Calcutta High Court (Appellete Side)
Biplab Biswas vs The State Of West Bengal & Anr on 3 March, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 3578 of 2019
Biplab Biswas
Vs
The State of West Bengal & Anr.
For the Petitioner : Mr. Kallol Mondal,
Mr. krishan Ray,
Mr. Souvik Das,
Mr. Ayan Mondal.
For the State : Mr. Swapan Banerjee,
Mr. Suman De.
For the Added Party : Mr. Uttam Basak.
Heard on : 09.02.2023
Judgment on : 03.03.2023
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Shampa Dutt (Paul), J.:
The present revision has been preferred praying for quashing of
the proceeding being G.R. Case No. 1578 of 2018 arising out of
Hanskhali Police Station Case No. 307 of 2018 dated 02.09.2018 under
Section 417/376 of the Indian Penal Code, 1860 pending before the
learned Court of Additional Chief Judicial Magistrate at Ranaghat,
Nadia.
The petitioner's case is that the petitioner is a government
service personnel employed with the Border Security Force.
The instant case has been initiated on the basis of a written
complaint lodged by one Mampi Sarkar (herein referred to as the de
facto complainant) with the officer in charge of Hanskhali Police Station
and the same has been registered as Hanskhali Police Station Case No.
307 of 2018 dated 02.09.2018 for investigation into offences punishable
under Sections 417/376 of the Indian Penal Code, 1860 corresponding
to G.R. Case No. 1578 of 2018.
Petitioner states that the averments made in the written
complaint is to the effect that the de facto complainant is mother of one
child and a divorcee who resides at her retired father's house. The de
facto complainant and the petitioner herein came to know each other
when the petitioner herein used to visit the father of the de facto
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complainant as both of them used to work at the same place. The
petitioner promised marriage to the de facto complainant and
subsequently on 24.08.2018 the petitioner borrowed a sum of Rs.
71,000/-from the de facto complainant. On 25.08.2018 at about 3 p.m.
when there was no one in the house of the de facto complainant the
petitioner on the lieu of marrying the de facto complainant ravished her.
Afterwards the petitioner promised the de facto complainant of registry
marriage on 26.08.2018 or on 27.08.2018. On 26.08.2018 when the de
facto complainant rang the petitioner the petitioner did not respond to
her mobile calls and later on when the de facto complainant visited the
residence of the petitioner, the petitioner denied the fact that he ever
made such a promise to the de facto complainant.
After conclusion of the purported investigation, the investigating
agency has submitted charge sheet vide charge sheet no. 336 of 2018
dated 30.09.2018 under Sections 376/417 of the Indian Penal Code.
The petitioner states that the petitioner was taken into custody
on 05.09.2018 and subsequently on 18.09.2018 he was enlarged on
bail vide order dated 18.09.2018 passed by the learned Additional
District and Sessions Judge, Ranaghat, Nadia in Misc. Case No. 458 of
2018 wherein the learned Additional District and Sessions Judge,
Ranaghat, Nadia was pleased to observe that in the statement made
under Section 164 of the Code of Criminal Procedure, 1973 the de facto
4
complainant had stated that the relation with the petitioner herein was
an amorous one and was consensual in nature.
After submission of the charge sheet the learned Additional Chief
Judicial Magistrate, Ranaghat, Nadia was pleased to take cognizance on
14.11.2018.
The petitioner states and submits that the allegation which has
been drawn up against the petitioner herein is entirely vindictive in
nature which has been carefully drawn up against the petitioner herein
with the sole intent to malign the reputation of the petitioner with
ulterior and malicious intention. It is apposite to mention that on a bare
reading of the First Information Report drawn up against the petitioner
it can be found that the de facto complainant has allegedly lent a sum
of Rs.71,000/- to the petitioner. Whereas the same will itself reveal that
the de facto complainant is herself a helpless woman living at her
father's place having no income and the petitioner is a BSF personnel
drawing a good salary. From the above it can be deduced that the First
Information Report has been drawn up with careful manipulation and
deliberation and the allegations leveled against the petitioner are false.
The allegations made by the de facto complainant in this instant
criminal case fails to convene or satisfy any of the criterion envisaged in
Section 375 of the Indian Penal Code, 1860. The First Information
Report of the instant criminal matter reveals that the de facto
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complainant was neither put under any sort of coercion nor any
misrepresentation was made by the petitioner. Thus from the above it
can be assumed that the learned Magistrate would have traversed a
different path if proviso Section 375 of the Indian Penal Code, 1860
would have been considered at the time of taking cognizance.
It is not a case where the de facto complainant had any
misconception about the nature of the act which she consented. In the
instant case, the de facto complainant fully knew that what they were
going to commit was an act of sexual intercourse. That being so, it does
not become a case of rape when the consent to the act of sexual
intercourse fully knowing the nature and implication of such act and
when she was fully aware that the person concerned was not yet her
husband, even if he had proposed to marry her. As such the learned
Magistrate had made a gross mistake in neglecting the well laid out law
in this instant criminal case.
In the statement made under Section 164 of the Code of
Criminal Procedure, 1973 the de facto complainant had stated that the
relation with the petitioner herein was an amorous one and was
consensual in nature. Thus it can be deduced from the above that the
instant criminal case is misconceived and vindictive in nature which
has been instituted after careful deliberation and manipulation with the
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sole intent to malign the petitioner and to compel the petitioner to
marry her in the lieu of this instant criminal case.
Mr. Kallol Mondal, learned counsel for the petitioner has
submitted that in the prevalent facts and circumstances of the present
case, the entire proceedings is liable to be quashed against the
petitioner and the impugned order dated 14.11.2018 is required to be
set aside.
That an order of quashing of the instant case and setting aside
the impugned order shall serve the ends of justice.
While taking cognizance the learned Magistrate has failed to
apply its judicial mind and made no endeavour to prima facie look into
the prosecution case.
Mr. Uttam Basak, learned counsel for the opposite party has
submitted that there is sufficient materials on record and case diary to
make out a prima facie case of cognizable offence against the petitioner
and as such the revision is liable to be dismissed.
Mr. Swapan Banerjee, learned counsel for the State has
placed the case diary and submitted that there is sufficient materials
against the petitioner for proceeding towards trial and as such the
revision should be dismissed.
Mr. Mondal has relied upon the following judgments:-
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(1) Hemant Choubey vs State of MP, 2014 SCC Online MP
8193, on December 11, 2014.
(2) Puran Giri vs State of West Bengal & Anr., 2016 SCC
Online Cal 120, on January 14, 2016.
(3) Partho Pratim Phukan @ Meja vs State of West Bengal and
Anr., 2008 SCC Online Cal 199, on March 14, 2008.
(4) Sudhamay Nath @ Bachhu vs State of West Bengal, 1999
SCC Online Cal 305, on July 15, 1999.
(5) Shyamapada Tiwari vs State of West Bengal and Anr.,
2009 CCrLR (Cal) 266, on June 29, 2007.
(6) Uday vs State of Karnataka, (2003) 4 SCC 46, on February
19, 2003.
(7) Kaini Rajan vs State of Kerela, (2013) 9 SCC 113, on
September 19, 2013.
Mr. Basak has relied upon the following judgments in support of
the opposite party's case:-
(1) State of U.P. vs. Naushad, Criminal Appeal No. 1949 of
2013, 2013 0 Supreme (SC) 1043, on 19.11.2013.
(2) Yedla Srinivasa Rao vs State of A.P., (2006) 11 SCC 615,
Criminal Appeal No. 1369 of 2004, on September 29,
2006.
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Heard the learned counsels for both sides and the learned
counsel for the State. Perused the materials on record. Considered.
In the ruling relied upon by the petitioner, the Supreme Court in
Uday vs State of Karnataka, Appeal (Crl.) 336 of 1996, on 19
February, 2003, also held:-
"............It therefore appears that the consensus of
judicial opinion is in favour of the view that the consent
given by the prosecutrix to sexual intercourse with a
person with whom she is deeply in love on a promise
that he would marry her on a later date, cannot be
said to be given under a misconception of fact. A false
promise is not a fact within the meaning of the Code.
We are inclined to agree with this view, but we must
add that there is no strait jacket formula for
determining whether consent given by the prosecutrix
to sexual intercourse is voluntary, or whether it is given
under a misconception of fact. In the ultimate analysis,
the tests laid down by the Courts provide at best
guidance to the judicial mind while considering a
question of consent, but the Court must, in each case,
consider the evidence before it and the surrounding
circumstances, before reaching a conclusion, because
each case has its own peculiar facts which may have a
bearing on the question whether the consent was
voluntary, or was given under a misconception of fact.
It must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove each
and every ingredient of the offence, absence of consent
being one of them.................."
The Supreme Court in Deepak Gulati vs State of Haryana,
Criminal Appeal No. 2322 of 2010, on 20 May, 2013, held:-
"15. Section 114-A of the Indian Evidence Act, 1872
(hereinafter referred to as the 'Act 1872') provides, that
if the prosecutrix deposes that she did not give her
9
consent, then the Court shall presume that she did not
in fact, give such consent. The facts of the instant case
do not warrant that the provisions of Section 114-A of
the Act 1872 be pressed into service. Hence, the sole
question involved herein is whether her consent had
been obtained on the false promise of marriage. Thus,
the provisions of Sections 417, 375 and 376 IPC have
to be taken into consideration, alongwith the provisions
of Section 90 of the Act 1872. Section 90 of the Act
1872 provides, that any consent given under a
misconception of fact, would not be considered as valid
consent, so far as the provisions of Section 375 IPC are
concerned, and thus, such a physical relationship
would tantamount to committing rape.
16. This Court considered the issue involved herein at
length in the case of Uday v. State of Karnataka, AIR
2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of
Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State
of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma
v. State of Bihar & Anr., AIR 2007 SC 3059, and came
to the conclusion that in the event that the accused's
promise is not false and has not been made with the
sole intention to seduce the prosecutrix to indulge in
sexual acts, such an act(s) would not amount to rape.
Thus, the same would only hold that where the
prosecutrix, under a misconception of fact to the extent
that the accused is likely to marry her, submits to the
lust of the accused, such a fraudulent act cannot be
said to be consensual, so far as the offence of the
accused is concerned.
17. Rape is the most morally and physically
reprehensible crime in a society, as it is an assault on
the body, mind and privacy of the victim. While a
murderer destroys the physical frame of the victim, a
rapist degrades and defiles the soul of a helpless
female. Rape reduces a woman to an animal, as it
shakes the very core of her life. By no means can a
rape victim be called an accomplice. Rape leaves a
permanent scar on the life of the victim, and therefore a
rape victim is placed on a higher pedestal than an
injured witness. Rape is a crime against the entire
society and violates the human rights of the victim.
Being the most hated crime, rape tantamounts to a
serious blow to the supreme honour of a woman, and
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offends both, her esteem and dignity. It causes
psychological and physical harm to the victim, leaving
upon her indelible marks.
18. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction
between rape and consensual sex and in a case like
this, the court must very carefully examine whether the
accused had actually wanted to marry the victim, or
had mala fide motives, and had made a false promise
to this effect only to satisfy his lust, as the latter falls
within the ambit of cheating or deception. There is a
distinction between the mere breach of a promise, and
not fulfilling a false promise. Thus, the court must
examine whether there was made, at an early stage a
false promise of marriage by the accused; and whether
the consent involved was given after wholly,
understanding the nature and consequences of sexual
indulgence. There may be a case where the prosecutrix
agrees to have sexual intercourse on account of her
love and passion for the accused, and not solely on
account of mis-representation made to her by the
accused, or where an accused on account of
circumstances which he could not have foreseen, or
which were beyond his control, was unable to marry
her, despite having every intention to do so. Such
cases must be treated differently. An accused can be
convicted for rape only if the court reaches a conclusion
that the intention of the accused was mala fide, and
that he had clandestine motives.
19. In Deelip Singh (supra), it has been observed as
under:
"20. The factors set out in the first part
of Section 90 are from the point of view of the
victim. The second part of Section 90 enacts
the corresponding provision from the point of
view of the accused. It envisages that the
accused too has knowledge or has reason to
believe that the consent was given by the
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victim in consequence of fear of injury or
misconception of fact. Thus, the second part
lays emphasis on the knowledge or
reasonable belief of the person who obtains
the tainted consent. The requirements of both
the parts should be cumulatively satisfied. In
other words, the court has to see whether the
person giving the consent had given it under
fear of injury or misconception of fact and the
court should also be satisfied that the person
doing the act i.e. the alleged offender, is
conscious of the fact or should have reason to
think that but for the fear or misconception,
the consent would not have been given. This
is the scheme of Section 90 which is couched
in negative terminology."
20. This Court, while deciding Pradeep Kumar Verma
(Supra), placed reliance upon the judgment of the
Madras High Court delivered in N. Jaladu, Re ILR
(1913) 36 Mad 453, wherein it has been observed:
"We are of opinion that the expression "under
a misconception of fact" is broad enough to
include all cases where the consent is
obtained by misrepresentation; the
misrepresentation should be regarded as
leading to a misconception of the facts with
reference to which the consent is given. In
Section 3 of the Evidence Act Illustration (d)
states that a person has a certain intention is
treated as a fact. So, here the fact about
which the second and third prosecution
witnesses were made to entertain a
misconception was the fact that the second
accused intended to get the girl married........
"thus ... if the consent of the person from
whose possession the girl is taken is
obtained by fraud, the taking is deemed to be
against the will of such a person". ...
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Although in cases of contracts a consent
obtained by coercion or fraud is only voidable
by the party affected by it, the effect
of Section 90 IPC is that such consent cannot,
under the criminal law, be availed of to
justify what would otherwise be an offence."
21. Hence, it is evident that there must be adequate
evidence to show that at the relevant time, i.e. at initial
stage itself, the accused had no intention whatsoever,
of keeping his promise to marry the victim. There may,
of course, be circumstances, when a person having the
best of intentions is unable to marry the victim owing to
various unavoidable circumstances. The "failure to
keep a promise made with respect to a future uncertain
date, due to reasons that are not very clear from the
evidence available, does not always amount to
misconception of fact. In order to come within the
meaning of the term misconception of fact, the fact
must have an immediate relevance." Section 90 IPC
cannot be called into aid in such a situation, to pardon
the act of a girl in entirety, and fasten criminal liability
on the other, unless the court is assured of the fact that
from the very beginning, the accused had never really
intended to marry her."
The Supreme Court in Naim Ahamed vs State(NCT of Delhi),
Criminal Appeal no. 257 of 2023, on 30.01.2023, held:-
"20. The bone of contention raised on behalf of the
respondents is that the prosecutrix had given her
consent for sexual relationship under the
misconception of fact, as the accused had given a false
promise to marry her and subsequently he did not
marry, and therefore such consent was no consent in
the eye of law and the case fell under the Clause -
Secondly of Section 375 IPC. In this regard, it is
pertinent to note that there is a difference between
giving a false promise and committing breach of
promise by the accused. In case of false promise, the
accused right from the beginning would not have any
intention to marry the prosecutrix and would have
cheated or deceited the prosecutrix by giving a false
promise to marry her only with a view to satisfy his
lust, whereas in case of breach of promise, one cannot
deny a possibility that the accused might have given a
promise with all seriousness to marry her, and
subsequently might have encountered certain
circumstances unforeseen by him or the circumstances
beyond his control, which prevented him to fulfill his
promise. So, it would be a folly to treat each breach of
promise to marry as a false promise and to prosecute a
person for the offence under Section 376. As stated
earlier, each case would depend upon its proved
facts before the court."
Thus in the present case only cognizance has been taken.
Trial is yet to begin. Only after evidence has been adduced that the
court will be in a position to consider the case on the total
materials/evidence before it, in accordance with the relevant
provisions of law and lead the case to its logical conclusion.
As such in the interest of justice, the present case needs to
be decided by a trial.
The materials in this case and the stage of the proceeding do not
call for interference by this Court as the materials on record make out a
prima facie case of a cognizable offence against the petitioner.
In Ramesh Chandra Gupta vs. State of Uttar Pradesh and
Ors., 2022 LiveLaw (SC) 993, Criminal Appeal No(s). 2060 of 2022
(Arising out of SLP (Crl.) No(s). 39 of 2022), the Supreme Court held:-
"15. This Court has an occasion to consider the
ambit and scope of the power of the High Court
under Section 482 CrPC for quashing of criminal
proceedings in Vineet Kumar and Others vs.
State of Uttar Pradesh and Another, (2017) 13
SCC 369 decided on 31st March, 2017. It may be
useful to refer to paras 22, 23 and 41 of the above
judgment where the following was stated:
"22. Before we enter into the facts of the present
case it is necessary to consider the ambit and scope
of jurisdiction under Section 482 CrPC vested in the
High Court. Section 482 CrPC saves the inherent
power of the High Court to make such orders as may
be necessary to give effect to any order under this
Code, or to prevent abuse of the process of any court
or otherwise to secure the ends of justice.
23. This Court time and again has examined the
scope of jurisdiction of the High Court under Section
482 CrPC and laid down several principles which
govern the exercise of jurisdiction of the High Court
under Section 482 CrPC. A three-Judge Bench of this
Court in State of Karnataka v. L. Muniswamy (1977)
2 SCC 699 held that the High Court is entitled to
quash a proceeding if it comes to the conclusion that
allowing the proceeding to continue would be an
abuse of the process of the Court or that the ends of
justice require that the proceeding ought to be
quashed. In para 7 of the judgment, the following
has been stated :
'7. ... In the exercise of this wholesome power, the
High Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the proceeding
to continue would be an abuse of the process of the
court or that the ends of justice require that the
proceeding ought to be quashed. The saving of the
High Court's inherent powers, both in civil and
criminal matters, is designed to achieve a salutary
public purpose which is that a court proceeding
ought not to be permitted to degenerate into a
weapon of harassment or persecution. In a criminal
case, the veiled object behind a lame prosecution,
the very nature of the material on which the
structure of the prosecution rests and the like would
justify the High Court in quashing the proceeding in
the interest of justice. The ends of justice are higher
than the ends of mere law though justice has got to
be administered according to laws made by the
legislature. The compelling necessity for making
these observations is that without a proper
realisation of the object and purpose of the provision
which seeks to save the inherent powers of the High
Court to do justice, between the State and its
subjects, it would be impossible to appreciate the
width and contours of that salient jurisdiction.'
41. Inherent power given to the High Court under
Section 482 CrPC is with the purpose and object of
advancement of justice. In case solemn process of
Court is sought to be abused by a person with some
oblique motive, the Court has to thwart the attempt
at the very threshold. The Court cannot permit a
prosecution to go on if the case falls in one of the
categories as illustratively enumerated by this Court
in State of Haryana v. Bhajan Lal 1992 Supp (1)
SCC 335. Judicial process is a solemn proceeding
which cannot be allowed to be converted into an
instrument of operation or harassment. When there
are materials to indicate that a criminal proceeding
is manifestly attended with mala fides and
proceeding is maliciously instituted with an ulterior
motive, the High Court will not hesitate in exercise of
its jurisdiction under Section 482 CrPC to quash the
proceeding under Category 7 as enumerated in State
of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335
which is to the following effect :
'102. (7) Where a criminal proceeding is manifestly
attended with mala fides and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal
grudge.' Above Category 7 is clearly attracted in the
facts of the present case. Although, the High Court
has noted the judgment of State of Haryana v.
Bhajan Lal 1992 Supp (1) SCC 335 but did not
advert to the relevant facts of the present case,
materials on which final report was submitted by
the IO. We, thus, are fully satisfied that the present
is a fit case where the High Court ought to have
exercised its jurisdiction under Section 482 CrPC
and quashed the criminal proceedings."
16. The exposition of law on the subject relating to
the exercise of the extra-ordinary power under
Article 226 of the Constitution or the inherent power
under Section 482 CrPC are well settled and to the
possible extent, this Court has defined sufficiently
channelized guidelines, to give an exhaustive list of
myriad kinds of cases wherein such power should
be exercised. This Court has held in para 102 in
State of Haryana and Others v. Bhajan Lal and
Others, 1992 Supp. (1) 335 as under :
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the
Code which we have extracted and reproduced
above, we give the following categories of cases by
way of illustration wherein such power could be
exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice,
though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their
entirety do not prima facie constitute any offence or
make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying
an investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of
the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate
as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is instituted)
to the institution and continuance of the proceedings
and/or where there is a specific provision in the
Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal
grudge."
17. The principles culled out by this Court have
consistently been followed in the recent judgment of
this Court in Neeharika Infrastructure Pvt. Ltd.
v. State of Maharashtra and Others, 2021 SCC
Online SC 315."
In the present case, the facts/circumstances and the
materials on record do not fall under any of the said categories.
CRR 3578 of 2019 is thus dismissed.
There will be no order as to costs.
All connected Application stand disposed of.
Interim order if any stands vacated.
Copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
