Jharkhand High Court

Harishankar Das vs The State Of Jharkhand on 22 October, 2024

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr.M.P. No. 2858 of 2024


            Harishankar Das, son of Ramgovind Das, age 22 years, resident of
            Chankar Kasturi, Poledih, Jagdishpur, P.O.+ P.S.-Hussainabad, Dist.-
            Palamau
                                                   ....                Petitioner


                                       Versus

            The State of Jharkhand
                                                   ....                    Opp. Party

                                       PRESENT

                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

      For the Petitioner               : Mr. Pratik Sen, Advocate
      For the State                    : Mrs. Shweta Singh, Addl. P.P.
                                              .....

By the Court:-

          1.      Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the

jurisdiction of this Court under Section 528 of Bhartiya Nagrik

Suraksha Sanhita, 2023 with a prayer to quash the entire criminal

proceeding including the order dated 05.03.2024 passed in

connection with Lohsighna P.S. Case No. 238 of 2022, corresponding

to G.R. Case No. 641 of 2024 and Sessions Trial No. 258 of 2024

passed by the learned Additional Chief Judicial Magistrate,

Hazaribagh by which the learned Additional Chief Judicial

Magistrate, Hazaribagh has found prima facie case for the offence

punishable under Sections 376 and 504 of Indian Penal Code and

accordingly took cognizance of the said offences.

3. The allegation against the petitioner is that the petitioner was in

love with the victim two years prior to the lodging of the FIR. The

petitioner enticed the victim by promising to marry her and the

victim eloped with the petitioner from her paternal house situated in

the District of Palamau to Hazaribagh where the petitioner was

preparing for competitive examinations in a coaching institute and

was residing in a rented accommodation. The informant-victim and

the petitioner remained in the rented accommodation by posing

before to the owner of the rented accommodation that the petitioner

and the victim are husband and wife and while thus residing

together the petitioner established physical relationship with the

victim. When the victim told the petitioner about marriage, the

petitioner avoided the same by one pretext or the other and in the

meanwhile, the victim became pregnant. When the petitioner came

to know about the pregnancy of the victim, the petitioner told the

victim to abort the fetus. When the parents of the petitioner came to

know about this they also told the victim to abort the fetus and

promised to get her marriage solemnised with the petitioner. Some

medicine was administered to the victim which resulted in abortion

of the fetus. After that when the victim asked the petitioner about the

marriage the petitioner told that he has to talk to his mother and

father. The petitioner talked with mother and father and made the

victim talked to them also. The father of the petitioner abused the

victim in filthy language and told the victim to tell her father to

arrange cash of Rs.5,00,000/-, all articles and motorcycle and then

only marriage can be solemnized or else the victim is free to choose

her own way by forgetting the petitioner. When the victim told

about this to the petitioner, the petitioner supported his father and

when the victim told that she is in love with the petitioner, the

petitioner became furious and abused the informant-victim and on

27.10.2022 the petitioner fled away from Hazaribagh.

4. On the basis of the written statement, police registered Lohsighna

P.S. Case No. 238 of 2022 and took up investigation of the case. After

completion of investigation police submitted charge sheet against the

petitioner for having committed the offence punishable under

Sections 376 and 504 of Indian Penal Code and the learned

Additional Chief Judicial Magistrate, Hazaribagh has taken

cognizance of the said offences.

5. It is submitted by the learned counsel for the petitioner by relying

upon the judgment of this Court in the case of Deepak Kumar Yadav

vs. State of Jharkhand & Anr. reported in 2023 SCC OnLine Jhar

2967 , wherein in paragraph no.8 of that case relying upon the

judgment of Hon'ble Supreme Court of India in the case of Pramod

Suryabhan Pawar vs. State of Maharashtra reported in (2019) 9 SCC

608 and Anurag Soni vs. State of Chhattisgarh reported in (2019) 13

SCC 1 this Court has reiterated the settled principle of law as under:-

"8. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that in case of consensual sexual relationship, the determining factor is whether the male partner made a false promise and that the male partner engaged in sexual relations on the basis of such false promise. If the same is yes, then only the same will amount rape punishable under section 376 of the Indian Penal Code." (Emphasis supplied)

6. Learned counsel for the petitioner also relied upon the judgment of

Hon'ble Supreme Court of India in the case of Shiv Pratap Singh

Rana vs. State of Madhya Pradesh & Anr. reported in (2024) 8 SCC

313 wherein in the facts of that case from the factual matrix of the

case, it was culled out that the relationship between the accused and

the prosecutrix was a consensual relationship and the parties were in

a relationship for almost two years and though there was talk

between the parties and their family members regarding their

marriage the same did not happen leading to lodging of the FIR, the

Hon'ble Supreme Court of India in that case quashed the FIR.

Learned counsel for the petitioner next relied upon the judgment of

Hon'ble Supreme Court of India in the case of Xxxx vs. State of

Madhya Pradesh & Anr. reported in (2024) 3 SCC 496 wherein in

the fact of that case when a married lady had physical relationship

with the accused of that case, the Hon'ble Supreme Court of India

considering the fact that prosecutrix being the mature lady being

intelligent enough to understand the significance and the

consequences of the moral or immoral quality of act she was

consenting to, in the facts of that case, quashed the FIR.

7. Learned counsel for the petitioner by drawing attention of this

Court to Annexure-3 at page no. 28 of the brief which is the First

Information Report of Hussainabad P.S. Case No. 131 of 2019, of

which the victim of this case is the informant, submits that therein

the victim of this case has admitted that she is a married lady and the

name of her husband is Raju Kumar and she filed Complaint Case

No. 467 of 2019 in the court of Chief Judicial Magistrate, Palamau

against her husband and others involving inter alia the offence

punishable under Section 498A of Indian Penal Code. It is then

submitted that this goes to show that the victim was a married lady

before consensually residing with the petitioner voluntarily at his

rented accommodation at Hazaribagh for a considerable period of

time before physical relationship was established between her and

the petitioner. It is next submitted by the learned counsel for the

petitioner that in the absence of any allegation that the petitioner

intentionally insulted the victim and thereby gave provocation

intending or knowing it to be likely that such provocation will cause

the victim to break public peace or to commit any other offence, the

offence punishable under Section 504 of Indian Penal Code is also

not attracted, in the fact of the case. Hence, it is submitted that the

prayer as prayed for in this criminal miscellaneous petition be

allowed.

8. Learned Additional Public Prosecutor on the other hand opposes

the prayer as made by the petitioner in this criminal miscellaneous

petition and submits that from the conduct of the petitioner it is

sufficient to indicate that with a false promise of marriage the

petitioner established physical relationship with the victim which

amounts to an offence punishable under Section 376 of Indian Penal

Code. Hence, it is submitted that this criminal miscellaneous petition

being without any merit be dismissed.

9. Having heard the submissions made at the Bar and after going

through the materials in the record, the undisputed fact remains that

before having physical relationship with the victim, the victim was

residing with the petitioner in his rented accommodation at

Hazaribagh for a considerable period of time, after eloping from her

ordinary place of residence in the district of Palamau. There is no

allegation that the physical relationship was made on the promise of

marriage. There is no allegation that promise of marriage made by

the petitioner was made by the petitioner falsely at the time of

making such promise. It is the admitted case of the informant that

the victim was pregnant for about six months and during all these

period she has all along been with the petitioner in his rented

accommodation. There was a talk of marriage going on between the

family members of the petitioner and the victim. Of course which

did not materialise.

10. Under such circumstances, this Court is of the considered view that

even if the entire allegation made against the petitioner are

considered to be true in its entirety still the offence punishable under

Section 376 of Indian Penal Code is not made out.

11. So far as of the offence punishable under Section 504 of Indian

Penal Code is concerned, in the absence of any allegation that the

petitioner intentionally insulted the victim and thereby gave

provocation to the victim or anyone else intending or knowing it to

be likely that such provocation will cause the victim to break public

peace or commit any other offence, this Court of the considered view

that even if the entire allegation made against the petitioner are

considered to be true in its entirety still the offence punishable under

Section 504 of Indian Penal Code is not made out.

12. Because of the discussions made above, this Court is of the

considered view that continuation of the criminal proceeding will

amount to abuse of process of law and this is a fit case where the

entire criminal proceeding including the order dated 05.03.2024

passed by the learned Additional Chief Judicial Magistrate,

Hazaribagh in connection with Lohsighna P.S. Case No. 238 of 2022,

corresponding to G.R. No. 641 of 2024 and Sessions Trial No. 258 of

2024 be quashed and set aside.

13. Accordingly, the entire criminal proceeding including the order

dated 05.03.2024 passed by the learned Additional Chief Judicial

Magistrate, Hazaribagh in connection with Lohsighna P.S. Case No.

238 of 2022, corresponding to G.R. No. 641 of 2024 and Sessions Trial

No. 258 of 2024 is quashed and set aside.