Madhya Pradesh High Court
Kalpana Daniel vs The State Of Madhya Pradesh on 10 September, 2024
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-IND:26549
1 M.Cr.C. No.47928/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
ON THE 10th OF SEPTEMBER, 2024
MISCELLANEOUS CRIMINAL CASE No. 47928 of 2023
KALPANA DANIEL
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
............................................................................................................................................
Appearance:
Shri Rajesh Joshi - Advocate for the applicant.
Shri Anand Soni Aag & Shri Tarun Pagare - Public Prosecutors for the
respondent/State.
............................................................................................................................................
ORDER
Case diary is available.
2. This application under Section 482 of Cr.P.C. has been filed
seeking following relief(s):-
―It is therefore most humbly and respectfully
prayed that FIR has been filed by instruction of
Madhya Pradesh Commission for Protection of
Child Rights which is illegal, all section which was
made out also irrelevant all the ground and facts
available on record the said FIR may be Quashed.
In the interest of justice, this present petition may
kindly be allowed and the quash the Impugned FIR
in Crime no.0367/23 in P.S Jobat Dist. – Alirajpur
(M.P.).‖
3. It is submitted by counsel for the applicant that one Kalu Singh,
who was posted as Development Officer in Women and Child
Development Alirajpur filed a written complaint to Police Station Jobat,
District Alirajpur on the allegations that on the inspection of Adivasi
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MISHRA
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Sahayata Samiti Girls Hostel cum Boys Hostel cum Old Age Home
situated in Jobat, District Alirajpur, out of 35 girls, 30 girls were found
minor and most of them were orphan. 13 old persons were found living,
out of them 8 were males and 5 were females. Out of 36 boys, 29 boys
were minor. The Society President was unable to provide registration
certificate under Section 41 of Juvenile Justice (Care and Protection of
Children) Act, 2015 (in short ‗Act, 2015′) and accordingly, it was held
that running the hostel/ institution by keeping the minor children
without any registration was contrary to law and accordingly, an offence
under Section 42 of Act, 2015 was registered against the applicant. Later
on, Police also increased offence under Section 370 of IPC and under
Sections 3, 5 of M.P. Freedom of Religion Act, 2021 (in short ‗Act,
2021′).
4. Challenging the registration of FIR, it is submitted by counsel for
the applicant that Section 2(14) of Act, 2015 defines child in need of
care and protection and child in conflict with law is defined under
Section 2(13) of Act, 2015. It is further submitted that as per the
provisions of Section 41 of Act, 2015, any institution whether run by the
State Government or by volunteer or non-Government organization
which are running either wholly or partially any hostel for housing,
children in need of care and protection or child in conflict of law are
required to be registered under this Act and the non-registration of child
care institution is punishable under Section 42 of Act, 2015. It is
submitted by counsel for the applicant that since none of the child who
was found in the institution run by the applicant was either child in
conflict of law or child in need of care and protection, therefore
registration of institution was not required. It is further submitted that
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the subsequent addition of Section 370 of IPC as well as under Section
3, 5 of Act, 2021 is bad in law because it has been added without any
basis or material therefor.
5. Per contra, application is vehemently opposed by counsel for the
State. It is submitted that it is incorrect to say that the minor children
who were found in the institution were not children in need of care and
protection. It is further submitted that there is a possibility of human
trafficking as well as unlawful conversion from one religion to other,
therefore, offences under Section 370 of IPC and Sections 3, 4 of the
Act, 2021 have also been registered. The applicant has been directed to
supply documents and in spite of notice issued by investigating officer,
applicant not cooperated in the investigation.
6. Heard learned counsel for the parties.
7. Sections 2(13) and 2(14) of the Act, 2015 defines child in conflict
with law and child in need of care and protection, which read as under:-
―2. Definitions.-
(13) ―Child in conflict with law‖ means a child
who is alleged or found to have committed an
offence and who has not completed eighteen years
of age on the date of commission of such offence;
(14) ―Child in need of care and protection‖ means
a child-
(i) who is found without any home or settled place
of abode and without any ostensible means of
subsistence; or
(ii) who is found working in contravention of the
labour laws for the time being in force or is found
begging, or living on the street; or
(iii) who resides with a person (whether a guardian
of the child or not) and such person–
(a) has injured, exploited, abused or
neglected the child or has violated anySignature Not Verified
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other law for the time being in force
meant for the protection of child; or
(b) has threatened to kill, injure, exploit or
abuse the child and there is a reasonable
likelihood of the threat being carried out;
or
(c) has killed, abused, neglected or exploited
some other child or children and there is
a reasonable likelihood of the child in
question being killed, abused, exploited
or neglected by that person; or
(iv) who is mentally ill or mentally or physically
challenged or suffering from terminal or incurable
disease, having no one to support or look after or
having parents or guardians unfit to take care, if
found so by the Board or the Committee; or
(v) who has a parent or guardian and such parent
or guardian is found to be unfit or incapacitated,
by the Committee or the Board, to care for and
protect the safety and well-being of the child; or
(vi) who does not have parents and no one is
willing to take care of and protect or who is
abandoned or surrendered him;
(vii) who is missing or run away child, or whose
parents cannot be found after making reasonable
inquiry in such manner as may be prescribed; or
(viii) who has been or is being or is likely to be
abused, tortured or exploited for the purpose of
sexual abuse or illegal acts; or
(ix) who is found vulnerable and is likely to be
inducted into drug abuse or trafficking; or
(x) who is being or is likely to be abused for
unconscionable gains; or
(xi) who is victim of or affected by any armed
conflict, civil unrest or natural calamity; or
(xii) who is at imminent risk of marriage before
attaining the age of marriage and whose parents,
family members, guardian and any other persons
are likely to be responsible for solemnisation of
such marriage;‖Signature Not Verified
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MISHRA
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8. Admittedly, no child or children found in the institution, which is
being run by the applicant, was found to be child in conflict with law.
9. Now the only question for consideration is ―as to whether minor
girls as well as minor boys, who were found in the institution were
children in need of care and protection or not?‖
10. Section 2(14) of the Act, 2015 has already been reproduced.
Therefore, it is clear that a child (i) who is found without any home or
settled place of abode and without any ostensible means of subsistence;
or (vi) who does not have parents and no one is willing to take care of
and protect or who is abandoned or surrendered him; (vii) who is
missing or run away child, or whose parents cannot be found after
making reasonable inquiry in such manner as may be prescribed as
mentioned in Section 2(14) of the Act, 2015, will be a child in need of
care and protection.
11. In the present case, 13 minor girls and 29 minor boys were found
in the institution run by the applicant. Admittedly, the said institution is
an unregistered institution. In order to find out as to whether the
children, who were found at the time of inspection, were children in
need of care and protection or not, counsel for the applicant was directed
to point out documents to show that they were not abandoned by their
parents or if they did not have parents, then someone was willing to take
care of them or whereabouts of their parents were known.
12. However, it is submitted by counsel for applicant that the children
were staying with the permission and consent of their parents, but fairly
conceded that he has not placed any document to show the same.
Counsel for applicant has relied upon an order dated 30/10/2023 passed
by Coordinate Bench of this Court in the case of Digvijay Singh and
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others Vs. State of M.P. and others in Writ Petition No.23718/2023
and submitted that in paragraph 8 of the said order, it was held that the
provisions of Sections 41 and 42 and Sections 2 (13) and 2 (14) of the
Act, 2015 are not applicable.
13. It is suffice to mention here that Writ Petition No.23718/2023 was
filed by parents of some of the rescued children and, therefore, said
order cannot be said to be applicable to all children, who were rescued
from the institution.
14. Respondents have filed their return and along with their return
they have filed a list of children with details of their parents. List dated
25/7/2023 which has been filed as Annexure A/3 along with the return
indicates that two lists were prepared. One list consists of 30 children,
whereas another list consists of 37 children. The list of 37 children is of
those children who were handed over to their parents, but the list of 30
children is a list of those children who were either left by their parents
or their parents have remarried. Under these circumstances, it is clear
that there were children who were in need of care and protection and in
order to house them in the institution, registration of the institution
under Section 41 of the Act, 2015 was necessary. Admittedly, the
institution from where the aforesaid children were rescued was not
registered as per Section 41 of Act, 2015.
15. Under these circumstances, registration of offence under Section
42 of the Act, 2015 cannot be said to be bad in law.
16. So far as registration of offence under Section 370 of IPC and
under Sections 3, 5 of the Act, 2021 is concerned, it is suffice to
mention here that investigation is pending. The applicant has already
been granted bail by the Trail Court for the offence under Section 370 of
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IPC and Sections 3, 5 of the Act, 2021 and in case if no material is
found to substantiate the allegation under Section 370 of IPC and
Sections 3, 5 of the Act, 2021, certainly the police will not be able to file
charge-sheet for the aforesaid offences.
17. It is well established principle of law that this Court cannot stifle
legitimate investigation thereby restraining the police from collecting
evidence.
18. The Supreme Court in the case of Neeharika Infrastructure
Private Limited Vs. State of Maharashtra and Others reported in
(2021) 19 SCC 401 has held as under:-
―12.8. In Prakash P. Hinduja [Union of India v.
Prakash P. Hinduja, (2003) 6 SCC 195 : 2003
SCC (Cri) 1314] , it is observed and held by this
Court that the court would not interfere with the
investigation or during the course of investigation
which would mean from the time of lodging of the
first information report till the submission of the
report by the officer in charge of the police station
in court under Section 173(2)CrPC, this field being
exclusively reserved for the investigating agency.
12.9. In P. Chidambaram v. Directorate of
Enforcement [P. Chidambaram v. Directorate of
Enforcement, (2019) 9 SCC 24 : (2019) 3 SCC
(Cri) 509] , this Court while considering the
powers of the investigating agency to investigate
the cognizable offence, has observed in paras 61
and 64 to 67 as under : (SCC pp. 54 & 56-57)
―61. The investigation of a cognizable
offence and the various stages thereon
including the interrogation of the accused is
exclusively reserved for the investigating
agency whose powers are unfettered so long
as the investigating officer exercises his
investigating powers well within the
provisions of the law and the legal bounds.
In exercise of its inherent power under
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MISHRA
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Section 482CrPC, the Court can interfere
and issue appropriate direction only when
the Court is convinced that the power of the
investigating officer is exercised mala fide
or where there is abuse of power and non-
compliance of the provisions of the Code of
Criminal Procedure. However, this power of
invoking inherent jurisdiction to issue
direction and interfering with the
investigation is exercised only in rare cases
where there is abuse of process or non-
compliance of the provisions of the Criminal
Procedure Code.
***
64. Investigation into crimes is the
prerogative of the police and excepting in
rare cases, the judiciary should keep out all
the areas of investigation. In State of Bihar
v. P.P. Sharma [State of Bihar v. P.P.
Sharma, 1992 Supp (1) SCC 222 : 1992
SCC (Cri) 192] , it was held that : (SCC p.
258, para 47)
‗47. The investigating officer is an arm
of the law and plays a pivotal role in the
dispensation of criminal justice and
maintenance of law and order. …
Enough power is therefore given to the
police officer in the area of investigatory
process and granting him or her great
latitude to exercise his discretionary
power to make a successful
investigation….’
65. In Dukhishyam Benupani v. Arun Kumar
Bajoria [Dukhishyam Benupani v. Arun
Kumar Bajoria, (1998) 1 SCC 52 : 1998
SCC (Cri) 261] , this Court held that : (SCC
p. 55, para 7)
‗7. … It is not the function of the court to
monitor investigation processes so long
as such investigation does not transgress
any provision of law. It must be left to
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the investigating agency to decide the
venue, the timings and the questions and
the manner of putting such questions to
persons involved in such offences. A
blanket order fully insulating a person
from arrest would make his interrogation
a mere ritual….’
66. As held by the Supreme Court in a
catena of judgments that there is a well-
defined and demarcated function in the field
of investigation and its subsequent
adjudication. It is not the function of the
court to monitor the investigation process so
long as the investigation does not violate any
provision of law. It must be left to the
discretion of the investigating agency to
decide the course of investigation. If the
court is to interfere in each and every stage
of the investigation and the interrogation of
the accused, it would affect the normal
course of investigation. It must be left to the
investigating agency to proceed in its own
manner in interrogation of the accused,
nature of questions put to him and the
manner of interrogation of the accused.
67. It is one thing to say that if the power of
investigation has been exercised by an
investigating officer mala fide or non-
compliance of the provisions of the Criminal
Procedure Code in the conduct of the
investigation, it is open to the court to quash
the proceedings where there is a clear case
of abuse of power. It is a different matter
that the High Court in exercise of its
inherent power under Section 482CrPC, can
always issue appropriate direction at the
instance of an aggrieved person if the High
Court is convinced that the power of
investigation has been exercised by the
investigating officer mala fide and not in
accordance with the provisions of the
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Criminal Procedure Code. However, as
pointed out earlier that power is to be
exercised in rare cases where there is a clear
abuse of power and non-compliance of the
provisions falling under Chapter XII of the
Code of Criminal Procedure requiring the
interference of the High Court. In the initial
stages of investigation where the Court is
considering the question of grant of regular
bail or pre-arrest bail, it is not for the Court
to enter into the demarcated function of the
investigation and collection of
evidence/materials for establishing the
offence and interrogation of the accused and
the witnesses.‖
12.10. In the recent decision of this Court in Skoda
Auto Volkswagen India (P) Ltd. v. State of U.P.
[Skoda Auto Volkswagen India (P) Ltd. v. State of
U.P., (2021) 5 SCC 795 : (2021) 3 SCC (Civ) 294
: (2021) 2 SCC (Cri) 709], it is observed in paras
40 to 42 as under : (SCC pp. 805-806)
―40. It is needless to point out that ever
since the decision of the Privy Council in
King Emperor v. Khwaja Nazir Ahmad
[King Emperor v. Khwaja Nazir Ahmad,
1944 SCC OnLine PC 29 : (1943-44) 71 IA
203 : AIR 1945 PC 18] , the law is well
settled that Courts would not thwart any
investigation. It is only in cases where no
cognizable offence or offence of any kind
is disclosed in the first information report
that the court will not permit an
investigation to go on.
41. As cautioned by this Court in State of
Haryana v. Bhajan Lal [State of Haryana
v. Bhajan Lal, 1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] , the power of
quashing should be exercised very
sparingly and with circumspection and that
too in the rarest of rare cases. While
examining a complaint, the quashing ofSignature Not Verified
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which is sought, the Court cannot embark
upon an enquiry as to the reliability or
genuineness or otherwise of the allegations
made in the FIR or in the complaint. In
S.M. Datta v. State of Gujarat [S.M. Datta
v. State of Gujarat, (2001) 7 SCC 659 :
2001 SCC (Cri) 1361 : 2001 SCC (L&S)
1201] this Court again cautioned that
criminal proceedings ought not to be
scuttled at the initial stage. Quashing of a
complaint should rather be an exception
and a rarity than an ordinary rule.
42. In S.M. Datta [S.M. Datta v. State of
Gujarat, (2001) 7 SCC 659 : 2001 SCC
(Cri) 1361 : 2001 SCC (L&S) 1201] , this
Court held that if a perusal of the first
information report leads to disclosure of an
offence even broadly, law courts are barred
from usurping the jurisdiction of the police,
since the two organs of the State operate in
two specific spheres of activities and one
ought not to tread over the other sphere.‖
13. From the aforesaid decisions of this Court,
right from the decision of the Privy Council in
Khwaja Nazir Ahmad [King Emperor v. Khwaja
Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-
44) 71 IA 203 : AIR 1945 PC 18], the following
principles of law emerge:
13.1. Police has the statutory right and duty under
the relevant provisions of the Code of Criminal
Procedure contained in Chapter XIV of the Code
to investigate into cognizable offences.
13.2. Courts would not thwart any investigation
into the cognizable offences.
13.3. However, in cases where no cognizable
offence or offence of any kind is disclosed in the
first information report the Court will not permit
an investigation to go on.
13.4. The power of quashing should be exercised
sparingly with circumspection, in the ―rarest of
rare cases‖. (The rarest of rare cases standard in itsSignature Not Verified
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application for quashing under Section 482 CrPC
is not to be confused with the norm which has
been formulated in the context of the death
penalty, as explained previously by this Court.)
13.5. While examining an FIR/complaint,
quashing of which is sought, the Court cannot
embark upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made
in the FIR/complaint.
13.6. Criminal proceedings ought not to be scuttled
at the initial stage.
13.7. Quashing of a complaint/FIR should be an
exception and a rarity than an ordinary rule.
13.8. Ordinarily, the courts are barred from
usurping the jurisdiction of the police, since the
two organs of the State operate in two specific
spheres of activities. The inherent power of the
court is, however, recognised to secure the ends of
justice or prevent the above of the process by
Section 482 CrPC.
13.9. The functions of the judiciary and the police
are complementary, not overlapping.
13.10. Save in exceptional cases where non-
interference would result in miscarriage of justice,
the Court and the judicial process should not
interfere at the stage of investigation of offences.
13.11. Extraordinary and inherent powers of the
Court do not confer an arbitrary jurisdiction on the
Court to act according to its whims or caprice.
13.12. The first information report is not an
encyclopedia which must disclose all facts and
details relating to the offence reported. Therefore,
when the investigation by the police is in progress,
the court should not go into the merits of the
allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature
to pronounce the conclusion based on hazy facts
that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of process
of law. During or after investigation, if the
investigating officer finds that there is no
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substance in the application made by the
complainant, the investigating officer may file an
appropriate report/summary before the learned
Magistrate which may be considered by the
learned Magistrate in accordance with the known
procedure.
13.13. The power under Section 482 CrPC is very
wide, but conferment of wide power requires the
Court to be cautious. It casts an onerous and more
diligent duty on the Court.
13.14. However, at the same time, the Court, if it
thinks fit, regard being had to the parameters of
quashing and the self-restraint imposed by law,
more particularly the parameters laid down by this
Court in R.P. Kapur [R.P. Kapur v. State of
Punjab, 1960 SCC OnLine SC 21 : AIR 1960 SC
866] and Bhajan Lal [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426], has the jurisdiction to quash the
FIR/complaint.
13.15. When a prayer for quashing the FIR is made
by the alleged accused, the Court when it exercises
the power under Section 482 CrPC, only has to
consider whether or not the allegations in the FIR
disclose the commission of a cognizable offence
and is not required to consider on merits whether
the allegations make out a cognizable offence or
not and the court has to permit the investigating
agency/police to investigate the allegations in the
FIR.‖
19. Considering the totality of the facts and circumstances of the case,
this Court is of considered opinion that no case is made out warranting
interference.
20. Accordingly, application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
Arun*
Signature Not Verified
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MISHRA
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