D.K. Paliwal, J.
Heard.
1. This petition has been filed u/s 482 of Cr.P.C. for quashing the FIR registered at Crime No. 210/2013 under sections 376, 34 of IPC registered at Police Station Mahila Thana Padav, District Gwalior.
2. It is stated that the complainant has lodged the report at Police Station Padav that she is studying in B.Sc. Nursing IVth year. Rohit Sharma is a Teacher in the Nursing College and he assured the complainant that he would get her pass in the examination. Thereafter Rohit Sharma took her to visit Udaipur and kept her in a Hotel, where forcibly committed sexual intercourse with her and also recorded video. Rohit Sharma used to blackmail her and committed rape on her. On 10.9.2013 Rohit Sharma took her to room of Manish Sharma, where he committed rape on her. On the report of the complainant a Crime No. 210/2013 has been registered at Police Station Mahila Thana Padav.
3. Learned counsel for the petitioner submits that the petitioner has not committed any offence. He has falsely been implicated in the alleged offence. No allegation of commission of rape has been made against the petitioner by the complainant. There is no prima facie material regarding involvement of the petitioner. The petitioner is a student and has a bright future. Hence, it is prayed for quashing the FIR registered against the petitioner.
4. Learned Public Prosecutor submits that looking to the prima facie material against the petitioner, the FIR cannot be quashed.
5. Learned counsel for the respondent no. 2 has also submitted that the offence has been committed by the petitioner with the assistance of Rohit Sharma. Hence prayed for rejection of the petition.
6. I have considered the rival submissions of the learned counsel for the parties and perused the case diary.
7. The only allegation in the written complaint made against the petitioner that Rohit Sharma took the complainant to the room of petitioner and committed rape on her. In the case diary statement the complainant has stated that Manish Sharma used to watch them when Rohit Sharma was committing rape on her. In the statement recorded u/s 164 of Cr.P.C. the complainant has stated that on 10.9.2013 Rohit Sharma took her to the room of Manish Sharma and forcefully committed sexual intercourse with her. Manish Sharma has gone outside at that time and when she was going to return back to Hostel at 3:00 PM Manish Sharma came back.
8. Considering that there is no allegation in the complaint except that Rohit Sharma has committed sexual intercourse with the complainant in the room of petitioner and in the complaint no where presence of Manish Sharma in the room or outside of the room has been stated. Similarly in the statement it has categorically been stated by the complainant that Manish Sharma has gone outside and he came back when she was returning back to the Hostel. The Hon''ble Supreme Court in the case of
"This Court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 of the Constitution of India or the inherent powers u/s 482, Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list to 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. (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 u/s 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 u/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 a specified provisions 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 malafide 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. In the instant case as noted earlier there is no prima facie material showing the involvement of the petitioner in the alleged crime, in such circumstances the prosecution of the petitioner certainly should be abuse of process of law. The present case is squarely covered by the guideline no. 1 of the case of Bhajanlal (supra).
10. Hence, the petition filed by the petitioner is allowed. FIR registered at Crime No. 210/2013 for the offence punishable under sections 376 and 34 of IPC and also the entire subsequent criminal proceedings in this regard so far as it relates to the petitioner Manish Kumar Sharma is concerned are hereby quashed.
11. Accordingly, this petition is allowed and disposed of.
