Jharkhand High Court

Sukesh Kumar vs The State Of Jharkhand on 6 November, 2023

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Revision No.639 of 2023
                                     ------

Sukesh Kumar, son of Shri Dhanu Sah, resident of Village Dhundibad Bazar, P.O. & P.S.- B.S. City, District Bokaro ..... ...... Petitioner Versus

1. The State of Jharkhand

2. Deepeka Kumari, daughter of Madhusudan Singh, resident of Rajendra Nagar, Gali No.B/5, Baladih, P.O. & P.S.-Balidih, District Bokaro .. ....Opposite Parties

--------

CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

-------

For the Petitioner       : Mr. A.K. Sahani, Advocate
For the State            : Mr. Subodh Kumar Dubey, APP
For the O.P. No.2        : Mr. Ranjit Kumar Giri, Advocate
                                        --------
C.A.V. on 11/10/2023                            Pronounced on 06/ 11/2023

1. This Criminal Revision is preferred against the order dated 27.04.2023

passed by the learned Additional Sessions Judge-IV, Bokaro in Sessions

Trial No.478 of 2022, whereby the application for discharge of the petitioner

under Section 227 of the Code of Criminal Procedure had been rejected.

2. The brief facts leading to this Criminal Revision are that an

application under Section 227 of the Code of Criminal Procedure was moved

on behalf of the petitioner-accused before the learned trial Court in S.T.

No.478 of 2022 (State Vs. Sukesh Kumar) under Section 376 (2) (n), 504

and 506 of the Indian Penal Code pending before the Court of learned

Additional Sessions Judge-IV, Bokaro on these grounds that from the very

allegations made in the FIR, since no ingredients under Section 375 of the

Indian Penal Code, which is punishable under Section 376 of the Indian

Penal Code, no offence is made out against the petitioner. As per the FIR

allegations, the victim was major, her date of birth was of 1996. Even on the

alleged date of occurrence in the year 2018, the victim was major. As per the

allegations made by the victim herself, the relations between them were

consensual. Even if the allegations made in the FIR were taken to be correct,

on the basis of the same, no offence is made out against the petitioner-

accused. There is no mens rea on the part of the petitioner to play any fraud

upon the complainant-victim in regard to obtain her consent on the alleged

pretext of marriage. In view of the above, prayed to discharge the petitioner-

accused.

3. The learned trial Court passed the order dated 27.04.2023, whereby

the application of the petitioner for discharge was rejected.

4. Aggrieved from this impugned order dated 27.04.2023, this Criminal

Revision has been preferred on behalf of the petitioner on the ground that the

impugned order is not sustainable in the eyes of law. From the First

Information Report, it transpires that both the parties were major and

friendship was developed between them and ultimately in love affairs

physical relations have also been established and continued for a long

period, as such, no offence under Section 375 of the Indian Penal Code is

made out. Even if the prosecution story, restatement of the informant as well

the statement of her parents was taken to be correct same does not establish

the offence of rape against the petitioner. The chats of the WhatsApp and

photographs do not constitute any offence under Section 375 of the Indian

Penal Code. In view of the above, urged to allow this Criminal Revision and

set aside the impugned order and discharge the petitioner from the charges

levelled against him.

5. I have heard the learned counsel for the petitioner, learned APP for the

State and learned counsel for the opposite party No.2 at length and perused

the materials available on record.

6. It is the settled propositions of law that while disposing the

discharge application, the Court has to take into consideration the

allegations made in the FIR and also the evidence collected by the

Investigating Officer during investigation. If from the allegations made

in the FIR and the evidence collected by the Investigating Officer, the

alleged offence against any accused is made out to proceed with the trial

against him, the Court should decline from discharging the accused. If

the Court is of definite opinion that no alleged offence is made out from

the allegations made in the FIR as well as from the evidence collected by

the Investigating Officer, the Court should not decline from discharging

the accused. At the same time, it is also the settled propositions of law

that while framing the charge, the Court cannot appreciate or scrutinize

the evidence on record, the appreciation of evidence, minute scrutiny of

evidence or marshalling of evidence is not permissible at the time of

framing charge.

7. As per the allegations made in the FIR, the informant-victim gave the

written statement with the police station concerned with these allegations

that the informant-victim came in contact of Sukesh Kumar, resident of

Dhundibad Bazar, Bokaro in the year 2018. Thereafter, both became friend

and friendship developed into love affairs. The accused Sukesh Kumar

allured her to marry and he usually said that he would marry with her. In the

year 2018, Sukesh Kumar called the victim at his work place at Namkum,

Ranchi and asked her to establish physical relation with him. Sukesh Kumar

also stated that if she would not come to meet with him, he would end his

life. Since she had utmost love with Sukesh Kumar, so she started worrying

and reached at his work place Namkum, Ranchi. She remained there over

day and Sukesh Kumar established physical relation with her. Thereafter,

both continued to establish physical relation. Sukesh Kumar was transferred

to Dakshineshwar, Kolkata, he also called her to Dakshineshwar, Kolkata

and there also he established physical relation with her. Sukesh Kumar had

assured to all the family members of the informant-victim in regard to marry

with her. Sukesh Kumar also took her to his house and introduced to his

elder brother, wherein it was stated by him that he would marry with her in

presence of his elder brother. In the meantime, chatting and calling on phone

were continued between them. Sukesh Kumar also came on his birthday on

11.02.2022 to her house. On 17.03.2022, he also came to meet her at the

occasion of Holi at her house. Thereafter, the victim also continued to talk

with Sukesh Kumar. On 11.05.2022, the informant-victim came to know that

Sukesh Kumar was going to marry with another girl. Sukesh Kumar had

played fraud upon her and committed breach of promise, which he had made

to marry with her. The victim also asked Sukesh Kumar in this regard then

stated that even after marrying with another girl he will continue in contact

of her. On 16.05.2022, Sukesh Kumar switched off his mobile phone and his

elder brother Mukesh also blocked her number. On account of establishing

physical relation, she became pregnant and also abortion was done. As

Sukesh Kumar, on the pretext of marriage, had sexually exploited her, this

FIR was lodged as Case Crime No.145 of 2022 under Sections 376, 504, 506

and 313/34 of the Indian Penal Code against the accused Sukesh Kumar,

Mukesh and one unknown person. The charge-sheet was filed against the

acccused Sukesh Kumar for the offence under Sections 376(2)(n), 504 and

506 of the Indian Penal Code. On the same, cognizance was taken by the

concerned Magistrate and on 21.12.2022, the case was committed for trial to

the Court of Sessions Judge, Bokaro.

8. The statement of the victim recorded under Section 164 of the Code of

Criminal Procedure was called for from the Court concerned, which is on

record.

9. In paragraph No.3 of the case diary, the Investigation Officer got the

medical examination of victim on the point that (i) whether the rape was

committed upon her? (ii) whether there was any mark of injury or abrasion

on her private part? and (iii) whether the victim was pregnant? Vaginal swab

was also extracted for spermatozoa. The age determination was also directed

to be assessed.

10. In paragraph No.11 of the case diary, the Investigating Officer

recorded the restatement of victim under Section 161 of the Code of

Criminal Procedure, in which, she reiterated all those allegations, which

were made in the FIR itself by the victim.

11. In paragraph No.12 of the case diary, the statement of the father of

victim, namely, Madhusudan Singh and in paragraph No.13 of the case

diary, the statement of mother of the victim, namely, Urmila Devi were

recorded under Section 161 of the Code of Criminal Procedure, who also

stated that there was friendship between the victim and Sukesh Kumar,

friendship developed in love affairs, both used to visit to each other and the

physical relations were also established on the pretext of marriage.

12. In paragraph No.18 of the case diary, the statement of the victim under

Section 164 of the Code of Criminal Procedure was recorded.

13. Paragraph No.33 of the case diary is the medical examination of

the victim, in which, no sign of external injury found over her body, no

sign of injury is found on her private part, no spermatozoa were seen in

the given smear on the examination of vaginal swab, there were no

recent sign of forceful sexual intercourse and no foreign bodies were

found on her private part.

14. From the very perusal of the statement of victim recorded under

Section 164 of the Code of Criminal Procedure, it is found that the victim

stated that in November, 2018 she came in contact of Sukesh Kumar. On

03.12.2018, he called to her at Ranchi and told that he loved her and his

elder brother was also waiting for marriage of him with her. After one day

thereof, he called her in a rented room Namkum, Ranchi saying that if

she would not come, he would commit suicide, so she reached there and

for the first time, physical relation was established between them.

Thereafter, she came back at Bokaro. On each Saturday-Sunday, Sukesh

Kumar used to visit her house, whenever there was no one at her house

he used to establish physical relation with her. He also took her in a

room of his friend, where he also established physical relation with her.

In April, 2019, she went to the house of her brother in Rajasthan when

she could not talk with him. Thereafter, she came back at Bokaro and there

meeting continued as before. When Sukesh Kumar was posted at

Dakshineshwar, Kolkata, then also physical relations were established

between them at Howrah, Kolkata in a room. In the meantime, she

became pregnant and her abortion was done. In June, 2021, she came to

know that the marriage of Sukesh Kumar was fixed with another girl.

On being asked, Sukesh Kumar told that he would continue to love her in the

like way as he used to love her even after married with another girl and this

FIR was lodged.

15. As per the statement of victim recorded under Section 164 of the Code

of Criminal Procedure, the age of victim is shown 26 years on 30.05.2022.

As per the admission of victim in the year 2018, the victim was 22 years

old, when for the first time she came in contact with Sukesh Kumar.

Admittedly, there was love affairs between them and physical relations

were established between them not only in Bokaro at the house of the

victim, several times whenever there were no one at her house; but also

when she went to the working place of accused at Namkum, Ranchi in a

rented room. In Dakshineshwar, Kolkata, she went and physical

relations were also established between them. Even at the room of the

friend of accused, physical relations were also established. From the

testimony of victim herself, it is found that physical relations were establish

on the pretext of marriage. Herein, from the allegations made in the FIR

itself and the testimony of victim, it is found that the victim was quite

major even in the year 2018 being 22 years old. She knew the

consequences of physical relation being established not only in Bokaro

but also at several places even at the working place of the accused and

even in Kolkata she went and established physical relation with him.

16. It appears from the allegations made in the FIR and also from the

statement of victim recorded under Sections 161 and 164 of the Code of

Criminal Procedure that both had attained majority and lived in

relationship since September, 2018. There is nothing on record to show

that the consent of the victim was obtained under any misconception for

establishing physical relation.

17. Herein, it is pertinent to mention some statutory provisions, which are

reproduced hereinbelow:

17.1 Section 90 of the Indian Penal Code reads as under:

"90. Consent known to be given under fear or misconception.-- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."

17.2 Section 375 of the Indian Penal Code reads as under:

"[2[375. Rape.-- A man is said to commit "rape" if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:

First. Against her will.

Secondly. Without her consent.

Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under eighteen years of age.

Seventhly. When she is unable to communicate consent. Explanation 1.For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:"

17.3 Explanation I to Section 375 of the Indian Penal Code provided

that the consent means an unequivocal voluntary agreement when the

woman by words, gestures or any form of verbal or non-verbal

communication, communicates willingness to participate in the specific

sexual act. Herein, from the allegations made in the FIR and the

testimony of victim, it is found that the victim has by words gestures

and verbal and non-verbal communications had communicated her

willingness to participate in specific sexual act with the petitioner-

accused.

17.4 The Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar

Vs. State of Maharashtra and Anr., reported in (2019) 9 SCC 608 has held

at paragraph No.21 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.

17.5 The Hon'ble Supreme Court in the case of Mandar Deepak Pawar

Vs. the State of Maharashtra & Anr. reported in 2022 Live Law (SC) 649

has held as under:

"The appellant and respondent No.2 were undisputedly in a consensual relationship from 2009 to 2011 (or 2013 as stated by

- 10 -

the respondent No.2). It is the say of the respondent No.2 that the consensual physical relationship was on an assurance of marriage by the appellant. The complaint has been filed only in 2016 after three years, pursuant whereto FIR dated 16.12.2016 was registered under Section 376 and 420, IPC.

On hearing learned counsel for parties, we find ex facie the registration of FIR in the present case is abuse of the criminal process.

The parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage. Thereafter also three years passed when respondent No.2 decided to register a FIR.

The facts are so glaring as set out aforesaid by us that we have no hesitation in quashing the FIR dated 16.12.2016 and bringing the proceedings to a close. Permitting further proceedings under the FIR would amount to harassment to the appellant through the criminal process itself. We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled "Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr." where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the FIR. A distinction was made between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1860."

18. In view of the allegations made in the FIR, the evidence collected by

the Investigating Officer and also taking into consideration the judicial

pronouncement made by the Hon'ble Supreme Court as stated hereinabove,

no alleged offence under Section 375 of the Indian Penal Code, which is

punishable under Section 376 of the Indian Penal Code is made out

against the petitioner.

19. The learned counsel for the opposite party No.2 and the learned APP

for the State have contended that during the pendency of this Criminal

Revision, the charge was framed and trial was commenced and witnesses

have also been examined, therefore, this Criminal Revision has become

infructuous.

- 11 -

20. This contention made by the learned counsel for the opposite party

No.2 and the learned counsel for the State is not found tenable since the

order of framing of charge is not the interlocutory order. Even if the charge

has been framed during pendency of this Criminal Revision and the evidence

has commenced, this Criminal Revision cannot be said to be infructuous.

20.1 The Hon'ble Supreme Court in the case of Madhu Limaye Vs. State

of Maharashtra, reported in (1977) 4 SCC 551 at paragraph No.21 held as

under:

21. It may be somewhat necessary to have a comparative examination of the powers exercisable by the court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor v. State7. In that very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In that very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the court or any other extraordinary situation invites the court's jurisdiction. The limitation is self- restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are

- 12 -

not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction.

20.2 The Hon'ble Supreme Court in the case of Sanjay Kumar Rai Vs.

State of Uttar Pradesh & Anr. passed in Criminal Appeal No.472 of 2021

arising out of Special Leave Petition (Crl.) No.10157 of 2019 decided on

17.05.2021 at paragraph Nos.15 held as under:

"15. The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the above-cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstances of individual cases. As a caveat it may be stated that the High Court, while exercising its afore-stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law."

21. In view of the allegations made in the FIR itself and the evidence

collected by the Investigating Officer, there is no sufficient ground to make

out the offence under Section 376 of the Indian Penal Code against the

accused, as such, the impugned order passed by the learned Court below in

rejecting the discharge application of the petitioner bears illegality and the

same needs interference. Accordingly, the order passed by the learned Court

below is set-aside.

- 13 -

22. In consequence thereof, this Criminal Revision is hereby allowed. The

petitioner is discharged from the charge levelled under Section 376 of the

Indian Penal Code.

23. Let a copy of this judgment be communicated to the learned Court