Bikash Mahto @ Bikash Mahato @ Vikash ... vs The State Of Jharkhand
2025 Latest Caselaw 2389 Jhar

Jharkhand High Court

Bikash Mahto @ Bikash Mahato @ Vikash ... vs The State Of Jharkhand on 5 February, 2025

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P. (Cr.) No.635 of 2023
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Bikash Mahto @ Bikash Mahato @ Vikash Mahto, son of Radhey Sham Mahto, aged about 27 years, resident of village Hama P.O. + P.S. Barlanga, District Ramgarh ... Petitioner Versus

1. The State of Jharkhand

2. Officer-Incharge of Barlanga Police Station, situated at Barlanga, P.O. + P.S. Barlanga, District- Ramgarh

3. Assistant Sub Inspector of Barlanga Police Station, situated at Barlanga, P.O. + P.S. Barlanga, District- Barlanga

4. Madhuri Kumari, daughter of Shripado Mahto, resident of village Harna, P.O. + P.S. Barlanga, District Ramgarh ... Respondents

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             For the Petitioner        : Mr. Pratik Sen, Advocate
             For the State             : Mr. Shubham Gautam, AC to AAG V
             For the Resp. No.4        : Mr. Lukesh Kumar, Advocate
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                                        PRESENT
                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-    I.A. No.1292 of 2025

                  Heard the parties.

Learned counsel for the petitioner submits that this interlocutory

application has been filed with a prayer to amend the instant Writ Petition (Cr.)

by incorporating the words "and Article 227" between the words 'Article 226'

and "of the Constitution of India" as proposed in paragraph Nos.9 and 10 of

the 'instant interlocutory application with respect to the provision of law in the

cause-title of this Writ Petition (Cr.). It is next submitted that the amendment is

formal in nature and unless the proposed amendment is allowed, the petitioner

will be highly prejudiced.

Considering the aforesaid facts and circumstances of this case, the prayer

to amend the instant Writ Petition (Cr.) is allowed. Registry is directed to carry

out the amendment allowed by this order by incorporating the relevant words,

in the cause title of this writ petition, with red ink.

This interlocutory application is allowed accordingly.

(Anil Kumar Choudhary, J.)

This Writ Petition (Cr.) under Article 226 and Article 227 of the

Constitution of India has been filed with a prayer for issuance of an

appropriate writ (s)/order (s)/direction (s) for quashing the entire criminal

proceeding including the First Information Report in connection with Barlanga

P.S. Case No.08 of 2023 registered for the offences punishable under Sections

376 (1), 420, 120-B of the Indian Penal Code. That was the main prayer with the

additional prayer of quashing the order dated 04.07.2023 and 09.08.2023 passed

in the said case by which respectively the non-bailable warrant of arrest and

the proclamation under Section 82 of Cr.P.C. respectively, was issued against

the petitioner -who is the accused person of the said Barlanga P.S. Case No.08

of 2023, and prayer was made to quash the said orders also but it appears that

though no coercive order was passed in this case on 01.09.2023; wherein the

predecessor Judge in the roster, passed the order that till the next date no

coercive steps will be taken in connection with the said case and the said

interim order was extended from time-to-time and continued till 17.01.2024 but

even in spite of the said order being in force, charge-sheet has been submitted

and the learned Magistrate has taken cognizance of the offence, hence, the

prayer made in the instant Writ Petition (Cr.) was amended by incorporating

the additional prayer to quash the charge-sheet no.26 of 2023 dated 09.10.2023

and the order dated 14.11.2023 by which the learned Magistrate-1st Class,

Ramgarh has taken cognizance of the offence punishable under Sections 376

(1), 420, 120B of the Indian Penal Code.

2. The allegation against the petitioner as made out in the F.I.R. of Barlanga

P.S. Case No.08 of 2023 is that the informant/victim developed friendship with

the petitioner. The petitioner pressurized the informant to have physical

relationship with him but the informant set out solemnization of the marriage

between them as a condition precedent, to have physical relationship. On

18.05.2022, the petitioner told the victim that he will marry her and took her

into confidence and by bluffing to marry her, called the victim out from her

house over phone at 11:00 pm and took the victim to the backside of her house

and established physical relationship with her. When the informant/victim

pressurized the petitioner to marry her, the petitioner told her that he will

marry. On 11.11.2022 in the night also, the petitioner called the victim outside

her house over phone and at the same place, as on the earlier occasion

established physical relationship with her. Again the informant/victim asked

the petitioner to marry her, the petitioner refused to marry her. It is also alleged

that the petitioner has been establishing physical relationship with the

informant/victim for a period of four years by promising to marry her and the

parents of the petitioner were also aware about the same and they were also

telling that they will get the marriage of the petitioner solemnized with the

informant/victim but later on they also backed out from the marriage of the

petitioner with the informant/victim.

3. Learned counsel for the petitioner submits that as is evident from the

counter-affidavit filed by the respondent in this case and on earlier occasion

also prior to lodging of this F.I.R., the informant/victim lodged a written report

with Mahila Police Station, Ramgarh District, a copy of which has been kept at

Annexure-2 page-42 of the brief. It is next submitted that the petitioner

withdrew her written application on 30.01.2023 in the Mahila Police Station,

Ramgarh District so, this being the subsequent information in a different police

station for the self-same allegation, so, this F.I.R. is hit by Section 162 of the

Cr.P.C. Learned counsel for the petitioner relies upon the judgment of the

Hon'ble Supreme Court of India in the case of Krishna Lal Chawla & Others

vs. State of Uttar Pradesh & Another reported in (2021) 5 SCC 435 relevant

portion of paragraphs-13 and 15 of which read as under:-

"13. Xxxx xxxx xxxx 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] ).

15. Xxxx xxxx xxxx Respondent 2's conduct in filing a delayed complaint case, suppressing material facts, and utilising fresh proceedings to materially improve on his earlier version, in totality, amounts to gross abuse of the process of court."

and submits that in this case also, there is a delay in lodging of the F.I.R.

as admittedly though the last occurrence took place on 11.11.2022 but the F.I.R.

was lodged only on 10.03.2023 for which there is absolutely no explanation.

4. It is next submitted that the informant/victim suppressed in the written

report on the basis of which the F.I.R. of this case has been instituted of her

earlier approaching Mahila Police Station, Ramgarh District with the self-same

allegation and subsequently withdrawing the same under the pressure or

otherwise as claimed to have been done by the informant/victim in the

counter-affidavit filed by her in this Writ Petition (Cr.).

5. Learned counsel for the petitioner next relies upon the judgment of the

Hon'ble Supreme Court of India in the case of Mahesh Damu Khare vs. State

of Maharashtra & Another reported in 2024 SCC OnLine SC 3471 relevant

portion of paragraph-27 of which reads as under:-

"27. Xxxx xxxx xxxx The fact that the complainant continued to have a physical relationship for a long time without any insistence on marriage would indicate the unlikelihood of any such promise made by the appellant for marrying her and it rather indicates that the relationship was a consensual one.

In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact."

6. Learned counsel for the petitioner next relies upon the judgment of the

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

Delhi reported in 2024 SCC OnLine SC 3375 paragraph-18 of which reads as

under:-

"18. It is inconceivable that the complainant would continue to meet the appellant or maintain a prolonged association or physical relationship with him in the absence of voluntary consent on her part. Moreover, it would have been improbable for the appellant to ascertain the complainant's residential address, as mentioned in the FIR unless such information had been voluntarily provided by the complainant herself. It is also revealed that, at one point, both parties had an intention to marry each other, though this plan ultimately did not materialize. The appellant and the complainant were in a consensual relationship. They are both educated adults. The complainant, after filing the FIR against the appellant, got married in the year 2020 to some other person. Similarly, the appellant was also married in the year 2019. Possibly

the marriage of the appellant in the year 2019 has led the complainant to file the FIR against him as they were in a consensual relationship till then."

and submits that there is absolutely no allegation against the petitioner

that the petitioner had no intention to marry the informant/victim at the time

of making promise to marry her and in the absence of the same, it cannot be

said that the petitioner had no intention to marry the informant/victim at the

time of making alleged promise of marrying the informant/victim.

7. Learned counsel for the petitioner next relies upon the judgment of the

Hon'ble Supreme Court of India in the case of Pramod Suryabhan Pawar vs.

State of Maharashtra & Another reported in (2019) 9 SCC 608 paragraph-18 of

which reads as under:-

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was 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. 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."

and submits that in the absence of any allegation that the petitioner had

promised with no intention of adhering to the same, at the time it was given

and keeping in view the fact that physical relationship allegedly continued for

four years, so, the false promise must not be termed to be having any direct

nexus to the decision of the informant to engage in the sexual act.

8. Learned counsel for the petitioner also relies upon the judgment of this

Court in the case of Ajit Singh Gambhir & Others vs. The State of Jharkhand

passed in Cr.M.P. No.1346 of 2020 dated 19th of August, 2023 wherein this

Court also relied upon the judgment of the Hon'ble Supreme Court of India in

the case of Upkar Singh vs. Ved Prakash & Others reported in (2004) 13 SCC

292 paragraph-17 of which reads as under:-

"17. It is clear from the words emphasised hereinabove in the above quotation, this Court in the case of T.T. Antony v. State of Kerala [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] has not excluded the registration of a complaint in the nature of a counter-case from the purview of the Code. In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter-complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident."

as also para-25 of the judgment of the Hon'ble Supreme Court of India in

the case of T. T. Antony vs. State of Kerela & Others reported in (2001) 6 SCC

181 which reads as under:-

"25. Where the police transgresses its statutory power of investigation the High Court under Section 482 CrPC or Articles 226/227 of the Constitution and this Court in an appropriate case can interdict the investigation to prevent abuse of the process of the court or otherwise to secure the ends of justice."

and submits that for the self-same allegation as the informant has filed a

written report with Mahila Police Station, Ramgarh District, this being the

second F.I.R. for the self-same occurrence, the same is not maintainable.

9. Learned counsel for the petitioner next relies upon the judgment of the

Hon'ble Supreme Court of India in the case of Anand Kumar Mohatta &

Another vs. State (NCT of Delhi), Department of Home & Another reported

in (2019) 11 SCC 706 paragraph-16 of which reads as under:-

"16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise

jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."

and submits that merely because the F.I.R has materialized into charge-

sheet that will not be an impediment to quash the F.I.R. which is not sufficient

to constitute any cognizable offence even if the averments made in the same

are considered to be true in their entirety.

10. Learned counsel for the petitioner lastly relies upon the judgment of the

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

Pal Singh Bhullar & Others reported in (2011) 14 SCC 770 paragraphs-107 and

111 of which read as under:-

"107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento cadit opus meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case.

111. Thus, in view of the above, we are of the considered opinion that the orders impugned being a nullity, cannot be sustained. As a consequence, subsequent proceedings/orders/FIR/ investigation stand automatically vitiated and are liable to be declared non est."

and submits that as the F.I.R. itself is bad in law, the subsequent and

consequential proceedings also stand automatically vitiated and are liable to

declared non est. Hence, it is submitted that the prayer, as prayed for in the

instant Writ Petition (Cr.), be allowed.

11. Learned counsel for the respondent- State and the learned counsel for the

private respondent on the other hand vehemently oppose the prayer of the

petitioner made in the instant Writ Petition (Cr.). Learned counsel for the

private respondent relies upon the judgment of the Hon'ble Supreme Court of

India in the case of Anurag Soni vs. State of Chhattisgarh reported in (2019) 13

SCC 1 paragraph-12 of which reads as under:-

"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC."

and submits that even though there is no such allegation that the

petitioner had no intention to marry the informant/victim at the time of

making the promise of marriage but such a conclusion can be drawn from the

allegations made in the F.I.R.

12. Drawing attention of this Court towards paragraph-21 of the judgment

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

of Haryana reported in (2013) 7 SCC 675, learned counsel for the private

respondent submits that therein the Hon'ble Supreme Court of India has

reiterated the settled principle of law that in a case of consensual sex, the court

must very carefully examine whether the accused had actually wanted to

marry the victim or had malafide motives and made a false promise to this

effect only to satisfy his lust. Hence, it is submitted that the same can be

ascertained at the time of trial of the case, therefore, at this nascent stage, the

prayer, as prayed for by the petitioner, ought not be allowed.

13. Learned counsel for the respondent next relies upon the judgment of this

Court in the case of Daud Jahangir vs. The State of Jharkhand & Another

passed in Writ Petition (Cr.) No.475 of 2023 dated 09th of January, 2025 and

submits that in that case, this Court relied upon the Full Bench Judgment of

Hon'ble Patna High Court in the case of Ramesh Kumar Ravi @ Ram Prasad &

Etc. vs. State of Bihar & Others reported in 1987 SCC OnLine Pat 83 wherein

the Full Bench Judgment of Hon'ble Patna High Court has held that the judicial

orders of a criminal court (stricto sensu) under the Code of Criminal Procedure,

are not amenable to quashing by a writ of certiorari. It is next submitted that in

the said judgment, this Court also relied upon the judgment of the Hon'ble

Supreme Court of India in the case of Iqbal @ Bala & Others vs. State of Uttar

Pradesh & Others reported in (2023) 8 SCC 734 paragraph-7 of which reads as

under:-

"7. It is relevant to note that the victim has not furnished any information in regard to the date and time of the commission of the alleged offence. At the same time, we also take notice of the fact that the investigation has been completed and charge-sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence more particularly in the absence of any specific date, time, etc. of the alleged offences, yet we are of the view that the appellants should prefer discharge application before the trial court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and charge-sheet is ready to be filed before the competent court. In such circumstances, the trial court should be allowed to look into the materials which the investigating officer might have collected forming part of the charge-sheet. If any such discharge application is filed, the trial court shall look into the materials and take a call whether any case for discharge is made out or not."

and submits that as in this case, charge-sheet has already been submitted

and cognizance has also been taken, hence, the learned trial court be directed to

take a call at the time of considering framing of charges against the petitioner.

14. It is next submitted that in that case, this Court also relied upon the

judgment of the Hon'ble Supreme Court of India in the case of Central Bureau

of Investigation vs. Aryan Singh Etc. reported in 2023 SCC OnLine SC 379

paragraph-11 of which reads as under:-

"11. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried."

and submits that whether or not the present case is malicious

prosecution, can only be determined at the time of conclusion of trial as the

same being a fact requires recording of evidence, hence, it is submitted that at

this stage the F.I.R. of Barlanga P.S. Case No.08 of 2023 ought not be quashed

on the ground that the same is a malicious prosecution. It is lastly submitted

that this Writ Petition (Cr.), being without any merit, be dismissed.

15. Having heard the rival submissions made at the Bar and after going

through the materials available in the record, it is pertinent to mention here

that the petitioner has not prayed for in this case for quashing the F.I.R. and the

subsequent proceedings of Barlanga P.S. Case No.08 of 2023 on the ground that

the same is a malicious prosecution but the twin grounds upon which the

petitioner seeks quashing of the F.I.R. and the subsequent proceedings is that

even if the allegations made in the F.I.R. and the case-diary as well as the

charge-sheet are considered to be true in their entirety, still none of the offences

for which the learned Magistrate has taken cognizance, is made out and

secondly the F.I.R. of this case is hit by Section 162 of the Code of Criminal

Procedure as admittedly for the selfsame occurrence, the informant of this

F.I.R. earlier lodged the F.I.R. with the Mahila police station.

16. So far as the case of Daud Jahangir vs. The State of Jharkhand &

Another (supra) is concerned, that was the case where unlike in this case, the

petitioner before this Court did not challenge the charge-sheet or the

cognizance order though the Writ Petitioner before this Court, was well aware

about the charge-sheet having been filed against him and the cognizance taken

by the learned Magistrate and unlike in this case of Daud Jahangir vs. The

State of Jharkhand & Another (supra), the jurisdiction of this Court under

Article 227 of the Constitution of India was not prayed to be invoked.

17. Now, coming to the facts of the case, as already indicated above, there is

absolutely no allegation against the petitioner that the petitioner had no

intention to marry the informant/victim at the time of making promise to

marry the informant/victim. In the absence of the same, there is absolutely no

material before this Court to adjudicate whether the petitioner had any

intention to marry the informant/victim at the time of making promise to

marry her. In the absence of any allegation against the petitioner that the

petitioner had no intention to marry the informant/victim at the time of

making the promise of marriage is concerned, this Court has no hesitation in

holding that neither the offence punishable under Section 376 of the Indian

Penal Code nor the offence punishable under Section 420 of the Indian Penal

Code is made out against the petitioner. Otherwise also is the admitted case of

the informant that she lodged the F.I.R. in Mahila police station, before this

F.I.R.. Therefore, this F.I.R. is the second F.I.R. and hence is liable to be

quashed when hit by Section 162 of the Code of Criminal Procedure

18. Undisputedly, the petitioner is the sole accused person of the case, hence,

the question of involvement of the offence punishable under Section 120B of

the Indian Penal Code also does not arise.

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

if the entire allegations made against the petitioner in the F.I.R., case-diary,

charge-sheet and the cognizance order, are considered to be true in their

entirety, still the offence punishable under Sections 376 (1) or 420 or 120B of the

Indian Penal Code is not made out against the petitioner, hence, the

continuation of this criminal proceeding against the petitioner will amount to

abuse of process of law. Therefore, this is a fit case where the entire criminal

proceedings of Barlanga P.S. Case No.08 of 2023, be quashed and set aside.

20. Accordingly, the entire criminal proceedings of Barlanga P.S. Case No.08

of 2023, is quashed and set aside.

21. In the result, this Writ Petition (Cr.) stands allowed.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 05th of February, 2025 AFR/ Animesh