Patna High Court
Pushkar Anand vs The State Of Bihar on 18 September, 2024
Author: Prabhat Kumar Singh
Bench: Prabhat Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.78019 of 2019
Arising Out of PS. Case No.-47 Year-2014 Thana- MAHILA P.S. District- Kaimur (Bhabua)
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Pushkar Anand Son of Umakant Mehta Permanent Resident of Rama
Bhawan, Dilawarpur, P.S-Munger Kotwali, District-Munger (Bihar)
... ... Petitioner
Versus
1. The State of Bihar
2. Nirmala Kumari, Sub Divisional Police Officer, Bhabua, Kaimur at Bhabua
Bihar .. ... Opposite Parties
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Appearance :
For the Petitioner : Mr.Ravindra Kumar Shukla, Advocate
Mr. Rana Vikram Singh, Advocate
Mr. Pratyush Pratap Singh, Advocate
Mr. Ritu Raj Shukla, Advocate
For the state : Mr. Kumar Veerendra Narayan, A.P.P.
For opposite party no.2 : Mr. Vinay Ranjan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL JUDGMENT
Date : 18-09-2024
Earlier, petitioner had moved this Court for quashing
F.I.R. of Mahila Police Station Case No. 47 of 2014 vide Cr.
Misc. No. 17457/2016 but during its pendency, order taking
cognizance for the offence punishable under sections 376(C),
354(B), 506 and 509 of Indian Panel Code, was passed by the
Sub Divisional Judicial Magistrate, Kaimur at Bhabhua.
Accordingly, I.A. No. 01/2019 was filed in the said case (Cr.
Misc. No. 17457/2016) challenging cognizance order, but
Cr.Mis.No. 17457/2016 was dismissed as withdrawn vide order
dated 17.10.2019 (annexure 1).
2. This petition is directed against order dated
01.04.2019
, passed in connection with Mahila Police Station
Case No. 47 of 2014, by the Sub Divisional Judicial Magistrate
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
(SDJM), Kaimur at Bhabhua in connection with Mahila P.S.
Case No. 47/2014, by which cognizance has been taken for the
offences punishable under sections 376(C), 354(B), 506, 509
I.P.C. against the petitioner as well as for a direction to the court
below not to proceed further after passing of the aforesaid order
taking cognizance during the pendency of the present
application before this Court.
3. Prosecution case giving rise to the present case is
that the informant/ opposite party no.2 is the Sub Divisional
Police Officer (SDPO), Bhabhua. It is alleged by her that only
two days after her joining to the post of SDPO, Bhabua, on
21.7.2014 the petitioner who was Superintendent of Police,
Kaimur at Bhabua started extending a friendly hand towards the
informant through Facebook and WhatsApp messages. Since,
the informant was posted as Sub- divisional Police Officer,
Bhabhua, she developed a firm belief that the petitioner was
seriously interested in marriage with her and she started talking
to her family members. It is further alleged that since the
petitioner started frequenting her residence, she gradually
developed a close relationship with him and, thereafter, they
also came into physical contact. After sometime, informant was
also asked by the mother of the petitioner to convey her date and
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
time of her birth so that chances of matching of horoscope could
be explored before solemnizing the marriage. It was during this
period that the petitioner and the informant developed physical
relations with each other and the intimacy continued till the day,
when the petitioner refused proposal of marriage stating that the
horoscope did not tally and she was having "Mangla-mangli
Dosh". It is further alleged by the informant that on the pretext
of marriage, the petitioner tortured her mentally and physically
and when he threatened to spoil her career as a police officer in
his official capacity, she lodged the present case. After
institution of FIR, police completed investigation and submitted
charge sheet no. 54 of 2018 dated 30.11.2018 for offences
punishable under sections 376(C), 354A, 506 and 509 of the
IPC against this petitioner only. Charge sheet was not submitted
against father and mother of the petitioner as the allegation was
found patently false and nothing could be found against them.
4. Mr. Ravindra Kumar Shukla, learned counsel for
the petitioner, while placing the facts of the case, denies the
accusations made by opposite party no.2 against the petitioner,
submits that the present case has been lodged by opposite party
no.2 only as a vendetta to the petitioner's action in taking up
disciplinary proceedings against the opposite party no.2. FIR
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
was lodged on 29.12.2014 and just prior thereto on 27.12.2014,
the petitioner as a Superintendent of Police, Kaimur at Bhabua
had initiated disciplinary proceeding against her vide Letter No.
402 dated 27.12.2014 (Annexure-4). Consequently, faced with
such a situation, she lodged the present case making malicious
and baseless allegations against the petitioner with the sole
intention of not only tarnishing his reputation, but also to ruin
his career as an IPS Officer. During course of investigation, on
2.1.2015 opposite party no.2 was placed before a Medical Board
and was examined at Sadar Hospital, Bhabua after taking her
consent. Medical Board, after due examination of the informant,
submitted its report in which allegation of sexual contact has not
been substantiated against the petitioner. Facts to this effect is
contained in paragraph 52 of the case diary. Meanwhile,
petitioner preferred pre-arrest bail petition before this Court vide
Cr.Misc. No. 20.5.2016 in which the Court, while granting
interim protection to the petitioner, directed the medical
examination of opposite party no.2 to be conducted by a Board
of female gynecologists, nominated by the Principal or Principal
In-charge/Superintendent/In-charge Superintendent, Patna
Medical College and Hospital, Patna. It is worthwhile to state
that earlier, opposite party no.2 had expressed some reservations
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
with respect to the Medical Board which had submitted its
report, saying that the medical report was neither clear nor
distinct and was thus wholly false. However, this time opposite
party no.2 did not appear before the Medical Board and declined
to face any further medical examination (annexure 4), rather
she filed an affidavit dated 7.9.2016 to the effect that she was
asked to appear before the Medical Board by this Court without
taking her consent for the same. She further averred that report
and other materials collected during investigations are already
on record, hence no further medical examination is required at
this stage for deciding the pre-arrest bail petition. This Court,
having no option, relied on the medical examination report and
other materials collected on the record, confirmed the interim
bail to the petitioner vide order dated 8.9.2016.
5. Further reference is given to paragraph 83 of the
case diary to show that when the Investigating Officer asked
opposite party no.2 to give certain clarifications and also to
hand over her mobile phone to send it to the Forensic Science
Laboratory for certification and for verification of electronic
messages, sent or received either on WhatsApp or through SMS
referred to in the FIR, she refused to give the same and told the
IO of the case to consult her after 05.05.2016, for reasons best
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
known to her. Learned counsel contends that in view of the
provisions of law, without such certification, such electronic
messages cannot be considered to be authentic and could not be
used as an evidence against the petitioner.
6. It is also submitted by Mr. Shukla that since the
petitioner had taken administrative action against the informant
and reported the matter to the Additional Director General,
Police Headquarters vide Memo no. 4162 dated 27.12.2014, the
informant in counter blast lodged the FIR against the petitioner.
Learned counsel submits that thus it can be concluded that facts
of the case do not corroborate the prosecution case against the
petitioner and in such condition, continuance of criminal
proceeding would be abuse of process of court.
7. While assisting him, Shri Rana Vikram Singh,
learned counsel for the petitioner, formulated two issues for the
consideration of the Court as follows−
(I). Whether the offence of rape in terms of section
376 (c) IPC as alleged in the FIR is made out and;
(II). Whether there is a misconception of fact in terms of
section 90 of the IPC which vitiates consent in the present case
or whether there is merely a breach of promise to marry
simplicitor.
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
8. Addressing the first issue, Shri Rana Vikram Singh,
learned counsel for the petitioner placed averments made in the
FIR as well as the medical report of opposite party no.2 which
finds mention at paragraph 52 of the Case Diary and the
affidavit filed by her as contained in Annexure -4 to this
petition, flatly refusing to undergo any further medical
examination, to buttress and substantiate his contention that
there was no physical relation between the petitioner and
informant at all. The entire edifice of prosecution case falls apart
in view of the aforesaid facts which indisputably shows the
prosecution of the petitioner.
9. Mr. Singh, thereafter, vigorously submits that if the
allegation levelled in the FIR assuming to be true, while not
admitting, then it must be borne in mind that if
there was, at all, physical relation between the parties, it was
purely a consensual kind because the petitioner has never resiled
from his commitment to get married, rather due to
circumstances beyond control of the parties, marriage could not
be solemnized on account of mis-match of the Janampatrika
(Janam-kundli, horoscope). It is very much evident from the
FIR that informant herself informed about good behaviour and
habits of the petitioner to her family members. The date of birth
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
and Kundli of the informant was given to the petitioner's mother
for matching of Kundli and since things were moving in right
direction and relation was supposed to culminate in marriage,
the two got intimate but when informant's family asked about
fixing date of marriage, the same was refused by the
petitioner's family on the ground of non-matching of horoscope.
In the society, matching of Janampatrika/horoscope is vital
social obligation for solemnizing marriage.
10. Mr. Singh averred that if at all there was any
relationship between the parties it was purely consensual. He
further submits that the consent with respect to section 375 of
the IPC involves an active understanding of the circumstances,
actions and consequences of the proposed act. An individual
who makes a reasoned choice to act after evaluating various
alternative actions (or inaction) as well as the various possible
consequences flowing from such action or inaction, consents to
such action. This understanding of consent has also been set out
in Explanation II of section 375 of IPC. At this stage, Rana
Vikram Singh, learned counsel submits that there is a clearcut
distinction between a false promise given on the understanding
by the maker that it will be broken and a breach of promise
which is made in good faith but subsequently not fulfilled.
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
He points out that where the promise to marry is false and the
intention of the maker at the time of making the promise itself
was not to abide by it but to deceive the woman to convince her
to engage in sexual relations, there is a "misconception of fact"
that vitiates the woman's "consent". On the other hand, a breach
of a promise cannot be said to be false promise. To establish a
false promise, the maker of the promise should have had no
intention of upholding his word at the time of giving it. The
"consent" of a woman under section 375 is vitiated on the
ground of a "misconception of fact" where such misconception
was the basis for her choosing to engage in the said act.
11. In support of his contention, he relies upon the
judgment delivered by Hon'ble Supreme Court in Deepak
Gulati v. State of Haryana (2013 7 SCC 675), Pramod
Suryabhan Pawar vs. State of Maharastra & anr. (Cr.
Appeal No.1165 of 2019 order dated 21.08.2019) and Sonu@
Subhash Kumar vs. State of Uttar Pradesh & anr. (Cr.
Appeal No. 233 of 2021 order dated 01.03.2021).
12. Mr. Singh further drew attention of the Court to
paragraph 9 of the judgment delivered by Hon'ble Supreme
Court in case of Sonu (supra) which is reproduced herein
under:
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
"9. In Pramod Suryabhan Pawar (supra),
while dealing with a similar situation, the principles of
law which must govern a situation like the present were
enunciated in the following observations:
"Where the promise to marry is false and the
intention of the maker at the time of making the promise
itself was not to abide by it but to deceive the woman to
convince her to engage in sexual relations, there is a
"misconception of fact" that vitiates the woman's
"consent". On the other hand, a breach of a promise
cannot be said to be false promise. To establish a false
promise, the maker of the promise should have had no
intention of upholding his word at the time of giving
it..."
10. Further, the Court has observed:
"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."
13. At last he submits that the contents of the FIR as
well as the medical evidence leave no manner of doubt that, on
the basis of the allegations as they stand, three important
features emerge:
(i) The relationship between the appellant and the
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
second respondent was of a consensual nature;
(ii) The parties were in the relationship for about a
period of 5 months; and
(iii) Subsequently, the marriage couldn't be
solemnised on account of mis-match of their horoscope which
was the circumstance beyond the control of the petitioner,
leading to the lodging of the present FIR.
14. It is further case of the petitioner that in the entire
FIR, there is no allegation that this petitioner ever committed act
of criminal intimidation attracting offence punishable under
section 506 of the IPC. Similarly, there is no allegation against
the petitioner of insulting the modesty of opposite party no.2 or
uttering any words, making any sound or gesture or exhibited
any object or intruded upon the privacy of opposite party no.2
which is an offence punishable under section 509 of the IPC.
Learned counsel submits that no case under sections 506 and
509 of the IPC is made out against the petitioner.
15. Thus, the punctilious analysis of the entire gamut
of factual-medical evidence leave no doubt with respect to the
falsity and concoctedness of the allegations which unflinchingly
points towards to the malicious prosecution of the petitioner.
16. Mr. Singh, lastly submits that the Investigating
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
Officer of the case, in a hurry and haste manner, without
completing the investigation on all the points, submitted charge
sheet relying upon few paragraphs of the case diary and even
these paragraphs are accepted, then also, no case is made out
against the petitioner. More so, learned court has not applied
judicial mind at all before passing order of cognizance alleged
U/ss 376(C), 354(B), 506, 509 I.P.C. As such, allegation of
inducement and commission of rape is not made out against the
petitioner and in such circumstance, Hon'ble High Court can
exercise its powers under Section 482 of the Code of Criminal
Procedure (CrPC) to prevent abuse of the process of law or to
secure the ends of justice.
17. Learned counsel for the State as well as Mr. Vinay
Ranjan, learned counsel for the informant/ opposite party no.2
oppose the prayer of the petitioner. Mr. Vinay Ranjan, learned
counsel for opposite party no.2 submits that apart from filing the
FIR, opposite party no.2 also made a complaint before the
department upon which, in the light of direction of the Hon'ble
Supreme Court for prevention of women from sexual abuse at
the work place, the matter was taken up by the Internal Enquiry
Committee headed by Inspector General of Police constituted
under "The Sexual Harassment of Women at Work Place
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
(Prevention, Prohibition and redressal) Act, 2013" and enquired
the matter in detail. During course of enquiry, statements of
several witnesses have been recorded by the said committee and
after detail enquiry said Committee found the allegation made
by opposite party no.2 to be true and hence recommended for
initiation of departmental action against the petitioner. This fact
would be evident from enquiry report which was communicated
to the O.P no.2 vide memo no. 3881 dated 16.6.2015. A true
copy of memo no.3881 dated 16.6.2015 along with copy of
report of the enquiry committee is annexed herewith and
marked as Annexure-A to this Counter Affidavit.
18. Learned counsel for opposite party no.2 further
alleges that from perusal of enquiry report, it would be evident
that petitioner has not only committed sexual abuse with the
opposite party no.2 but also played with the sentiment of so
many girls on the pretext of marriage and such fact would be
evident from an affidavit submitted before the Committee by
one Richa Mishra. A true copy of affidavit of Richa Mishra is
annexed as Annexure-B to this Counter Affidavit. That apart,
during course of investigation, the Investigating officer has
recorded statement of the concerned persons. Their statements
show that the petitioner, misusing his official position, made
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
physical relation with the opposite party no.2 on the pretext of
marriage deceitfully. After investigation, I.O has submitted
charge sheet against the petitioner under section 173 (2) of the
Cr.P.C and thereafter considering the material collected by the
IO in course of the investigation including the material available
in the enquiry report of the Internal Enquiry Committee, the
learned S.D.J.M, Kaimur at Bhabhua opined that more than
prima facie material is available against the petitioner and
consequently he was pleased to take cognizance of the offence
punishable under section 376 (c), 354(B),506,509 of the Indian
Penal Code. On going through the impugned cognizance order,
it would transpire that the learned S.D.J.M thoroughly perused
the material submitted by the IO through his Police report and
referred several paragraphs of the case diary in the cognizance
order and thus cognizance order is based on material. From
perusal of the FIR, it reflects that there is sufficient material on
record against the petitioner and it cannot be said that prima
facie no case is made out against this petitioner. Learned
counsel submits that the Hon'ble Supreme Court in the decision
in case of Narinder Singh v. State of Punjab reported in
(2014) 6 SCC 2014 SCC 466, has held that while the High
Court has the power to quash FIRs, it should be cautious in
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
cases involving serious offenses like rape. The court emphasized
that the gravity of the offense must be taken into account.
Hence, no interference is required by this court at this stage.
19. Heard learned counsel for the parties and perused
the materials available on record.
20. In this case, there is specific and direct allegation
against the petitioner that on the allurement of marriage, the
petitioner committed rape on opposite party no.2. No sooner the
FIR dated 29.12.2014 was lodged, opposite party no.2 was
examined by the Medical Board at Sadar Hospital, Bhabua on
2.1.2015 after taking her consent. Medical report opines that
Fourchette found intact and membrane too was found intact.
Meanwhile, opposite party no.2 raised finger on the Medical
report, whereupon, this Court while hearing anticipatory bail
petition of the petitioner vide order dated 20.5.2016, directed for
another medical examination of opposite party no.2 to be
conducted by a Board of female gynecologists, nominated by
the Principal or Principal In-charge/Superintendent/In-charge
Superintendent, Patna Medical College and Hospital, Patna. But
this time, opposite party no.2 did not turn up for her medical
examination, rather she filed and affidavit dated 7.9.2016 stating
that when the earlier medical report is already on the on record,
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
hence no further medical examination is required at this stage.
21. It is the admitted case of the prosecution that
opposite party no.2 was in relationship with the petitioner for
quite sometime. It is also admitted that when the relationship
started, both parties were major and opposite party no.2 had
willingly been staying with the petitioner and established
physical relation. Now, if the relationship is not working out for
the reasons beyond control of the parties, it cannot be a ground
for lodging a case against the petitioner for offence punishable
under section 376 of the IPC. Hence, initiation of criminal
proceeding by the informant against the petitioner is wholly
unwarranted. Reliance is made to the decision of the Hon'ble
Supreme Court in case of Pramod Suryabhan Pawar (supra).
22. I also find substance in the submission of learned
counsel for the petitioner that the proposal of marriage of
opposite party no.2 was refused by the petitioner because of the
reason which was not in control of the petitioner. Opposite party
no.2 has herself mentioned in the FIR that petitioner's parents
asked opposite party no.2 to provide the information regarding
time, date and place of her birth to match the
Janampatrika/horoscope for solemnization of marriage and
when the Janampatrika/horoscope mismatched, then only
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
proposal of marriage was refused by the petitioner side. In this
respect, reliance can be made to a decision of the Hon'ble
Supreme Court in a case of Deepak Gulati v. State of Haryana
(2013 7 SCC 675) in which it has been held that 'there may, of
course, be circumstances, when a person having the best of
intentions is unable to marry the victim owing to various
unavoidable circumstances. The "failure to keep a promise
made with respect to a future uncertain date, due to reasons that
are not very clear from the evidence available, does not always
amount to misconception of fact.'
23. Hon'ble Supreme Court in case of Sonu @
Subhash Kumar has held that the Court can consider the
application for quashing under Section 482 of Cr.P.C., if there is
no allegation to the effect that the promise to marry given to the
second respondent was false at the inception. In the case in
hand, it appears from the contents of the FIR that there was a
subsequent refusal on the part of petitioner to marry opposite
party no.2 which gave rise to the registration of the FIR.
24. The Court cannot brush aside the contention of
learned counsel for the petitioner that no proper investigation of
the case was done. Learned counsel for the petitioner has
submitted that when the Investigating Officer asked opposite
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
party no.2 to give certain clarifications and also to hand over her
mobile phone to send it to the Forensic Science Laboratory for
certification and for verification of electronic messages, sent or
received either on WhatsApp or through SMS referred to in the
FIR, she refused to give the same and told the IO of the case to
consult her after 05.05.2016, for reasons best known to her.
There is substance in the submission of learned counsel that in
view of the provisions of law, without such certification, such
electronic messages cannot be considered to be authentic and
could not be used as an evidence against the petitioner as
alleged in the FIR. Hon'ble Supreme Court in case of Lalita
Kumari v. Government of Uttar Pradesh [2013] 14 S.C.R.
713 has emphasized the importance of proper investigation in
cases of serious offenses, particularly against women.
25. However, in this case, during course of
investigation, no cogent material has been collected which
directly or even remotely suggest truthfulness of the accusation
or complicity of the petitioner in the offence alleged against him
in the FIR.
26. It has been held by Hon'ble Supreme Court in a
number of decisions that (1) where the allegations made in the
FIR or the complaint, even if they are taken at their face value
Patna High Court CR. MISC. No.78019 of 2019 dt.18-09-2024
and accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused. It has also been
held that where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal
grudge, the same cannot make out a case against the accused. In
this regard, reference is made to the decision of Hon'ble
Supreme Court, rendered in case of State of Haryana and
others Vs. Ch. Bhajan Lal and others, reported in AIR 1992
SC 604.
27. In view of the foregoing discussions, order dated
01.04.2019, passed by the Sub Divisional Judicial Magistrate
(SDJM), Kaimur at Bhabhua in connection with Mahila P.S.
Case No. 47/2014, by which cognizance has been taken for the
offences punishable under sections 376(C), 354(B), 506, 509
I.P.C. against the petitioner is hereby quashed.
28. The application is accordingly allowed.
Shashi (Prabhat Kumar Singh, J)
AFR/NAFR AFR
CAV DATE NA
Uploading Date 01.10.2024.
Transmission Date 01.10.2024.
