Calcutta High Court (Appellete Side)
Kousik Ghosh vs The State Of West Bengal on 3 September, 2024
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE
CRR 952 of 2022
With
CRAN 1 of 2022
Kousik Ghosh
Vs.
The State of West Bengal
For the petitioner : Mr. Kallol Mondal
Mr. Kishan Roy
Mr. Souvik Das
Mr. Anamitra Banerjee
Ms. Isita Kundu
For the O.P. no. 2/Legal Aid : Mr. Ayan Bhattacharjee
For the State : Mr. S.S.Imam
Mr. S. Kundu
Heard on : 05.08.2024
Judgement on : 03.09.2024
Ajoy Kumar Mukherjee, J.
1. Present application has been directed against the proceeding being
G.R case no. 1889 of 2021 presently pending before learned Additional Chief
Justice Magistrate, Lalbagh, Murshidabad.
2. The petitioner contended that the petitioner has been arraigned as an
accused person on the basis of a written complaint lodged by the defacto
complainant/opposite party no. 2 herein, where it has been alleged interalia
that opposite party no. 2 had a love affair with the present petitioner for four
years and he had cohabited for a number of occasion after promise to marry
her, resultantly she got pregnant twice and the petitioner had also caused
abortion and thereafter the petitioner denied to marry her.
3. Consequently on the basis of said written complain Murshidabad
police station case no. 251 of 2021 dated 24.06.2021 under section
417/376/313 of the IPC was initiated. It is further contended by the
petitioner herein that while granting anticipatory bail by this Court, the
answer to the query as to whether there is any medical evidence with regard
to the charge under section 313 of the Cr.P.C, was negative. However after
completion of investigation police submitted charge-sheet under section
417/376 IPC against the petitioner.
4. Mr. Mondal learned counsel appearing on behalf of the petitioner
argued that on a bare perusal of the said written complain, it would be
evident that no specific date of any alleged incident had been mentioned in
the FIR and the allegations are vague, frivolous and engineered with oblique
purpose. He further submits even if it is taken for granted that the petitioner
had cohabited with the opposite party, then also none of the allegations can
satisfy the basic requirements which may be regarded as an offence
punishable under sections 417/376 of the IPC as the co-habitation was on
free consent and the petitioner is aged about 30 years and complainant aged
about 31 years and both of them are adult. He further submits when it is
evident that the cohabitation was made with free consent, it is not an
offence in accordance with the prevailing laws of the land. He further argued
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.
It cannot be said that she was not capable of understanding consequence of
the act. On perusal of written complaint it is crystal clear that the present
criminal proceeding is manifestly attended with malafide intention and is a
malicious proceeding with ulterior motive for wreaking vengeance with a
view to spite him due to private and personal grudge and as such the
instant criminal proceeding is liable to be quashed. In this context opposite
party no.2 relied upon the following judgments:-
(i) Anurag Soni Vs. State of Chattisgarh reported in 2019 13
SCC 1
(ii) State of Uttar Pradesh Vs. Naushad reported in 2013 16
SCC 651
(iii) Yedla Srinivasa Rao Vs. State of A.P. reported in 2006 11
SCC 615
5. Learned counsel appearing on behalf of the State as well as learned
counsel appearing on behalf of the opposite party no. 2, contended that
where consent of the prosecutrix was obtained on false promise of marriage,
such consent was tendered under misconception of fact and as such the
accused is liable to be punished under the relevant provision. It was further
submitted on behalf of the opposite parties that in the present context the
victim got pregnant twice and thereafter accused refused to marry her. Such
conduct clearly proves that the accused did not have any intention to marry
the victim at the time of giving promise or at the time of making sexual
intercourse and as such the consent so obtained has been vitiated in the eye
of law. They further contended that under section 90 of IPC read with
section 114A of the Indian Evidence Act, where the consent was procured on
the anvil that the accused would marry the victim such consent is not a free
consent to get rid of the allegation of rape as defined in section 375 of the
IPC. Accordingly they have submitted that the truth will come out at the end
of the trial and as the FIR and the materials available in the case diary
including statement of victim recorded by judicial Magistrate prima facie
discloses offence committed by the accused person, it is not at all a fit case
for quashing the proceeding at it's threshold. Accordingly they have prayed
for dismissal of the application.
6. I have considered submissions made by both the parties.
7. In the present context it is not in dispute that both the prosecutrix
and the petitioner/accused are adult. The allegation levelled against the
petitioner in the FIR in substance is that she had love affair with the
petitioner and they had co-habitated for a number of occasions as petitioner
allured and promised to marry her.
8. Before going to further details about the present case, I need to state
that the law on this issue is no more res integra. In Uday Vs. State of
Karnataka reported in (2003) 4 SCC 46, Supreme Court held that in a
case of this nature two conditions must be fulfilled for the application of
section 90 IPC. Firstly, it must be shown that the consent was given under a
misconception of fact and secondly it must be proved that the person who
obtained the consent knew or had reason to believe that the consent was
given in consequence of such misconception. In Yedla Srinivasa Rao Vs.
State of A.P. reported in (2007) 1 SCC (Cri) 557, Apex Court held that
consent obtained by making falls promise to marry is not a consent and
sexual intercourse on such false promise was the sexual intercourse without
the consent of the victim and the said act falls in second category as
enumerated in section 375 IPC and the conviction order under section 376
IPC was held to be justified.
9. In Dilip Singh Vs. State of Bihar reported in (2005) 1 SCC 88 it
was held that if on facts it is established that at the very inception of the
making of promise, the accused did not really entertain the intention of
marrying her and the promise to marry held out by him was a mere hoax,
the consent ostensibly given by the victim will be of no avail to the accused
to exculpate him from the ambit of the second clause of 375 IPC.
10. In Kaini Rajan Vs. State of Kerala reported in (2013) 9 SCC 113
Supreme Court endorsed the principle that a misrepresentation as regards
the intention of the person seeking consent, i.e. the accused, could give rise
to the misconception to the fact. While applying such principle to a case
arising under section 375 IPC, the court held that the consent given
pursuant to a false representation that the accused intends to marry could
be regarded as consent given under misconception of facts.
11. Now coming back to the case in hand I find that in the FIR petitioner
has made specific allegation that the accused petitioner had made sexual
intercourse with the prosecutrix against her will alluring her on the false
promise of marriage. She had also made statement before magistrate under
section 164 of the Cr.P.C. which more or less corroborates with the
statement made in the FIR to the extent that the petitioner had made sexual
intercourse with her giving false promise of marriage. The statement
recorded under section 161 of the IPC also speaks about sexual co
habitation on the false promise of marriage.
12. Accordingly in the present context, the entire case is to be examined
on this aspect i.e. whether victim's consent was voluntary or she consented
under a misconception of fact. It is well settled that a false promise is not a
fact within the meaning of the penal code and for determining whether
consent given by the prosecutrix was voluntary or under a misconception of
fact, can only be decided after considering the evidence and surrounding
circumstances of the case. It is also required to be adjudicated during trial
by way of evidence, even if there was any sexual relationship on the promise
of marriage, the petitioner never intended to marry the prosecutrix. Unless
the case goes for trial, it is not possible to know what was in the mind of
petitioner and the prosecutrix when she consented.
13. In view of aforesaid facts and circumstance of the case when the
allegation in the FIR and the materials available in CD does not satisfy any
of the ingredients laid down in Bhajanlal's Case, (AIR 1992 SC 604) by
which it can be said that the allegations herein made in the FIR even if
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 nor it can be
said allegations made in the FIR are so absurd or 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, I find that this
is not fit case where the criminal proceeding can be quashed at its threshold
without going for trial.
14. In view of aforesaid discussion CRR 952 of 2022 stands dismissed.
15. Connected application accordingly disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the
parties, on priority basis on compliance of all usual formalities.
(AJOY KUMAR MUKHERJEE, J.)
