Jharkhand High Court
Rohan Kumar Tiwari @ Rohan Tiwari vs The State Of Jharkhand on 3 May, 2023
1 Cr.M.P. No.2018 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2018 of 2022
Rohan Kumar Tiwari @ Rohan Tiwari, aged about 25 years, son of Shri
Prakash Chandra Tiwari, resident of Gul Bazaar, Village -Murlidih, P.O.
& P.S. -Mahuda, District -Dhanbad -828305
.... Petitioners
Versus
1. The State of Jharkhand
2. Ranjana Kumari, daughter of Shri Premchand Harijan, resident of
20/21 Pits, Village -Murlidih, P.O. -Bhuli Quarter, P.S. -Mahuda,
District -Dhanbad -828305
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Pradeep Kumar Deomani, Advocate
For the State : Mr. Abhay Kr. Tiwari, Addl. P.P.
For the Opp. Party No.2 : Mr. Birendra Kumar, Advocate
: Mr. Raj Kishore Sahu, Advocate
.....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer
to quash the order dated 16.11.2021 passed by the learned Special
Judge, SC/ST Act Cases, Dhanbad in SC/ST Case No. 79 of 2020
arising out of Mahuda (Bhatdih O.P.) P.S. Case No. 63 of 2020
registered for the offences punishable under Section 376/406/420
of the Indian Penal Code and under Section 3(1)(r), 3(1)(s) &
3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 now pending in the court of
Special Judge, SC/ST Act Cases, Dhanbad, whereby and where
under cognizance for the offences punishable under Section
376/420/417 of the Indian Penal Code and Section 3(1)(r), 3(1)(s)
& 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 has been taken by the learned
Special Judge, SC/ST Act Cases, Dhanbad.
3. The brief facts of the case is that the petitioner who is of Brahmin
Caste has sexually exploited the opposite party no.2, who is a
member of Schedule Caste, for three years by promising that he
will marry the informant-opposite party no.2 and ultimately on
08.09.2020 when the victim asked the petitioner, as to why, the
petitioner is not marrying her, the petitioner refused to marry her
and intentionally insulted and intimidated the informant-opposite
party no.2 with intent to humiliate her for being a member of the
Schedule Caste by taking her caste name. There is further
allegation that the petitioner intentionally touched the informant
who is a woman belonging to Schedule Caste knowing that she
belongs to Schedule Caste and such act of touching is of sexual
nature and without the recipient's consent. On the basis of the
written report submitted by the informant, police registered
Mahuda (Bhatdih O.P.) P.S. Case No. 63 of 2020 for the offences
punishable under Section 376/406/420 of the Indian Penal Code
and under Section 3(1)(r), 3(1)(s) & 3(1)(w)(i) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
and after completion of investigation police submitted charge
sheet but the petitioner has withheld the charge sheet form this
Court and has not filed the copy of the same nor the statement of
the witnesses recorded by the police during the investigation of
the case has been brought on record. The learned Special Judge,
SC/ST Act Cases, Dhanbad after considering the materials in the
record found prima-facie case for the offences punishable under
Section 376/420/417 of the Indian Penal Code and Section 3(1)(r),
3(1)(s) & 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
4. It is submitted by the learned counsel for the petitioner that no
offence punishable under the provisions of the Indian Penal Code
or Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is made out against the petitioner. It is next
submitted that there is no allegation in the First Information
Report that the petitioner had intention of deceiving the opposite
party no.2 since the inception.
5. Relying upon the Judgment of Hon'ble Supreme Court of India in
the case of Pramod Suryabhan Pawar Vs. The State of
Maharashtra & Anr., reported in (2019) 9 SCC 608, para -21 to 22
of which reads as under:-
"21. 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 Section 375 IPC has
occurred.
22. With respect to the offences under the SC/ST Act, the
WhatsApp messages were alleged to have been sent by the
appellant to the complainant on 27-8-2015 and 28-8-2015 and 22-
10-2015. At this time, Sections 3(1)(u), (w) and 3(2)(vii) of the
SC/ST Act as it stands today had not been enacted into the statute.
These provisions were inserted by the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015
(the amending Act) which came into force on 26-1-2016. Prior to
the amending Act, the relevant provisions of the statute (as it stood
then) were as follows:
"3. Punishments for offences of atrocities.--(1) Whoever,
not being a member of a Scheduled Caste or a Scheduled
Tribe--
***
(x) intentionally insults or intimidates with
intent to humiliate a member of a Schedule Caste
or a Scheduled Tribe in any place within public
view;
(xi) assaults or uses force to any woman
belonging to a Scheduled Caste or a Scheduled
Tribe with intent to dishonour or outrage her
modesty;
(xii) being in a position to dominate the will of a
woman belonging to a Scheduled Caste or a
Scheduled Tribe and uses that position to exploit
her sexually to which she would not have
otherwise agreed;"
It is submitted by the learned counsel for the petitioner that the
allegation in the F.I.R. do not on their face value indicate that the
promise by the appellant was false, or that the complainant
engaged in sexual relation on the basis of this promise. It is next
submitted that there is no allegation that the abuse by caste name
took place in public view. It is next submitted by the learned
counsel for the petitioner that the opposite party no.2-informant
submitted an application earlier to the Officer-In-charge of Mahila
Police Station, Dhanbad, a copy of which has been obtained by the
petitioner under the Right to Information Act, 2005 but the
receiving authority has committed a mistake of putting a date of
10.09.2020 instead of 11.09.2020. Hence, it is submitted that the
order dated 16.11.2021 passed by the learned Special Judge,
SC/ST Act Cases, Dhanbad in SC/ST Case No. 79 of 2020 arising
out of Mahuda (Bhatdih O.P.) P.S. Case No. 63 of 2020 whereby
and where under cognizance for the offences punishable under
Section 376/420/417 of the Indian Penal Code and Section 3(1)(r),
3(1)(s) & 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 has been taken by the learned
Special Judge, SC/ST Act Cases, Dhanbad be quashed.
6. Learned Addl. P.P. and the learned counsel for the opposite
party no.2 on the other hand vehemently opposes the prayer for
quashing the order dated 16.11.2021 passed by the learned Special
Judge, SC/ST Act Cases, Dhanbad in SC/ST Case No. 79 of 2020
arising out of Mahuda (Bhatdih O.P.) P.S. Case No. 63 of 2020
whereby and where under cognizance for the offences punishable
under Section 376/420/417 of the Indian Penal Code and Section
3(1)(r), 3(1)(s) & 3(1)(w)(i) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 has been taken by the
learned Special Judge, SC/ST Act Cases, Dhanbad. It is next
submitted by the learned counsel for the opposite party no.2 and
the learned Addl. P.P. that the facts of Pramod Suryabhan Pawar
Vs. The State of Maharashtra & Anr. (supra) is entirely different
from the facts of this case. It is next submitted that there is specific
allegation against the petitioner of making the complainant
engaged in sexual relation on basis of the promise of marriage and
unlike the case of Pramod Suryabhan Pawar Vs. The State of
Maharashtra & Anr. (supra), in this case, the abuse was not
through WhatsApp message rather it was done in public view.
Further in this case unlike the case of Pramod Suryabhan Pawar
Vs. The State of Maharashtra & Anr. (supra) there is no
allegation of any sexual relationship between the petitioner and
the informant after denial of marriage by the petitioner to the
informant, hence the ratio of Pramod Suryabhan Pawar Vs. The
State of Maharashtra & Anr. (supra) is not applicable to the facts
of this case. It is next submitted by the learned counsel for the
opposite party no.2 that as per the amended law, if a sexual
relationship is established with a female knowing that she is a
member of scheduled caste or scheduled tribe community and she
denies the consent, the offence is made out and in this respect, the
learned counsel for the opposite party no.2 relies upon the order
of a coordinate Bench of this Court in the case of Rohan Kumar
Tiwari Vs. The State of Jharkhand & Anr., passed in Criminal
Appeal (SJ) No. 274 of 2021 dated 23.08.2021. It is next submitted
by the learned counsel for the opposite party no.2 that the
petitioner has deliberately withheld the copy of the charge sheet
and the statement of the witnesses to get an order of quashing by
hook or crook and there is ample material in the record to
constitute each of the offences for which cognizance has been
taken. Hence, it is submitted that this criminal miscellaneous
petition being without any merit be dismissed.
7. Having heard the submissions made at the bar and after going
through the materials in the record, it is pertinent to mention here
that there is direct allegation against the petitioner of engaging the
complainant in sexual relation on the promise of marriage and she
was abused by her caste name by the petitioner in public view.
Further the facts of this case is different from the facts of Pramod
Suryabhan Pawar Vs. The State of Maharashtra & Anr. (supra)
as already indicated in the submission made by the learned
Additional Public Prosecutor on the learned counsel for the
opposite party no. 2 in this judgment itself, hence the ratio of
Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr.
(supra) , in the considered opinion of this Court is not applicable
in the facts of the case.
8. It is a settled principle of law that the Court could not embark
upon the inquiry in exercise of its power under Section 482 Cr.P.C.
as to whether the evidence is reliable or not as that would be the
function of the trial court, as has been held by the Hon'ble
Supreme Court of India in the case of State of M.P. vs. Awadh
Kishore Gupta & Ors. reported in (2004) 1 SCC 691. So, the
earlier filing of the report by the informant with the police, in
respect of which notice has been registered can at best be a
difference for the petitioner, but certainly the same cannot be a
ground for quashing the order of cognizance.
It is also a settled principle of law that the inherent power under
Section 482 Cr.P.C. should not be exercised to stifle a legitimate
prosecution as has been held by the Hon'ble Supreme Court of
India in the case of Monica Kumar (Dr.) and another v. State of
U.P. and others, reported in (2008) 8 SCC 781.
9. Now coming to the facts of the case, since there is specific
allegation against the petitioner of serious nature, in the
considered opinion of this Court, the continuation of the criminal
proceeding will neither amount to abuse of process of the court
nor the interest of justice requires quashing of the order dated
16.11.2021 passed by the learned Special Judge, SC/ST Act Cases,
Dhanbad in SC/ST Case No. 79 of 2020 arising out of Mahuda
(Bhatdih O.P.) P.S. Case No. 63 of 2020, which is the twin
conditions for which the cognizance order, can be quashed.
10. Accordingly, this criminal miscellaneous petition being without
any merit is dismissed.
11. In view of dismissal of this criminal miscellaneous petition, the
interlocutory application, if any, stands disposed of being
infructuous.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 3rd May, 2023
AFR/Sonu-Gunjan/-
