Siddharth Narendra Banthia vs The State Of Maharashtra And Anr
2022 Latest Caselaw 7150 Bom

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                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                        WRIT PETITION NO.3527 OF 2021

                      Siddharth Narendra Banthia                           ...Petitioner
                                 vs.
                      The State of Maharashtra and Another                 ...Respondents
VISHAL
SUBHASH               Mr. Viresh Purwant a/w. Mr. Omkar Hase i/b. Sachin Deokar, for the
PAREKAR               Petitioner.
Digitally signed by   Ms. Aishwarya Kantawala, for Respondent No. 2.
VISHAL SUBHASH
PAREKAR               Mr. A.R. Patil, APP for the State.
Date: 2022.07.26
17:33:00 +0530
                                               CORAM :            N.J. JAMADAR, J.
                                               RESERVED ON : 29th APRIL, 2022
                                               PRONOUNCED ON : 26th JULY, 2022
                                                       --------------

                      JUDGMENT :

1. Rule. Rule made returnable forthwith and, with the consent of

the counsels for the parties, heard finally.

This petition under Article 227 of the Constitution of India

calls in question the legality, propriety and correctness of an order

passed by the learned Additional Sessions Judge, Pune on 3 rd

September, 2021 on an application (Exhibit 20), in Sessions Case

No. 188 of 2019 whereby the prayer of the petitioner to discharge

him from the prosecution came to be rejected.

2. The background facts necessary for determination of this

petition can be stated as under:

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a]       Ms. S (hereinafter referred to as "prosecutrix") is an actress

by profession. Her marriage was solemnized on 21 st November,

2002. However, in the year 2004, the said marriage was dissolved

by mutual consent. One of the friends of the prosecutrix introduced

the petitioner to her. In the year 2008, the petitioner represented to

her that he would assist her in procuring a flat at Mumbai under

Government's 10% discretionary quota. The petitioner induced the

prosecutrix to part with a sum of Rs. 8 lakhs allegedly for payment

to the middlemen. The flat could not be allotted till the month of

March/April, 2010. The petitioner repaid a sum of Rs. 5 lakhs. The

petitioner, however, developed intimacy with the prosecutrix.

b] In June, 2010 the petitioner proposed the prosecutrix. The

petitioner represented that he was a bachelor. The petitioner met

the mother and brother of the prosecutrix and gained their

confidence as well. After the prosecutrix and her family members

agreed to the said proposal, the marriage of the prosecutrix was

solemnized with the petitioner on 23rd July, 2010 at Kita Cottage,

Varsova, Andheri(w). Pre-marriage ceremonies were held at Flat

No. 901, Pyramid Towers, Varsova, Andheri(w), which was taken on

rent. None from the family members of the petitioner attended the

said marriage. The petitioner claimed that since the marriage was

inter caste, his family members did not attend the same.

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c]       In the month of September, 2010 a lady "M" called the

prosecutrix and informed her that she was the wife of the petitioner

and they had two issues out of the said wedlock. When confronted,

the petitioner stated that the previous marriage was dissolved. The

petitioner assured to show the divorce papers and also get the

certificate of marriage with prosecutrix. In the meanwhile, the

petitioner made the prosecutrix to open a joint account with ICICI

Bank, Andheri branch, and withdrew huge amounts from the said

account behind the back of the prosecutrix.

d] On 23rd July, 2010 the prosecutrix and the petitioner

celebrated their first marriage Anniversary at Hotel Tunga, Andheri

(E), Mumbai. The said event was reported in newspapers. "M" came

to the house of the prosecutrix. In her presence, the petitioner

conceded that the documents evidencing the alleged divorce

between him and "M", which he had shown to the prosecutrix, were

false. The petitioner claimed that he would ensure that separate

provision was made for her first wife and children.

e] Prosecutrix and her mother met the parents of the petitioner.

It transpired that the petitioner had deceived them by firstly

representing that he was a bachelor and, later on, claiming that his

first marriage was dissolved. The petitioner had allegedly obtained a

forged marriage certificate as well. The prosecutrix thus instituted a

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petition for annulment of marriage in the Family Court, Pune.

3. The prosecutrix, thereafter, approached Dattwadi police

station, Pune and lodged report leading to registration of C.R. No.

148 of 2013 for the offences punishable under sections 420, 406,

467, 471, 474, 376, 323, 504, 506(i) and 494 of Indian Penal Code,

1860. Post completion of investigation, charge-sheet came to be

lodged against the petitioner.

4. The petitioner preferred an application for discharge

contending, inter alia, that the prosecutrix had made false and

baseless allegations against the petitioner. Those allegations were

vague. No specific date, time and place was mentioned with regard

to any of the events which allegedly transpired. Moreover, the

version of the prosecutrix was at variance with the averments in

the petition for annulment of marriage. There was an inordinate

delay of more than three years in lodging the first information

report. Thus, the charge against the petitioner was groundless.

Therefore, the petitioner deserved to be discharged.

5. The application was resisted by the prosecution.

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6. The learned Additional Sessions Judge, after apprisal of the

contentions in the application, reply thereto and the report under

section 173 of the Code of Criminal Procedure and the documents

annexed with it as well as the submissions canvassed across the bar,

was persuaded to reject the application. The learned Additional

Sessions Judge was of the view that there were sufficient grounds to

proceed against the petitioner.

7. Being aggrieved, the petitioner has invoked the writ

jurisdiction of this Court.

8. I have heard Mr. Purwant, learned counsel for the petitioner,

Mr. Patil, learned APP for the State and Ms. Kantawala, learned

counsel for respondent No. 2/prosecutrix. With the assistance of the

learned counsel for the parties, I have perused the material on

record including the report under section 173 of the Code and the

documents annexed with it.

9. Mr. Purwant, learned counsel for the applicant, canvassed a

two-fold submission. Firstly, the claim of the prosecutrix that her

marriage was solemnized with the petitioner is required to be

repelled for the reason that there is no material to show that the

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marriage between the prosecutrix and her husband, solemnized in

the year 2002, was legally dissolved. This negatives the very

premise of the prosecution case that the petitioner obtained the

consent of the prosecutrix by falsely representing that he was

unmarried and thereby committed the offence of cheating and rape.

Secondly, in any event, the offence punishable under section 376 of

the Penal Code cannot be said to have been made out, by any stretch

of imagination. The allegations in the first information report as well

as the averments in the petition for annulment of marriage,

according to Mr. Purwant, do not indicate even remotely that the

alleged physical relations between the prosecutrix and the

petitioner were without the consent of the prosecutrix. Mr. Purwant

would further urge that if the offence punishable under section 376

of the Penal Code is held to be prima facie not made out, then the

trial would be required to be held by the Court of learned

Magistrate. The learned Sessions Judge did not properly appreciate

this aspect of the offence punishable under section 376 of the Penal

Code not having been prima facie made out and rejected the

application by making general observations that there were

sufficient grounds to proceed against the petitioner, submitted Mr.

Purwant.

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10. In order to lend support to the aforesaid submissions, Mr.

Purwant took the Court through the allegations in the first

information report and the averments in the petition for annulment

of marriage. An endevour was made to compare and contrast the

allegations in the first information report and the averments in the

petition and highlight the inconsistency therein. Mr. Purwant,

would further urge that in the written statement to the said

Marriage Petition, the petitioner has categorically asserted that the

marriage ceremony purported to be held on 23rd July, 2010 and the

anniversary celebration, the following year, were merely props as

the prosecutrix had induced the petitioner to perform the role of

'husband' for a programme to be aired. As the petitioner was fond of

film and TV industry, the petitioner performed those roles and, in

fact, the petitioner and the prosecutrix were never married and

cohabited as husband and wife.

11. The learned APP, countered the submissions of Mr. Purwant.

Laying emphasis on the material on record, especially the

statements of witnesses, who attended the marriage and

anniversary, the documents evidencing hiring of the premises on

Leave and Licence, bank statements and photographs, the learned

APP would urge that there is overwhelming material to lend support

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to the allegations in the first information report. At this stage, the

defence of the petitioner is not required to taken into account at all,

submitted learned APP.

12. Ms. Kantawala, the learned counsel for respondent No. 2 at

the outset, submitted that the instant petition does not deserve to be

entertained as the learned Sessions Judge has framed charge

against the applicant on 14th October, 2021, after the application for

discharge came to be dismissed on 3rd September, 2021. In view of

the aforesaid development, the challenge to the impugned order

becomes unsustainable as the prayer for discharge cannot be

countenanced after the framing of the charge.

13. Ms. Aishwarya Kantawala, submitted that the very premise

of the petitioner that the marriage ceremony and the anniversary

celebrations were mere props, renders the application for discharge

untenable. In the face of the allegations in the first information

report and overwhelming documentary evidence, this issue would

surely warrant a trial. Ms. Kantawala further submitted that the

thrust of the submission on behalf of the petitioner that, in any

event the offence punishable under section 376 of the Penal Code

cannot be said to have been made out, is based on an incorrect

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impression of the definition of "rape". The case at hand, according to

Ms. Kantawala, would clearly fall within the ambit of clause

"fourthly" as the petitioner being a married man had fully known

that he was not the husband of the prosecutrix and made her to give

consent believing that he is the man to whom she is lawfully

married. Therefore, the offence punishable under section 376 of the

Penal Code is prima facie made out. Resultantly, the learned

Additional Sessions Judge committed no error in rejecting the

application, submitted Ms. Kantawala.

14. The challenge to the tenability of the petition, in the context of

its frame and the prayers therein, on the count of the framing of the

charge cannot be said to be bereft of substance. It seems that after

the application came to be rejected, on the next scheduled date the

learned Sessions Judge framed charge against the petitioner and

the petitioner abjured the guilt. Copies of the order framing charge

and the plea of the petitioner are annexed to the affidavit filed on

behalf of the respondent No. 2. It is trite that once a charge is

framed, the scope of interference by the High Court, even in

exercise of extraordinary writ jurisdiction, gets constricted. A

proper remedy for an accused aggrieved by framing of the charge is

to invoke the revisional jurisdiction. Indeed, the existence of an

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alternative remedy is a self-imposed restraint. Yet, after the

framing of the charge, the High Court may not interdict the trial

unless the exercise of the jurisdiction becomes, in the peculiar facts

of a given case, absolutely imperative to prevent the abuse of the

process of the Court and secure the ends of justice.

15. In this context, Ms. Kantawala placed reliance on a judgment

of the Supreme Court in the case of Minakshi Bala vs. Sudhir Kumar

and Others1. Paragraph 7 reads as under:-

7] If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out as has been done in the instant case the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.

16. Nonetheless in the context of the challenge, especially to the

1 (1994) 4 SCC 142.

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invocation of the provisions contained in section 376 of the Penal

Code, I deem it expedient to appreciate the submissions keeping in

view the broad parameters on which a prayer for discharge from

prosecution is required to be appraised.

17. A profitable reference in this context can be made to the

judgment of the Supreme Court in the case of Union of India vs.

Prafulla Kumar Samal and Another2. The observations in

paragraph Nos. 8 and 10 are instructive and hence extracted below:

8] The scope of section 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar v. Ramesh Singh(1) where Untwalia, J. speaking for the Court observed as follows:-

"Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor pro poses to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebut ted by the defence evidence; if any, cannot show that the accused committed the offence then there will be no 2 AIR 1979 SUPREME COURT 366.

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sufficient ground for proceeding with the trial".

This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of ths Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out.

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10] Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case

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and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

18. On the aforesaid touchstone, reverting to the facts of the

case, I find it rather difficult to accede to the submissions on behalf

of the petitioner that there is no material in support of the

allegations of the prosecutrix that the petitioner made her to go

through the ceremony of marriage, they resided together as

husband and wife and there was a marriage anniversary

celebration. In addition to the statement of the relatives of the

prosecutrix, there are statement of witnesses, who attended the

marriage ceremony, including the statement of the Manager of the

Hall where the marriage ceremony was allegedly held and the Priest

who solemnized the marriage. To add to this the statement of Dr.

Murari Nanawati, indicates that the petitioner and the prosecutrix

had visited his clinic and consulted him in respect of starting a

family. There are medical reports which prima facie lend support to

the claim of Dr. Nanawati. As indicated above, the prosecution has

collected copies of the leave and licence agreement in respect of the

premises which was allegedly taken on rent by the petitioner to

cohabit with the prosecutrix, post marriage. The extract of the joint

account maintained by the petitioner and prosecutrix is also

pressed into service in support of the allegations.

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19. In the face of the aforesaid material, at this juncture, it would

be impermissible to discard the prosecution version on the ground

that the petitioner has put forth a counter version, in his written

statement to the Marriage Petition. Indeed it is a matter for trial.

The necessary corollary of the aforesaid inference which, in the

circumstances of the case, appears at this stage irresistible is that

the question as to whether the petitioner forged the marriage

certificate and other documents is also a matter for evidence and

trial. I am, therefore, not persuaded to accede to the submission on

behalf of the petitioner that even the offences other than the offence

punishable under section 376 of the Penal Code are not prima facie

made out.

20. This propels me to the pivotal challenge mounted on behalf of

the applicant. Mr. Purwant urged with a degree of vehemence that

since the prosecutrix has instituted a petition for annulment of

marriage before the Family Court, by no stretch of imagination can

it be said that the physical relations were without the consent of the

prosecutrix. Amplifying the submission, Mr. Purwant would urge

that if the Family Court rules that the marriage was valid, the

prosecution under section 376 of the Penal Code would be wholly

unsustainable. In no circumstances, according to Mr. Purwant, the

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physical relations, in the backdrop of the case where the

prosecutrix alleges that she was induced to solemnize the marriage

by making a false representation that the petitioner was a bachelor,

can be said to be without the consent of the prosecutrix. Therefore,

the learned Session Judge committed a grave error in not

discharging the petitioner from the prosecution at least for the

offence punishable under section 376 of the Penal Code, submitted

Mr. Purwant.

21. I have given anxious consideration to the aforesaid

submission. At the first blush, the submission appears attractive.

The submission, however, losses sight of the elements which vitiate

the consent of a woman for the sexual act. Clause 'fourthly' to

section 375 of the Penal Code addresses a situation where though

the sexual act is with the apparent consent of the prosecutrix, in

law the consent is vitiated on account of the circumstances

enumerated therein which have the effect of negating the consent.

Clause fourthly reads as under:-

Fourthly :- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

22. From the text of clause fourthly, it becomes abundantly clear

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that the act with the apparent consent would fall within the dragnet

of offence of rape if the man knows that -

a) he is not the husband of the woman, and

b) the woman gave consent because she believed that he is

another man to whom she is or believes herself to be lawfully

married.

23. To bring the sexual act within the mischief of clause fourthly,

two states of mind are necessary. First, a state of mind on the part

of the man manifested in the knowledge that he is not the husband

of the prosecutrix and that the consent is given under a mistaken

belief. Second, the state of mind of the prosecutrix manifested in her

belief that she is lawfully or believes herself to be lawfully married

to the man.

24. From the point of view of the prosecutrix, her belief as to her

situation in life qua the man, accused of committing the rape, is of

decisive significance. This belief, in turn, ought to be induced by a

positive act on the part of the man to make her believe that she is

married to him. If there is evidence to show the existence of

circumstances which made the prosecutrix to entertain such belief,

then clause fourthly would be attracted as the aspect of knowledge

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on the part of the man that he is not her husband is often an

objective fact. To put it in other words, clause fourthly is attracted

where there is knowledge on the part of the man about he being not

the husband of the prosecutrix and the consent is on account of

such mistaken belief that he is her husband and a belief on the part

of the prosecutrix that she is the wife of the man. If the aforesaid

twin conditions are prima facie made out then the challenge to the

prosecution on the ground that the physical relations were with the

consent of the prosecutrix does not merit acceptance.

25. In the case at hand the prosecutrix categorically alleges that

the petitioner made her to solemnize the marriage and cohabit with

her by making a representation that he is unmarried. Since the

petitioner allegedly solemnized the marriage with the prosecutrix,

during the life of his wife, the marriage was, thus, void. The

petitioner knew that he is not the husband of the prosecutrix and

yet allegedly had physical relations with her. In the circumstances

of the case, prima facie, the submission on behalf of the respondent

No. 2 that the prosecutrix would not have given consent but for the

belief induced by the petitioner by falsely representing that he was

unmarried (though much married) appears to carry substance.

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26. Reliance by Ms. Kantawala on a judgment of the Supreme

Court in the case of Bhupinder Singh vs. Union of Territory of

Chandigarh3 appears to be well placed. In the said case also, the

appellant therein, who was already married and had children from

the wedlock had induced the prosecutrix to enter into a marriage

ceremony and cohabit with him. Later on, the fact that the appellant

was already married and the first marriage was subsisting when the

appellant went through the marriage ceremony with the

prosecutrix came to light. In the backdrop of the said facts a

submission was sought to be canvassed that the physical relations

were with the consent of the prosecutrix and, therefore, the offence

punishable under section 376 cannot be said to have been made out.

27. Repelling the submission, the Supreme Court enunciated the

law as under:-

13] Learned counsel for the accused-appellant submitted that when the complainant knew that he was a married man and yet consented for sexual intercourse with him, Clause "Fourthly" of Section 375 IPC would have no application. It was also submitted that the fact that the complainant knew about his being a married man, is clearly established from the averments made in a suit filed by her where she had sought for a declaration that she is the wife of the accused. The sentence imposed is stated to be harsh. It was, however, pointed out that the compensation, as awarded by the High Court, has been deposited and withdrawn by the complainant.

3 (2008) 8 Supreme Court Cases 531.

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14] Learned counsel for the State submitted that it is a clear case where Clause "Fourthly" of Section 375 IPC is applicable. Learned counsel for the complainant submitted that this was a case where no reduction in sentence was uncalled for. The High Court proceeded on an erroneous impression that the complainant knew that the accused was a married man. It was also submitted that the compensation as awarded, is on the lower side.

15] Clause "Fourthly" of Section 375 IPC reads as follows:

"375 Rape - A man is said to commit "rape", who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

16] Though it is urged with some amount of vehemence that when complainant knew that he was a married man, Clause "Fourthly" of Section 375 IPC has no application, the stand is clearly without substance. Even though, the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation so far as the accused-appellant is concerned. Since, he was already married, the subsequent marriage, if any, has no sanctity in law and is void ab-initio. In any event, the accused-appellant could not have lawfully married the complainant. A bare reading of Clause "Fourthly" of Section 375 IPC makes this position clear.

28. The aforesaid pronouncement was followed by the Delhi High

Court in the case of Divya Oram Kujur vs. State and Anr.4 wherein in

somewhat similar fact-situation, the Delhi High Court had interfered

4 Cri. Revn. Petition No. 193 of 2012 Dt.27.02.2013

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with the order passed by the learned Sessions Judge of discharging

the accused therein of the offence punishable under section 376 of

the Penal Code.

29. In the light of the aforesaid position in law, re-adverting to the

facts of the case, prima facie, clause fourthly of section 375 of the

Penal Code seems to be attracted. Firstly, there is material on record

to show that the petitioner and the prosecutrix went through the

ceremony of marriage. Secondly, there is adequate material to

demonstrate that the petitioner and prosecutrix cohabited as

husband and wife. Thirdly, it is not the case of the petitioner that his

spouse was not living on the date when he went through the

marriage ceremony. On the contrary, the petitioner asserts that the

ceremonies were mere props. Fourthly, the assertion of the

prosecutrix that she gave consent for the physical relations as she

was made to believe that she is the wife of the petitioner is also

prima facie borne out by the material on record. Conversely, it is not

the case of the petitioner, that the prosecutrix knew that he was

married and thus such a belief could not have been entertained.

30. The upshot of the aforesaid consideration is that there are

sufficient grounds to proceed against the petitioner, even for the

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offence punishable under section 376 of the Penal Code. The trial

thus must proceed to its logical conclusion. Resultantly, the petition

deserves to be dismissed.

Hence, the following order.

                                  ORDER

1]       The petition stands dismissed.

2]       By way of abundant caution, it is clarified that the

observations are confined to the consideration of the prayer for

discharge and the trial Court shall decide the Session Case on its

own merits and in accordance with law without being influenced by

any of the observations made hereinabove.

3]       Rule discharged.



                                          (N.J.JAMADAR, J.)




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