Manish Kumar Sharma @ Manish Kumar vs The State Of Jharkhand
2022 Latest Caselaw 4897 Jhar

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            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 488 of 2022

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Manish Kumar Sharma @ Manish Kumar, son of late Satyendra Sharma, aged 23 years, resident of Raghunathpur, Sidhirpur, P.O. Sidhirpur, P.S. Paliganj, District Patna, Bihra ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Seema Kumari @ Seema Mandal, daughter of Patel Mandal, resident of Hanuman Tikri, Tiwari Chowk, P.S. Town, P.O. B.Deoghar, District Deoghar, Jharkhand ...... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Ms. Prachi Pradipti, Advocate For the State :- Mr. Shailendra Kumar Tiwari, Advocate For the O.P.No.2 :- Mr. Sumit Prakash, Advocate

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4/06.12.2022 Heard Ms. Prachi Pradipti, the learned counsel appearing for

the petitioner, Mr. Sumit Prakash, the learned counsel appearing on

behalf of the O.P.No.2 and Mr. Shailendra Kumar Tiwari, the learned

counsel appearing on behalf of the respondent State.

This petition has been filed for quashing of the order dated

24.09.2021 including the entire criminal proceeding arising out of

Deoghar Mahila P.S.Case No.6 of 2021, corresponding to G.R. No.1839 of

2021, registered for the offence under section 406, 420, 376(2)(n) of the

IPC and pending before the learned Chief Judicial Magistrate, Deoghar.

As per the Fardbeyan of the O.P.No.2, the case has been

registered alleging therein that the petitioner is posted at STP Ranchi and

during posting at Shrawan Mela, petitioner came in contact with the

informant at her father's shop and got to know that the informant was a

married woman and a divorce litigation was pending with her earlier

husband. It is also alleged that the informant had financial terms with

the petitioner and she had deposited amount in the account of petitioner

via Google Pay, the petitioner also enticed to marry informant after her

divorce. It is further alleged that thereafter on 03.12.2019 the petitioner

put vermilion on her head at Nandan Pahar temple and married with

informant and thereafter established physical relation with her several

times by making false pretext to marry after her divorce, but on

11.02.2021, the petitioner completely denied to marry the informant.

Ms. Prachi Pradipti, the learned counsel appearing on behalf

of the petitioner submits that mother of the petitioner namely, Suman

Devi has filed the private complaint case against the O.P.No.2 being

Complaint Case No.240 of 2021 under section 147, 341, 323, 380, 406,

420, 452, 504, 34 of the IPC dated 18.02.2021 in which cognizance has

been taken. She further submits that the informant under section 164

Cr.P.C has stated that she is already married and engaged in litigation for

divorce with her husband. She submits that she was already married and

there is no question of alluring her for marriage as she was already

married and established relationship and both the petitioner and the

O.P.No.2 were adult. She submits that only on that ground the case has

been registered and even section 376(2)(n) of the IPC is not attracted.

She further submits that the order taking cognizance dated 24.09.2021 is

also not a speaking order and in that view of the matter, the entire

criminal proceeding may kindly be quashed.

On the other hand, Mr. Sumit Prakash, the learned counsel

appearing on behalf of the O.P.no.2 submits that the petitioner has

established relationship with O.P.No.2 on the false pretext of marriage

and in that view of the matter, the learned court has rightly taken

congnizance. He submits that there are judgments of Hon'ble Supreme

Court that if on the pretext of marriage the relationship is established,

the case under section 376 of IPC can be maintained.

Mr. Tiwari, the learned counsel appearing on behalf of the

respondent State submits that the ingredients of section 420 IPC is also

there and in that view of the matter, the learned court has rightly taken

cognizance.

In view of the submissions of the learned counsel appearing

on behalf of the parties, the Court has gone through the materials on

record and finds that admittedly the mother of this petitioner has filed

the complaint case against the O.P.No.2 and thereafter the present case

has been filed. Annexure-4 is the statement of the informant under

section 164 Cr.P.C. in which in paragraph no.4 she has clearly stated that

she was married with one Pradip Mandal and the case of divorce is going

on which suggest that a married woman has established relationship with

her consent with this petitioner. The question remains that when two

adult have established relationship particularly considering that the

informant is a married woman, whether section 376(2)(n) IPC can be

attracted or not ? In the case in hand, the victim who is a married

woman voluntarily had sex with the petitioner, knowing that she cannot

enter into marriage with the petitioner in view of the fact that she was a

married woman. Even assuming that promise by the petitioner for

marriage, she was knowing that she is a married woman and marriage

will not take place, and inspite of that she has established relationship

with the petitioner that promise is illegal and that cannot be a basis for

prosecution under section 376(2)(n) of the IPC. In the case in hand,

there is no question that this petitioner has allured as she was already

married and she was not divorced and inspite of that she has established

the relationship with this petitioner. Section 406 IPC is for punishment for

breach of trust. In order to bring criminal breach, to prove entrustment is

an essential ingredient under section 405 IPC. Section 420 IPC is only

made out if from the very beginning the intention of cheat is there which

is lacking in the facts and circumstances of the present case. Thus, prima

facie it appears that the ingredients of those sections are not made out.

The Court has gone through the order taking cognizance dated

24.09.2021 and finds that the learned court filled the words 'cognizance'

and 'personal' in the blank space which suggest that there is non-

application of judicial mind, and in that view of the matter, the order

taking cognizance dated 24.09.2021 arising out of Deoghar Mahila

P.S.Case No.6 of 2021, corresponding to G.R. No.1839 of 2021, pending

before the learned Chief Judicial Magistrate, Deoghar, is set aside, and

the matter is remitted back to the learned concerned court to pass afresh

order in accordance with law.

Cr.M.P.No.488 of 2022 is disposed of in the above terms.

Pending petition, if any, also stands disposed of.

( Sanjay Kumar Dwivedi, J.)

SI/,