Jharkhand High Court
Pankaj Kumar Das vs The State Of Jharkhand ... Opposite ... on 12 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.3309 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.3309 of 2023
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Pankaj Kumar Das, aged about 25 years, son of Virendra Kumar
Ram, resident of Village Asna Indrwa, P.O. Jhumri Tilaiya, P.S.
Tilaiya, District Koderma (Jharkhand) ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
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For the Petitioner : Mr. Sahil, Advocate
Mr. Shashi Kant Mishra, Advocate
Mr. Avilash Kumar, Advocate
Mr. Sachin Mahato, Advocate
For the State : Mr. Shiv Shankar Kumar, Addl. P.P.
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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 order taking cognizance dated 09.08.2023 passed by
learned J.M.-1st Class, Hazaribagh in connection with Barhi P.S. Case No.261 of
2023 corresponding to G.R. No.1403 of 2023 whereby and where under the
learned court below has been pleased to take cognizance for the offence
punishable under Sections 376 and 364 of the Indian Penal Code against the
petitioner; along with the entire criminal proceedings of the said Barhi P.S.
Case No.261 of 2023 corresponding to G.R. No.1403 of 2023; which upon being
committed to the court of Sessions, S.T. No.458 of 2023 has been registered and
the said case is now pending in the court of learned Additional Sessions Judge-
1st, Hazaribagh.
3. Learned counsel for the petitioner submits that the charge has not yet
been framed against the petitioner.
4. The allegation against the petitioner is that the petitioner had been
sexually exploiting the informant five years prior to lodging of the F.I.R. on
06.06.2023; on the pretext of marrying her. There is specific allegation against
the petitioner that on 02.05.2023, the petitioner established physical
relationship with the informant in a hotel at Jhumri Tilaiya. On 04.06.2023, the
petitioner called the informant to Barhi and took the informant in a bike
towards the jungle where the informant saw three friends of the petitioner.
Suspicion arose in the mind of the informant that the petitioner might kill her.
The informant instructed the petitioner to stop the bike but the petitioner
instead of stopping the bike enhanced the speed of the bike. The informant
raised hue and cry. Many people assembled there and the petitioner and his
friends fled away. The bike was handed over to police. After investigation of
the case, police found the allegations against the petitioner to be true and
submitted charge-sheet. Vide order dated 09.08.2023, the learned Judicial
Magistrate-1st Class, Hazaribagh has taken cognizance against the petitioner for
the offences punishable under Sections 376, 364 of the Indian Penal Code.
5. Learned counsel for the petitioner submits that the allegations against
the petitioner are out and out false. There is no allegation that the petitioner
had promised to marry the informant without having any intention to marry
her. It is next submitted that the Annexure-2 is an unimpeachable document
issued by the competent authority of the Border Security Force (BSF) of which
the petitioner is the employee and which establishes that the petitioner was
granted leave on 08.05.2023 forenoon and both on 02.05.2023 and 04.05.2023,
the alleged date of occurrence of this case, the petitioner was at Handwara,
Kupwara in the State of Jammu & Kashmir. Drawing attention of this Court
towards Annexure-3 which is the railway journey ticket of the petitioner,
learned counsel for the petitioner submits that the petitioner boarded Kolkata
Express at 20:30 hours on 08th May, 2023 from Jammu Tawi and reached
Koderma Junction on 10th May, 2023 at 7:46 hours. Hence, it is submitted that
the presence of the petitioner at the alleged place of occurrence situated in the
district of Hazaribagh on 04.06.2023 is highly unlikely.
6. It is next submitted that earlier also the informant filed Complaint Case
No.508 of 2019 making self-same allegation against the petitioner and in this
respect, learned counsel for the petitioner draws the attention of this Court
towards Annexure-5 which is the copy of the certified copy of the judgment
passed by the Judicial Magistrate-1st Class, Koderma in the said Complaint
Case No.508 of 2019; wherein the complainant alleged that she was married
with one Sanjit Kumar Das and even after her marriage with Sanjit Kumar Das,
she used to talk with the petitioner. Hence, there used to be quarrel between
the parties. Hence, the petitioner and his family members told the informant
that after the divorce with her husband, they will get her married with the
petitioner and the date of marriage was also fixed. The complainant divorced
her husband but when the informant insisted for marriage with the petitioner,
the petitioner demanded dowry and when the family members of the
complainant refused to meet the demand of dowry, the petitioner refused to
marry the complainant and on 26.03.2019, the petitioner established illicit
relationship with the informant. In that case during the trial, the complainant
did not produce any witness either oral or documentary and the case was
closed for no evidence and the petitioner was found not guilty of the offences
punishable under Section 323 and 341 of the Indian Penal Code and all these
facts have been suppressed by the informant in the First Information Report
only for wrecking vengeance and the same amounts to abuse of process of law.
Hence, it is submitted that the order taking cognizance dated 09.08.2023 passed
by learned J.M.-1st Class, Hazaribagh in connection with Barhi P.S. Case No.261
of 2023 corresponding to G.R. No.1403 of 2023 whereby and where under the
learned court below has been pleased to take cognizance for the offences
punishable under Sections 376 and 364 of the Indian Penal Code against the
petitioner along with the entire criminal proceedings of the said Barhi P.S. Case
No.261 of 2023 corresponding to G.R. No.1403 of 2023 which is now pending in
the court of learned Additional Sessions Judge-1st, Hazaribagh, be quashed and
set aside against the petitioner.
7. Learned Addl.P.P. appearing for the State vehemently opposes the
prayer for quashing and setting aside the order taking cognizance dated
09.08.2023 passed by learned J.M.-1st Class, Hazaribagh in connection with
Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 whereby
and where under the learned court below has been pleased to take cognizance
for the offence punishable under Sections 376 and 364 of the Indian Penal Code
against the petitioner along with the entire criminal proceedings of the said
Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 which is
now pending in the court of learned Additional Sessions Judge-1st, Hazaribagh
and submits that there is direct and specific allegation against the petitioner of
establishing physical relationship with the informant on the false pretext of
marriage, hence, it is submitted that there being no merit in this Cr.M.P., the
same be dismissed.
8. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, it is pertinent to mention
here that it is a settled principle of law as has been held by the Hon'ble
Supreme Court of India in the case of in the case of Krishna Lal Chawla &
Others vs. State of Uttar Pradesh & Another reported in (2021) 5 SCC 435
paragraphs-13 and 26 of which read as under:-
13. It is also crucial to note that in the fresh complaint case
instituted by him, Respondent 2 seems to have deliberately suppressed
the material fact that a charge-sheet was already filed in relation to the
same incident, against him and his wife, pursuant to NCR No. 160 of
2012 (Crime No. 283 of 2017) filed by Appellant 1's son. No reference to
this charge-sheet is found in the private complaint, or in the statements
under Section 200 CrPC filed by Respondent 2 and his wife. In fact, both
the private complaint and the statement filed on behalf of his wife, merely
state that the police officials have informed them that investigation is
ongoing pursuant to their NCR No. 158 of 2012. The wife's statement
additionally even states that no action has been taken so far by the police.
It is the litigant's bounden duty to make a full and true disclosure of
facts. It is a matter of trite law, and yet bears repetition, that suppression
of material facts before a court amounts to abuse of the process of the
court, and shall be dealt with a heavy hand (Ram Dhan v. State of
U.P. [Ram Dhan v. State of U.P., (2012) 5 SCC 536 : (2012) 3 SCC
(Cri) 237] ; K.D. Sharma v. SAIL [K.D. Sharma v. SAIL, (2008) 12 SCC
481] ).
26. It is a settled canon of law that this Court has inherent powers
to prevent the abuse of its own processes, that this Court shall not suffer
a litigant utilising the institution of justice for unjust means. Thus, it
would be only proper for this Court to deny any relief to a litigant who
attempts to pollute the stream of justice by coming to it with his unclean
hands. Similarly, a litigant pursuing frivolous and vexatious
proceedings cannot claim unlimited right upon court time and public
money to achieve his ends." (Emphasis supplied)
that it is the litigant's bounden duty to make a full and true disclosure of
facts. It is a matter of trite law that suppression of material facts before a court
amounts to abuse of the process of the court.
9. It is also a settled principle of law as has been held by the Hon'ble
Supreme Court of India in the case Sonu @ Subhash Kumar vs. State of Uttar
Pradesh and Another reported in (2021) 18 SCC 517 that to establish whether
the "consent" in the case of alleged rape is vitiated by a "misconception of fact"
arising out of a promise to marry, two propositions must be established. The
promise of marriage must have been a false promise, given in bad faith and
with no intention of being adhered to at the time it was given and the false
promise itself must be of immediate relevance, or bear a direct nexus to the
woman's decision to engage in the sexual act.
10. The Hon'ble Supreme Court of India in the case of Maheshwar Tigga vs.
State of Jharkhand reported in (2020) 10 SCC 108 has held as under in
paragraph Nos. 14, 15 & 20:-
"14. Under Section 90 IPC, a consent given under a misconception
of fact is no consent in the eye of the law. But the misconception of fact
has to be in proximity of time to the occurrence and cannot be spread
over a period of four years. It hardly needs any elaboration that the
consent by the appellant was a conscious and informed choice made by
her after due deliberation, it being spread over a long period of time
coupled with a conscious positive action not to protest. The prosecutrix
in her letters to the appellant also mentions that there would often be
quarrels at her home with her family members with regard to the
relationship, and beatings given to her.
15. In Uday [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003
SCC (Cri) 775] , the appellant and the prosecutrix resided in the same
neighbourhood. As they belonged to different castes, a matrimonial
relationship could not fructify even while physical relations continued
between them on the understanding and assurance of marriage. This
Court observed as follows : (SCC pp. 56-57, para 21)
"21. It therefore appears that the consensus of judicial
opinion is in favour of the view that the consent given by the
prosecutrix to sexual intercourse with a person with whom
she is deeply in love on a promise that he would marry her on
a later date, cannot be said to be given under a misconception
of fact. A false promise is not a fact within the meaning of the
Code. We are inclined to agree with this view, but we must
add that there is no straitjacket formula for determining
whether consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given under a
misconception of fact. In the ultimate analysis, the tests laid
down by the courts provide at best guidance to the judicial
mind while considering a question of consent, but the court
must, in each case, consider the evidence before it and the
surrounding circumstances, before reaching a conclusion,
because each case has its own peculiar facts which may have a
bearing on the question whether the consent was voluntary, or
was given under a misconception of fact. It must also weigh
the evidence keeping in view the fact that the burden is on the
prosecution to prove each and every ingredient of the offence,
absence of consent being one of them."
20. We have no hesitation in concluding that the consent of the
prosecutrix was but a conscious and deliberate choice, as distinct from an
involuntary action or denial and which opportunity was available to her,
because of her deep-seated love for the appellant leading her to willingly
permit him liberties with her body, which according to normal human
behaviour are permitted only to a person with whom one is deeply in
love. The observations in this regard in Uday [Uday v. State of
Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] are considered
relevant : (SCC p. 58, para 25)
25. ... It usually happens in such cases, when two young
persons are madly in love, that they promise to each other
several times that come what may, they will get married. As
stated by the prosecutrix the appellant also made such a
promise on more than one occasion. In such circumstances the
promise loses all significance, particularly when they are
overcome with emotions and passion and find themselves in
situations and circumstances where they, in a weak moment,
succumb to the temptation of having sexual relationship. This
is what appears to have happened in this case as well, and the
prosecutrix willingly consented to having sexual intercourse
with the appellant with whom she was deeply in love, not
because he promised to marry her, but because she also desired
it. In these circumstances it would be very difficult to impute
to the appellant knowledge that the prosecutrix had consented
in consequence of a misconception of fact arising from his
promise. In any event, it was not possible for the appellant to
know what was in the mind of the prosecutrix when she
consented, because there were more reasons than one for her to
consent." (Emphasis supplied)
and further reiterated the settled principle of law that the misconception
of fact has to be in proximity of time to the occurrence and cannot be spread
over a period of four years.
11. Now, coming to the facts of the case, there is absolutely no allegation
against the petitioner that the petitioner had never any intention to marry the
informant and the alleged sexual exploitation of the informant carried over a
period of five years and in between which the informant also instituted
Complaint Case No.508 of 2019 but during the pendency of that case, the trial
of which was concluded only on 25.05.2023; the informant could not have
allowed the petitioner to establish physical relation with her on the false
pretext of marriage when the said complaint case was very much pending. So,
from the aforesaid facts, this Court has no hesitation in holding that this is a
false case instituted against the petitioner for wrecking vengeance by
suppression of material facts of earlier institution of the case on similar
allegations, in which the petitioner has been acquitted, hence, the continuation
of this case will amount to abuse of process of law.
12. Hence, this Court is of the considered view that this is a fit case where
the order taking cognizance dated 09.08.2023 passed by learned J.M.-1st Class,
Hazaribagh in connection with Barhi P.S. Case No.261 of 2023 corresponding to
G.R. No.1403 of 2023 whereby and where under the learned court below has
taken cognizance for the offence punishable under Sections 376 and 364 of the
Indian Penal Code against the petitioner along with the entire criminal
proceedings of the said Barhi P.S. Case No.261 of 2023 corresponding to G.R.
No.1403 of 2023 which is now pending in the court of learned Additional
Sessions Judge-1st, Hazaribagh, be quashed and set aside qua the petitioner.
13. Accordingly, the order taking cognizance dated 09.08.2023 passed by
learned J.M.-1st Class, Hazaribagh in connection with Barhi P.S. Case No.261 of
2023 corresponding to G.R. No.1403 of 2023 whereby and where under the
learned court below has taken cognizance for the offence punishable under
Sections 376 and 364 of the Indian Penal Code against the petitioner along with
the entire criminal proceedings of the said Barhi P.S. Case No.261 of 2023
corresponding to G.R. No.1403 of 2023 which is now pending in the court of
learned Additional Sessions Judge-1st, Hazaribagh, is quashed and set aside
qua the petitioner.
14. In the result, this Cr.M.P. stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 12th of February, 2024
AFR/ Animesh
