Jharkhand High Court

Jitendra Kumar vs The State Of Jharkhand on 1 February, 2024

Author: Subhash Chand

Bench: Subhash Chand

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Cr. Revision No.398 of 2023
Jitendra Kumar                          ..... ... Petitioner
                            Versus
1.The State of Jharkhand
2.Sheetal Kumari                   .... .... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner      : Mr. Santosh Kumar Soni, Advocate
For the State           : Mr. Gautam Rakesh, A.P.P.
For the O.P. No.2       : Mrs. Vani Kumari, Advocate
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                 st
Order No.09/1 February, 2024

1. Heard learned counsel for the petitioner, learned A.P.P. for the

State and learned counsel for the O.P. No.2.

2. The present criminal revision has been preferred against the order

dated 22nd March, 2023 passed by the learned AJC-XV-cum-FTC-

(CAW), Ranchi in S.T. Case No.18 of 2023, whereby and

whereunder the discharge application for the offence under

Sections 420 and 376 of the I.P.C. has been rejected.

3. The brief facts leading to this criminal revision are that the

informant--victim gave the written information on 16th April, 2022

with these allegations that she came in contact of one Mr. Jitendra

Kumar over the mobile phone. Thereafter both began to exchange

talk over the mobile phone. One day, Jitendra Kumar called her to

his room and allured her to marry and established physical relation

with her. He also asked her not to tell in regard to occurrence to

anyone and he would get marry her. However, she did not disclose

this occurrence to anyone. He used to come to her house and

whenever found opportunity being her alone he used to establish

physical relation with her. In the year 2020, after death of her

mother she was married with one Shravan Kumar and went to her

in-law's house but one day Jitendra Kumar told everything to her

husband, whereby her husband sent her to her paternal house.

She asked Jitendra Kumar, the reason of disclosing this event to

her husband, he stated that he would keep her with him forever

and again physical relation began to establish between them. In

the month of October, 2021, one daughter was born and he

refused to admit her to be his daughter. On this written

information, Case Crime No.113 of 2022 was registered under

Section 420 and 376 of the I.P.C. against Jitendra Kumar.

4. The Investigating Officer conducted the investigation and in

paragraph 3 of the case-diary re-statement of the victim-informant

was recorded in which she reiterated all those allegations which

were made by her in written information.

5. In paragraphs 8, 9, 10, and 11 of the case-diary, the statements

of witnesses Sanat Kumar Singh, Ajit Kumar, Subham Kumar Singh

and Rajmati Devi were recorded respectively. The witness Sanat

Kumar Singh is the father of the victim and witnesses Ajit Kumar

and Subham Kumar Singh are the brothers of victim and witness

Rajmati Devi is the neighbour of the victim. All these witnesses

have stated that they had come to know in regard to the relations

of the victim with the accused in the year 2018 and since then

they were having knowledge of their relations. All these witnesses

have also stated that the victim was also got married by them with

Shravan Kumar Singh and she also lived in her in-law's house.

When the accused disclosed this occurrence to her husband she

was sent back to the paternal house and again the relation

between the victim and the accused further continued to

establish. In paragraph 16 of the case-diary, it is stated that the

statement of the victim under Section 164 Cr.P.C. was also

recorded. The victim in her statement under Section 164 Cr.P.C.

stated that in the year 2014, she began to talk with Jitendra

Kumar. In the month of June-July, 2014, he called her to his house

and established physical relation with her and told not to disclose

any one in regard to the same. She also became pregnant five to

six times but each time, the abortion was done. In the year 2018,

she also conceived and told in regard to the occurrence to her

mother. After death of her mother, she was married with another

person and began to reside with her husband. Again on disclosure

of the relation by Jitendra Kumar to her husband she began to

meet with Jitendra Kumar and also became pregnant. In October,

2021, a baby girl was born. Jitendra Kumar also got married in

November, 2021 and he refused to admit him to be father of baby

girl.

6. After her statement under Section 164 Cr.P.C., the I.O., verified

the fact of abortion in Narayani Hospital, Birsa Chowk but the

same was not found to be correct, in view of paragraph 32 of the

case-diary.

7. In paragraph37 of the case-diary, the I.O. has given his comments

in regard to the queries which he had made with the in-laws of

victim.

8. In view of paragraph 123 of the case-diary, the I.O. moved the

application before the court concerned for the DNA test and

ultimately the I.O. filed the charge against the accused for the

offence under Section 376(2)(n) of the I.P.C.

9. The petitioner-accused moved the application before the learned

trial court for discharge but the same was rejected by the learned

trial court vide order dated 22nd March, 2022.

10. Aggrieved from the impugned order dated 22nd March, 2022,

this criminal revision has been preferred on behalf of the

petitioner on the ground that the impugned order passed by the

learned trial court bears infirmity and the same is bad in the eyes

of law. The learned trial court has wrongly appreciated the

allegations made in the F.I.R. and the evidence collected by the

I.O. It is also submitted that the offence alleged is not made out

against the petitioner--accused.

11. I have heard the learned counsel for the parties and perused

the materials available on record.

12. It is the settled law that while disposing of the discharge

application, the Court has to take into consideration the

allegations made in the F.I.R. and also the evidence collected by

the I.O. i.e., oral or documentary during the investigation. If from

the allegations made in the F.I.R. and the evidence collected

during investigation, there are sufficient ground to proceed, the

Court should decline to allow the discharge application and if from

the cumulative evidence i.e., oral and documentary collected

during the investigation and the allegations made in the F.I.R., the

Court is of the definite opinion that there is no ground to proceed

against the trial, the application for the discharge may be allowed.

13. The Hon'ble Apex court in the case of Palwinder Singh vs.

Balwinder Singh & Ors. reported in (2008) 14 SCC 504 at

paragraph 13 has held as under :

"13. Having heard the learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa v. Debendra Nath Padhi wherein it was held as under:

"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case [Satish Mehra v. Delhi Admn. holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."

14. The Hon'ble Apex Court in the case of CBI v. Mukesh

Pravinchandra Shroff reported in (2009) 16 SCC 429 at

paragraph 2 has held as under :

"2. By the impugned order, the Special Court has discharged the accused Raghunath Lekhraj Wadhwa, Jitendra Ratilal Shroff and Mukesh Pravinchandra Shroff

from Special Case No. 4 of 1997. From a bare perusal of the impugned order, it would appear that the Special Court has virtually passed an order of acquittal in the garb of an order of discharge. It is well settled that at the stage of framing of the charge, what is required to be seen is as to whether there are sufficient grounds to proceed against the accused. In our view, the Special Court was not justified in discharging the aforesaid accused persons."

15. The Hon'ble Apex Court in the case of Vikram Johar vs State of

Uttar Pradesh reported in AIR 2019 SC 2109 at paragraph 19

has held as under :

"19. It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence."

16. The Hon'ble Apex Court in the case of P. Vijayan vs. State of

Kerala and Another reported in (2010) 2 SCC 398 at

paragraphs 11 and 25 has held as under :

"11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.

25. As discussed earlier, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he finds that "there is not sufficient ground" for proceeding against the accused. In other words, his consideration of the record and documents at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he

will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time when a prima facie case was not disclosed and to save the accused from avoidable harassment and expenditure."

17. The Hon'ble Apex Court in the case of Tarun Jit Tejpal vs. The

State of Goa & Anr. reported in 2019(4) East Cr C 208 (SC)

at paragraphs 9.1 to 9.5 has held as under :

"9.1 In the case of N. Suresh Rajan (Supra) this Court had an occasion to consider in detail the scope of the proceedings at the stage of framing of the charge under Section 227/228 CrPC. After considering earlier decisions of this Court on the point thereafter in paragraph 29 to 31 this Court has observed and held as under:

"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.

30. Reference in this connection can be made to a recent decision of this Court in Sheoraj Singh Ahlawat vs. State of U.P. [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52] , in which, after analysing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra vs. State (NCT of Delhi) [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 :

AIR 2013 SC 52], SCC p. 482 , para 15) "15. 11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. ( Onkar Nath case [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507 ], SCC p. 565, para 11)"

(emphasis in original)

31. Now reverting to the decisions of this Court in Sajjan Kumar [ Sajjan Kumar vs. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371 ] and Dilawar Balu Kurane [ Dilawar Balu Kurane vs. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310 ], relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused:

31.1. Under Section 227 of the Code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction". 31.2. Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence

referred in Section 244 has been taken.

31.3. Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in R.S. Nayak vs. A.R. Antulay [(1986) 2 SCC 716 : 1986 SCC (Cri) 256 ]. The same reads as follows: (SCC pp. 755-56, para 43) "43. Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of prima facie case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed." 9.2 In the subsequent decision in the case of S. Selvi (Supra) this Court has summarised the principles while framing of the charge at the stage of Section 227/228 of the CrPC. This Court has observed and held in paragraph 6 and 7 as under:

"6. It is well settled by this Court in a catena of judgments including Union of India vs. Prafulla Kumar Samal [ Union of India vs. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609 ], Dilawar Balu Kurane vs. State of Maharashtra [ Dilawar Balu Kurane vs. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310 ], Sajjan Kumar vs. CBI [ Sajjan Kumar vs. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371 ], State vs. A. Arun Kumar [ State vs. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505 ], Sonu Gupta vs. Deepak Gupta [ Sonu Gupta vs. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265 ], State of Orissa vs. Debendra Nath Padhi [ State of Orissa vs. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688 ], Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya [ Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47 ] and Supt. & Remembrancer of Legal Affairs vs. Anil Kumar Bhunja [ Supt. & Remembrancer of Legal Affairs vs. Anil Kumar Bhunja, (1979) 4 SCC 274 :

1979 SCC (Cri) 1038 ] that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the court discloses grave suspicion

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against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his rights to discharge the accused. The Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial.

7. In Sajjan Kumar vs. CBI [ Sajjan Kumar vs. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371 ], this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376-77, para 21) "(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court

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is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face 8/31/23, 3:08 PM Tarun Jit Tejpal VS State Of Goa about:blank 8/10 value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.""

9.3 In the case of Mauvin Godinho (Supra) this Court had an occasion to consider how to determine prima facie case while framing the charge under Section 227/228 of the CrPC. In the same decision this Court observed and held that while considering the prima facie case at the stage of framing of the charge under Section 227 of the CrPC there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

9.4 At this stage the decision of this Court in the case of Stree Atyachar Virodhi Parishad (Supra) is also required to be referred to. In that aforesaid decision this Court had an occasion to consider the scope of enquiry at the stage of deciding the matter under Section 227/228 of the CrPC. In paragraphs 11 to 14 observations of this Court in the aforesaid decision are as under :

"11. Section 227 of the Code of Criminal Procedure having bearing on the contentions urged for the parties, provides:

"227. Discharge.-- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

12. Section 228 requires the Judge to frame charge if he considers that there is ground for presuming that the accused has committed the offence. The interaction of these two sections has already been the subject-matter of consideration by this Court. In State of Bihar vs. Ramesh Singh [(1977) 4 SCC 39 :

1977 SCC (Cri) 533 : (1978) 1 SCR 257] , Untwalia, J., while explaining the scope of the said sections observed: [SCR p. 259 : SCC pp. 41-42 : SCC (Cri) pp. 535-36, para 4] Reading the two provisions together in

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juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously Judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.

13. In Union of India vs. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] , Fazal Ali, J., summarised some of the principles: [SCR pp. 234-35 :

SCC p. 9 : SCC (Cri) pp. 613-14, para 10] "(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out.

(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act

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merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

14. These two decisions do not lay down different principles. Prafulla Kumar case [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated what has been stated in Ramesh Singh case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257 ]. In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."

9.5 Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/228 if the CrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim/prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and therefore the learned Trial Court has rightly framed the charge against the accused and the same is rightly confirmed by the High Court. No interference of this Court is called for."

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18. Section 375 of the Indian Penal Code reads as under:

"[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:"

19. Explanation 2 of Section 375 of the Indian Penal Code

provides 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.

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20. Herein, from the allegations made in the FIR and the statement of

the victim under Section 164 Cr.P.C., wherein she has narrated

that she came in contact with the accused in the year 2014 and,

thereafter, they began to meet each other and wherever any

opportunity was found the physical relations also established

between them on various times. She also became pregnant on

account of having sexual relation with the accused and abortion

was also done. This process continued from 2014 to 2022.

Certainly as shown in the F.I.R., the date of birth of victim is of the

year 1998. Though in the year 2014 she was minor, yet even after

having attained majority she continued in courtship of accused

Jitendra Kumar. In the year 2018, she disclosed in regard to this

occurrence to her mother, at that time, the victim was at the age

of 20 years and, as such, she was major. This fact was also very

much in knowledge of the family members of the victim even then

victim was got married with one Shravan Kumar. This fact is also

admitted that victim went to her in-law's house and resided with

her husband for some months and came back on account of

disclosure of the relation by the accused to her husband. Even

thereafter not opposing this conduct of the accused, she still

remained in relation with the accused and continued to establish

physical relation with the accused despite having been married

with one Shravan Kumar. As such, the conduct, act and

gesture shows that the consent of the victim to the act of

establishing physical relation with the accused was

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thoroughly consensual.

21. 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.

22. 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 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

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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."

23. It has also been submitted that the charge has also been framed

against the petitioner for the offence under Section 417 and

376(2) (n) of the I.P.C. So far as the offence under Section 417 of

the I.P.C. is concerned, there is nothing on record from the

allegations made in the F.I.R. and also evidence collected

by the I.O. that deception was played by the petitioner--

accused upon the victim since inception. So far as

establishing physical relation with the victim is concerned,

the same is found consensual from the thorough conduct,

act and gesture of the victim herself as evident from the

evidence collected by the I.O. and allegations made in the

F.I.R. 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 have become infructuous.

24. 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

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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. State. 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 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.

25. 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

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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."

26. In view of the allegations made in the F.I.R., the cumulative

evidence collected by the I.O. during investigation i.e., oral as well

as documentary and the settled propositions of law as laid down

by the Hon'ble Apex Court as referred hereinabove, there are

sufficient grounds not to proceed with trial against the accused.

As such, the impugned order dated 22nd March, 2023 passed by

the learned AJC-XV-cum-FTC-(CAW), Ranchi in S.T. No.18 of 2023

rejecting the discharge application needs interference.

27. Accordingly, this criminal revision is, hereby, allowed and the

impugned order passed by the learned court below is hereby set

aside.

28. Let a copy of this order be communicated to the court concerned