Dr. T. K. Bhattacharya @ Tohid Kumar @ Tarit Bhattacharya, Aged about 43 years v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3696 of 2022 ------ Dr. T. K. Bhattacharya @ Tohid Kumar @ Tarit Bhattacharya, Aged about 43 years. Son of Amiya Bhattacharya, Resident of village Kasila, Bikrampur More, P.O. Pakur, P.S. Pakur (M), District Pakur (Jharkhand) … Petitioner Versus The State of Jharkhand … Opposite Party For the Petitioner For the State ------
Legal Reasoning
: Mr. Gautam Kumar, Advocate Ms. Savita Kumari, Advocate Mr. Ashutosh Kr. Sinha, Advocate : Mr. Manoj Kr. Mishra, Addl.P.P. ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the F.I.R. in connection with Pakur (Mahila) P.S. Case No.12 of 2022 and further to quash and set aside the entire criminal proceedings as well as the order taking cognizance dated 16.11.2022 and order dated 11.04.2023 whereby the prayer to discharge the petitioner has been rejected. 3. The brief facts of the case is that the petitioner developed intimacy with the victim on the pretext of marrying her and committed sexual intercourse with her for about 12 (twelve) years and thereafter denied to marry her. On the basis of the written report submitted by the informant/victim, Pakur (Mahila) P.S. Case No.12 of 2022 was registered. Police took up investigation of the case 1 Cr. M.P. No.3696 of 2022 and submitted charge-sheet against the petitioner. Charges were framed and trial of the case is going on. The victim has been examined as P.W.1. 4. Learned counsel for the petitioner submits that so far, only one witness has been examined during the trial. The victim- P.W.1 who was examined on 20.04.2024, has stated that the petitioner promised to marry the victim and he used to visit her house. The petitioner used to behave with the victim as his wife and he used to pay maintenance amount to her but suddenly one day he refused to marry the informant. In para-6 of her cross-examination, she has stated that she is a married lady and as the petitioner stopped paying maintenance to her, the villagers told her to institute a case against the petitioner. In para-7 she has stated that she used to live with her consent with the petitioner. 5. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Naim Ahamed vs. State (NCT of Delhi) reported in 2023 SCC OnLine SC 89 para-21 of which reads as under:- “21. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, then also to construe such allegations as ‘rape’ by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the 2 Cr. M.P. No.3696 of 2022 accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313 of Cr.P.C. had stated that she had filed the complaint as he refused to fulfill her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC.” (Emphasis supplied) and submits that this is an identical case as that of Naim Ahamed vs. State (NCT of Delhi) (supra); as in this case also the informant/victim is a married lady having four children and the relationship between the petitioner and the victim continued for about 10-12 years. Hence, it cannot be said that the victim acted under the alleged false promise given by the petitioner or under the misconception of giving consent for sexual relationship with the petitioner. Hence, it is submitted that even if the entire materials in the record are considered to be true in their entirety, still the offence punishable under Section 376 of the Indian Penal Code is not made out against the petitioner and thus, the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law. 6. Hence, it is submitted that the F.I.R. in connection with Pakur (Mahila) P.S. Case No.12 of 2022 and the entire criminal proceedings as well as the order taking cognizance dated 16.11.2022 and order dated 11.04.2023 where the prayer to discharge the petitioner has been rejected, be quashed and set aside. 3 Cr. M.P. No.3696 of 2022 7. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner to quash and set aside the F.I.R. in connection with Pakur (Mahila) P.S. Case No.12 of 2022 and the entire criminal proceedings as well as the order taking cognizance dated 16.11.2022 and order dated 11.04.2023 where the prayer to discharge the petitioner has been rejected and submits that the victim has categorically stated that she consented for sexual relationship after promise of marriage was made but later on the petitioner went back from his promise so, the offence punishable under Section 376 of the Indian Penal Code is made out against the petitioner. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 8. Having heard the submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the facts of this case are identical with the facts of Naim Ahamed vs. State (NCT of Delhi) (supra) as like the case of Naim Ahamed vs. State (NCT of Delhi), (supra) in this case the prosecutrix is a married woman having four children and she continued to have relationship with the petitioner for about 10-12 years. She has categorically stated that she is voluntarily residing with the petitioner with her consent. In her deposition in the court, nowhere she has stated that the false promise of marriage of the petitioner was the reason for her consent for sexual relationship. 9. Under such circumstances, this Court is of the considered view that it cannot be said by any stretch of imagination that the prosecutrix had given her consent for sexual relationship with the petitioner under the misconception of fact so as to hold the petitioner guilty of having committed rape within the meaning of Section 375 of the Indian Penal Code. 4 Cr. M.P. No.3696 of 2022 10. Thus, this Court is of the considered view that the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the F.I.R. in connection with Pakur (Mahila) P.S. Case No.12 of 2022 and the entire criminal proceedings as well as the order taking cognizance dated 16.11.2022 and order dated 11.04.2023 where the prayer to discharge the petitioner has been rejected, be quashed and set aside. 11. Accordingly, the F.I.R. in connection with Pakur (Mahila) P.S. Case No.12 of 2022 and the entire criminal proceedings as well as the order taking cognizance dated 16.11.2022 and order dated 11.04.2023 where the prayer to discharge the petitioner has been rejected, is quashed and set aside. 12.
Decision
In the result, this Cr.M.P. stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 26th of June, 2024 AFR/ Animesh 5 Cr. M.P. No.3696 of 2022