Partha Saha vs The State Of Assam And Anr
2023 Latest Caselaw 4596 Gua

                                                                         Page No.# 1/8

GAHC010232792017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Pet./126/2017

            PARTHA SAHA
            S/O SRI GURU DAS SAHA R/O KALAHBHNGA, WARD NO. 8, P.S. BARPETA
            ROAD, DIST. BARPETA, ASSAM.



            VERSUS

            THE STATE OF ASSAM and ANR.


            2:DIPIKA BARMAN
             D/O JATINDRA BARMAN R/O BARMANPARA
            WARD NO. 8
             P.S. BARPETA ROAD
             DIST. BARPETA
            ASSAM
             PIN - 781315

Advocate for the Petitioner   : MR.D SAIKIA

Advocate for the Respondent :




                                  BEFORE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                         JUDGMENT

Date : 14-11-2023

Heard Mr S M Abdullah P, learned counsel for the petitioner and Mr R R Kaushik Page No.# 2/8

learned Additional Public Prosecutor, for the State of Assam.

2. The petitioner has filed his application under Section 482 of the Code of Criminal

Procedure 1973 ('CrPC', for short), seeking quashing of the entire criminal proceeding of G R

Case No. 5418 of 2016, arising out of Barpeta Road PS. Case No. 452 of 2016, registered

under Sections 420/376/120(B)/323/506/34 of the Indian Penal Code (IPC for short) and

also the charge sheet being C S No. 286 of 2016 dated 31.12.2016. The case is pending in

the Court of the learned Chief Judicial Magistrate (CJM for short) at Barpeta. The State of

Assam and the informant are arrayed as respondent No. 1 and respondent No. 2 respectively.

3. The FIR unfolds that for the last three years, since 22.10.2016, the informant X was in

love with the petitioner Sri Partha Saha. The petitioner induced the informant into physical

relationship with false promises of marriage. On 16.10.2016, the petitioner took the informant

to Guwahati, promising to marry her at Kamakhya Mandir and he kept her in Assam Lodge,

by introducing themselves to be husband and wife. On the same day at about 02:30 pm, the

police raided the lodge and took them into custody. The police from the Jalukbari Police

Station raided the lodge and took them into custody. In the Jalukbari Police Station, the

petitioner in presence of the police personnel and the family members of the informant,

promised to marry the informant. However, on 17.10.2016, the accused No. 2, Bhambal Saha,

in collusion with the petitioner, hatched up a conspiracy and the petitioner fled away without

marrying the informant. On 22.10.2016, the informant went to the petitioner's house but

Bhambal Saha rebuked the informant and slapped her in presence of the petitioner and his

father Guru Das Saha, who is also arrayed as accused No. 3 in the FIR. Bhambal Saha,

accused No. 2 also tugged at the informant's hair and dragged her out of the petitioner's

house. An FIR regarding this incident was lodged by the informant-respondent No. 2 herein, Page No.# 3/8

and investigation commenced. The IO submitted charge sheet against the petitioner, whereas

the other accused named in the FIR were not sent up for trial.

4. It is contended by the learned counsel for the petitioner that he is erroneously booked

under Section 376 IPC. He has admitted of a love relationship between him and the

respondent No. 2 and he also admitted that he proposed marriage to respondent No. 2, but

differences cropped up between him and the respondent No. 2 and their relationship turned

sour. In order to compel the petitioner to marry her, the informant lodged a false FIR against

him. The petitioner was a student at the time, he promised to marry the informant, but now

due to some unavoidable circumstances, the petitioner is not willing to marry the informant

and he ought not to be coerced by a false case to marry the informant.

5. The petitioner had also preferred an anticipatory bail petition being AB No. 969 of 2016

and the learned Sessions Judge, Barpeta was pleased to grant him the privilege of bail,

considering the nature and circumstances of this case. It is averred that after the lodgement

of the FIR, the informant was taken for medical examination, but no adverse report was

submitted by the Medical Officer.

6. The petitioner has filed an affidavit marked as Annexure-5, wherein the informant has

sworn in that she has settled the dispute with the petitioner. The criminal case was initiated

due to a misunderstanding between her and the petitioner and in presence of respectable

citizens, they have settled their dispute amicably. The informant has stated in the affidavit

that she is not willing to proceed with the case being G R Case No. 5418 of 2016.

7. The order in this case dated 30.05.2018 reflects that notice was served on respondent

No. 2. The order dated 05.02.2020 also reflects that the respondent No. 2 was not Page No.# 4/8

represented. The respondent No. 2 was continuously not represented and this case

proceeded and the learned Additional Public Prosecutor was heard on behalf of respondent

No. 1. It is submitted by the learned Additional Public Prosecutor that the victim was a

consenting party and she proceeded up to Guwahati, to solemnize her marriage in the

Kamakhya Temple. It is not alleged through the FIR that her consent was obtained by

misconception of facts or false promises of marriage. On the fateful day, i.e., when the

petitioner and the victim was apprehended by Police in the lodge (hotel), differences arose

between the parties.

8. I have considered the submissions at the Bar with circumspection.

9. It is apparent that differences erupted, after the petitioner and the victim were

apprehended by the Police in the Assam Lodge. The victim, i.e., the respondent No. 2 failed

to appear, but her affidavit has been annexed as Annexure-5. Through her affidavit she has

expressed her willingness to withdraw the case, but as this case was registered under Section

420/376 IPC, withdrawal of the case at the Police Station was not possible. The learned

counsel for the petitioner has relied on the decision of Hon'ble the Supreme Court in Pramod

Suryabhan Pawar -vs- State of Maharashtra & another; reported in (2019) 9 SCC

608 in connection with Criminal Appeal No. 1165 of 2019, decided on 21.08.2019, wherein it

has been observed that-

"19. The allegations in the FIR indicate that in November 2009 the complainant

initially refused to engage in sexual relations with the accused, but on the promise of

marriage, he established sexual relations. However, the FIR includes a reference to

several other allegations that are relevant for the present purpose. They are as Page No.# 5/8

follows: (i) The complainant and the appellant knew each other since 1998 and were

intimate since 2004; (ii) The complainant and the appellant met regularly, travelled

great distances to meet each other, resided in each other's houses on multiple

occasions, engaged in sexual intercourse regularly over a course of five years and on

multiple occasions visited the hospital jointly to check whether the complainant was

pregnant; and (iii) The appellant expressed his reservations about marrying the

complainant on 31 January 2014. This led to arguments between them. Despite this,

the appellant and the complainant continued to engage in sexual intercourse until

March 2015. The appellant is a Deputy Commandant in the CRPF while the

complainant is an Assistant Commissioner of Sales Tax.

20. The allegations in the FIR do not on their face indicate that the promise by the

appellant was false, or that the complainant engaged in sexual relations on the basis

of this promise. There is no allegation in the FIR that when the appellant promised to

marry the complainant, it was done in bad faith or with the intention to deceive her.

The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed

to mean the promise itself was false. The allegations in the FIR indicate that the

complainant was aware that there existed obstacles to marrying the appellant since

2008, and that she and the appellant continued to engage in sexual relations long

after their getting married had become a disputed matter. Even thereafter, the

complainant travelled to visit and reside with the appellant at his postings and allowed

him to spend his weekends at her residence. The allegations in the FIR belie the case

that she was deceived by the appellant's promise of marriage. Therefore, even if the

facts set out in the complainant's statements are accepted in totality, no offence under Page No.# 6/8

Section 375 of the IPC has occurred."

10. The appellant, Pramod Surya Bhan Pawar was exonerated from the charges under

Section 376 IPC.

11. Learned counsel for the petitioner also relied on the decision of the Hon'ble Supreme

Court in Sonu @ Subhash Kumar -vs- State of Uttar Pradesh , reported in AIR 2021

SC 1405, wherein it was held and observed that-

"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..."

10. Further, the Court has observed: "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."

11. Bearing in mind the tests which have been enunciated in the above decision, we

are of the view that even assuming that all the allegations in the FIR are correct for Page No.# 7/8

the purposes of considering the application for quashing under Section 482 of CrPC,

no offence has been established. There is no allegation to the effect that the promise

to marry given to the second respondent was false at the inception. On the contrary, it

would appear from the contents of the FIR that there was a subsequent refusal on the

part of the appellant to marry the second respondent which gave rise to the

registration of the FIR. On these facts, we are of the view that the High Court was in

error in declining to entertain the petition under Section 482 of CrPC on the basis that

it was only the evidence at trial which would lead to a determination as to whether an

offence was established.

12. For the above reasons, we allow the appeal and set aside the impugned

judgment and order of the High Court dated 26 September 2019. In view of the

reasons which have been adduced earlier, the charge sheet dated 25 April 2018, which

has been filed in pursuance of the investigation which took place, shall stand quashed.

The order of the trial Court dated 3 October 2018 taking cognizance shall accordingly

stand quashed and set aside.

12. In the instant case too, the FIR does not reveal that from the inception the petitioner

had no intention to marry the victim. The petitioner was a student at the time he got closely

acquainted to the victim-respondent No. 2, herein. The split between the petitioner and the

victim was a subsequent development. Differences arose when the family members of the

petitioner stepped in. Finally, matters became worse when the victim went to the petitioner's

house to be accepted as his wife as she was under the delusion that she was the petitioner's

wife. She was driven out of the petitioner's house, not by the petitioner, but by the elders of

his family. This is not a case of procuring consent by misconception of facts. In the instant Page No.# 8/8

case, the FIR does not transpire that the petitioner falsely promised to marry the victim -

respondent No. 2 herein. Both the petitioner and the victim travelled upto Guwahati from

Barpeta to solemnise their marriage at Kamakhya Mandir and they were stayed in a hotel.

The intentions of the petitioner is clear. Unfortunately there was a raid in the hotel, and both

the petitioner and the respondent No. 2 were taken into custody as they falsely posed as

husband and wife. At this juncture there was interference from the family members of the

petitioner and dispute erupted between the parties and differences arose between the

petitioner and the respondent No. 2. This incident followed by the interference of the family

members incited the split between the parties. The refusal of the petitioner to marry the

respondent No. 2 is a subsequent development. At present, the victim is also not willing to

proceed with the case. Further proceeding will indeed be an abuse of the process of the

Court. Possibility of conviction also appears to be remote and bleak.

13. In the light of the decision of the Hon'ble Supreme Court in Sonu @ Subhash Kumar

(supra), and the decision in the case of Pramod Suryabhan Pawar (supra), the present

petition is allowed. The entire proceeding of GR Case No. 5418 by 2016, along with the

Charge Sheet No. 286 of 2016, dated 31.12.2016 is hereby set aside and quashed.

JUDGE

Comparing Assistant