Jharkhand High Court
Shushil Kumar Barnwal Aged About ... vs The State Of Jharkhand on 14 August, 2023
Cr. M.P. No.3723 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.3723 of 2022
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1. Shushil Kumar Barnwal aged about 30 years, S/O- Dasrath Lal
Barnwal, R/O- Gram Hirodih, P.O.- Kisgo & P.S.- Hirodih, District-
Giridih, State- Jharkhand.
2. Dashrath @ Dasrath Lal Barnwal, aged about 74 years, S/O-
Jhakho Lal Barnwal, R/O- Panchayat- Pandeyadih, Block- Jamua,
Village- Hirodih, P.O.- Kisgo, P.S.- Hirodih, Bhandaro, District-
Giridih, State- Jharkhand, PIN-825412.
3. Sudama Devi, aged about 69 years, W/O- Dashrath @ Dasrath Lal
Barnwal, R/o- Panchayat Pandeyadih, Block- Jamua, Village-
Hirodih, P.O.- Kisgo, P.S.- Hirodih, Bhandaro, District- Giridih,
State- Jharkhand, PIN-825412. ... Petitioners
Versus
1. The State of Jharkhand
2. Suman Kumari, D/O- Madan Chaudhary, R/O- Lower Chutiya,
P.O. & P.S.- Chutiya, District- Ranchi, State- Jharkhand, PIN-834001.
... Opposite Parties
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For the Petitioners : Mr. Abhishek Kr. Sinha, Advocate
Ms. Manjusha Priya, Advocate
For the State : Mr. Vineet Kr. Vashistha, Spl.P.P.
For the O.P. No.2 : Mr. B. M. Tripathy, Sr. Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash the entire criminal prosecution and further proceeding
in connection with F.I.R. of Mahila P.S. Case No.16 of 2021 registered for the
offences punishable under Sections 376, 417, 506, 34 of the Indian Penal Code
Cr. M.P. No.3723 of 2022
which is pending before the learned J.M.F.C. XXIX-cum-Additional Munsif,
Ranchi, Jharkhand.
3. The allegation against the petitioners is that the petitioner No.1 has
committed rape upon the victim by obtaining her consent by cheating and
promising to marry her and the petitioners have also cheated the father of the
informant/victim of Rs.4,00,000/- by deceiving him to part with the said
money and the petitioner No.1 has criminally intimidated the informant in
furtherance of the common intention with the co-accused persons.
4. Learned counsel for the petitioners submits that the allegations against
the petitioners are all false and concocted one. Drawing attention of this Court
towards the judgment of the Hon'ble Supreme Court of India in the case of
Pramod Suryabhan Pawar vs. The State of Maharashtra & Others reported in
(2019) 9 SCC 608, learned counsel for the petitioners submits that it is a settled
principle of law that a breach of promise to marry cannot be said to be a false
promise. Learned counsel for the petitioners next submits that the informant
has not mentioned the mode of payment of Rs.4,00,000/-. Hence, the same is a
justifiable reason to quash the entire criminal proceeding and further
proceedings in connection with F.I.R. of Mahila P.S. Case No.16 of 2021 which
is pending before the learned J.M.F.C. XXIX-cum-Additional Munsif, Ranchi,
Jharkhand.
5. Learned counsel for the petitioners next relies upon the judgment of the
Hon'ble Supreme Court of India in the case of Dr. Dhruvaram Murlidhar
Sonar vs. The State of Maharashtra & Others reported in (2019) 18 SCC 191,
and submits that there is distinction between rape and consensual sex and if the
accused has not made promise with sole intention to indulge in sexual act such
an act would not amount to rape.
Cr. M.P. No.3723 of 2022
6. Learned counsel for the petitioners further submits that the petitioner
No.1 promised to marry the informant; merely falls into the category of breach
of promise and not false promise. Learned counsel for the petitioners further
relies upon the judgment of the Hon'ble Supreme Court of India in the case of
Uday vs. State of Karnataka reported in (2003) 4 SCC 46, and submits that it is
a settled principle of law that there is no strait jacket formula for determining
whether consent given by the prosecutrix to sexual intercourse is voluntary, or
whether it is given under a misconception of fact and the court must consider
the evidence before it and the surrounding circumstances before reaching a
conclusion as every case has its own peculiar facts.
7. Learned counsel for the petitioners further relies upon the judgment of
the Hon'ble Supreme Court of India in the case of Deepak Gulati vs. State of
Haryana reported in (2013) 7 SCC 675, and submits that the court must
carefully examine whether the accused has actually wanted to marry the victim
or had the malafide motives and had a false motive to satisfy his lust as the
later falls within the ambit of cheating and deception. Hence, it is submitted
that the entire criminal prosecution and further proceeding in connection with
F.I.R. of Mahila P.S. Case No.16 of 2021 which is pending before the learned
J.M.F.C. XXIX-cum-Additional Munsif, Ranchi, Jharkhand, be quashed and set
aside.
8. Learned Spl.P.P. appearing for the State and the learned senior counsel
for the opposite party No.2 vehemently oppose the prayer to quash the entire
criminal prosecution and further proceeding in connection with F.I.R. of Mahila
P.S. Case No.16 of 2021 which is pending before the learned J.M.F.C. XXIX-
cum-Additional Munsif, Ranchi, Jharkhand and learned counsel for the
opposite party No.2 relies upon the judgment of the Hon'ble Supreme Court of
India in the case of State of U.P. vs. Naushad reported in (2013) 16 SCC 651
Cr. M.P. No.3723 of 2022
and submits that it is a settled principle of law as has been held by the Hon'ble
Supreme Court of India in paragraph-10 in the case of Yedla Srinivasa Rao vs.
State of Andhra Pradesh reported in (2006) 11 SCC 615 that when the consent
which had been obtained by the accused was not a voluntary one which was
given by the prosecutrix under misconception of fact that the accused would
marry her but the same is not a consent in law.
9. Learned senior counsel for the opposite party No.2 next relies upon the
judgment of the Hon'ble Supreme Court of India in the case of Satpal Singh vs.
State of Haryana reported in (2010) 8 SCC 714 paragraphs-31 and 32 of which
reads as under:-
"31. The concept of "consent" in the context of Section 375IPC has
to be understood differently, keeping in mind the provision of
Section 90IPC, according to which a consent given under
fear/coercion or misconception/mistake of fact is not a consent at all.
Scheme of Section 90IPC is couched in negative terminology.
Consent is different from submission. (Vide Uday v. State of
Karnataka [(2003) 4 SCC 46 : 2003 SCC (Cri) 775 : AIR 2003 SC
1639] , Deelip Singh v. State of Bihar [(2005) 1 SCC 88 : 2005 SCC
(Cri) 253] and Yedla Srinivasa Rao v. State of A.P. [(2006) 11 SCC
615 : (2007) 1 SCC (Cri) 557] )
32. In State of H.P. v. Mange Ram [(2000) 7 SCC 224 : 2000 SCC
(Cri) 1331 : AIR 2000 SC 2798] , this Court, while considering the
same issue, held as under : (SCC pp. 230-31, para 13)
"13. ... Submission of the body under the fear of terror
cannot be construed as a consented sexual act. Consent for
the purpose of Section 375 requires voluntary participation
not only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the act but
after having fully exercised the choice between resistance and
assent."
and submits that under the facts of the case since the petitioner with the
purpose of satisfying his lust, has made the victim/prosecutrix believe that he
will marry her, hence, the consent of the prosecutrix cannot be said to be a free
one. Therefore, the offence punishable under Section 376 of the Indian Penal
Code is made out against the petitioner.
Cr. M.P. No.3723 of 2022
10. Learned senior counsel for the opposite party No.2 further submits that
the ingredients of other two offences involved i.e. offence punishable under
Sections 417 and 506 of the Indian Penal Code is also made out against the
petitioners as there is direct and specific allegation against the petitioners of
having cheated the father of the prosecutrix of Rs.4,00,000/- by deceiving him
to part with the same and in furtherance of common intention with the co-
accused having criminally intimidated the informant and her family members.
Hence, it is submitted that this Cr.M.P. being without any merit, be dismissed.
11. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, this Court finds that the
case is at the nascent stage and the investigation of the case is going on. There is
specific and direct allegation against the petitioner No.1 that in order to satisfy
his lust he led the victim believe that he will marry her and established physical
relationship with her even though he had no such intention to marry her since
the beginning. Hence, the consent obtained by the petitioner No.1 for physical
relationship is not a voluntary one on the part of the victim. The ingredients of
other two offences i.e. the offence of cheating and criminal intimidation are also
direct and specific. It is a settled principle of law that the High Court in exercise
of its inherent power under Section 482 Cr.P.C. should not stifle a legitimate
prosecution as has been held by the Hon'ble Supreme Court of India in the case
of Monica Kumar (Dr.) & Another vs. State of Uttar Pradesh & Others
reported in (2008) 8 SCC 781.
12. Considering the fact that there is specific and direct allegation against the
petitioners, this Court is not inclined to quash the entire criminal prosecution
and further proceeding in connection with F.I.R. of Mahila P.S. Case No.16 of
2021 which is pending before the learned J.M.F.C. XXIX-cum-Additional
Munsif, Ranchi, Jharkhand.
Cr. M.P. No.3723 of 2022
13. Accordingly, the prayer to quash the entire criminal prosecution and
further proceeding in connection with F.I.R. of Mahila P.S. Case No.16 of 2021
which is pending before the learned J.M.F.C. XXIX-cum-Additional Munsif,
Ranchi, Jharkhand, as prayed for by the petitioners, stands rejected.
14. In the result, this Cr.M.P. stands dismissed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 14th of August, 2023
AFR/ Animesh
