Pankaj Kumar Das, aged about 25 years, son of Virendra Kumar Ram, resident of v. The State of Jharkhand
Case Details
Cr. M.P. No.3309 of 2023 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3309 of 2023 ------ Pankaj Kumar Das, aged about 25 years, son of Virendra Kumar Ram, resident of Village Asna Indrwa, P.O. Jhumri Tilaiya, P.S. Tilaiya, District Koderma (Jharkhand) … Petitioner Versus The State of Jharkhand … Opposite Party For the Petitioner For the State ------ : Mr. Sahil, Advocate Mr. Shashi Kant Mishra, Advocate Mr. Avilash Kumar, Advocate Mr. Sachin Mahato, Advocate : Mr. Shiv Shankar Kumar, Addl. P.P. ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
Legal Reasoning
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 order taking cognizance dated 09.08.2023 passed by learned J.M.-1st Class, Hazaribagh in connection with Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 whereby and where under the learned court below has been pleased to take cognizance for the offence punishable under Sections 376 and 364 of the Indian Penal Code against the petitioner; along with the entire criminal proceedings of the said Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023; which upon being committed to the court of Sessions, S.T. No.458 of 2023 has been registered and the said case is now pending in the court of learned Additional Sessions Judge- 1st, Hazaribagh. 1 Cr. M.P. No.3309 of 2023 3. Learned counsel for the petitioner submits that the charge has not yet been framed against the petitioner. 4. The allegation against the petitioner is that the petitioner had been sexually exploiting the informant five years prior to lodging of the F.I.R. on 06.06.2023; on the pretext of marrying her. There is specific allegation against the petitioner that on 02.05.2023, the petitioner established physical relationship with the informant in a hotel at Jhumri Tilaiya. On 04.06.2023, the petitioner called the informant to Barhi and took the informant in a bike towards the jungle where the informant saw three friends of the petitioner. Suspicion arose in the mind of the informant that the petitioner might kill her. The informant instructed the petitioner to stop the bike but the petitioner instead of stopping the bike enhanced the speed of the bike. The informant raised hue and cry. Many people assembled there and the petitioner and his friends fled away. The bike was handed over to police. After investigation of the case, police found the allegations against the petitioner to be true and submitted charge-sheet. Vide order dated 09.08.2023, the learned Judicial Magistrate-1st Class, Hazaribagh has taken cognizance against the petitioner for the offences punishable under Sections 376, 364 of the Indian Penal Code. 5. Learned counsel for the petitioner submits that the allegations against the petitioner are out and out false. There is no allegation that the petitioner had promised to marry the informant without having any intention to marry her. It is next submitted that the Annexure-2 is an unimpeachable document issued by the competent authority of the Border Security Force (BSF) of which the petitioner is the employee and which establishes that the petitioner was granted leave on 08.05.2023 forenoon and both on 02.05.2023 and 04.05.2023, 2 Cr. M.P. No.3309 of 2023 the alleged date of occurrence of this case, the petitioner was at Handwara, Kupwara in the State of Jammu & Kashmir. Drawing attention of this Court towards Annexure-3 which is the railway journey ticket of the petitioner,
Legal Reasoning
learned counsel for the petitioner submits that the petitioner boarded Kolkata Express at 20:30 hours on 08th May, 2023 from Jammu Tawi and reached Koderma Junction on 10th May, 2023 at 7:46 hours. Hence, it is submitted that the presence of the petitioner at the alleged place of occurrence situated in the district of Hazaribagh on 04.06.2023 is highly unlikely. 6. It is next submitted that earlier also the informant filed Complaint Case No.508 of 2019 making self-same allegation against the petitioner and in this respect, learned counsel for the petitioner draws the attention of this Court towards Annexure-5 which is the copy of the certified copy of the judgment passed by the Judicial Magistrate-1st Class, Koderma in the said Complaint Case No.508 of 2019; wherein the complainant alleged that she was married with one Sanjit Kumar Das and even after her marriage with Sanjit Kumar Das, she used to talk with the petitioner. Hence, there used to be quarrel between the parties. Hence, the petitioner and his family members told the informant that after the divorce with her husband, they will get her married with the petitioner and the date of marriage was also fixed. The complainant divorced her husband but when the informant insisted for marriage with the petitioner, the petitioner demanded dowry and when the family members of the complainant refused to meet the demand of dowry, the petitioner refused to marry the complainant and on 26.03.2019, the petitioner established illicit relationship with the informant. In that case during the trial, the complainant did not produce any witness either oral or documentary and the case was 3 Cr. M.P. No.3309 of 2023 closed for no evidence and the petitioner was found not guilty of the offences punishable under Section 323 and 341 of the Indian Penal Code and all these facts have been suppressed by the informant in the First Information Report only for wrecking vengeance and the same amounts to abuse of process of law. Hence, it is submitted that the order taking cognizance dated 09.08.2023 passed by learned J.M.-1st Class, Hazaribagh in connection with Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 whereby and where under the learned court below has been pleased to take cognizance for the offences punishable under Sections 376 and 364 of the Indian Penal Code against the petitioner along with the entire criminal proceedings of the said Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 which is now pending in the court of learned Additional Sessions Judge-1st, Hazaribagh, be quashed and set aside against the petitioner. 7. Learned Addl.P.P. appearing for the State vehemently opposes the prayer for quashing and setting aside the order taking cognizance dated 09.08.2023 passed by learned J.M.-1st Class, Hazaribagh in connection with Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 whereby and where under the learned court below has been pleased to take cognizance for the offence punishable under Sections 376 and 364 of the Indian Penal Code against the petitioner along with the entire criminal proceedings of the said Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 which is now pending in the court of learned Additional Sessions Judge-1st, Hazaribagh and submits that there is direct and specific allegation against the petitioner of establishing physical relationship with the informant on the false pretext of 4 Cr. M.P. No.3309 of 2023 marriage, hence, it is submitted that there being no merit in this Cr.M.P., the same be dismissed. 8. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of in the case of Krishna Lal Chawla & Others vs. State of Uttar Pradesh & Another reported in (2021) 5 SCC 435 paragraphs-13 and 26 of which read as under:- 13. It is also crucial to note that in the fresh complaint case instituted by him, Respondent 2 seems to have deliberately suppressed the material fact that a charge-sheet was already filed in relation to the same incident, against him and his wife, pursuant to NCR No. 160 of 2012 (Crime No. 283 of 2017) filed by Appellant 1’s son. No reference to this charge-sheet is found in the private complaint, or in the statements under Section 200 CrPC filed by Respondent 2 and his wife. In fact, both the private complaint and the statement filed on behalf of his wife, merely state that the police officials have informed them that investigation is ongoing pursuant to their NCR No. 158 of 2012. The wife’s statement additionally even states that no action has been taken so far by the police. It is the litigant’s bounden duty to make a full and true disclosure of facts. It is a matter of trite law, and yet bears repetition, that suppression of material facts before a court amounts to abuse of the process of the court, and shall be dealt with a heavy hand (Ram Dhan v. State of U.P. [Ram Dhan v. State of U.P., (2012) 5 SCC 536 : (2012) 3 SCC (Cri) 237] ; K.D. Sharma v. SAIL [K.D. Sharma v. SAIL, (2008) 12 SCC 481] ). 26. It is a settled canon of law that this Court has inherent powers to prevent the abuse of its own processes, that this Court shall not suffer a litigant utilising the institution of justice for unjust means. Thus, it would be only proper for this Court to deny any relief to a litigant who attempts to pollute the stream of justice by coming to it with his unclean frivolous and vexatious hands. Similarly, a proceedings cannot claim unlimited right upon court time and public money to achieve his ends.” (Emphasis supplied) litigant pursuing that it is the litigant’s bounden duty to make a full and true disclosure of facts. It is a matter of trite law that suppression of material facts before a court amounts to abuse of the process of the court. 5 Cr. M.P. No.3309 of 2023 9. It is also a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case Sonu @ Subhash Kumar vs. State of Uttar Pradesh and Another reported in (2021) 18 SCC 517 that to establish whether the "consent" in the case of alleged rape is 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 and 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. 10. The Hon’ble Supreme Court of India in the case of Maheshwar Tigga vs. State of Jharkhand reported in (2020) 10 SCC 108 has held as under in paragraph Nos. 14, 15 & 20:- “14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her. 15. In Uday [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] , the appellant and the prosecutrix resided in the same neighbourhood. As they belonged to different castes, a matrimonial relationship could not fructify even while physical relations continued between them on the understanding and assurance of marriage. This Court observed as follows : (SCC pp. 56-57, para 21) “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by to sexual intercourse is voluntary, or whether it is given under a the prosecutrix 6 Cr. M.P. No.3309 of 2023 misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” 20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberate choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] are considered relevant : (SCC p. 58, para 25) 25. … It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.” (Emphasis supplied) and further reiterated the settled principle of law that the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. 11. Now, coming to the facts of the case, there is absolutely no allegation against the petitioner that the petitioner had never any intention to marry the 7 Cr. M.P. No.3309 of 2023 informant and the alleged sexual exploitation of the informant carried over a period of five years and in between which the informant also instituted Complaint Case No.508 of 2019 but during the pendency of that case, the trial of which was concluded only on 25.05.2023; the informant could not have allowed the petitioner to establish physical relation with her on the false pretext of marriage when the said complaint case was very much pending. So, from the aforesaid facts, this Court has no hesitation in holding that this is a false case instituted against the petitioner for wrecking vengeance by suppression of material facts of earlier institution of the case on similar allegations, in which the petitioner has been acquitted, hence, the continuation of this case will amount to abuse of process of law. 12. Hence, this Court is of the considered view that this is a fit case where the order taking cognizance dated 09.08.2023 passed by learned J.M.-1st Class, Hazaribagh in connection with Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 whereby and where under the learned court below has taken cognizance for the offence punishable under Sections 376 and 364 of the Indian Penal Code against the petitioner along with the entire criminal proceedings of the said Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 which is now pending in the court of learned Additional Sessions Judge-1st, Hazaribagh, be quashed and set aside qua the petitioner. 13. Accordingly, the order taking cognizance dated 09.08.2023 passed by learned J.M.-1st Class, Hazaribagh in connection with Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 whereby and where under the learned court below has taken cognizance for the offence punishable under Sections 376 and 364 of the Indian Penal Code against the petitioner along with 8 Cr. M.P. No.3309 of 2023 the entire criminal proceedings of the said Barhi P.S. Case No.261 of 2023 corresponding to G.R. No.1403 of 2023 which is now pending in the court of learned Additional Sessions Judge-1st, Hazaribagh, is quashed and set aside qua the petitioner. 14.
Decision
In the result, this Cr.M.P. stands allowed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 12th of February, 2024 AFR/ Animesh 9