Present Address Gouri Hotel vs The State Of Tripura
2021 Latest Caselaw 115 Tri

                              Page 1 of 11


                     HIGH COURT OF TRIPURA
                           AGARTALA

                            Crl. Petn. No.11/2020

Sri Jayanta Chakraborty
S/O. Sri Jogesh Ch. Chakraborty,
Resident of flat C/3 Mayangan Apartment, 2nd Floor,
3/1 B.G. Ghosh Sarani, Bhadra Kali,
Hooghli West Bengal, Pin- 712232, P.S. Uttar Para
C/O OTPC, ONGC Tripura Power Ltd. Palatana Gomati District.

Present address Gouri Hotel, Udaipur Central Road, Udaipur Town,
P.S.- R K Pur, Dist. Gomati Tripura.
                                                        .....Petitioner(s)

                            Versus

1. The State Of Tripura

2. Miss {Name-redacted},
   D/O. Sri {Name-redacted},
   P.S. {Address-Redacted}.

  Present Address- {Address-Redacted},
  {Address-Redacted},
  {Address-Redacted}.
                                                        .....Respondent(s)

For Petitioner(s)            : Mr. S. Sarkar, Advocate.

For Respondent No.1          : Mr. Sumit Debnath, Addl. P.P.

For Respondent No.2          : Ms. R. Purkayastha, Advocate.



       HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

Date of hearing and judgment : 05.02.2021.

Whether fit for reporting    : No.



                   JUDGMENT & ORDER (ORAL)

Petitioner-original accused has prayed for quashing of an FIR dated

12th April, 2019 lodged by the respondent No.2 herein before

Superintendent of Police, Gomati as well as the charge sheet filed by the

police upon completion of investigation pursuant to the said FIR.

2. Brief facts are that the petitioner is a Senior Manager of ONGC

Tripura Power Corporation Limited („OTPCL‟, for short). The

complainant was also an employee of the said Corporation but at a much

junior level. She lodged the said FIR against the petitioner in which she

had made following allegations:

She admitted that there are photographs where she and the accused

are seen together; in some of which the wife of the accused and other

family members are also there. She stated that she and the accused were

spending conjugal relationship with each other and spending time together

and behaving like a married couple since September, 2015 till recently. All

the employees of OTPCL also knew about their relationship. During the

entire period from September, 2015 till 6th April, 2019, she and the

accused were spending time together as a married couple, however, the

accused being already married and having a son, her position was like a

mistress. She also knew that the accused was not going to leave his family

and accept her as his wife. She had accepted the said position because the

accused had spent close to 20 lakhs of rupees for her higher studies, for her

psychological therapies and also for her business. She continued to bear

her own living expenses herself. Sometimes, the accused would help her in

these matters also.

She further stated that the accused was living with his wife, son and

parents. She desired to meet his parents and that the accused should

disclose to them about their relationship. Except his family members,

everyone else knew about the relationship and that they were living

together out of free will, "with no false promises to be taken by him, for

marrying me". According to her, she was informed by the accused that his

wife was mentally sick, had no money and therefore, would not be able to

take care of herself if divorced. Even considering his son‟s life he would

not divorce his wife. On 4th April, 2019, she asked the accused to take her

to his house to meet his parents and wife and son and to disclose them

about their relationship which he refused. She ultimately approached a

police station where upon the accused and his father came to the police

station and abused her. After this incident, the accused has stopped

communicating with her and has blocked her communications.

3. This is the gist of the complaint filed by the respondent No.2. The

police carried out the investigation and filed a charge sheet in which the

petitioner has been charged with commission of offences punishable under

Sections 376, 419 and 354A(3) of Indian Penal Code (IPC). Under these

circumstances, the petitioner has challenged the FIR and the charge sheet.

4. Appearing for the petitioner, learned counsel, Mr. S. Sarkar

vehemently contended that neither in the FIR nor during the course of

investigation any offence is made out against the petitioner. Even if all

averments made in the complaint are taken on the face value, no offence

can be stated to have been committed by the petitioner.

5. I have heard learned Additional Public Prosecutor and counsel for

respondent No.2. Learned counsel, Ms. R. Purkayastha for respondent

No.2 took me through the statements of witnesses recorded by the police

during the investigation and in particular, the statement of the complainant

recorded under Section 161 of Cr.P.C. to contend that the offence of

bigamy punishable under Section 494 of IPC is surely made out.

6. Learned Additional P.P. submitted that the charge sheet having

already been filed, the petitioner should be allowed to file a discharge

application before the concerned Court which can examine the material on

record more minutely and come to proper conclusion.

7. In facts of the present case I cannot accept the contentions of the

counsel for the State or of the complainant. I have taken note of the gist of

the averments made in the FIR. Even if all the allegations made in the FIR

taken on the face value, no offence can be said to have been committed by

the petitioner. The complainant has not referred to any specific penal

provisions under which she desired the petitioner to be charged. However,

the police authorities have in the charge sheet applied Sections 376, 419,

354A(3) of IPC. We would refer to all these provisions a short while later.

Counsel for the complainant has referred to the offence of bigamy

punishable under Section 494 of IPC. We would examine this provision

also.

8. For the present, we may recall, the complainant in the complaint had

candidly stated that she had built very intimate relationship with the

accused out of her free will. She specifically stated that no false promise of

marriage was made by the accused. She has also narrated that continuously

for close to 4 years she and the accused lived like husband and wife. This

FIR thus does not indicate a slightest ground for contending that the

consent given to the accused for physical relationship was not a free

consent. She has not alleged either misconception of fact on her part or any

misrepresentation on part of the accused which led her to giving the

consent. To reiterate, in the FIR, she was specific that she was aware about

the marital status of the accused and that she willingly agreed to a

relationship with him. In fact, she has stated that the accused made it clear

to her that under his circumstances he would not divorce his wife. She has

not alleged that the accused being in a supervisory position or in a

controlling position in the establishment where both of them were

employed, he exploited her through his superior position and extracted

physical relationship against her will. She admitted that the accused had

financially supported her by spending large amounts for her higher

education and treatments.

9. The statement under Section 161 of Cr.P.C. recorded by the police

would not change this position. She has made a few modifications in her

version in this statement as compared to the FIR. However, there is

nothing on the record to suggest that whatever relationship she and

accused had built up internally, was not out of free volition on either side.

Section 376 of IPC is simply not applicable. In this context, we may refer

to the decision of Supreme Court in case of Pramod Suryabhan Pawar

versus State of Maharashtra and another, reported in (2019) 9 SCC 608

in which in the context of false promise of marriage for establishing

physical relationship with a woman and the question of consent as referred

to in Section 375 of IPC, the Supreme Court after referring to large number

of decisions on the point observed as under:

"16. 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 a 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....

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.

19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows:

19.1. The complainant and the appellant knew each other since 1998 and were intimate since 2004.

19.2. The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other‟s houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions

visited the hospital jointly to check whether the complainant was pregnant.

19.3. The appellant expressed his reservations about marrying the complainant on 31-1-2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015.

20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax.

21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant‟s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant‟s promise of marriage. Therefore, even if the facts set out in the complainant‟s statements are accepted in totality, no offence under Section 375 IPC has occurred."

10. Section 419 of IPC, which is another provision police has included

in the charge sheet provides of punishment for cheating by personation.

Offence of cheating is defined in Section 415 of IPC and can be stated to

have been committed by a person who by deceiving any person,

fraudulently or dishonestly induces the person so deceived to deliver any

property to any person, or to consent that any person shall retain any

property, or intentionally induces the person so deceived to do or omit to

do anything which he would not do or omit if he were not so deceived, and

which act or omission causes or is likely to cause damage or harm to that

person in body, mind, reputation or property. Section 416 defines the

offence of cheating by personation and provides that a person is said to

"cheat by personation" if he cheats by pretending to be some other person,

or by knowingly substituting one person for another, or representing that

he or any other person is a person other than he or such other person really

is.

11. Ex facie, there are no allegations of cheating by personation.

Nowhere has the complainant either in the FIR or even in her statement

recorded by the police, ever alleged that the accused personated himself as

some other person and influenced by such personation, she give consent

for physical relationship. I am prepared to go a step beyond and examine

whether the offence of cheating with or without personation can be said to

have been made out. Here also the answer has to be in the negative. As

noted, under Section 415 of IPC, a person can be said to have committed

the offence of cheating if he has deceived a person fraudulently or

dishonestly into inducing such a person to do or not to do certain act which

the person otherwise would not have done or omitted. In the present case,

there are no allegations of deception by the accused fraudulently or

dishonestly.

12. Section 354A of IPC refers to Sexual harassment and punishment

for such sexual harassment. Sub-Section (1) of Section 354A defines the

offence of sexual harassment. A man who commits any of the acts referred

to in clauses (i) to (iv) of sub-Section (1) shall be guilty of offence of

sexual harassment and these clauses are (i) physical contact and advances

involving unwelcome and explicit sexual overtures; (ii) a demand or

request for sexual favours; (iii) showing pornography against the will of a

woman and (iv) making sexually coloured remarks. Sub-Section (3) of

Section 354 A provides for punishment for the offence specified in clause

(iv) of sub-Section (1) namely, making sexually coloured remarks. I have

not seen any indication in either FIR or any of the papers accompanying

the charge sheet to include the said offence.

13. There was an attempt on part of the counsel for the complainant to

bring the case within the definition of bigamy. Offence of bigamy is made

punishable under Section 494 of IPC, which provides that whoever, having

a husband or wife living, marries in any case in which such marriage is

void by a reason of its taking place during the life of such husband or wife,

shall be punished with imprisonment of either description for a term which

may extend to seven years.

14. There is no allegation in the complaint that the accused had married

the complainant. Offence of bigamy under Section 494 of IPC can be said

to have been made out only when a person with a spouse living and

subsisting marriage, marries another person. Under Section 198 of Cr.P.C.,

a complaint for bigamy can be made only by a person aggrieved. Even if

the case of the complainant was that she and the accused had performed a

ceremony of marriage, since she herself was aware about the subsisting

marriage of the accused with his wife, it is hugely doubtful whether she

can be said to be the person aggrieved.

15. Under the circumstances, impugned FIR dated 14.05.2019 and the

charge sheet filed by the police on the basis of such an FIR are quashed.

Petition is allowed. Pending application(s), if any, stands disposed of.

(AKIL KURESHI), CJ

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