Delhi High Court
Roshni Mallik vs State And Ors. on 22 February, 2006
Equivalent citations: 128 (2006) DLT 22
Author: R Jain
Bench: R Jain
JUDGMENT
R.C. Jain, J.
1. The petitioner has filed this petition under Article 226 of the Constitution of India praying for issuance of a writ in the nature of mandamus or any other suitable writ or direction on the respondents to register FIR and to take up investigation in the matter.
2. The petition has been filed with the averments and allegations that on 27.3.2005 the petitioner reached the Norwegian Embassy on the afternoon of Easter where she met one Mr. Ulrich Ritter, employed as Chief Underground excavation specialist for M/s Lakmeyer International and presently posted at Wazir House No.62, Chanderkote-182144 and has developed friendly relationship with him and thereafter they remained in regular touch with each other. Mr. Ulrich Ritter even participated in her domestic functions at times. Thereafter Mr. Ulrich Ritter left for Germany and then moved to Turkey. On 19.6.2005 the petitioner went to Turkey and stayed with him where he proposed to marry her. Believing the said promise, the petitioner agreed to have a physical relationship with him at several places in India. However, the said Ulrich Ritter did not keep promise and did not marry the petitioner and she learnt that Mr. Ulrich Ritter was already married and having a wife. According to the petitioner the said Mr. Ulrich Ritter has committed the offence of rape on her as her consent was obtained under the false promise of marrying her. Respondents were notified on the petition.
3. An application for early hearing was made from the side of the petitioner on the ground that Mr. Ulrich Ritter was expected to leave the country on the night intervening on 22nd and 23rd February, 2006 for Viena, and so the hearing of the petition and application bearing No.1192/2006 was preponed for today.
4. Status report filed by the respondent confirms having received a complaint from the petitioner on 16.1.2005 containing the allegations against Mr. Ulrich Ritter but it is stated that in view of the judgment rendered by the Hon'ble Supreme Court Uday v. State of Karnataka 2003 (1) JCC 506 decided on 19.2.2003, no offence under Section 376 IPC has been made out and at best an offence under Section 417 IPC has been made out which is not a cognizable offence and so no action was taken on the complaint of the petitioner.
5. Learned counsel for the petitioner has submitted that the allegations made in the complaint squarely constitute the offence of rape as defined under Section 375 IPC and punishable under Section 376 IPC against Mr. Ulrich Ritter and in that behalf he has sought support from a recent decision of the Supreme Court in the case of Deelip Singh alias Dilip Kumar Vs. State of Bihar . In that case the Supreme Court on a consideration of the decision in the case of Uday (supra), being relied upon by the State for not registering the case, has held We do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out.
6. Having considered the matter in its entirety, this Court is of the opinion that the allegations made by the petitioner in her complaint in the petition constitute an offence punishable under Section 376 IPC and, therefore, this is a fit case where an immediate direction is called for on the respondent to register a case and to take up investigation having due regard to the position that the said Mr. Ulrich Ritter is likely to flee the country tonight itself. The concerned Police authorities shall take appropriate action that the said Mr. Ulrich Ritter does not flee the country.
7. Copy of the order be given dusty to the learned standing counsel for the State under the signature of the Court Master for taking necessary action.
8. With these observations, the petition and pending application(s) stand disposed of. The date of hearing i.e. 20.3.2006 stands cancelled.
