The High Court of Jharkhand allowed a petition filed against the order in which the application for discharge of the petitioner was rejected. The court ruled based on settled legal principles, it cannot conduct a mini-trial at the stage of framing charges, and in this case, since the victim was older and married without a legal divorce, and there was no evidence of deception, no offence under Section 376 of IPC can be charged against the accused.
Brief Facts:
The petitioner and the informant both used to love each other and the petitioner allured the informant to marry and also established physical relations with her several times, he also compelled her not to tell her parents in regard to their physical relationship. The petitioner went out to study and in time the informant married another person. Still petitioner emotionally blackmailed her and assured her to marry due to which the informant divorced from her husband. But later the petitioner refused to marry and she was also criminally intimidated by the parents of the accused. The petitioner filed a case and this criminal revision is against the order in which the application for discharge of the petitioner was rejected.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that the order passed by the court was illegal as no offence was made out against the petitioner under section 376 of IPC and the reason for that is the victim was a major and married lady. He further contended that without having taken divorce from her former husband, she had consented to cohabitation with the petitioner, as such, the consent of the victim cannot be said to have been obtained under misconception as defined under Section 90 of the Indian Penal Code. He further submitted that a Hindu married lady during the lifetime of her husband without obtaining a divorce, cannot marry another person.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent contended that while framing the charge, the learned Court has to look into the allegations made in the FIR and also the evidence collected by the Investigating Officer and if there is sufficient ground to proceed against the accused, the discharge application is to be rejected. He further contended that the learned Court below has made no illegality in rejecting the discharge application.
Observations of the court:
The court observed that it is the settled propositions of law that while framing the charge, the learned Court has to go through the allegations made in the FIR and the evidence collected by the Investigating Officer during the investigation and if there was sufficient ground to proceed with the trial, the learned Court should decline to discharge the accused and the appreciation of evidence or marshalling of evidence is not permissible and the court can’t conduct the mini-trial at the stage of framing charge.
The court further observed that the victim was two years older than the accused and the accused had not attained the age of marriage as per the allegations made in the FIR. The court stated there was no judicial separation taken by the informant from her former husband as the agreement in regard to the dissolution of marriage has no evidential value in the eye of the law as the marriage was not judicially dissolved by the competent court.
The court held that the victim was major and still without getting the marriage dissolved by the competent court of law, she established physical relations with the accused though on allurement to marry her, and the victim being the major and married lady, she was very well aware in regard to the consequence of the physical relation with another person. The court further held that the consent cannot be said to be obtained by the accused under misconception and the allegations made in the FIR are believed that she was deceived by the accused. So, there is no sufficient ground to make an offence under Section 376 of IPC against the accused.
The decision of the Court:
The court allowed the petition and discharged the petitioner from the charge framed under Section 376 of the IPC.
Case Title: Abhishek Kumar Paul vs. The State of Jharkhand
Coram: Hon’ble Mr. Justice Subhash Chand
Case No.: Cr. Revision No.313 of 2022
Advocate for the Petitioner: Mr. Rajeeva Sharma
Advocate for the Respondent: Mr. Abhay Kumar Tiwari, Mr. Sunil Tiwari
Read Judgment @LatestLaws.com
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