Deepak Kumar Yadav @ Deepak Kr. Yadav, aged about 43 years, son of Sudhir v. 1. State of Jharkhand 2. Akahksha Kumari, aged about 28 years, Daughter of Munilal
Case Details
1 W.P. (Cr.) No.688 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No. 688 of 2023 Deepak Kumar Yadav @ Deepak Kr. Yadav, aged about 43 years, son of Sudhir Prasad Yadav, permanent resident of Navada Basti, P.O. and P.S. –Jhumri Telaiya, District –Koderma, Presently posted as Deputy Commandant, CRPF, IRLA 8407 in Office of IGP, Jharkhand Sector, Tiril, Dhurwa, P.O. –Dhurwa, P.S. –Jagarnathpur, District –Ranchi. .... Petitioner Versus 1. State of Jharkhand 2. Akahksha Kumari, aged about 28 years, Daughter of Munilal Singh, Resident of West Bokaro Division, Ghato, Bazar Tand, P.O. & P.S. –Ghato, District –Ramgarh. …. Respondents P R E S E N T
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the State For Respondent No.2 : Mr. R.S. Mazumdar, Sr. Advocate : Mr. Rohan Mazumdar, Advocate : Mr. Manish Mishra, G.P.-V : Mr. Nikhil Ranjan, Advocate : Mr. J.S. Singh, Advocate ….. By the Court:- 1. 2. Heard the parties. This writ petition has been filed under Article 226 of the Constitution of India with a prayer to issue appropriate writ for quashing the entire criminal proceeding including the order dated 17.07.2023 passed in connection with Jagarnathpur (Pundag) P.S. Case No. 238 of 2022, passed by the learned Judicial Magistrate 1st Class –XXVII, Ranchi whereby and where under the learned Magistrate differing from the final form submitted by the police 2 W.P. (Cr.) No.688 of 2023 for lack of evidence against the petitioner and in not sending up the petitioner for trial, has taken cognizance for the offence punishable under Section 376 of the Indian Penal Code; on the basis of the statement of the witnesses appearing in different paragraphs of the case diary as well as statement of the victim recorded under section 164 Cr.P.C. 3. The brief fact of the case is that the petitioner on the false pretext of marriage, physically exploited the informant and made her pregnant in January, 2022. There was a surgery conducted in February, 2022 in a hospital and Fallopian Tube of the informant was cut by surgery. There is allegation against the petitioner of mentally harassing the informant and that the petitioner used to abuse and assault her. The petitioner married the informant on 4th November by putting vermilion and stayed together with the victim since 12th November and when they were together, the petitioner used to sexually exploit the informant daily. The petitioner used to threaten the informant to kill her whenever she used to tell the petitioner to perform social marriage and the petitioner later on married a girl namely Varsha on 7th June and is residing with her. It is further alleged that the petitioner suppressed the fact that his first wife has died in the year 2019 and he has two children from his first wife and he has also suppressed his age. On the basis of the written report submitted by the informant, police registered Jagarnathpur (Pundag) P.S. Case No. 238 of 2022 and took up investigation of the case. After completion of the investigation, police submitted charge sheet showing lack of 3 W.P. (Cr.) No.688 of 2023 evidence against the petitioner. During the course of investigation, police found out that the operation of the informant was conducted at the hospital with her consent mentioning her to be the wife of the petitioner and the police also came to know that though initially the informant was ready and willing to solemnize marriage with the petitioner hence their marriage was settled but later on the informant took a U-turn and refused to marry the petitioner and thereafter the petitioner married Varsha on 30.05.2022 and there was lack of evidence regarding the offence alleged against the petitioner therefore, police submitted final form and did not send up the petitioner for trial. The learned Magistrate as already indicated above, differing from the final form, has taken cognizance. 4. It is submitted by the learned senior counsel for the petitioner relying upon the judgment of Hon’ble Supreme Court of India in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and Another reported in (2019) 9 SCC 608, paragraph no.21 of which reads as under:- “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 4 W.P. (Cr.) No.688 of 2023 statements are accepted in totality, no offence under Section 375 IPC has occurred.” That there is no allegation in the F.I.R. that when the petitioner promised to marry the informant, it was done in bad faith or with intention to deceive her rather the material in the record is sufficient to establish that the petitioner all along after entering into the relationship with the informant was ready and willing to marry her and even married her also. It is next submitted by the learned senior counsel for the petitioner that the informant in her re-statement has categorically stated that even after knowing that the petitioner has a first wife who died, still with her consent, she spent time with the petitioner at a hotel at Ranchi and undisputedly, the informant is a major lady, hence the offence punishable under Section 376 of the Indian Penal Code is not made out; even if the allegations made in the F.I.R. and the other materials available in the case diary is treated to be true. It is therefore submitted that appropriate writ be issued for quashing the entire criminal proceeding including the order dated 17.07.2023 passed in connection with Jagarnathpur (Pundag) P.S. Case No. 238 of 2022, passed by the learned Judicial Magistrate 1st Class –XXVII, Ranchi. 5. The learned counsel for the State and the learned counsel for the respondent no.2 on the other hand vehemently opposes the prayer for quashing the entire criminal proceeding including the order dated 17.07.2023 passed in connection with Jagarnathpur (Pundag) P.S. Case No. 238 of 2022, passed by the learned Judicial Magistrate 1st Class –XXVII, Ranchi and submits that the 5 W.P. (Cr.) No.688 of 2023 petitioner has suppressed the facts that the petitioner was earlier married and also his age amounts to obtaining the consent of the informant for establishing physical relationship fraudulently, hence the same is sufficient to constitute the offence punishable under Section 376 of the Indian Penal Code. The learned counsel for the opposite party no.2 relies upon the Judgment of Hon’ble Supreme Court of India in the case of Anurag Soni Vs. State of Chhattisgarh, reported in (2019) 13 SCC 1, para -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.” Hence, it is submitted that this writ petition being without any merit be dismissed. 6. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that in case of consensual sexual relationship, the determining factor is whether the male partner made a false promise or that the male partner engaged in sexual relations on the basis of such false promise. If the same is yes, then only the same will amount rape punishable under section 376 of the Indian Penal Code. 7. Now coming to the facts of the case, there is absolutely no allegation against the petitioner that he made any false promise of 6 W.P. (Cr.) No.688 of 2023 marriage or he had no intention to marry the victim at any point of time rather it is the admitted case of the informant-opposite party no.2 that the petitioner has even married her and in the absence of any allegation against the petitioner that he had at any point of time, not having the intention to marry the informant but still entered into any physical relationship with her and even knowing everything about the petitioner, the victim spent a night with the petitioner with her consent in a hotel as categorically stated by her in her re-statement before the police appearing in para -2 of the case diary, this Court has no hesitation in holding that the learned Magistrate has committed a grave illegality by differing with the final form submitted by police in this case and by taking cognizance for the offence punishable under Section 376 of the Indian Penal Code. 8. After carefully going through the materials in the record, this Court has no hesitation in holding that even if the entire allegation made against the petitioner is treated to be true; still the offence punishable under Section 376 of the Indian Penal Code is not made out against the petitioner. Hence, this Court is of the considered view that this is a fit case where the writ of certiorari be issued for quashing the order dated 17.07.2023 passed in connection with Jagarnathpur (Pundag) P.S. Case No. 238 of 2022, passed by the learned Judicial Magistrate 1st Class –XXVII. 9.
Decision
In the result, this writ petition is allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 28th November, 2023 AFR/Sonu-Gunjan/-