Calcutta High Court (Appellete Side)
Golam Mohinuddin vs State Of West Bengal & Anr on 22 July, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Before:
The Hon'ble Justice Ananda Kumar Mukherjee
C.R.R. No. 1650 of 2019
Golam Mohinuddin
Vs.
State of West Bengal & Anr.
For the Petitioners: Mr. Avik Ghatak, Adv.
Mr. Aniruddh Bhattacharya, Adv.
Mr. Fahad Imam, Adv.
For the O.P. No. 2: Md. Farhaduddin, Adv.
Mr. Siddhartha Ruj, Adv.
For the State: Mr. Bidyut Kumar Roy, Adv.
Ms. Manisha Sharma, Adv.
Heard on : 21.06.2022.
Judgment on: 22.07.2022.
Ananda Kumar Mukherjee, J. :-
1. This revisional application has been filed by the petitioner under section
482 of the Code of Criminal Procedure, 1973 praying for quashing of the
proceeding in G.R Case No. 220 of 2019, arising out of Arambagh Women
Police Station Case No. 10 of 2019 dated 26.2.2019 under section
376/417/506 of the Indian Penal Code, pending before Learned Additional
Chief Judicial Magistrate, Arambagh, Hooghly and for quashing of charge sheet
being no. 29 of 2019 dated 31.5.2019.
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2. A brief profile of the prosecution case, which gives rise to this revisional
application is that the de facto complainant (whose name is withheld and
herein after referred to as the prosecutrix) lodged an FIR before Arambagh
Police Station on 26.2.2019 disclosing that she is an helpless lady residing at
her aunt's house at Kajipara, Arambagh with two minor children after
dissolution of her marriage. She is a tailor and works in a shop to maintain her
minor children. The prosecutrix met Golam Mohinuddin a resident at Miya
Para, Arambagh at her tailoring shop and in course of time developed a love
affair with him. The accused person was fully acquainted about the earlier
marriage of the prosecutrix and her two minor children from her first marriage.
The accused person on false promise to marry her and with an assurance to
take care of her children developed a relationship with her for one and half
years and cohabited with her at different places and also in her aunt's house at
Kajipara. When the prosecutrix asked the accused to marry her, he avoided the
marriage on various pretext. On 2.2.2019 the accused called the prosecutrix
for her to sign on Kabilnama and when she reached the place the accused
person along with five to six persons threatened her not to create pressure
upon him to marry her otherwise they would commit gang rape on her and
transport her to Uttar Pradesh. On such threat the accused person obtained
her signature on a stamp paper on the pretext that she has taken money from
him. Further case of the prosecutrix is that when she tried to contact the
accused over telephone and asked him about her future, the accused person
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finally refused to marry her on 24.2.2019 and also assaulted her physically.
The prosecutrix then lodge an FIR giving rise to the present case.
3. The petitioner/accused has filed this application for quashing of the
proceeding and the charge sheet in Arambagh Women Police Station Case No.
10 of 2019 on the grounds inter alia, that the petitioner is a day laborer and
aged 32 years whereas the de facto complainant is a divorcee woman with two
children, aged 34 years and an employee in a tailoring shop.
4. Mr. Avik Ghatak, learned advocate contended that both petitioner and
the complainant are major and she has stated in her complaint and in her
statement under section 164 of Cr. P.C that she consented to sexual
intercourse with the petitioner on her own volition without fear or
misconception. It is submitted that she knew very well the consequence
thereof. It is urged that the complaint has been lodged under section 376 of the
IPC with a oblique motive and with a view to harass the petitioner.
Furthermore, it is contended that the written complaint has been lodged after
expiry of two years of the alleged fast incident which is self explanatory of the
fact that the prosecutrix was not under any misconception.
5. It is argued that prosecutrix consented to sexual intercourse with the
petitioner, with whom she was deeply in love and on a promise that he would
marry her on a later date. Therefore such consent was not an outcome of
misconception of facts. According to the petitioner the complainant had
sufficient intelligence to understand the significance and consequence of the
act. Being aware of the consequence she had physical relation with the
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petitioner, and that the allegation of rape levelled against the petitioner cannot
be sustained due to such consensual relationship on alleged promise to marry.
Furthermore, there may be various reasons for non-fulfillment of the promise
and assurance of marriage. Referring to the contents of the statement of the
prosecutrix recorded under section 164 of Cr. P.C., it is submitted that the
prosecutrix started free mixing with the petitioner on his assurance that he
would treat her children as his own children and would marry her. She
accompanied him to various lodge at Kolkata and Tarakeswar and she also had
physical relation with him on the consideration that he was in intense love with
her. Learned advocate argued that all these circumstances would indicate that
the prosecutrix not only on the alleged promise of marriage but on other
considerations like having intense love and also the alleged promise of the
petitioner to treat her children as his own had been the reasons for her to
developed such relationship. With reference to the charge under section 506 of
IPC it is urged that the FIR as well as the statement under section 164 of Cr.
P.C does not satisfy the ingredients of the offence under section 506 of IPC.
Referring to the decision of the Hon'ble Supreme Court in the case of Uday Vs.
State of Karnataka; 2003 SCC (Cri) 775, it is contended on behalf of the
petitioner that consensual relationship does not amount to an offence under
section 376 of IPC.
6. To fortify his contention learned advocate for the petitioner has relied
upon the decisions reported in Pramod Suryabhan Pawar Vs. The State of
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Maharashtra and Anr; 2019 SCC Online SC 1073, in the aforesaid decision
in paragraphs 14 and 15 it was laid down as followes:
"14. This Court has repeatedly held that consent with respect to Section
375 of the IPC involves an active understanding of the circumstances,
actions and consequences of the proposed act. An individual who makes a
reasoned choice to act after evaluating various alternative actions (or
inaction) as well as the various possible consequences flowing from such
action or inaction, consents to such action. In Dhruvaram Sonar which was
a case involving the invoking of the jurisdiction under Section 482 in this
Court observed:
"15. ....... An inference as to consent can be drawn if only based on
evidence or probabilities of the case. "Consent" is also stated to be an act
of reason coupled with deliberation. It denotes an active will in mind of a
person to permit the doing of the act complained of."
7. To reinforce his argument that the complainant being a consensual
partner cannot accuse the petitioner of committing rape on false promise of
marriage, relied upon a decision in the case of Shivasankar @ Shiva Vs. The
State of Karnataka & Anr Criminal Appeal No. 504 of 2018 (arising out of
SLP (Crl) No. 454 of 2017), in the said case the prayer for quashing was
refused by the Hon'ble High Court of Karnataka. The petitioner filed an appeal
before the Hon'ble Supreme Court. The charge against the appellant/accused
was that he has raped the Respondent No.2-Complainant. Hon'ble Supreme
Court observed :
"In the facts and circumstances of the present case, it is difficult to sustain
the charges leveled against the appellant who may have possibly, made a
false promise of marriage to the complainant.
It is, however, difficult to hold sexual intercourse in the course of a
relationship which has continued for eight years, as 'rape' especially in the
face of the complainant's own allegation that they lived together as man
and wife."
8. Learned advocate for the petitioner further placed reliance upon another
decision in the case of Thesima Begum & Ors Vs. State of Tamil Nadu & Ors;
(2020) 14 SCC 580 and Anand Kumar Mohatta Vs. State (Govt. of NCT of
Delhi); 2018 SCC Online SC 2447, to indicate that proceeding could be
quashed by exercise the inherent power of the High Court under section 482 of
Cr. P.C even after charge sheet was submitted.
9. Reliance was also placed upon the ratio in the case of Vikram Johar Vs.
The State of UP & Anr; (2019) 14 SCC 207, wherein it was laid down:
"24. Now, we revert back to the allegations in the complaint against the
appellant. The allegation is that the appellant with two or three other
unknown persons, one of whom was holding a revolver, came to the
complainant's house and abused him in filthy language and attempted to
assault him and when some neighbours arrived there the appellant and
the other persons accompanying him fled the spot. The above allegation
taking on its face value does not satisfy the ingredients of Sections 504
and 506 as has been enumerated by this Court in the above two
judgments. The intentional insult must be of such a degree that should
provoke a person to break the public peace or to commit any other offence.
The mere allegation that the appellant came and abused the complainant
does not satisfy the ingredients as laid down in para 13 of the judgment of
this Court in Fiona Shrikhande.
25. Now, reverting back to Section 506, which is offence of criminal
intimidation, the principles laid down by Fiona Shrikhande has also to be
applied when question of finding out as to whether the ingredients of
offence are made or not. Here, the only allegation is that the appellant
abused the complainant. For proving an offence under Section 506 IPC,
what are the ingredients which have to be proved by the prosecution?
Ratanlal & Dhirajlal on Law of Crimes, 27th Edn. with regard to proof of
offence states the following:
"...The prosecution must prove:
(i) That the accused threatened some person.
(ii) That such threat consisted of some injury to his persons,
reputation or property; or to the person, reputation or property of
someone in whom he was interested;
(iii) That he did so with intent to cause alarm to that person;
or to cause that person to do any act which he was not legally bound to
do, or omit to do any act which he was legally entitled to do as a
means of avoiding the execution of such threat." (emphasis supplied)
A plain reading of the allegations in the complaint does not satisfy all the
ingredients as noticed above.
10. It is argued that even uncontroverted allegation made in the FIR and
material collected in course of investigation in support thereof do not disclose
the commission of any offence against the accused person. Therefore,
continuation of the proceeding would result in abuse of the process of court.
The petitioner accordingly prayed for quashing of the case initiated at the
instance of the de facto complainant/prosecutrix and the charge sheet
submitted.
11. In reply, learned advocate for the opposite party no.2 submitted that the
prosecutrix is a divorced lady with two minor children. She was residing in the
house of her maternal aunt at Arambagh, where the petitioner developed
acquaintance with her and taking advantage of her helpless condition promised
to marry her and had physical relation with her on several occasions. The
petitioner ultimately refused to marry the prosecutrix and when she insisted,
the petitioner along with other persons threatened her of dire consequences
and warned her not to contact him any further asking him to marry her.
12. It is argued that the opposite party no.2 lodged FIR on 26.02.2019 at
Arambagh Police Station, which was registered under Section 376, 417 and
506 of the Indian Penal Code. After investigation, police submitted charge-
sheet against the accused person. Learned advocate argued that a prima facie
case under Section 376/417/506 of the Indian Penal Code has been well-
established against the petitioner and he should face the trial. Learned
advocate urged that there no material in the revisional application to preempt
the prosecutrix's case, as such, the revisional application is liable to be
dismissed.
13. Learned advocate for the State produced the Case Diary and submitted
that there is material in the Case Diary to proceed with trial against the
accused-petitioner.
14. I have carefully considered the contents of the Case Diary, the facts and
circumstances of the case emerging out of the FIR and the submissions made
by learned advocates for the parties.
15. It is undisputed and also evident from the statement of the prosecutrix
under Section 164 of Cr.P.C. that she was 34 years of age at the time of
occurrence. It appears that the accused/petitioner developed acquaintance
with the prosecutrix at her tailoring shop and gradually developed an intimate
relationship. He assured to marry the prosecutrix and also look after her
minor son and daughter. It may be gathered from her won statement that she
is a divorcee and on the basis of the assurance by the accused, she started
mixing with him freely and visited different places and stayed with her at
Kolkata and Tarakeshwar. According to the prosecutrix the accused also
revealed that he had intense love for her and if she did not agree to accompany
him and have relation with him, he would kill himself. On such consideration,
the prosecutrix had physical relation with the accused-petitioner who also went
to her aunt's house in the absence of other inmates. When the prosecutrix
pressurized the petitioner to marry her, he started avoiding her and called her
to a house where she found other people were present and they compelled her
to put her signature on some stamp papers and the petitioner denied having
any relationship with her.
16. From the facts and circumstances of the case, it appears that the
prosecutrix had developed a love affair with the petitioner and had consensual
relationship with him, knowing fully well that she was not the legally married
wife of the accused. She does not have any case that she was raped perforce or
the petitioner had sexual intercourse without her consent. Being an adult
person she was fully conscious about the consequence of such relationship
before the marriage. There might be a promise of marriage, which may fail for
various reasons but the some does not amount to any offence. When the
relationship developed between the accused and the prosecutrix, the petitioner
assured to take responsibility of the minor children of the prosecutrix and also
marry her. Infatuation and love perished in course of time leaving the
prosecutrix aggrieved. In my considered view, such mutual acts to which the
prosecutrix was concomitant does not amount to any offence under Section
375 of IPC. The society needs to be alive of the fact that any consensual sexual
act between two perceptive adult persons outside marriage would not amount
to rape. I also find that there was no mistake of facts on the part of the
prosecutrix and there was no reason to believe on her part that she was
already married to the accused person. Therefore, the offence under Section
417 of IPC would not be attracted. In view of the facts involved, I find that the
principles laid down in Promod Suryabhan Pawar (Supra) and Shivasankar @
Shiva (Supra) squarely apply to this case.
17. In the FIR, the prosecutrix has alleged that on 24.02.2019 she went to
meet the petitioner in the evening when the accused refused to marry her and
asked her to die bay taking poison or hanging and assaulted her with fists and
blows. However, in her statement under Section 164 of Cr.P.C., the
prosecutrix did not mention about such alleged meeting with the opposite party
on 24.02.2019 or being assaulted by him. In the FIR she has mentioned that
on 02.02.2019 on the pretext of putting her signature on a Kabilnama, the
prosecutrix was called to a place where she found five to six other persons who
took her to a house and told her not to create any pressure upon the petitioner
to marry her, otherwise they would commit gang rape upon her and sent her to
Uttar Pradesh and on that day they obtained her signature on a stamp paper of
Rs.10/-, where it was written that she had received money from the accused-
petitioner. In her statement under Section 164 of Cr.P.C., the prosecutrix did
not disclosed the date and place of such meeting or being threatened by the
accused person and his accomplice. The charge under Section 506 of I.P.C. is,
therefore, relegated due to omissions made by the prosecutrix in her statement
under Section 164 of Cr.P.C.
18. In the instant case, other witnesses examined under Section 161 of
Cr.P.C. have not disclosed that the prosecutrix was subjected to criminal
intimidation by the accused-petitioner on 02.02.2019 or 24.02.2019.
19. In such view of the matter, I am of the opinion that the charge under
Section 506 of IPC levelled against the petitioner would not be attracted and
the ingredients of the offence are lacking.
20. In the backdrop of the facts and circumstances of the case and the
arguments advanced by learned advocates for the petitioner and the opposite
parties, I hold that it would be an abuse of the process of the Court if on such
material on record, the petitioner is required to undergo a trial. It is explicit
from the fragile materials on record that the basic ingredients of the charge
would not be attracted against the petitioner and it would be a futile exercise to
proceed with this case any further.
21. In the light of my above discussion and the facts and circumstances
involved in this case the entire proceedings in GR Case No.220 of 2019, arising
out of, Arambagh Women Police Station Case No.10 of 2019 dated 26.02.2019
under Section 376, 417, 506 of Indian Penal Code pending before Learned
Additional Chief Judicial Magistrate, Arambagh, including the charge-sheet
submitted in this case are quashed. The revisional application is allowed on
contest.
22. Interim order, if any, stands vacated. Let a copy of this order be
communicated to the Learned Additional Chief Judicial Magistrate, Arambagh,
Hooghly, for information.
23. All parties to act on the basis of a server copy of the Judgment and Order
placed on the official website of the Court.
24. Urgent Photostat certified copies of this order may be supplied to the
parties expeditiously if applied for, maintaining all formalities.
(Ananda Kumar Mukherjee, J.)
