and informing
-4-
that uncle lying over her ‘Modi Sir the girl is gaining consciousness’ and
he repeated the same 03-04 times. Thereafter, the person who was lying
over her, closed her eyes with his hand. According to the prosecutrix, as
she informed her mother, she felt severe pain in her abdomen and private
parts and then she dozed off and when she got up in the morning, she was
feeling unbearable pain in her abdomen and blood was oozing out from
her private parts which soiled her underwear then when she informed the
Warden about this, Warden applied Vicks on her abdomen and applied
some ointment on her private parts from where blood was oozing and then
she was made to take a bath and the Warden washed her soiled underwear.
Thereafter, when she requested the Warden to allow her to talk to her
mother, she was told to go to the school and not discuss these facts with
anybody and only after returning from school, they would make
arrangement for her to talk to her mother but after returning from school
when she requested for a call to her mother, she was told that it could be
done only on Sunday. When on Sunday her mother called, only two
minutes was given to talk to her mother and when she was telling her
mother about the incident, bleeding and sufferance, the phone was
disconnected by the Warden. As per the mother of the prosecutrix, the
prosecutrix informed her that she would recognize the uncle who was
lying over her and would also identify the Warden aunty who forcefully
fed her with dal chawal. The complaint further contained that the child
was taken to the doctor and doctor told her to lodge a complaint but
because of some medical problem, she could not lodge the report. On
29.04.2024, Inspector Prakash Rajput visited the hospital and informed
her that Modi has sent him with a message to stop the medical
-5-
examination of the child because it was a mistake committed by him. But
she went to the child and also approached the Misrod Police Station.
4.4 The Police Station proceeded to register an F.I.R. for commission of
offence as narrated in the complaint and wanted to start the investigation
by medical examination of the prosecutrix but prior to that the mother of
the prosecutrix visited the Government Hospital and got the prosecutrix
physically examined in absence of the police. The physical examination in
the Government Hospital was done before the registration of F.I.R. and
that report has been termed as Pre-MLC and it was dated 29.04.2024
which depicted that no definite opinion can be given. Gynecologist and
Anaesthetist needed for internal examination. However, the report
mentions about redness and disturbance in mucosa. At this juncture, the
police was informed by the hospital and N.G.O. named Gauravi was also
informed by the treating doctor. From the investigation report, the doctor
advised that the prosecutrix be admitted in the hospital for internal
examination and symptomatic treatment. Further, the Pre-MLC indicated
that the prosecutrix was not cooperative for internal examination and
record also reveals that she was not admitted in the hospital and was taken
home by her mother. On the next date, the mother of prosecutrix visited
the police station and submitted an undated complaint. The police
subjected the prosecutrix for medical examination and the report dated
30.04.2024 reflected that as per the history and physical examination,
attempt to sexual assault is done. Injury in private part was more than 24
hours old. While doing so, the doctor made two vaginal slides and seized
the underwear of the prosecutrix to be sent to the Forensic Science
Laboratory. It was also advised that the further internal examination be
-6-
done by the Gynecologist and vaginal slides be prepared as existing slides
were prepared just from the inside of the private part.
4.5 In continuation of the same, Gynecologist performed internal
examination on 01.05.2024 and recorded finding that no sign of external
injury, no bleeding, slight redness on labia minora and hymen deep seated
appeared intact and it was opined that as per history and physical
examination, physical/sexual assault might have been done.
4.6 Considering the seriousness and sensitivity in the matter, higher
authority took cognizance and constituted a Special Investigation Team
(SIT) to oversee the investigation and ensure fair and impartial
investigation is done. The SIT noticed that existing Pre-MLC and MLCs
have certain inconsistencies and therefore, the medical examination of the
prosecutrix was sought to be done by Medical Board consisting of four
doctors namely Dr. Abha Jaisani, Gynecologist, Dr. Shraddha Agrawal,
Gynecologist, Dr. Nisha Badve, Anaesthetist and Dr. Vandana Oad,
Medical Officer.
4.7 Medical Board recorded its opinion that no external injury was
there, no bleeding, no tenderness and the hymen was found intact. This
report was submitted on 02.05.2024. Thereafter, no concrete steps were
taken in investigation upto 10.05.2024. The mother of the prosecutrix
wrote a letter dated 10.05.2024 mentioning therein that the prosecutrix
was unwell at the time of application 30.04.2024 and after improving her
health, she asked to recount the events and now she is in a position to
identify the man involved in the incident and according to her, he is the
same person to whom they visited prior to her admission in the residential
school and as such allegation was made against the present applicant
-7-
namely Miny Raj Modi and requested the police to take necessary action.
The statement of the mother was recorded under Section 161 of Cr.P.C. on
01.05.2024 then supplementary statement was recorded by the police on
12.05.2024 in which, she reiterated the story as narrated in the letter dated
10.05.2024 then their statement under Section 164 of Cr.P.C. was
recorded but they were same with minute variations.
4.8 The police, after receipt of letter dated 10.05.2024 written by
mother of the prosecutrix and also on the written request of Bal Kalyan
Samiti, arranged to conduct another medical examination of the
prosecutrix on 10.05.2024 at Hamidiya Hospital, Bhopal by Dr. Nandini
Singh, Assistant Professor, Dr. Varsha Rani Chaudhari, Assistant
Professor and Dr. Rajni Shinde, RSO III.
4.9 As per this MLC, there was no sign of use of force, however, final
opinion was reserved pending due to the non-availability of the FSL
report. Sexual violence could not be ruled out. On 13.05.2024, the DCP,
Bhopal received the FSL report including vaginal slides marked as ‘A’
and ‘C’ and the underwear of the prosecutrix marked as ‘E’. These
developments from 10.05.2024, led to arrest of the present petitioner on
13.05.2024 who was then produced before the Special Court, POCSO
which took him in judicial custody. Simultaneously, the police forwarded
the blood and urine sample of the prosecutrix to Regional Forensic
Science Laboratory with a specific query to trace out the existence of any
chemical agent which could have acted as sedative on prosecutrix to make
her unconscious.
4.10 The DCP, Zone II, Bhopal also received the FSL report dated
17.05.2024 which indicated that the chemical test with respect to the
-8-
query made has returned ‘Negative’. Further, on 16.05.2024 vide letter
No. DNA-32/24, the DCP, Zone II, Bhopal forwarded the sample received
from the petitioner herein for DNA profiling to match it with the semen
and human sperm found in the vaginal slides as well as the underwear of
the prosecutrix. During this period, police arranged for test identification
parade (TIP) because in the letter dated 10.05.2024, the mother of the
prosecutrix informed that the prosecutrix has recollected the face of the
person involved in commission of offence upon her.
4.11 Police received the DNA report along with the letter dated
31.05.2024 indicating that the sample marked as ‘A’, ‘C’ and ‘E’ (in
which the FSL report found semen and human DNA) had no presence of
Male (Y) DNA Profile. The report indicates that the above samples
contain Female DNA Profile.
5. In view of the overall factual circumstances which were collected in
view of the different exercises carried out, learned counsel for the
petitioners advanced various submissions to convince this Court, which
are as under :-
5.1 The petitioners have been falsely implicated in the matter only to
extract money from them.
5.2 Mother of the prosecutrix is having past criminal record and is
facing several criminal proceedings including offence punishable under
Section 182 and Section 211 of IPC for making false complaint of rape
and it is stated that the circumstances which is narrated in the petition
from paragraph no.11 to 20 would make it clear as to in what manner plan
was prepared to implicate the petitioners in the alleged crime to extract
money from them.
-9-
5.3 Statements under Section 161 of Cr.P.C. of as many as 42 persons
were taken. CCTV footages were collected from the cameras installed in
the hostel and school premises but presence of accused was found
nowhere. This itself indicates that allegation against the petitioners of
commission of offence is absolutely false. It is also pointed out that the
letter dated 21.06.2024 written by the Station House Officer addressed to
District Prosecution Officer clearly mentions that during investigation, the
evidence does not indicate commission of offence. As per the DNA
report, though from articles seized by the police, semen and human sperm
was found present but there was no Male (Y) DNA Profile and semen and
sperm found on the articles seized has no male origin. According to
learned counsel for the petitioners, police deliberately filed selected
statements and statements of 42 persons were omitted which clearly
reflect that no offence has been committed by the petitioners.
6. Per contra, learned counsel for the respondent No.2 opposed the
arguments advanced by learned counsel for the petitioners that on the
basis of material available on record, it can be inferred that proper
investigation was done. He submits that investigating team collected the
material which can be examined by the Court during the course of trial
but at this stage, it is not proper to say that prosecution story is false and it
is also not proper to say that false allegations have been made by the
mother of the prosecutrix and the case got registered. According to him,
the Test Identification Parade (TIP) was done, FSL reports are on record,
therefore, statements of 42 persons and CCTV footage would not be
enough to exonerate the present petitioner from the charges levelled,
therefore, he submits that the petitions deserve to be dismissed.
– 10 –
7. Learned Government Advocate has also supported the submissions
of learned counsel for respondent No.2 and perused the record and
assisted the Court.
8. After hearing the rival contentions of learned counsel for the
parties, I am giving my anxious consideration to the matter after perusing
the record.
9. The basic foundation of the case registered against the present
petitioners vide Crime No.0155/2024 was the medical examination, FSL
reports and the statement of mother of the prosecutrix and prosecutrix
herself.
10. Regarding medical examination, considering the prosecution story
and the material collected by the prosecution during the course of
investigation, on 29.04.2024, the prosecutrix was taken to the hospital
first and doctor suggested the mother of the prosecutrix to lodge the
complaint. Pre-MLC report was also prepared indicating that no definite
opinion regarding the sexual assault could be provided. The police,
thereafter, started further medical examination of the prosecutrix on
30.04.2024 and prepared two vaginal slides of the prosecutrix to be sent
to the FSL along with the underwear of the prosecutrix. On 01.05.2024,
internal examination was performed and it was recorded no evidence of
external injury and hymen deep seated appeared intact (though it was
opined that as per the history and physical examination physical/sexual
assault might have taken place). Considering the sensitivity of the matter,
SIT was constituted to facilitate another examination of the prosecutrix by
Medical Board comprising two Gynecologists, one Anaesthetist and one
– 11 –
Medical Officer and as per the report dated 02.05.2024, no external injury
was found, no bleeding, no tenderness and hymen was found intact.
11. Upon being insisted by the mother of the prosecutrix, further
medical examination was done on 10.05.2024 by the team of three
medical professionals and as per their report, there was no sign of use of
force, however, final opinion was kept reserved till pending availability of
FSL report. Thus, it is clear from all medical examinations that no
evidence of any external injury in the case was found. It is also
unequivocally clear that no penetration or insertion has taken place.
Although, things were based upon the FSL report that was received on
13.05.2024 indicating that vaginal slides and underwear of prosecutrix
contained presence of semen and human DNA but on a specific query
made by the police, the report of blood and urine samples revealed that
there was no existence of any sedative chemical agent and the report
clarified the query as ‘Negative’. On 16.05.2024, samples retrieved from
prosecutrix were also sent for DNA Profiling and for matching of semen
and human DNA found on vaginal slides and the underwear of the
prosecutrix. As per the report dated 30.05.2024, the DNA report clarified
no presence of Male (Y) DNA Profile which further indicated that the
samples contained Female DNA Profile. Total forensic evidence is
available in the present case. However, the first FSL report indicated
presence of semen and human DNA but the subsequent report clarified
and ruled out presence of male semen since no Male (Y) DNA Profile was
found. Not only the medical evidence but other evidences are also
available in the case. However, this Court is not making any cascading
remarks on the antecedents of the mother of the prosecutrix and also not
– 12 –
impressed by such submission of learned counsel regarding criminal
history of mother of prosecutrix but in the over all circumstances when
allegations of false implication is made, this Court has to take all the facts
available on record in a microscopic manner when statements of 42
persons were recorded but they were not brought on record indicating that
no such offence has been committed and even recording of CCTV footage
not revealing the presence of the present petitioner at the place of
incident, the conduct of the present petitioner from very inception making
complaint to the police authorities and providing full cooperation to them
in the investigation keeping himself available for the police on each and
every occasion whenever he was called and remained present in the police
station is also to be taken note of. The TIP is immaterial for the reason
that the prosecutrix and petitioner are known to each other. The prima
facie investigation done by the police and letter written on 21.06.2024 by
the Station House Officer to the District Prosecution Officer indicate that
no evidence is available to form an opinion about commission of any
offence much less the guilt of the present petitioner. Undoubtedly, the
Court should not proceed in the manner to form an opinion that no
offence has been committed but at the same time, Court has to see to it
that no person should be prosecuted when no cogent evidence is available
so as to implicate him. This Court cannot ignore the eventuality and the
plight of an accused and also of his family members when a seal of rapist
is marked on his back and even after acquittal it is very difficult to wash
out the said seal. It is not only the accused but the whole family would
suffer the prosecution and face the consequence of such false implication.
Here in this case, I find no corroborative evidence except the oral
allegation made by the mother and also by the prosecutrix. It is a school
– 13 –
where offence is said to have been committed. The CCTV cameras are
installed at each and every point of the school. There were number of
persons working in the school. Statements of employees of the school,
warden and other persons were taken by the Police but nothing was found
so as to support the oral allegations made by the complainant.
12. In the case of State of Haryana and others v. Bhajan Lal and
others, 1992 Supp (1) SCC 335, certain categories have been laid down
by the Supreme Court under which criminal proceedings can be quashed,
which are as under :-
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we have
given the following categories of cases by way of
illustration wherein such power could be exercised
either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible guidelines
or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be
exercised.
(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.
– 14 –
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted 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 FIR do not constitute a
cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 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 a 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.
– 15 –
103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases; that the court will
not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that
the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its
whim or caprice.”
13. In view of the above categories, the case of the petitioner falls
within the category No.1 and category No.5.
14. Further, the Supreme Court in the case of Eicher Tractor Ltd. and
others v. Harihar Singh and another, (2008) 16 SCC 763 reiterated its
observations regarding power of High Court exercising jurisdiction under
Section 482 of Cr.P.C. as already observed in Baijnath Jha v. Sita Ram,
(2008) 8 SCC 77 and R.P. Kapur v. State of Punjab, AIR 1960 SC 866
and held as under :-
“13. “6. Exercise of power under Section 482 of the
Code in a case of this nature is the exception and not
the rule. The section does not confer any new powers
on the High Court. It only saves the inherent power
which the Court possessed before the enactment of the
Code. It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to
give effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to otherwise
secure the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which would
govern the exercise of inherent jurisdiction. No
legislative enactment dealing with procedure can
– 16 –
provide for all cases that may possibly arise. Courts,
therefore, have inherent powers apart from express
provisions of law which are necessary for proper
discharge of functions and duties imposed upon them
by law. That is the doctrine which finds expression in
the section which merely recognises and preserves
inherent powers of the High Courts. All courts, whether
civil or criminal possess, in the absence of any express
provision, as inherent in their constitution, all such
powers as are necessary to do the right and to undo a
wrong in course of administration of justice on the
principle quando lex aliquid alicui concedit, concedere
videtur et id sine quo res ipsae esse non potest(when
the law gives a person anything it gives him that
without which it cannot exist). While exercising
powers under the section, the court does not function as
a court of appeal or revision. Inherent jurisdiction
under the section though wide has to be exercised
sparingly, carefully and with caution and only when
such exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex debito
justitiae to do real and substantial justice for the
administration of which alone courts exist. Authority of
the court exists for advancement of justice and if any
attempt is made to abuse that authority so as to produce
injustice, the court has power to prevent such abuse. It
would be an abuse of process of the court to allow any
action which would result in injustice and prevent
promotion of justice. In exercise of the powers court
would be justified to quash any proceeding if it finds
that initiation/continuance of it amounts to abuse of the
process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no
offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is
– 17 –
sought to be quashed, it is permissible to look into the
materials to assess what the complainant has alleged
and whether any offence is made out even if the
allegations are accepted in toto.
7. In R.P. Kapur v. State of Punjab [AIR 1960 SC
866] this Court summarised some categories of cases
where inherent power can and should be exercised to
quash the proceedings:
(i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;
(ii) where the allegations in the first information report
or complaint taken at their face value and accepted in
their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the charge.
(AIR p. 869, para 6)
8. In dealing with the last case, it is important to bear in
mind the distinction between a case where there is no
legal evidence or where there is evidence which is
clearly inconsistent with the accusations made, and a
case where there is legal evidence which, on
appreciation, may or may not support the accusations.
When exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark
upon an enquiry whether the evidence in question is
reliable or not or whether on a reasonable appreciation
of it accusation would not be sustained. That is the
function of the trial Judge. Judicial process no doubt,
should not be an instrument of oppression, or, needless
harassment. Court should be circumspect and judicious
in exercising discretion and should take all relevant
– 18 –
facts and circumstances into consideration before
issuing process, lest it would be an instrument in the
hands of a private complainant to unleash vendetta to
harass any person needlessly. At the same time the
section is not an instrument handed over to an accused
to short-circuit a prosecution and bring about its sudden
death. The scope of exercise of power under Section
482 of the Code and the categories of cases where the
High Court may exercise its power under it relating to
cognizable offences to prevent abuse of process of any
court or otherwise to secure the ends of justice were set
out in some detail by this Court in State of Haryana v.
Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] . A note of caution was, however, added that the
power should be exercised sparingly and that too in
rarest of rare cases. The illustrative categories indicated
by this Court are as follows : (SCC pp. 378-79, para
102)
‘(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 FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted 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.
– 19 –
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 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 Act concerned
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
Act concerned, 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.’
9. As noted above, the powers possessed by the High
Court under Section 482 of the Code are very wide and
the very plenitude of the power requires great caution
in its exercise. Court must be careful to see that its
decision in exercise of this power is based on sound
principles. The inherent power should not be exercised
to stifle a legitimate prosecution. The High Court being
the highest court of a State should normally refrain
from giving a prima facie decision in a case where the
entire facts are incomplete and hazy, more so when the
evidence has not been collected and produced before
– 20 –
the Court and the issues involved, whether factual or
legal, are of magnitude and cannot be seen in their true
perspective without sufficient material. Of course, no
hard-and-fast rule can be laid down in regard to cases
in which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage. …
It would not be proper for the High Court to analyse
the case of the complainant in the light of all
probabilities in order to determine whether a conviction
would be sustainable and on such premises arrive at a
conclusion that the proceedings are to be quashed. It
would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with.
In a proceeding instituted on complaint, exercise of the
inherent powers to quash the proceedings is called for
only in a case where the complaint does not disclose
any offence or is frivolous, vexatious or oppressive. If
the allegations set out in the complaint do not
constitute the offence of which cognizance has been
taken by the Magistrate, it is open to the High Court to
quash the same in exercise of the inherent powers
under Section 482 of the Code. It is not, however,
necessary that there should be meticulous analysis of
the case before the trial to find out whether the case
would end in conviction or acquittal. The complaint has
to be read as a whole. If it appears that on consideration
of the allegations in the light of the statement made on
oath of the complainant that the ingredients of the
offence or offences are disclosed and there is no
material to show that the complaint is mala fide,
frivolous or vexatious, in that event there would be no
justification for interference by the High Court. When
an information is lodged at the police station and an
offence is registered, then the mala fides of the
informant would be of secondary importance. It is the
– 21 –
material collected during the investigation and
evidence led in court which decides the fate of the
accused person. The allegations of mala fides against
the informant are of no consequence and cannot by
themselves be the basis for quashing the proceedings.”
15. However, this Court is refraining itself from commenting anything
upon the reliability of the evidence collected during the course of
investigation but at the same time, the Court has to see the evidence
whether at its face value and the offence registered, the prosecution can be
permitted to go on or not.
16. Learned counsel for respondent No.2-objector has also relied upon
a decision reported in (2017) 4 SCC 393 Sunil v. State of Madhya
Pradesh in which it is observed by the Supreme Court that DNA Profile
and its report is not the sole basis and if that goes against the accused,
does not mean offence has not been committed but the Court has to weigh
the other material and evidence available on record. The observation
made by Supreme Court in para-4 is as under :-
“4. From the provisions of Section 53-A of the Code
and the decision of this Court in Krishan Kumar
[Krishan Kumar Malik v. State of Haryana, (2011) 7
SCC 130 : (2011) 3 SCC (Cri) 61] it does not follow
that failure to conduct the DNA test of the samples
taken from the accused or prove the report of DNA
profiling as in the present case would necessarily result
in the failure of the prosecution case. As held in
Krishan Kumar [Krishan Kumar Malik v. State of
Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61]
(para 44), Section 53-A really “facilitates the
prosecution to prove its case”. A positive result of the
DNA test would constitute clinching evidence against
– 22 –
the accused if, however, the result of the test is in the
negative i.e. favouring the accused or if DNA profiling
had not been done in a given case, the weight of the
other materials and evidence on record will still have to
be considered. It is to the other materials brought on
record by the prosecution that we may now turn to.”
17. Even as per the observation made by the Supreme Court, in this
case also, the Court is not only considering the DNA report but also
considering the other evidence available on record which is collected by
the prosecution.
18. In the present case, considering the other surrounding
circumstances and especially the DNA report submitted in respect of Y-
STR after conducting a traditional “autosomal-STR” which has been said
to be a very scientific method providing a unique way of isolating only
the male DNA. The Supreme Court in the case of Manoj vs. State of
M.P. reported in (2023) 2 SCC 353 has also considered the DNA
Profiling Methodology and also considered as to how Y-STRs are helpful
in detection of male profile even in the presence of high level of female
portion. The observation made by Supreme Court in this regard is as
follows :-
“DNA Profiling Methodology
DNA profile is generated from the body fluids, stains,
and other biological specimen recovered from evidence
and the results are compared with the results obtained
from reference samples. Thus, a link among victim(s)
and/or suspect(s) with one another or with crime scene
can be established. DNA profiling is a complex process
of analyses of some highly variable regions of DNA.
The variable areas of DNA are termed genetic markers.
– 23 –
The current genetic markers of choice for forensic
purposes are Short Tandem Repeats (STRs). Analysis
of a set of 15 STRs employing Automated DNA
Sequencer gives a DNA profile unique to an individual
(except monozygotic twin). Similarly, STRs present on
Y chromosome (Y-STR) can also be used in sexual
assault cases or determining paternal lineage. In cases
of sexual assaults, Y-STRs are helpful in detection of
male profile even in the presence of high level of
female portion or in case of azoo11permic or
vasectomized” male. Cases in which DNA had
undergone environmental stress and biochemical
degradation, min lSTRs can be used for over routine
STR because of shorter amplicon size.”
19. The Supreme Court approved this method in the case of Ravi S/o
Ashok Ghumare vs. State of Maharashtra reported in (2019) 9 SCC
622 and observed as under :-
“35. The unshakable scientific evidence which nails the
appellant from all sides, is sought to be impeached on the
premise that the method of DNA analysis “Y-STR”
followed in the instant case is unreliable. It is suggested
that the said method does not accurately identify the
accused as the perpetrator; and unlike other methods say
autosomal-STR analysis, it cannot distinguish between
male members in the same lineage.
36. We are, however, not swayed by the submission. The
globally acknowledged medical literature coupled with the
statement of PW 11 Assistant Director, Forensic Science
Laboratory leaves nothing mootable that in cases of sexual
assault, DNA of the victim and the perpetrator are often
mixed. Traditional DNA analysis techniques like
“autosomal-STR” are not possible in such cases. Y-STR
method provides a unique way of isolating only the male
DNA by comparing the Y-chromosome which is found
– 24 –
only in males. It is no longer a matter of scientific
debate that Y-STR screening is manifestly useful for
corroboration in sexual assault cases and it can be well
used as exculpatory evidence and is extensively relied
upon in various jurisdictions throughout the world [“Y-
STR analysis for detection and objective confirmation of
child sexual abuse”, authored by Frederick C. Delfin —
Bernadette J. Madrid — Merle P. Tan — Maria Corazon A.
De Ungria.] & [Forensic DNA Evidence : Science and the
Law, authored by Justice Ming W. Chin, Michael
Chamberlain, Amy Rojas, Lance Gima.]. Science and
researches have emphatically established that chances of
degradation of the “Loci” in samples are lesser by this
method and it can be more effective than other traditional
methods of DNA analysis. Although Y-STR does not
distinguish between the males of same lineage, it can,
nevertheless, may be used as a strong circumstantial
evidence to support the prosecution case. Y-STR techniques
of DNA analysis are both regularly used in various
jurisdictions for identification of offender in cases of sexual
assault and also as a method to identify suspects in
unsolved cases. Considering the perfect match of the
samples and there being nothing to discredit the DNA
analysis process, the probative value of the forensic report
as well as the statement of PW 11 are very high. Still
further, it is not the case of the appellant that crime was
committed by some other close relative of him.
Importantly, no other person was found present in the house
except the appellant.”
(emphasis supplied)
20. It is further pertinent to mention here that the mother of the
prosecutrix is facing a case registered against her by the State under
Sections 182 and 211 of the Indian Penal Code for the reason that she
lodged a report of rape against her but later on she denied that fact and
– 25 –
took a somersault that no rape had been committed on her and police
registered a false case. An order passed by the Court on 06.03.2025 in
this regard has been placed by the petitioner before this Court. For the
purpose of taking surrounding circumstances into consideration, it is apt
to reproduce this order, which is as under :-
&%% mikiZ.k vkns’k %%&
¼vkt fnukad%& 06-03-2025 dks ikfjr½1& vfHk;qDr ds fo:) Hkk0n0la- dh /kkjk 182 ,oa 211 ds varxZr nkf.Md dk;Zokgh
izpfyr djus gsrq vfHk;skx i= is’k fd;k x;k gSA
2& vfHk;qDr ‘khry fnukad 24-02-2025 ls tekur ij gSA
3& vfHk;kstu dk izdj.k la{ksi esa bl izdkj gS fd fnukad 03-12-2014 dks Qfj;kfn;k
dqekjh ‘khry rksej firk Lo- txnh’k rksej dh fjiksVZ ij vkjksih vkj-ih- flag ds fo:)
Fkkuk dksykj jksM esa vijk/k dzekad 601@2014 /kkjk 376¼1½ Hkknfo dk;e dj foospuk esa
fy;k x;k foopsuk ds nkSjku ‘khry rksej dk esMhdy ijh{k.k djk;k x;k rFkk Qfj;knh
,oa vkjksih ds eksckbZy uacj dh dkWy fMVsy fudyokbZ xbZ Qfj;knh ds fuokl okys
vikVZesaV ds vU; fuokl djus okys yksxksa ey[kku flag jktiwr] foosd dqekj ,oa izrhd
nhf{kr vkfn ds dFku ys[k fd;s x;s tks lHkh us vkjksih dk Qfj;knh ds ?kj vkrs tkrs u
ns[kuk crk;kA fnuakd 25-06-2016 dks Qfj;knh ‘khry }kjk Fkkuk vkdj iqu% dFku ys[k
djkbZ fd mlus tks fnukad 03-12-2024 dks Fkkus esa tks fjiksVZ fd;k oks >wBh gS mlds
lkFk dksbZ cykRdkj ugh gqvk gS ekufld :i ls ijs’kku gksus ds dkj.k vkj-ih- flag ds
fo:) >wBh fjiskVZ dh Fkh bl laca/k es a Qfj;knh ds 164 tk-QkS- ds dFku ys[k djk;s
x;sA foospuk esa Qfj;knh dh fjiksVZ >wBh ikbZ xbZA ftlls izdj.k esa iqfyl v/kh{kd ls
vuqefr i’pkr izdj.k eas [kkfjth dz- 9@16 fnukad 05-08-2016 dks is’k fd;k tks
ekuuh; U;k;ky; }kjk Lohd`r dj ‘khry ds fo:) /kkjk 182 ,oa 211 Hkknfo ds varxZr
dk;Zokgh djus gsrq funsZf’kr fd;k rRi’pkr ekuuh; U;k;ky; ds vkns’k ds ikyu esa
‘khry firk Lo- Jh txnh’k rksej ds fo:) b’rxk’kk dzekad 1@18 varxZr /kkjk 182 o
211 Hkknfo dk RkS;kj dj U;k;ky; ds le{k is’k fd;k gSA
4& izdj.k esa vfHk;qDr ds fo:) Hkk-na-l-a dh /kkjk 182 ,oa 211 ds varxZr b’rxklk
izLrqr fd;k x;k gSA izdj.k esa vfHk;qDr ds fo:) izFke n`”V;k mDr vijk/k xfBr fd,
tkus dk ,oa fopkj.k fd, tkus dk i;kZIr vk/kkj izdV gksrk gS] fdUrq mDr /kkjk 211
Hkknla dk fopkj.k ekuuh; l= U;k;ky; }kjk gh fd;k tk ldrk gSA vr% ;g izdj.k
ekuuh; l= U;k;ky; }kjk fopkj.kh; gksus ls ekuuh; l= U;k;ky; Hkksiky dks mikfiZr
fd;k tkrk gSA
5& vfHk;qDr ds vf/koDrk dks ifjokn i=@vfHk;ksx i= dh udysa na-iz-la- dh /kkjk 207
ds varxZr iznku dh xbZA
6& mikZi.k dh lwpuk yksd vfHk;kstd Hkksiky dks Hksth tkosA vfHkys[k lhycan dsl
Mk;jh ds lkFk layXu dj ekuuh; l= U;k;ky; Hkksiky] ftyk Hkksiky dh vksj fu;r
fnukad 20-03-2025 ds iwoZ izsf”kr fd;k tkosA
– 26 –
7& vfHk;qDr tekur ij gSA vfHk;qDr dks funsZf’kr fd;k tkrk gS fd vkxkeh fnukad 20-
03-2025 ij ekuuh; l= U;k;k/kh’k egksn; Hkksiky ds U;k;ky; esa vfxze dk;Zokgh gsrq
vko’;d :i ls mifLFkr jgsaA
8& vfHk;qDr dh vfHkj{kk vof/k dk izek.k i= vUrxZr /kkjk 428 na0iz0la0 cukdj izdj.k
esa layXu fd;k tkosA
vkns’k [kqys U;k;ky; esa mn?kksf”kr dj esjs vkys[k ij Vafdr fd;k x;kA
gLrk{kfjr o fnukafdr fd;k x;kA
gLrk0@& gLrk0@&
¼lanhi dqekj ukenso½ ¼lanhi dqekj ukenso½
U;kf;d eftLVsªV izFke Js.kh U;kf;d eftLVsªV izFke Js.kh
Hkskiky e0iz0 Hkksiky e0iz0
21. Learned counsel for the objector has also relied upon a judgment of
Karnataka High Court reported in 2022 SCC OnLine Kar 1542, Swamy
B. vs. State but that case is also on the same analogy which has been laid
down by the Supreme Court in the case of Sunil (supra).
22. Thus, I am confining myself to conclude the results taking note of
the legal position to describe the duty of the High Court and scope under
Section 482 of Cr.P.C. and Article 226 of the Constitution of India when
case is being taken up for quashing of F.I.R. The Supreme Court in the
case of Achin Gupta v. State of Haryana and another, 2024 SCC
OnLine SC 759 has observed as under :-
“35. In one of the recent pronouncements of this
Court in Mahmood Ali v. State of U.P., 2023 SCC
OnLine SC 950, authored by one of us (J.B. Pardiwala,
J.), the legal principle applicable apropos Section 482
of the CrPC was examined. Therein, it was observed
that when an accused comes before the High Court,
invoking either the inherent power under Section 482
– 27 –
CrPC or the extraordinary jurisdiction under Article
226 of the Constitution, to get the FIR or the criminal
proceedings quashed, essentially on the ground that
such proceedings are manifestly frivolous or vexatious
or instituted with the ulterior motive of wreaking
vengeance, then in such circumstances, the High Court
owes a duty to look into the FIR with care and a little
more closely. It was further observed that it will not be
enough for the Court to look into the averments made
in the FIR/complaint alone for the purpose of
ascertaining whether the necessary ingredients to
constitute the alleged offence are disclosed or not as, in
frivolous or vexatious proceedings, the court owes a
duty to look into many other attending circumstances
emerging from the record of the case over and above
the averments and, if need be, with due care and
circumspection, to try and read between the lines.”
23. Therefore, upon cumulative consideration of the above and while
discharging the duty exercising the inherent power provided under
Section 482 of Cr.P.C., I am of the view that the F.I.R. registered vide
Crime No.0155/2024 can be quashed as no offence has been committed
and there is no material available on record to implicate the present
petitioner in the said offence and as such, question of allegation about the
threat to the prosecutrix and her mother so as to refrain from making any
complaint is also false. In conclusion, the prosecution of the petitioners in
M.Cr.C. Nos. 4367/2025 and M.Cr.C. No.46701/2024 would be quashed.
– 28 –
24. Accordingly, the petitions are allowed and impugned F.I.R.
registered vide Crime No.0155/2024 is quashed. All consequential
proceedings pursuant to registration of F.I.R. are also quashed.
(SANJAY DWIVEDI)
JUDGE
PK
PARITOSH
Digitally signed by PARITOSH KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF
MADHYA PRADESH,
2.5.4.20=43c946b45c8a66c03b68676e788802a41cc03b5b9567caf9c2
KUMAR
c3b981b8cb6596, postalCode=482001, st=Madhya Pradesh,
serialNumber=678DC301994B496012A9643D92E6C6335F11A93DA54
F2DFB6E44B8B7A45044FC, cn=PARITOSH KUMAR
Date: 2025.05.05 19:03:18 +05’30’
[ad_1]
Source link