Orissa High Court
Sanjit Kumar Nayak vs State Of Orissa ..... Opp. Parties on 2 April, 2024
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 670 of 2023
Sanjit Kumar Nayak ..... Petitioner
Mr. Byomokesh Sahoo, Advocate
Vs.
1. State of Orissa ..... Opp. Parties
2. Rasmita Tigga Ms. S. Mishra, A.S.C.
CORAM:
JUSTICE SAVITRI RATHO
ORDER
02.04.2024
(Through hybrid mode)
Order No.
04. 1. This application under Section 397 read with 401 of Cr.P.C.
has been filed challenging the order passed by the learned Sessions
Judge (Special Court), Kuchinda in connection with Special G.R.
Case No. 04 of 2023 which arises out of Kuchinda P.S. Case No. 95
of 2023 rejecting the application of the petitioner under Section 227
of the Cr.P.C. to discharge him from all the offences.
2. The prosecution allegation in brief is that the victim passed +3
in the year 2012, where the petitioner was serving as a lecturer in
zoology. Thereafter, she was employed by him in his coaching
institute as a data entry operator. The accused took advantage of her
while she was working there and against her wishes has shot videos
and photographs and subsequently by using those has kept physical
relationship with her against her wishes on a number of occasions.
When her marriage was fixed in the year 2018, he threatened to
make her photographs and videos viral, for which her marriage
negotiations failed. Again, in the year 2023, when her marriage had
been fixed, he threatened her and then sent photographs and videos
of the intimate moments to her would be groom in order to break the
marriage. Initially the investigation had been conducted by Mr. S.
Seth, IIC, Kuchinda PS. After his transfer Inspector Chandramohan
Singh conducted the investigation. Preliminary charge sheet had
been filed on 04.08.2023 by the IIC, Kuchinda Police Station,
against the petitioner for commission of offences under Section 354-
A,354-C,354-D, 376(2)(n),506 of the IPC and Section 67A of the IT
Act. During the investigation, after receipt of the caste certificate, it
was found that the victim belongs to a Schedule Tribe, under
instruction of the Superintendent of Police, Sambalpur, charge of
investigation was taken up by DSP, Sambalpur. After taking charge
of investigation, DSP has conducted joint inquiry and examined the
victim, one Sukesh Kumar Majhi and recorded his statement under
Section 161 of the Cr.P.C. He has seized the mobile phones, used by
the accused and the mobile phones of witnesses to which the
petitioner had allegedly sent the photographs and videos of the
victim. They were sent to the State Forensic Laboratory for
examination and it was found that the victim belongs to Oraon caste,
which comes under the ST category. After completion of the
investigation the DSP had submitted the charge sheet dated
29.10.2023 against the petitioner for commission of offences
punishable under Section 354-A,354-C,354-D, 376(2)(n),506 of the
IPC and Section 67a of the IT Act and read with Section 3(1)(r)(w),
3(2)(v)(va) of the SC and ST (Prevention of Attrocities) Act, 1989.
3. Mr. B. Sahoo, learned Counsel for the petitioner has
challenged the impugned order on the following grounds
i) investigation in respect of the offences under Section SC and ST
(Prevention of Attrocities) Act is vitiated, in the absence of case
diary indicating what investigation has been conducted by the DSP.
ii) the offence under Section 376(2)(n) of the IPC is not made out
against the petitioner as there is no material on record that the victim
was repeatedly subjected to forcible sexual intercourse against her
wishes. As she has not stated that she has objected to having
physical relationship with the petitioner.
iii) the offence under Section 67A of the IT Act is not made out
against the petitioner as the mobile phone which was allegedly
seized from the petitioner does not belong to him.
iv) There has been a huge and unexplained delay in lodging the FIR
as the victim had stated that the petitioner had forcibly raped her in
the year 2012 but she has lodged FIR in the year 2023, and
v) Even accepting the materials on record, at worst be a consent and
since the victim is a major, offence under Section 376(2)(n) is made
out against him.
4. Ms. S. Mishra, learned Additional Standing counsel referring
to the statement of the victim recorded under section 161 of the
Cr.P.C. has submitted that the victim has stated that she was
subjected to forcible sexual intercourse on different occasions under
the threat of her intimate photographs and video being made viral,
for which she had not complained to the police. But, subsequently in
the year 2023, when the petitioner has sent her photographs and
videos to her would be husband, she has lodged FIR. So the delay
has been explained. She further submits that the victim has stated
that the accused had forcible sexual intercourse with her on a
number of occasions, for which the offence under Section 376(2)(n)
of the IPC is made out against her. As regards the submission that
the case diary pertaining to investigation carried out by the DSP has
not been provided, she submits that the DSP has mentioned what
investigation has been carried out by him and the contention of the
learned Counsel for the petitioner can be tested examined during
trial and this Court is not required to examine the case diary. As
investigation has been conducted by the DSP in accordance with rule
5(3) of the SC and ST (Prevention Of Attrocities) Rules, 1995 before
submitting charge sheet for the offences under Section SC and ST
Act, there is no scope for interference with the impugned order.
5. Hearing is concluded.
6. Judgment is reserved.
7. List the case on 18.04.2024 for judgment.
(Savitri Ratho)
Judge
Subhalaxmi
Signed by: SUBHALAXMI PRIYADARSHANI
Location: Orissa High Court, Cuttack
Date: 03-Apr-2024 20:33:35
