Jharkhand High Court
Banti Sao @ Niranjan Kumar Aged About 36 ... vs The State Of Jharkhand on 19 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2778 of 2023
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Banti Sao @ Niranjan Kumar aged about 36 years S/o of Ashok
Kumar, villa Bhuriayadih P.O.-Gadinaudiha P.S.-Jamau,
Bhaunradih, Giridih, Jharkhand-815312.
... Petitioner
Versus
1. The State of Jharkhand, and
2. XXXXX (victim name masked) ... Opposite Parties
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For the Petitioners : Mrs. Khushboo Kataruka, Advocate
: Mr. Shubham Kataruka, Advocate
: Ms. Usha Pandey, Advocate
For the State : Mrs. Vandana Bharti, 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 and set aside the entire criminal proceeding in
connection with Palamau Mahila P.S. Case No.03/2020 corresponding to ST
Case No.71/2021 pending in the Court of learned Additional Sessions Judge-V,
Palamau.
3. Learned counsel for the petitioners submits that she has taken
instructions today itself and till today the charge has not yet been framed and
trial is yet to begin.
4. Though, notice has been served upon the opposite party no.2, but no one
turns up on behalf of the opposite party no.2 in spite of repeated calls.
5. The allegation against the petitioner is that the petitioner who happened
to be the bodyguard of a Judge of the Civil Court came in contact with the
informant/victim during her visit to the court in connection with her case and
in between this period informant/victim used to have continuous physical
relationship with the petitioner. The petitioner assured the informant/victim to
keep her with him and to marry her. The husband of the informant/victim
came to know about the relationship between the informant/victim and the
petitioner and he divorced the informant/victim. The petitioner also used to
tell the informant/victim to take divorce from her husband so that the
petitioner can marry her. After the divorce of the informant/victim, the
petitioner stopped talking to the informant/victim and switched off his mobile
phone.
6. On the basis of the written report submitted by the informant/victim,
Palamau Mahila PS Case No.03/2020 was registered and police took up
investigation of the case and after completion of investigation police submitted
charge sheet against the petitioner for having committed the offences
punishable under Section 376 of Indian Penal Code and after cognizance, the
case has been committed to the court of Sessions where charge has not yet been
framed.
7. Learned counsel for the petitioners relies upon the judgment of Hon'ble
Supreme Court of India in the case of XXXX Vs. State of Madhya Pradesh and
Another reported in (2024) 3 SCC 496 and submits that therein in the facts of
that case where there was no promise to marry initially when the relationship
between the parties started and the victim was already married and later on
divorced, the Hon'ble Supreme Court of India considered that such a victim
cannot be treated to be of an immature age who could not foresee her welfare
and take right decision and as the victim was matured and intelligent enough
to understand the consequences of the moral and immoral acts for which she
consented during subsistence of her earlier marriage, hence, by no stretch of
imagination it can be said that a prosecutrix had given her consent for sexual
relationship with the appellant of that case, under the misconception of fact
and quashed the FIR and all subsequent proceedings. It is next submitted by
the learned counsel for the petitioner that in this case also there is no allegation
against the petitioner of promising to marry the victim before having sexual
relationship with the victim. Admittedly, at the time of initiation of physical
relationship between the prosecutrix and the petitioner, the prosecutrix was
married lady, so there was no question of marrying the petitioner at that time.
Hence, it is submitted that even if the entire allegations against the petitioner
are considered to be true in their entirety, in the absence of consent for sexual
relationship being not under any misconception of fact, the offence punishable
under Section 376 of Indian Penal Code is not made out. It is next submitted
that thus the continuation of this criminal proceeding against the petitioner will
amount to abuse of process of law. Therefore, it is submitted that the prayer as
prayed for in the Cr.M.P. be allowed.
8. Learned Addl.P.P. appearing for the State on the other hand vehemently
oppose the prayer of the petitioner made in the instant Cr.M.P and submit that
there is direct and specific allegation against the petitioner of promising to
marry the victim but later on he has back tracked and the same is sufficient to
constitute the offence punishable under Section 376 of Indian Penal Code. It is
lastly submitted that this Cr.M.P., being without any merit, be dismissed.
9. 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 that if there is no allegation to the effect
that promise to marry given to the victim was false, at the inception, the same
will not amount to constituting the offence punishable under section 376 of the
Indian Penal Code, as has been held by the Hon'ble Supreme Court of India in
the case of Sonu @ Subhash Kumar vs. State of Uttar Pradesh reported in AIR
2021 SC 1405 paragraphs-11 of which read as under:-
11. Bearing in mind the tests which have been enunciated in the
above decision, we are of the view that even assuming that all the
allegations in the FIR are correct for the purposes of considering the
application for quashing under Section 482 of CrPC, no offence has
been established. There is no allegation to the effect that the promise
to marry given to the second respondent was false at the inception.
On the contrary, it would appear from the contents of the FIR that
there was a subsequent refusal on the part of the appellant to marry
the second respondent which gave rise to the registration of the FIR.
On these facts, we are of the view that the High Court was in error
in declining to entertain the petition under Section 482 of CrPC on
the basis that it was only the evidence at trial which would lead to a
determination as to whether an offence was established." (Emphasis
supplied)
10. Now, coming to the facts of the case, there is absolutely no allegation
against the petitioner that the petitioner made any promise to marry the
prosecutrix, before having physical relationship with her. There is no allegation
that promise to marry given to the prosecutrix was false at the inception.
11. Under such circumstances, this Court is of the considered view that even
though the entire allegations made against the petitioner are considered to be
true in their entirety still the offence punishable under Section 376 of Indian
Penal Code is not made out against the petitioner, hence, this Court is of the
considered view that the continuation of this criminal proceeding against the
petitioner will amount to abuse of process of law and this is a fit case where the
entire criminal proceeding in connection with Palamau Mahila PS Case
No.03/2020 corresponding to ST Case No.71/2021 pending in the Court of
learned Additional Sessions Judge-V, Palamau, be quashed and set aside.
12. Accordingly, the entire criminal proceeding in connection with Palamau
Mahila P.S. Case No.03/2020 corresponding to ST Case No.71/2021 pending in
the Court of learned Additional Sessions Judge-V, Palamau, is quashed and set
aside.
13. In the result, this Cr.M.P., stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 19th of September, 2024
AFR/ Abhiraj
