Jharkhand High Court
Nirmal Lakra vs The State Of Jharkhand on 26 September, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3294 of 2021
Nirmal Lakra ..... ... Petitioner
Versus
1. The State of Jharkhand.
2. Seema Kerketta ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Sunil Singh, Advocate.
For the State : Mr. Abhay Kumar Tiwari,A.P.P.
For the O.P. No. 2 : Md. Zubair Khan, Advocate
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07/ 26.09.2022 Heard learned counsel for the parties.
2. This petition has been filed for quashing of the entire criminal
proceeding including the order taking cognizance dated 13.10.2020,
passed by the learned Additional District and Sessions Judge-XV, Ranchi,
whereby cognizance for the offence under Sections 376/417 of IPC has
been taken against the petitioner, in connection with Sadar P.S. Case No.
244 of 2019, pending in that court.
3. The prosecution case was lodged alleging therein that the
informant namely Seema Kerketta initially filed a complaint case against
the petitioner vide Complaint Case No. 2063/2019 which was later sent to
Sadar Police Station under Section 156 of the Cr.P.C. by the learned court
of Additional Chief Judicial Magistrate, Ranchi, accordingly, First
Information Report was registered vide Sadar P.S. Case No. 244 of 2019
under Sections 376, 323, 341 and 504 of IPC against the petitioner. It was
alleged in the FIR by the informant that the informant and the petitioner
belonged to same village and they are known to each other very well. The
petitioner with a wrong intention entered into the informant's house and
tried to harass her physically. The informant tried to resist the petitioner
from doing so but the petitioner established physical relation with the
informant. Thereafter, the informant disclosed the said incident to her
parents then they immediately sent her to Ranchi in order to continue her
education. It is also alleged that the petitioner unexpectedly was found
following the informant even in Ranchi where he used to establish
physical relation with the informant between 2004 to 2008. The informant
further alleged that in the month of December, 2008 when the petitioner
was appointed as a guard in Indian Railway then the informant pursued
petitioner for their marriage but the petitioner did not agree for the same.
The informant lastly alleged that on 08.10.2018 she along with her sister
and other persons visited to the quarter of the petitioner at Barwadih,
Latehar and proposed for marriage, but the petitioner did not agree for the
same.
4. Mr. Sunil Singh, learned counsel appearing for the petitioner
submits that the petitioner and the O.P. No. 2 were in friendly terms and
they are major and what has happened that was with the consensus of both
the parties. He submits that they were in relationship since last 2004 to
2008 and both of them are of the same village. He submits that initially the
O.P. No. 2 has filed a complaint before the Gumla Police, which was
enquired by the police and the report has been submitted that what has
happened is with the consensus of both the parties and thereafter break up
has taken place in the year 2008. He further submits that after the report of
the Gumla police, the complaint has been filed at Ranchi before the
learned Court, which was sent under Section 156(3) of the Cr.P.C. before
the police for registration of the FIR and also for investigation. He further
submits that the chargesheet has been submitted and on the basis of which,
the learned court has taken the cognizance by order dated 13.10.2020. He
further submits that after lapse of so many years, the case has been lodged,
which is not maintainable under Sections 376, 323, 341 and 504 of IPC. He
further submits that the present case is fully covered by the judgment of
the Hon'ble Supreme Court in the case of Dhruvaram Murlidhar Sonar
Versus The State of Maharashtra & Ors., reported in (2019) 18 SCC 191,
wherein the Hon'ble Supreme Court in para-20, held as follows:-
"20. Thus, there is a clear distinction between rape
and consensual sex. The court, in such cases, must
very carefully examine whether the complainant
had actually wanted to marry the victim or had
mala fide motives and had made a false promise to
this effect only to satisfy his lust, as the later falls
within the ambit of cheating or deception. There is
also a distinction between mere breach of a
promise and not fulfilling a false promise. If the
accused has not made the promise with the sole
intention to seduce the prosecutrix to indulge in
sexual acts, such an act would not amount to rape.
There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love
and passion for the accused and not solely on
account of the misconception created by accused,
or where an accused, on account of circumstances
which he could not have foreseen or which were
beyond his control, was unable to marry her
despite having every intention to do. Such cases
must be treated differently. If the complainant
had any mala fide intention and if he had
clandestine motives, it is a clear case of rape. The
acknowledged consensual physical relationship
between the parties would not constitute an offence
under Section 376 of the IPC."
5. Relying on the aforesaid judgment, learned counsel appearing
for the petitioner submits that the entire criminal proceeding is malicious
in nature and this Court may interfere in the matter.
6. Md. Zubair Khan, learned counsel appearing for the O.P. No.
2 submits that the petitioner has forcefully established the relationship
with the O.P. No. 2 and that's why the case has been filed. He submits that
on the date of occurrence, the O.P. No. 2 was minor and on these grounds,
no case of interference is made out.
7. Mr. Abhay Kumar Tiwari, learned A.P.P. appearing for the
State submits that there are allegations of physical relationship, that's why
the learned court has rightly taken the cognizance against the petitioner.
8. In view of such submissions of learned counsel appearing for
the parties, the court has gone through the materials available on record
and finds that for the same allegation, initially the case has been lodged by
the O.P. No. 2 before the Gumla police, which was investigated by the
police and found that there are relationship between the petitioner and the
O.P. No. 2 since 1995 and thereafter in the year 2008, break up has taken
place, as the petitioner has married with another girl and the case has been
lodged maliciously against the petitioner. Thereafter the complaint has
been filed against the petitioner before the learned Court at Ranchi, which
was sent to the police under Section 156(3) Cr.P.C. for institution of the
FIR and investigation and the police after investigation, has submitted
chargesheet against the petitioner, upon which, the learned court has taken
the cognizance against him. Prima facie, it appears that after so many
years, the case has been lodged at Ranchi and in the first case, the police
has given the report that due to revenge the case has been lodged. In the
complaint petition at para-13 itself, it has been disclosed that earlier she
has filed a case before the Gumla Police and when the case was not in her
favour, she has filed another case at Ranchi.
9. The court has perused the cognizance order dated 13.10.2020
and finds that the said cognizance order is not in accordance with law, as
what are the prima facie materials are there against the petitioner has not
been disclosed in the said cognizance order.
10. In view of the above and also considering the judgment of
the Hon'ble Supreme Court in the case of Dhruvaram Murlidhar Sonar
(Supra), the order taking cognizance dated 13.10.2020, passed by the
learned Additional District and Sessions Judge-XV, Ranchi, whereby
cognizance for the offence under Sections 376/417 of IPC has been taken
against the petitioner, in connection with Sadar P.S. Case No. 244 of 2019,
pending in that court, is hereby, set aside. The matter is remitted back to
the learned concerned court to pass a fresh order in accordance with law.
11. This petition, is accordingly, disposed of.
12. Interim order, granted earlier, stands vacated.
(Sanjay Kumar Dwivedi, J.)
Amitesh/-
