Calcutta High Court (Appellete Side)
Sagnik Dey vs The State Of West Bengal & Anr on 4 May, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 1578 of 2020
With
CRAN 1 of 2020
With
CRAN 2 of 2021
Sagnik Dey
Vs
The State of West Bengal & Anr.
For the Petitioner : Mr. Joydip Kar, Sr. Adv.,
Mr. Rajdeep Mazumder,
Mr. Mayukh Mukherjee,
Mr. Abhijit Singh.
For the State : Mr. Madhusudan Sur,
Mr. Dipankar Paramanick.
For the Opposite Party No. 2 : Mr. Sabyasachi Banerjee,
Mr. Sourav Chatterjee,
Mr. Soumya Nag.
Heard on : 02.05.2023
Judgment on : 04.05.2023
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Shampa Dutt (Paul), J.:
1. The present revision has been filed praying for quashing of the
proceedings in ACGR Case No. 5731 of 2019, arising out of Survey Park
Police Station Case No. 221 of 2019 dated 30.11.2019 under Sections
376/328/323/417 of the Indian Penal Code now pending before the
Court of the learned Additional Chief Judicial Magistrate, Alipore, South
24 Parganas.
2. The petitioner's case is that, a written complaint was lodged by one Sukla
Das, wife of Dr. S.K. Das, resident of Santoshpur Avenue, Kolkata -
700075, with the Joint Commissioner of Police, Crime Branch, Kolkata,
enclosing the complaint of her daughter Dr. Riyal Das (the alleged victim)
alleging the commission of offences punishable under Sections
323/328/376/417 of the Indian Penal Code. The allegations leveled in
the said complaint of Dr. Riyal Das are to the effect that:-
The petitioner exploited the victim mentally and physically for
over a period of three years by being in a relationship with her,
during which period, the petitioner allegedly made false
promises of marrying her in the near future, however, the
petitioner got married secretly without informing the victim
about the same. That even after his marriage, the
petitioner continued to be in regular contact with the
victim and also continued with the said relationship in a
normal manner, during the subsistence of the said
relationship, it was alleged that the victim suffered multiple
incidents of mental and physical abuse by the petitioner,
including an occasion when she almost broke her hand and
sustained serious injuries. It was alleged that on 2.11.2019,
the petitioner met the victim, and got her intoxicated and
thereafter the petitioner went ahead to have physical
intercourse with the victim without her consent. It was further
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alleged that the petitioner also deleted their conversations on
Facebook Messenger from the victim's phone. It was alleged
that on 26.11.2019, the victim came to learn that the marriage
of the petitioner was fixed and was about to undergo a social
marriage within the next few days.
3. On the basis of the aforesaid allegations, Survey Park Police Station
Case No. 221 of 2019 dated 30.11.2019 under Sections
376/328/323/417 of the Indian Penal Code, was registered for
investigation against the petitioner herein.
4. It is submitted by the petitioner that the story brought forward by the
victim, is of a consensual relationship between two adults (though the
same is denied and disputed by the petitioner).
5. Upon completion of investigation, the investigating agency submitted
its report in final form being Charge Sheet No. 12/2020 dated
28.01.2020 under Sections 376/328/323/417 of the Indian Penal
Code, against the petitioner.
6. Mr. Joydip Kar, learned senior counsel for the petitioner has
submitted that it is exceedingly clear that on a conjoint reading of the
written complaint along with the charge sheet, it would become
palpable that there are no ingredients which would establish the case
under Section 376/417 of the Indian Penal Code as well as the other
penal sections. The victim in the instant case is an adult lady, and
applying such aforementioned legal principle, the story projected by
her (though fallacious and concocted) cannot be said to constitute an
offence where consent has been taken by fraudulent means.
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7. The impugned proceeding is a product of suppression of material facts,
which has been purportedly suppressed by the Opposite Party No. 2
and the victim herein.
8. It is evident that the Opposite Party No. 2 has taken a spiteful attitude
in respect of the petitioner herein thereby rendering further
proceedings vulnerable in law.
9. That the allegations leveled in the First Information Report suffer from
contradictions and absurdity and the prayer in the revision is for
quashing of the proceedings in connection with ACGR Case No. 5731 of
2019, arising out of Survey Park Police Station Case No. 221 of 2019
dated 30.11.2019 under Sections 376/328/323/417 of the Indian Penal
Code now pending before the Court of the learned Additional Chief
Judicial Magistrate, Alipore, South 24 Parganas, which is clearly an
abuse of the process of law.
10. All this stage three separate affidavits have been filed by the parties
in this case.
I. Affidavit by the defacto Complainant, Smt. Sukla Das.
She is the mother of the alleged victim Riyal Das who is now aged
about 33 years. It is stated on affidavit that she and her daughter
have decided not to pursue the said case or any other case be it
civil or criminal any further as her daughter who is a medical
practitioner wants to focus on her profession and avoid any further
legal entanglements that may hinder her professional pursuits and
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have no objection if this Hon'ble Court quashes the said
criminal case being Survey Park Police Station Case No.221 of
2019 dated 30.11.2019 under Sections 376/328/323/417 of
the Indian Penal Code filed against the petitioner. They also do
not wish to go through the embroil of a trial and are desirous of
putting an end to criminal proceedings against Mr. Sagnik Dey/
the petitioner in CRR No. 1578 of 2020. She has arrived at this
decision voluntarily and without any coercion or undue influence
from any person or party.
II. Dr. Riyal Das (alleged victim), has stated on oath that she as well
as her family members, have decided not to pursue the said case
or any other case both civil and criminal any further as she wants
to focus on her profession and avoid any further legal
entanglements that may hinder her professional pursuits and has
no objection if this Hon'ble Court quashes the said criminal
case being Survey Park Police Station Case No. 221 of 2019
dated 30.11.2019 under Sections 376/328/323/417 of the
Indian Penal Code filed against the petitioner. She will not raise
any claim, demand or objection against Mr. Sagnik Dey/the
petitioner in CRR No. 1578 of 2020 in connection with the said
case or initiate or pursue any other case either civil or criminal in
the future and has arrived at this decision voluntarily and without
any coercion or undue influence from any person or party.
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III. In the affidavit filed by the petitioner/accused, it has been
stated that he shall not make any claim or demand against Ms.
Riyal Das or the opposite party no. 2 nor will he initiate any
proceedings against the said persons either civil or criminal in
future and that he arrived at this decision voluntarily and without
any coercion or undue influence from any person or party.
11. As one of the offences alleged is under Section 376 IPC a little
discussion on merit is required.
12. The Supreme Court has cautioned in numerous decisions including in
Gian Singh vs State of Punjab and Another, (2012) 10 SCC 303, SLP
(Crl.) No. 8989 of 2010, on 24 September, 2012 and Daxaben vs The
State of Gujarat & Ors., (2022 LiveLaw (SC) 642), Criminal Appeal
No..... of 2022, on July 29, 2022 regarding compromise in respect of
serious offences.
13. Thus the following observation of this court is essential in the present
case, as the offences alleged include Section 376 IPC (RAPE).
14. From the materials on record the following facts are before this
Court:-
i) That the parties, herein, being the petitioner and the alleged
victim were major at the time of the alleged occurrence.
ii) It has been alleged in the written complaint that the
petitioner and the alleged victim were in a relationship for
over a period of three years, when it is alleged that the
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petitioner had made false promise of marrying the
alleged victim. But the petitioner secretly got married to
someone else.
iii) The allegation in the complaint written by Riyal Das and filed
by her mother is follows :-
"I Dr. Riyal Das, would like to state charges of fraud,
sexual harassment, sexual deception and sexual
assault against Mr. Sagnik Dey. He has exploited
me mentally and physically for 3 years by being in a
romantic relationship with me on the grounds of love
and false promises of marriage in the near future.
He has stalked, chased and pursued me for all
these 3 years. He continued the relationship with me
by keeping me and my family in darkness regarding
his true intentions and his marriage plans. He got
married secretly without informing me in spite of still
being in a relationship with me. Throughout, he
kept communication and relationship with me
normally making sure that I do not suspect
anything, till I found out the truth. During the
course of the relationship there were multiple
incidents of mental and physical abuse to the extent
that he almost broke my hand and I sustained
serious injuries. On November 2nd, 2019 he met me
and intoxicated me with alcohol and possibly drugs
to have physical intercourse without my consent
hiding the fact that he was already married by then.
He also deleted our conversation on facebook
messenger from my phone to remove evidence. The
relationship was still being maintained
normally from his side till I found out on 26th
November that he is married on paper & is
getting married socially this weekend in
Kolkata. I would like to seek justice for the
mental physical & sexual exploitation I had to
face because of this person."
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15. (a) In Shambhu Kharwar vs State of Uttar Pradesh & Anr., Criminal
Appeal No. 1231 of 2022, on August 12, 2022, the Supreme Court
held:-
"10. An offence is punishable under Section 376 of
the IPC if the offence of rape is established in terms
of Section 375 which sets out the ingredients of the
offence. In the present case, the second description
of Section 375 along with Section 90 of the IPC is
relevant which is set out below.
"375. Rape - A man is said to commit
"rape" if he -
[...]
under the circumstances falling under any
of the following seven descriptions
Firstly ...
Secondly. - Without her consent.
[...]
Explanation 2. - Consent means an
unequivocal voluntary agreement when the
woman by words, gestures or any form of
verbal or non-verbal communication,
communicates willingness to participate in
the specific sexual act:
Provided that a woman who does not
physically resist to the act of penetration
shall not by the reason only of that fact, be
regarded as consenting to the sexual
activity.
xxx
90. Consent known to be given under
fear or misconception - A consent is not
such a consent as is intended by any
section of this Code, if the consent is given
by a person under fear of injury, or under
a misconception of fact, and if the person
doing the act knows, or has reason to
believe, that the consent was given in
consequence of such fear or misconception;
or..."
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11. In Pramod Suryabhan Pawar v. State of
Maharashtra, a two Judge Bench of this Court of
which one of us was a part (D.Y. Chandrachud J.),
held in Sonu @ Subhash Kumar v. State of
Uttar Pradesh, observed that :
"12. 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...
[...]
14. [...] Specifically in the context of a
promise to marry, this Court has observed
that there is a distinction between a false
promise given on the understanding by the
maker that it will be broken, and the
breach of a promise which is made in good
faith but subsequently not fulfilled...
[...]
16. Where the promise to marry is false
and the intention of the maker at the time
of making the promise itself was not to
abide by it but to deceive the woman to
convince her to engage in sexual relations,
there is a "misconception of fact" that
vitiates the woman's "consent". On the
other hand, a breach of a promise cannot
be said to be a false promise. To establish
a false promise, the maker of the promise
should have had no intention of upholding
his word at the time of giving it. The
"consent" of a woman under Section
375 is vitiated on the ground of a
"misconception of fact" where such
misconception was the basis for her
choosing to engage in the said act...
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[...]
18. To summarise the legal position that
emerges from the above cases, the
"consent" of a woman with respect
to Section 375 must involve an active and
reasoned deliberation towards the
proposed act. To establish whether the
"consent" was vitiated by a
"misconception of fact" arising out of a
promise to marry, two propositions must
be established. The promise of marriage
must have been a false promise, given in
bad faith and with no intention of being
adhered to at the time it was given. The
false promise itself must be of
immediate relevance, or bear a direct
nexus to the woman's decision to
engage in the sexual act.
(emphasis supplied)
(b) Naim Ahamed vs State (NCT of Delhi), Criminal Appeal No. 257
of 2023, on 30.01.2023, the Supreme Court 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."
16. In the present case, the Statements in the written complaint prima
facie show that the alleged victim continued with the relationship till
26th November, 2019, in spite of allegedly being abused, being
allegedly intoxicated with alcohol and possibly drugs to have physical
intercourse without her consent on 2nd November, 2019.
17. Finally it is stated that the relationship was still being maintained
normally from his side till she found out on 26th November that he is
married on paper (till then she allegedly knew of the secret marriage) and
will be having a social marriage. Hence the Complaint. Thus it prima
facie appears that in spite of having knowledge of the petitioner's alleged
secret marriage, the alleged victim Riyal Das continued in the
relationship, having the knowledge that the petitioner will not be in
a position to marry her (Shambhu Kharwar vs State of Uttar
Pradesh & Anr. (Supra)).
18. There was thus prima facie no false promise to marry by the petitioner as
the alleged victim continued in the relationship in spite of the knowledge
of his marriage and other acts as already discussed above and as such
there is prima facie no materials on record and in the case diary of the
alleged commission of offence under Section 376 IPC against the
petitioner.
19. The parties have now stated on affidavits that the dispute between
them has been amicably settled and the complainant and the alleged
victim in this case have no objection if the proceedings against the
petitioner being ACGR Case No. 5731 of 2019, arising out of Survey
Park Police Station Case No. 221 of 2019 dated 30.11.2019 under
Sections 376/328/323/417 of the Indian Penal Code now pending
before the Court of the learned Additional Chief Judicial Magistrate,
Alipore, South 24 Parganas, is quashed.
20. A Three Judge Bench of the Supreme Court in Gian Singh vs State of
Punjab and Another (Supra) has cleared the position in respect of the
power of the High Court in quashing a criminal proceedings in exercise of
its inherent jurisdiction (compromise/compounding) in para 61 of the
judgment, which is reproduced here in:-
Para 61. "The position that emerges from the
above discussion can be summarised thus : the
power of the High Court in quashing a criminal
proceeding or FIR or complaint in exercise of its
inherent jurisdiction is distinct and different from
the power given to a criminal court for compounding
the offences under Section 320 of the Code.
Inherent power is of wide plenitude with no
statutory limitation but it has to be exercised in
accord with the guideline engrafted in such power
viz. : (i) to secure the ends of justice, or (ii) to
prevent abuse of the process of any court. In what
cases power to quash the criminal proceeding or
complaint or FIR may be exercised where the
offender and the victim have settled their dispute
would depend on the facts and circumstances of
each case and no category can be prescribed.
However, before exercise of such power, the High
Court must have due regard to the nature and
gravity of the crime. Heinous and serious offences
of mental depravity or offences like murder, rape,
dacoity, etc. cannot be fittingly quashed even
though the victim or victim's family and the
offender have settled the dispute. Such offences
are not private in nature and have a serious impact
on society. Similarly, any compromise between the
victim and the offender in relation to the offences
under special statutes like the Prevention of
Corruption Act or the offences committed by public
servants while working in that capacity, etc.;
cannot provide for any basis for quashing criminal
proceedings involving such offences. But the
criminal cases having overwhelmingly and
predominatingly civil flavour stand on a different
footing for the purposes of quashing, particularly
the offences arising from commercial, financial,
mercantile, civil, partnership or such like
transactions or the offences arising out of
matrimony relating to dowry, etc. or the family
disputes where the wrong is basically private or
personal in nature and the parties have resolved
their entire dispute. In this category of cases, the
High Court may quash the criminal proceedings if
in its view, because of the compromise between the
offender and the victim, the possibility of conviction
is remote and bleak and continuation of the
criminal case would put the accused to great
oppression and prejudice and extreme injustice
would be caused to him by not quashing the
criminal case despite full and complete settlement
and compromise with the victim. In other words,
the High Court must consider whether it would be
unfair or contrary to the interest of justice to
continue with the criminal proceeding or
continuation of the criminal proceeding would
tantamount to abuse of process of law despite
settlement and compromise between the victim and
the wrongdoer and whether to secure the ends of
justice, it is appropriate that the criminal case is
put to an end and if the answer to the above
question(s) is in the affirmative, the High Court
shall be well within its jurisdiction to quash the
criminal proceeding."
21. In Anita Maria Dias & Anr. Vs The State of Maharashtra & Anr.
(2018) 3 SCC 290. The Court held:-
(a) Offences which are predominant of civil character,
commercial transaction should be quashed when parties
have resolved their dispute.
(b) Timing of settlement would be crucial for exercise of
power or declining to exercise power (stage of
proceedings).
22. The affidavits filed by the parties clearly show that an amicable settlement
and compromise has been arrived at between the parties and the
complainant does not wish to proceed with ACGR Case No. 5731 of 2019,
arising out of Survey Park Police Station Case No. 221 of 2019 dated
30.11.2019 under Sections 376/328/323/417 of the Indian Penal Code
now pending before the Court of the learned Additional Chief Judicial
Magistrate, Alipore, South 24 Parganas.
23. From the materials on record, it is clear that dispute in the present case is
a private dispute relating to a consensual relationship and the parties
have now resolved their entire dispute by way of a compromise/settlement
on affidavit and as such the possibility of conviction is remote and bleak
and continuation of the criminal case would put the accused to great
oppression and prejudice and extreme injustice could be caused to him by
not quashing the criminal case despite full and complete settlement and
compromise with the complainant. (As in the words of the Supreme Court
in Gian Singh Vs. State of Punjab and another (Supra)).
24. As such this court is of the view that it would be unfair and contrary to
the interest of justice to continue with the criminal proceedings which
would tantamount to abuse of process of law in view of the settlement
arrived at between the parties in respect of their dispute and to secure the
ends of justice it would be prudent to quash the proceedings in the case
as prayed for. There is also no prima facie material on record (as
discussed earlier) against the petitioner for the offence alleged under
Section 376 IPC.
25. CRR 1578 of 2020 is accordingly allowed.
26. The proceeding being ACGR Case No. 5731 of 2019, arising out of Survey
Park Police Station Case No. 221 of 2019 dated 30.11.2019 under
Sections 376/328/323/417 of the Indian Penal Code now pending before
the Court of the learned Additional Chief Judicial Magistrate, Alipore,
South 24 Parganas, is hereby quashed.
27. There will be no order as to costs.
28. All connected Applications stand disposed of.
29. Interim order if any stands vacated.
30. Copy of this judgment be sent to the learned Trial Court forthwith for
necessary compliance.
31. Urgent certified website copy of this judgment, if applied for, be supplied
expeditiously after complying with all, necessary legal formalities.
(Shampa Dutt (Paul), J.)
