Supreme Court sets aside Justice Rajiv Roy's order, restores Criminal Miscellaneous No.10400 of 2017 to file of High Court

In Azimun Khatun (Dead) Through LRS vs The State of Bihar & Ors. (2025), in its order dated April 30, 2025, Supreme Court's Division Bench of Justices Abhay S. Oka and Ujjal Bhuyan observed:"This is a very peculiar case. There were two first information reports (FIRs) registered in connection with the same incident. The incident is of 30th March, 2016. The original appellant in the special leave petition was the mother of the deceased. At her instance, FIR No.181 of 2016 was registered on 10th May, 2016 in which the allegation was that the wife of the deceased has killed the deceased. On 1st April, 2016, FIR No.122 of 2016 was registered at the instance of the wife of the deceased wherein she named brother of the deceased and nine others as accused.

Supreme Court's order reads" "After hearing the counsel appearing for the parties, we find that in the peculiar facts of the case, the petition for quashing filed by the private respondents ought to have been heard along with Criminal Appeal (D.B.) Appeal No.246 of 2022. However, the High Court did not exercise that option. Therefore, only course open for us is to set aside the impugned judgment and remit the petition criminal appeal. Accordingly, the impugned judgment and order is set aside. Criminal Miscellaneous No.10400 of 2017 is restored to the file of the High Court of Judicature at Patna. The restored application shall be heard along with Criminal Appeal (DB) No.246 of 2022. The interim relief earlier granted in the restored petition by the High Court will continue to operate till further orders. The appeal is partly allowed on above terms."

Unlike the Supreme Court, the order Justice Rajiv Roy of the High Court reads: "Having gone through the facts of the case, the two FIRs lodged in the present case as also the submissions put forward by the respective parties and the cases cited by them, this Court is in complete agreement with the submissions put forward by the learned Senior Counsel for the petitioners that once the two FIRs were lodged, in one case (in which the petitioner was the informant), the police investigated the case, charge-sheet submitted, cognizance taken, charges framed, trial initiated which culminated into the conviction of accused-Azmat; in another case, the police submitted final form, the learned C.J.M. Sitamarhi differed, the petitioner knocked the door of this Court and interim protection was granted to her, now that conviction order has already been passed, as stated above, the further proceeding in the present case (Runni Saidpur P.S. Case No. 181 of 2016) lodged by the informant-Azimun Khatun will be an abuse of the process of law. So far as the cases cited by the learned counsel for the informant is concerned, it has been rightly pointed out by the learned Senior Counsel that neither the two cases were clubbed together nor it is a case that the two cases were pending before the same learned Judge in which the learned Court failed to take up the matter one after another as also the fact that the trial in which Azmat was accused already stands concluded. In that backdrop, having dealt with the case on earlier occasion also (22.2.2023), this Court is convinced that the further proceeding in Runni Saidpur P.S. Case No. 181 of 2016, G.R. No. 1369/2016, Tr. No. 1814/2017 cannot continue. Accordingly, the present petition under Section 482 of the Cr.P.C. is allowed and the order dated 2.2.2017 passed by the learned Chief Judicial Magistrate, Sitamarhi in Runni Saidpur P.S. Case No. 181 of 2016, G.R. No. 1369/2016, Tr. No. 1814/2017 stands quashed. The case accordingly stands disposed of." This order which has now been set aside was passed March 17, 2023.

In Criminal Appeal (DB) No. 246 of 2022, the High Court's Division Bench of Justices A.M. Badar and Harish Kumar passed the order saying, "The substantive sentence of imprisonment imposed on the appellant is suspended and he is directed to be released on bail on executing P.R. bond of Rs.10,000/- (Rupees ten thousand) and on furnishing sureties of the like amount to the satisfaction of the learned Additional Sessions Judge IX, Sitamarhi, in connection with Sessions Trial No. 404/2016 arising out of Runnisaidpur P.S. Case No. 122 of 2016, till the disposal of the instant appeal. During pendency of the appeal, the recovery of fine is stayed."  The order authored by Justice Badar was passed on July 3, 2023. 

The charge-sheet was filed in FIR No.122 of 2016 on 28th July, 2016. In FIR No.181 of 2016, final report was filed on 10th July, 2016 seeking closure. On the basis of the protest petition, an order dated 2nd February, 2017 was passed by the Magistrate taking cognizance of the offence. 

In the meanwhile, trial proceeded and the persons named in FIR No.122 of 2016 were convicted. An appeal against conviction preferred by them is pending before the Patna High Court as stated by counsel appearing for the appellants (legal representatives of the mother of the deceased). In the meanwhile, the order taking cognizance passed by the Magistrate on 2nd February, 2017 was challenged by the respondent nos.2 to 13. By the impugned order, the High Court quashed the order of Magistrate dated 2nd February, 2017 taking cognizance.

It added: "We make it clear that we have made no adjudication on the merits of the quashing petition filed by the private respondents as well as pending criminal appeal. All issues are left open to be decided by the High Court." The 5-page long order was passed on April 30, 2025.

FIR under section 67 of the Information Technology Act, 2000 & provisions of IPC quashed: Justice Sandeep Kumar

Patna High Court's Justice Sandeep Kumar quashed F.I.R. registered for the offence under Sections 323, 341, 376, 376-D, 420, 313, 120-B, 504 and 506/34 of the Indian Penal Code (IPC) and under section 67 of the Information Technology Act and all the consequential proceedings arising out of the aforesaid F.I.R. including the order dated January 6, 2023 passed by the Additional Chief Judicial Magistrate, 1st, Danapur. The Magistrate had passed the order under Section 156(3) of the Cr.P.C. for registration of the F.I.R.. 

In his 34-page long judgement in Sanjeev Hans vs. The State of Bihar & Ors (2024). Justice Kumar examined as to whether the offence of rape is made out against the petitioner or not besides non-compliance of Section 154(3) of the Cr.P.C.

The other respondents were: Director General of Police, Patna, Senior Superintendent of Police, Patna, Station House Officer, Rupaspur Police Station, Patna and Gayatri Kumari of Kataiya, Jamhur, Aurangabad.

Gayatri Kumari, the complainant is a practicing advocate in Allahabad High Court. She was practicing in Patna High Court from 2009 to 2015. In the month of February, 2016 while the complainant was staying at the residence of Senior Advocate Gajendra Prasad Yadav situated at Golden Plaza Apartment, Chitkohra for getting her case mentioned, a junior advocate namely, Shiv Nandan Bharti introduced her to Gulab Yadav, who was an M.L.A. It has also been alleged that said Gulab Yadav lured her by saying that he will get make her member of Women Commission and asked her to come to meet him along with her bio-data at his residence situated at Flat No.401, Bindeshwari Apartment. It is alleged that when the Complainant reached the house of said Gulab Yadav, he raped her at gun point and when the complainant was going to register F.I.R. then Gulab Yadav asked his servant Lalit to bring vermilion and put the same on the forehead of the complainant and said that they were married and they will get their marriage registered and asked for some time to get divorce from his first wife. 

She alleged that Gulab Yadav called the complainant to Pune to show the papers of the Court, by which divorce has been granted. On July 8, 2017 when thec complainant reached Hotel Bestil then Gulab Yadav introduced her to Sanjeev Hans, the petitioner and both raped her after mixing some intoxicating substance in her food. When the complainant regained her consciousness, Gulab Yadav showed her the video of her rape and sent the same on her mobile and threatened her to make the video viral. The complainant got scared and started to live in Allahabad and when she missed her periods, she informed Gulab Yadav about the same but Gulab Yadav asked her to take medicine for abortion which she consumed, however, she had to get admitted in hospital due to medical condition. Thereafter, Gulab Yadav got the complainant admitted in Rahul Judicial Classes, Delhi and arranged for her stay in a hostel in Mukherji Nagar, Delhi. 

She also alleged that Gulab Yadav used to call the complainant at different hotels and raped her where Sanjeev Hans, the petitioner also used to accompany Gulab Yadav. It has also been alleged that on February 13, 2018 at Ashoka Hotel, on February 14, 2018 at Park Avenue hotel and on March 27, 2018 at Le’ Meriden hotel, she was gang raped and resultantly she conceived and when she informed the accused about this, the accused persons threatened her. Out of fear, the complainant vacated her hostel and started living in Shalimar Bagh, Delhi where she gave birth to a male child on October 25, 2018 and when she informed this fact to Gulab Yadav, he told that it can not be his child as he has undergone vasectomy and said that the child is of Sanjeev Hans. When the complainant tried to contact Sanjeev Hans, he did not speak with her and since then the complainant is hiding from the accused persons as they are quite influential. It has further been alleged that the complainant went to Rupaspur Police Station for registering the F.I.R., but the Police did not register the F.I.R. by saying that the accused persons are quite influential and then the complainant sent the complaint to Superintendent of Police, Patna on October 28, 2021, however no action was taken in this regard. 

The complaint case was filed by the complainant before the Additional Chief Judicial Magistrate, Danapur, Patna for lodging the F.I.R. The Magistrate in his order dated November  18, 2021 recorded that the complainant has not produced any document in support of her claim of compliance of Section 154(3) of the Cr.P.C. and therefore, called a report from the concerned Police Station. Despite granting sufficient opportunity, the complainant did not appear for recording her S.A. and resultantly, the Magistrate vide order dated September 20, 2022 dismissed the complaint case under Section 203 of the Cr.P.C. Being aggrieved by the same, the complainant approached the High Court by way of filing Cr.W.J.C. No.1271 of 2022. This Court vide order dated 12.12.2022 has disposed of the said petition with certain directions. 

The relevant part of the order dated December 12, 2022 passed in Cr.W.J.C. No.1271 of 2022 reads as under:-

“Having heard learned counsel for the petitioner and learned counsel for the State, this Court finds that there is no dispute with the submission of the learned counsel for the petitioner that in this case, police was conducting a preliminary enquiry into the matter and a report was required to be sent to the learned ACJM Court at Danapur. The said report has been submitted or not is not within the knowledge of learned counsel for the State.

Be that as it may, this Court is of the considered opinion that once the matter was pending at the stage of preliminary enquiry and the report had been called for from the police, the learned ACJM should not have acted in haste in taking up the enquiry at his level by treating it as a complaint case.

The Magistrate vide order dated 06.01.2023  allowed the prayer of the petitioner to send the complaint petition under sectionn156(3) of the Cr.P.C. to the Police for registration of the F.I.R and accordingly, the present F.I.R. has been lodged. The Investigating Officer of the case has filed an application in the Court of learned A.C.J.M.-1, Danapur for deputing a Magistrate so that blood sample of Gulab Yadav, the son of Gayatri Kumari, the respondent no.5 and the petitioner be collected for DNA test but the Magistrate vide order dated 06.03.2023 has rejected the prayer of the Investigating Officer by holding that he has no jurisdiction to pass an order for DNA test. 

The counsel for Gayatri Kumari, the respondent no.5 that respondent no.5 is a practicing advocate and Gulab Yadav and present petitioner used to commit rape with her. Since Gulab Yadav has undergone vasectomy, the presumption goes to establish that the petitioner is the biological father of the son of the respondent no.5. Thus, the DNA test of the petitioner and the son of the respondent no.5 is required in order to determine the biological father of the son of Gayatri Kumari, the respondent no.5.

The judgement reads: "This Court can consider the quashing of the F.I.R. for preventing the abuse of the process of the Court and otherwise to secure the ends of justice and in my opinion, it is a fit case for interference in view of glaring facts of the case. This Court finds that it is a malafide prosecution because of some dispute... "

The Court observed:"From reading of the complaint petition, I find that the complainant has not filed any affidavit as mandated by the Hon’ble Supreme in the aforesaid case and she has also not filed any document with the complaint petition showing compliance of section 154(3) of the Cr.P.C. Therefore, on account of non-compliance of section 154(3) of the Cr.P.C., the direction for registration of the F.I.R. vide order dated 06.01.2023 is against the law laid down by the Hon’ble SupremeCourt. The learned Magistrate though recorded non-compliance of the provisions of section 154(3) of the Cr.P.C. on 18.11.2021 but, has proceeded to pass the order dated 06.01.2023 for registration of the F.I.R. Before the learned Magistrate passed an order for registration of the F.I.R., he had passed an order for preliminary enquiry. On 18.11.2021, the learned Magistrate directed for calling for a report from the concerned Police Station through Senior Superintendent of Police, Patna in light of the complaint petition. On 11.05.2022, the Police submitted an application saying that the Police was directed to submit the report after conducting the enquiry outside the State. Thereafter, the case was started as a complaint case and because of the nonappearance of the complainant on a number of days, the complaint was dismissed on 20.09.2022. This Court vide order dated 12.12.2022 passed in Cr.W.J.C. No.1271 of 2022 has set aside the orders dated 12.05.2022 and 20.09.2022 passed by the learned Magistrate. Thereafter, on 06.01.2023, the preliminary enquiry report of the police was opened in the Court, which was submitted in a sealed cover, and after considering the same, the learned Magistrate directed for registration of the F.I.R. 

The moment the enquiry report was opened by the learned Magistrate on 06.01.2023, before directing for registration of the F.I.R., the fact that the complainant/informant claimed herself to be the wife of Gulab Yadav and she gave birth to a child claiming to be the son of Gulab Yadav was well within the knowledge of the Court as well as the complainant /informant. The complainant / informant while filing the complaint / FIR has not disclosed the true facts i.e. she was treating herself to be the wife of Gulab Yadav, whenever she was hospitalized she claimed herself to be the wife of Gulab Yadav and when a boy was born the name of Gulab Yadav was disclosed by the complainant/informant saying that the father of her son is Gulab Yadav. These materials have been collected by the Police during the enquiry and they have been suppressed by the complainant / informant in her complaint/F.I.R.

From reading of the F.I.R., it appears that the complainant / informant has made allegation against two persons i.e. Gulab Yadav and the present petitioner. The date of occurrence mentioned in the complaint/F.I.R. is from February, 2016 to the date of filing of the complaint petition i.e. 16.11.2021. Initially, the allegations are levelled against Gulab Yadav who is said to have committed rape with the complainant/informant. The name of the petitioner is mentioned for an occurrence which is said to have taken place on 08.07.2017 at a Hotel in Pune alleging that the complainant was sexually assaulted by both the accused persons and Gulab Yadav made a video of the same and thereafter threatened her of making the video viral. Further allegations levelled in the complaint/F.I.R. primarily against Gulab Yadav and the complainant/informant has mentioned the name of the petitioner as an accomplice of Gulab Yadav and has alleged that he also used to commit rape with her. The complainant/informant is admittedly a lawyer practicing since 2009 and the complaint has been filed after about five years of the alleged incident of rape.

The complainant has waited for five years to file the complaint and there is no satisfactory explanation for the delayed filing of the complaint petition.

The petitioner herself is a grown-up woman, who is practicing Law and as per her own statement she was in a relationship with Gulab Yadav.