High Court of Chhattisgarh
Case Details
1 Digitally signed by INDRAJEET SAHU Date: 2025.02.13 18:42:09 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR CRMP No. 2404 of 2024 1 - Shankar Saini S/o Shri Kamal Krishna Saini Aged About 39 Years Permanent, R/o H-515-B, 1st Floor, Palam Vihar Gurugram, District- Gurugram Haryana, Through Its Special Power Of Attorney Holder, Shri Nawal Saini, S/o Shri Kamal Krishna Saini Aged About 42 Years, R/o 515-B, 1st Floor, Palam Vihar, Gurugram, District- Gurugram, Haryana. Versus ... Petitioner(s) 1 - State of Chhattisgarh Through Its Secretary, Home Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District- Raipur, Chhattisgarh, 492002. 2 - Station House Officer, Police Station- Vidha Sabha, Raipur, District- Raipur, Chhattisgarh. 3 - Akansha Sethi W/o Shri Shankar Saini W/o H. No. P00343, Saddu Police Station, Vidhan Sabha, Raipur, District- Raipur, Chhattisgarh. ... Respondent(s) For Petitioner : For State : For Respondent 3 : Shri Kishore Bhaduri, Sr. Advocate along with Shri Ankit Singhal, Kartik Bhardwaj and Shri Ayush Mahishwar, Advocates. Shri Ajit Singh, Govt. Advocate. Shri Arvind Shrivastava and Shri Vikas Shrivastava, Advocates. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment reserved on 27.09.2024 Judgment delivered on 13.02.2025 1. The present Criminal Misc. Petition under Section under Section 528 of BNSS, 2023 has been filed by the petitioner against the impugned 2 order dated 01.05.2024 passed by the 9th Additional Sessions Judge, Raipur, in Criminal Revision No.157 of 2024 whereby the revision court has dismissed the criminal revision filed by the petitioner against the
Facts
order dated 23.02.2024 by the Judicial Magistrate First Class, Raipur (in short, JMFC) in Criminal Case No.602 of 2024 (Crime No.345 of 2023) by which the charge under Sections 498-A, 377, 506-II IPC have been framed against the petitioner. 2. Brief facts of the case are that, the petitioner and respondent No.3 are husband and wife. Their marriage was solemnized on 30.01.2012 as per their rites and rituals. After her marriage, her husband as well as her in laws started harassing her for demand of dowry in which they demanded cash amount, golden jewellery and Car. When she protested, her husband used to beat her. Somehow in the month of May, 2012 her husband had gone to Bangalore for his service. She was subjected to unnatural sex. Ultimately, she lodged a complaint on 25.09.2023 to the police station, Vidhan Sabha, Raipur on which the offence under Sections 498-A, 377 and 506 and 34 IPC was registered against her husband i.e. the petitioner, her father in law and her brother in law. After due process of investigation, charge sheet was filed before the JMFC, Raipur on 20.01.2024 for the aforesaid offences against the petitioner only. 3. Before the trial court, the petitioner raised objection that offence under Section 377 IPC is not made out against him and stated that the offence of Section 377 IPC has been declared unconstitutional and by the amendment incorporated in the year 2013 in Section 375 IPC, the sexual act between husband and wife does not come under the 3 definition of Section 377 IPC and therefore the petitioner may be discharged from the offence under Section 377 IPC. 4. After hearing the parties, the trial court has passed the order on 23.002.2024 and has framed charge against the petitioner for the offence under Sections 498-A, 377 and 506-II IPC. 5. The said order dated 23.02.2024 passed by the trial court was challenged by the petitioner by filing Criminal Revision No.157 of 2024 before the 9th Additional Sessions Judge, Raipur which was came up for hearing on 01.05.2024 and after hearing the parties, the revisional court has also dismissed the Criminal Revision filed by the petitioner. The said order dated 01.05.2024 is under challenge in the present petition. 6.
Legal Reasoning
prima facie constitutes offence for which the charge has been framed by the trial court which does not require any interference. 10. Learned counsel for the respondent No.3/complainant would also oppose the submissions made by the counsel for the petitioner and submitted that on 25.09.2023 the complainant has moved her written complaint based on which FIR has been registered against the petitioner. Her statement under Section 161 CrPC has been recorded in which she clearly states that unnatural sex was committed by the 6 petitioner with her. The petitioner is relying upon the contents of exception-2 of Section 375 IPC which has been amended w.e.f. 03.02.2013. The offence complained of, which were committed after marriage and prior to 03.02.2013 shall be governed by unamended Section 375 IPC and offence subsequent to 03.02.2013 will be governed by Section 375 IPC as amended. In unamended Section 375 IPC, the ingredients of Section 377 were not inserted and it was existing independent to Section 375 IPC. The ingredients to constitute offence of rape is absence of consent/will and if consent/will is absent then the offence under Section 377 IPC will be made out under the facts and circumstances of the case prior to the date of amendment i.e. 03.02.2013. He would further submit that for framing of charge, only prima facie material is to be seen by the trial court and he is not required to meticulously examine the evidence available on record and after considering the prima facie material available in the case charges have been framed against the petitioner. 11. The case laws cited and relied upon by the petitioner are based on amended Section 375 IPC, but in the present case, the allegation against the petitioner for the offence was since 2012 which is prior to the amendment in Section 375 IPC. Therefore, the facts and circumstances of the case law cited by the petitioner are distinguishable and are not applicable to the facts of present case. He would further submit that the complainant tried to save her matrimonial life and when the act of petitioner was unbearable, she made a complaint against him. In the complaint, it is not only the carnal intercourse, but also the allegation of oral penetration is there for which 7 no medical evidence is possible. From the material collecting during investigation, prima facie there is sufficient material to proceed with the trial of the case and therefore framing of charge by the trial court cannot be said said to be illegal and there is no merit in the petition and the same deserves dismissal. 12. I have heard the counsel for the parties and perused the material annexed with the petition. 13. The Hon’ble Supreme Court has laid down the principles in the case of State of M.P. vs. Deepak, 2019 (13) SCC 62, wherein it has been held that at the stage of framing of charge, the court has to consider the material only with a view to find out if there is a ground for presuming that the accused had committed the offence. It is also held that the court is required to evaluate the material and documents on record with a view to finding out if facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence and at the stage of framing charge, the court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded is likely to be convicted or not. In the matter of Deepak (Supra), in its judgment, the Hon’ble Supreme Court has held that:- “14. It is of relevance to refer to certain judgments of this Court. In Chitresh Kumar Chopra v. State (NCT of Delhi), the appellant and two other individuals were charged under Section 306 read with Section 34 of the Penal Code. It had been alleged that the appellant and the other accused persons had forcibly compelled the deceased to sign a settlement giving up a part of his share in the profits from the sale of certain land. This led to a dispute and as a result of the mental harassment suffered by the deceased, he committed suicide. The Court affirmed the framing of charges by the trial court. The two-Judge Bench of this Court laid down the ingredients of the offence of abetment of suicide. D.K. Jain, J. held thus: (SCC p. 611, para 19) 8 "19. As observed in Ramesh Kumar v. State of Chhattisgarh, where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that: (i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above Undoubtedly, presence of mens rea is the necessary concomitant of instigation." (emphasis supplied) 15. After due consideration of the facts and circumstances, the Court noted that prima facie, the offence of abetment of suicide was made out (Chitresh Kumar Chopra case, SCC p. 612, para 22) "22. In the present case, apart from the suicide note, extracted above, statements recorded by the police during the course of investigation, tend to show that on account of business transactions with the accused, including the appellant herein, the deceased was put under tremendous pressure to do something which he was perhaps not willing to do. Prima facie, it appears that the conduct of the appellant and his accomplices was such that the deceased was left with no other option except to end his life and therefore. clause Firstly of IPC was attracted." (emphasis supplied) Section 107 16. It was also noted that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for "presuming" that the accused had committed the offence: (Chitreth Kumar Chopra case, SCC p. 613, para 25) "25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction" 17. A two-Judge Bench of this Court, in Rajbir Singh v. State of U.P noted that in accordance with Section 227, the High Court must ascertain whether there is "sufficient ground for proceeding against the accused of there is ground for "presuming that the offence has been committed. G.P. Mathur. J. held thus: (SCC p. 56, paras 9-10) "9. In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia the Court while examining the scope of Section 227 held as under: 9 '14. Section 227 itself contains enough guidelines as to the scope of inquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate inquity in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evadentiary material on record, if generally accepted, would reasonably connect the accused with the crime." 10. The High Court, did not at all apply the relevant text, namely whether there is sufficient ground for proceeding against the accused or whether there is ground for presuming that the accused has committed as offence. If the answer is in the affirmative an order of discharge cannot be passed and the accused has to face the trial. The High Court after merely observing that 'as the firing was aimed at the other persons and accidentally the deceased Pooja Balmiki was passing through that way and she was hit and further observing that the applicant neither intended to kill the deceased nor was she aimed at because of the reason that she was a Scheduled Caste set aside the order by which the charges had been framed against Respondent 2. There can be no manner of doubt that the provisions of Section 301 IPC have been completely ignored and the relevant criteria for judging the validity of the order passed by the learned Special Judge directing framing of charges have not been applied. The impugned order is, therefore, clearly erroneous in law and is liable to be set aside." (emphasis supplied) 14. In the matter of Captain Manjit Singh Virdi vs. Hussain Mohammad Shattaf and Others 2023 (7) SCC 633, the Hon’ble Supreme Court has held in para 12 of its judgment that:- “12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap³ Relevant paras are extracted below: (SCC pp. 197-98, para 11) "11....11.1. In P. Vijayan v. State of Kerala, this Court had an occasion to consider Section 227 CrPC. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to f sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex 10 facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if g the Judge comes to a conclusion that there is sufficient ground to proceed. he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter s the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11.2 to the recent decision of this Court in State of Karnataka v. MR. Memah, one of us (D. Y. Chandrachud, J) speaking for the Bench has observed and held in para 25 as under: (SCC p. 526) '25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 219 CPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of N. v. N. Suresh Rajan, adverting to the earlier decisions on the subject, this Court held: (N. Suresh Rajan case, SCC 721-22, para 20) "29....... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out To put it differently, if the court thinks that the accused might have the offence on t committed the the basis of the materials on record on its probative value, it can frame the charge, though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage." 15. Further, in the matter of State by SP through the SPE, CBI vs. Uttamchand Bohra, 2022 (16) SCC 663, the Hon’ble Supreme Court has held in para 21 of its judgment that:- “21. In CBI v. K. Narayana Rao this Court, after reviewing the previous decisions that dealt with the question of the applicable standard relating to discharge of accused in a criminal case, summarised the principles in the following terms: (SCC pp. 520-23, paras 12-14) "12. The first decision in Ramesh Singh relates to interpretation of Sections 227 and 228 of the Code for the 11 considerations as to discharge the accused or to proceed with trial. Para 4 of the said judgment is pressed into service which reads as under: (SCC pp. 41-42) '4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which.... (b) is exclusively triable by the court, he shall frame in writing a charge against the accused", as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by 12 one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.' 13. Discharge of the accused under Section 227 of the Code was extensively considered by this Court in P. Vijayan wherein it was held as under. (SCC pp. 401-402, paras 10-11) '10... ..If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact. It is not necessary for the court to enter into the pros and cons of the matter of into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11. At the stage of Section 227, the Judge has merely to sift the 9 evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him." 14. While considering the very same provisions i.e. framing of charges and discharge of the accused, again in Sajjan Kumar, this Court held thus: (SCC pp. 375-77, paras 19-21) '19. It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. 20. A Magistrate enquiring into a case under Section 209 CrPC is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for 13 seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227 CrPC, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Exercise of jurisdiction under Sections 227 and 228 CrPC 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face valuc disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.' " 14 16. In the case of N. Sundaram Vs. P.K. Pounraj and Another reported in (2014) 10 SCC 616, the Hon’ble Supreme Court, in paragraph 13, has held that: “13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana Vs. Bhajan Lal6] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. [See MCD Vs. Ram Kishann Rohtagi7] An investigation should not be shut out at the threshold if the allegations have some substance.” [See Vinod Raghuvanshi Vs. Ajay Arora] 17. The Hon’ble supreme Court has further held in para 12 of its judgment in the case of State of Gujarat vs. Dilipsinh Kishorsinh Rao, 2023 SCC Online SC 1294, that:- “12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial." 18. In the matter of State (NCT of Delhi) vs. Shiv Charan Bansal and Others, 2020 (2) SCC 290, the Hon’ble Supreme Court has held that at the stage of framing of charge, the trial court is not required to conduct a meticulous appreciation of evidence or a roving inquiry into the same and has the power to sift and weigh the evidence for the limited 15 purpose of finding out whether or not a prima facie case is made out against the accused to proceed with the trial. 19. Reverting to the facts of the present case, in the FIR lodged by the complainant there is an allegation of carnal as well as oral sex upon the petitioner against her will and consent. It is also alleged that when she protested, the petitioner used to beat and harass her. She could not inform the incident to anyone as she feel ashamed. She tried to save her matrimonial life and to bear all the harassment and torture made by her husband and when she feels harassment became unbearable, she lodged her complaint. Whether or not she was subjected to unnatural sex/oral sex prior to the amendment in Section 375 IPC or after the amendment, are the matter of fact which is to be determined after recording evidence of the witnesses. It is not only the carnal intercourse alleged in the FIR, but the oral sex has also been alleged in the complaint as well as in her 161 CrPC statement. Obviously, there could be no medical evidence with respect to oral sex with the complainant. Even if she refused for her medical examination, that itself cannot be a ground to discharge the petitioner from the offence of Section 377 IPC as Section 377 IPC includes the other impact also. 20. From the written report lodged by the complainant, her 161 CrPC statement and also from the statement of her mother, prima facie there is sufficient material available on record to frame charge and to proceed further with the trial of the case. At this stage it cannot be said that prima facie no offence is made out against the petitioner for his discharge from the offence under Section 377 IPC. The nature of 16 allegation warrants trial of the case and the trial court has rightly considered the material available in the charge sheet and framed the charge against the petitioner. I do not find any good ground to interfere with the petition filed by the petitioner and to discharge him from the offence under Section 377 IPC. 21. The judgments cited and relied upon by the counsel for the petitioner are with respect to the provisions of Section 375 and 377 IPC after its amendment of the year 2013 whereas, in the present case the cause of action is said to have been arisen prior to the amendment of 2013. Therefore, the benefit of those judgments can not be extended to the petitioner herein. 22.
Arguments
Learned counsel for the petitioner would submit that the stand taken by the complainant in her FIR as well as in her statement under Section 161 CrPC are self contradictory with respect to the offence of Section 377 IPC. The charge sheet has been filed only against the petitioner and the complainant has refused to get her medical examination by the doctor with respect to her allegation of carnal intercourse or unnatural sex. In absence of any medical evidence or any material supporting her allegation, the petitioner cannot be prosecuted or charge cannot be framed for the offence under Section 377 IPC. He would further submit that the sexual act in between the husband and wife does not fall within definition of rape as provided under Section 375 IPC if the age of wife is 18 years or more. He would further submit that relationship between the husband and wife cannot be confined to their sexual relationship only for the purpose of procreation but anything done between them 4 apart from the deemed sexual intercourse should not be defined as unnatural. 7. FIR as well as her statement is attended with malafide and the proceedings are malaciously instituted with an ulterior motive with a view to spite him due to private and personal grudge. As per the allegations levelled by the complainant that she was subjected to unnatural sex and harassment immediately after marriage which has been performed in the year, 2012, but she has not lodged report of any act of unnatural sex or harassment till 2024 which itself shows that she was consensual in making carnal intercourse. He would also draw attention to the contents of FIR that in the year 2013 the complainant had gone to Mumbai to her work, in the year, 2014 her husband i.e. the petitioner also got his service transferred from Bangalore to Mumbai. In the year, 2016 the complainant had gone to USA and the petitioner joined her in the year 2018 at USA. Both of them got Green Card in the year, 2019 from the USA Government and thereafter in the year, 2021 the complainant is residing at USA. In the year, 2022 when the petitioner came to India and informed his family members about the fact that their relationship are deteriorating then the complainant took came back to India and started residing with her brother. In the year, 2023, the petitioner had filed a divorce petition in US Court. Thereafter, on 25.09.2023 the complainant has lodged the present report against the petitioner which itself shows her malafide intention. Had she been subjected to any offence, she might have lodged any complaint on the earlier point of time, but it is only when the petitioner had filed divorce 5 petition at US Court, she lodged the report against the petitioner in India. 8. Relying upon the judgments passed in Manish Sahu Vs. State of Madhya Pradesh & Another, 2024 SCC OnLine MP 2603, Shashank Harsh & Others Vs. State of Madhya Pradesh & Others, 2024 SCC OnLine MP 3750, Kailash Sonkar Vs. State of Chhattisgarh & Another, 2021 SCC OnLine Chh 3258 and Dr. Kirti Bhushan Mishra Vs. State of Uttarakhand & Another, 2024 SCC OnLine Utt 2023, the counsel for the petitioner would submit that as per the amended provisions of Section 375 IPC, the act of petitioner, if any, does not amount to rape and no charge for the offence under Section 377 IPC can be framed against him. The allegation of the complainant has not been supported by any documentary evidence like medical report that there was any unnatural intercourse and therefore the petition may be allowed and the charge for the offence under Section 377 IPC may be quashed. 9. On the other hand, the counsel for the State opposes the submissions and have submitted that there are sufficient material on record which
Decision
In the result, the petition fails and is hereby dismissed. No order asto costs. inder Sd/- (Ravindra Kumar Agrawal) Judge