In the matter of an application under Articles 226 and 227 of the Constitution v. State of Odisha and others
Case Details
HIGH COURT OF ORISSA: CUTTACK CRLMP No.523 of 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Birendra Nath Rath … Petitioner - Versus - State of Odisha and others … Opposite parties For Petitioner … M/s. Devashis Panda, A. Mehta & D.K. Panda. For Opposite Parties … Additional Standing Counsel (For O.P. Nos.1 to 4) Mr. B.S. Tripathy, Advocate (For O.P. No.5) -------------- PRESENT: THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 29.08.2023 : Date of judgment : 02.11.2023 A.K. Mohapatra, J. The present petition has been filed by invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of the India to quash the F.I.R. under // 2 // Annexure-1 to the petition, arising out of Rajgangpur P.S. Case No.23 of 2022, corresponding to G.R. Case No.35 of 2022, pending in the file of the learned J.M.F.C., Rajgangpur. 2. On perusal of the record, it appears that the Petitioner is the sole accused in the above noted G.R. case, which was initiated on the basis of a written complaint lodged by the Opposite Party No.5 at Rajgangpur Police Station alleging therein commission of offence under Sections 376(2)(n), 294 & 506 of I.P.C. 3. The prosecution story as culled out from the F.I.R. under Anexure-1 is that the Opposite Party No.5-Victim- Informant lodged a complaint before the Officer-in-Charge, Rajgangpur Police Station on 20.01.2022, inter alia, alleging that she came to know the present Petitioner from their mutual business acquaintance and, as such, she had entered into a joint venture with him in various businesses activities. Thereafter, the Petitioner started proposing the Informant and // 3 // kept on telling her that he wants to get into a relation with her and to marry her. The Informant further stated that she had conveyed to him that she is the widow and is also a single mother raising a 7 years old daughter alone under very harsh circumstances. Thus, such condition would not permit her to give consent for such marriage and hence she did not accept the proposal initially given by the Petitioner. Thereafter, the Petitioner started putting more pressure on the Informant- Victim and promised that he will convince his parents as his parents have a very modern outlook and practice modern values. She has further stated that since the Petitioner persisted on the relationship and repeatedly extended such proposal and on seeing his efforts she subsequently accepted his proposal and went into a relationship with the Petitioner. 4. The F.I.R. further reveals that from August, 2021 the Petitioner persuaded the Informant to get into a physical relationship with her which she denied initially as they were not married. On 5th August, 2021, the Petitioner intimated // 4 // the Informant that he had some conversation with her regarding their business and, accordingly, he told that he is coming in the evening at about 7 ‘O’ Clock to pick her up and to have a talk with her in the car. Thereafter, the Petitioner came and picked her up and started conversation while they both were in the car. Suddenly, the Petitioner changed the route of the car and drove the car towards the empty Ranchi Road and taking advantage of the loneliness, the Petitioner made physical advances towards the Informant- Victim. The Informant has further stated that although she tried to resist but could not. Thereafter, the Petitioner forced himself into her and committed rape on her. 5. After the aforesaid incident, the Petitioner came to the residence of the Informant continuously on number of occasions. After few days the Informant came to know that the Petitioner has not even divorced his wife. She has further stated that the Petitioner told her that his divorce case is going on and very soon he is going to be separated from his // 5 // wife and that at the moment the Petitioner is staying separately. The Informant stated that she believed him. She has also stated that on many occasions the Petitioner took her out of town to Bhubaneswar and Kolkata for travelling and introduced her as his would be wife and that they are getting married soon. Thereafter, they were in a physical relationship for so many days continuously at her residence. 6. Eventually, the Informant came to know the wife of the Petitioner. When she visited their house on being invited by the Petitioner’s wife, the Informant could know that everything is fine between husband and wife. Moreover, the wife of the Petitioner requested the Informant to help her husband in his business as because some problem has just started in his business with the OCL Company. While this was the position, the Petitioner started avoiding the Informant and did not pick up her calls and was not even replying to the text messages sent by the Informant. She went to the office of the Petitioner and asked the reason behind such type of // 6 // behaviour, to which, the Petitioner said that he is already married and is living with his wife and, as such, he cannot marry the Informant. At that moment, the Informant realized that the Petitioner has been telling lies to her just to have physical relationship with her. When she reminded him about the promise regarding marriage and taking up her responsibility which he had promised earlier, the Petitioner denied to take any such responsibility and in fact, informed her that he is severing all relationship with her. He then asked her not to contact him anymore. He had further threatened to kill her if the Informant discloses about the relationship or makes any attempt to contact him. It is also alleged that the Petitioner had also abused her in filthy language. The Petitioner also threatened her by saying that many influential people are in contact with him and, as such, any effort by the Informant to approach the police would be futile. She has stated that she is getting threats from the relatives of the Petitioner. Finally, she has stated that the Petitioner has // 7 // stopped all sorts of contact with her and he is not letting her to enter into his house. Accordingly, the Petitioner finding no other alternative has approached the Rajgangpur Police Station by filing the present F.I.R.
Legal Reasoning
referred to the judgment of this Court in G. Achyut Kumar v. // 12 // State of Odisha (CRLA No.940 of 2019 decided vide judgment dated 21.05.2020). By referring to the aforesaid judgment, learned counsel for the Petitioner submitted that in the aforesaid case, this Court had held that, the law holding that false promise to marriage amounts to rape appears to be erroneous. Moreover, the authoritative commentary on Criminal Law by Glanville William corroborates this proposition of law. Since the framers of law have specifically provided the circumstances when ‘consent’ amounts to ‘no consent’ in terms of Section 375 of I.P.C. Therefore, the consent for the sexual act on the pretext of marriage is not one of the circumstances mentioned under Section 375 of I.P.C. In view of the aforesaid finding by this Court in the above referred judgment, learned counsel for the Petitioner submitted that the present case falls under the aforesaid category. Learned counsel for the Petitioner further referring to the statements of the witnesses recorded by the police submitted that such statements would go a long away to // 13 // establish the consensual physical relationship between the Petitioner and the Informant and, as such, it cannot be said that the Opposite Party No.5-Informant is a victim of any sexual offence which would warrant lodging of an F.I.R. under the alleged sections of the I.P.C. Mr. Panda, learned counsel for the Petitioner would also refer to the judgment of the Hon’ble Supreme Court in State of Haryana v. Ch. Bhajan Lal reported in AIR 1992 SC 604, and submit before this Court that the said judgment lays down the principles for quashing of a F.I.R. Referring to one of the principles, i.e., where the allegation in the F.I.R if taken at their face value and accepted in their entirety would not disclose commission of an offence and make out a case against the accused, Mr. Panda Submitted that the F.I.R. in the present case deserves to be quashed in the interest of justice and to prevent abuse of process of law. 14. In Uday v. State of Karnataka, reported in (2003) 4 SCC 46, referred to by learned counsel for the Petitioner, the // 14 // Hon’ble Apex Court had an occasioned to examine general concept of consent and has concluded that consent in the belief that promise of marriage was meant to be fulfilled cannot be a misconception of fact to bring it within the ambit of Section 90 of I.P.C. and finally it was held that voluntary consent depends upon facts of the case and various other factors such as the age of the girl, her education and social status and that the informant being otherwise a consenting party to consensual physical relationship with Petitioner, the case is otherwise a fit case calling for interference of this Court in exercise of its original jurisdiction as well as inherent power to quash the FIR under Annexure-1 to the petition. 15. The word consent has been defined in Stroud’s Judicial Dictionary. Such definition reveals that consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. Further referring to observation in 1982 QB 320 (CA) in the case of Holman v. // 15 // R, where it has been held that consent to intercourse by a woman may be hesitant, reluctant or grudging, but if she consciously permits it, there is consent. Reference has also been made to the observation in Clarence v. R, reported in (1888) 22 QBD 23 wherein Stephen J. has observed and quoted “It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true.” The observations of Wills, J. have also been quoted therein with approval which reads as follows:- “That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to have intercourse with her, he obtains her consent by fraud, but it would be childish to say that she did not give consent.” // 16 // 16. Learned counsel for the Petitioner in course of his argument also referred to the judgment of the Delhi High Court in X v. State, reported in 2020 SCC Online Del 1631. In the said judgment, Delhi High Court has come to a conclusion that it is difficult to accept that continuing with an intimate relationship which also involves engaging in sexual activity over a significant period of time, can be construed as involuntary and secured not by affection but only on the lure of marriage. 17. Finally, it was contended by the learned counsel for the Petitioner that offence under Section 376(2)(n) of I.P.C. having not been made out on the basis of the F.I.R. allegation, the offences under Sections 294 or 506 of I.P.C. are also not made out against the Petitioner as the basic ingredients of the aforesaid two offences are lacking. Accordingly, it was submitted that the present case is a fit case which calls for interference of this Court in exercise of // 17 // its original jurisdiction as well as the inherent power to quash the F.I.R. 18. Learned counsel for the Informant as well as learned Additional Standing Counsel, who were sailing in the same boat, jointly opposed the prayer for quashing of the F.I.R. as well as the investigation in the present case. It was argued by learned counsel appearing for the Opposite Parties that on the basis of the allegation made in the F.I.R., a prima facie case under Section 376(2)(n) of the I.P.C. is well made out against the present Petitioner. It was also contended that the F.I.R. story clearly reveals that the consent of the Opposite Party No.5 was obtained with a promise to marry and a promise to take up the responsibility of the Informant and her daughter. It was also contended that the Petitioner had assured that he would divorce his wife and marry the Informant in due course. However, the same did not happen. On the contrary, it is alleged that the Informant on being invited to the house of the Petitioner by his wife came to learn that they are // 18 // having a good relationship and, as such, the basic premise on which the relationship was developed was based on fraud. Therefore, the Informant was lured to enter into a physical relationship on the basis of a false promise. It was also contended that such falsehood was pre-existing before the relationship started between the two. Therefore, it was urged before this Court that a clear case under Section 376(2)(n) of the I.P.C. is made out against the present Petitioner and, accordingly, he is liable to face the trial for commission of such offences. 19. Learned counsel for the Opposite Parties further drawing attention of this Court to the statement of the witnesses recorded under Section 161 of Cr.P.C. made an attempt to establish the fact that a clear case under Section 376 of I.P.C. is made out against the present Petitioner. It was also contended by the learned counsel for the Opposite Parties that the alleged crime in the F.I.R. is of heinous nature. Therefore, this Court should not interfere with the // 19 // F.I.R. or the subsequent investigation or the charge sheet by invoking either the original jurisdiction or the inherent power of this Court. It was also contended that the exercise of such jurisdiction by this Court would be against the interest of justice. Hence, it was prayed that the petition is devoid of merit and, accordingly, the same should be dismissed. 20. Having heard learned counsel appearing for the respective parties and on a careful examination of the case diary as well as the statement of the witnesses recorded under Section 161 of Cr.P.C. and other relevant materials on record, this Court is of the considered view that to quash the F.I.R. and to terminate consequential investigation, this Court has to look at the F.I.R. keeping in view the principles laid down by the Hon’ble Supreme Court in Ch. Bhajan Lal’s case (supra). In the event the factual allegations in the F.I.R. falls within the ambit of the seven principles laid down by the Hon’ble Supreme Court in Ch. Bhajan Lal’s case (supra), only then // 20 // this Court would interfere with the investigation and quashed the F.I.R. 21. Learned counsel for the Petitioner lays much emphasis on the principles as laid down in Ch. Bhajan Lal’s case (supra) to the extent that in the event this Court is of the view that the allegation in the F.I.R., if taken at their face value and accepted in their entirety do not disclose commission of an offence and, as such, make out a case against the accused- Petitioner, the F.I.R. in such cases deserves to be quashed and the consequential investigation be put to an end. The factual background as narrated in the F.I.R. by the Informant herself reveals that the first encounter in August, 2021 on the lonely Ranchi Road was somewhat forcible. Thereafter, she had made adjustments with the circumstance and accordingly a request was made by the Petitioner for having a physical relationship. It further appears they continued with the physical relationship for a long time and that the Informant was moving around with the Petitioner and she was being // 21 // introduced to the outsider as would be wife of the Petitioner. It appears that she had no objection to such introduction of her to the society at least there is nothing on record to reveal that she even objected to that. She also admitted that the Petitioner was visiting her residence and they were in a relationship. Considering the age of the victim as well as her understanding, social standing etc., this Court has no hesitation to come to a conclusion that she is a matured lady and capable of taking her own decisions. After the first encounter, when she did not approach the police alleging commission of an offence and subsequently accepted the Petitioner and maintained a physical relationship with her, the same would definitely speak a volume about her consent in the physical relationship with the Petitioner. Applying the principle as discussed hereinabove with regard to consent to the facts of the present case, this Court is of the view that the conclusion would be inevitable that the Informant was with a consensual sexual relationship with the Petitioner. The belief // 22 // of this Court is further strengthened by the fact that the Informant was aware of the marital status of the Petitioner and knowing the same fully well she was in a relationship with the Petitioner. Therefore, it cannot be said that she did not know about the Petitioner’s marital status. Furthermore, the F.I.R. was lodged only when the Petitioner refused to marry the Informant and to take up her responsibility. Being aggrieved by such conduct of the Petitioner, the Informant has lodged the present F.I.R. 22. On a careful analysis of the factual background of the present case as well as on a plain reading of the F.I.R., this Court is convinced that no case under Section 376(2)(n) of the I.P.C. can be said to have been made out on the basis of the F.I.R. allegation. Therefore, the offence under Section 376(2)(n) of the I.P.C., so far the present Petitioner is concerned, is hereby quashed. With regard to allegations under other sections of the I.P.C., it is open to the trial court to come to a just and fair conclusion after conducting the full // 23 // fledged trial by taking evidence from both the sides. Further, it is also open to the trial court to critically examine the allegations made in the F.I.R. and taking into consideration the statement of the witnesses and, accordingly, the charges may be varied/modified in the event it appears that the Petitioner is guilty of any other offences under the Indian Penal Code or any other penal statute. 23. With the aforesaid observations and directions, the CRLMP is disposed of. However, in the facts and
Arguments
7. Heard Mr. Devashis Panda, learned counsel appearing for the Petitioner; Mr. B.S. Tripathy, learned counsel appearing for the Opposite Party No.5; as well as learned Additional Standing Counsel appearing for the State- Opposite Parties. Perused the petition as well as the documents annexed thereto. 8. Mr. Panda, learned counsel appearing for the Petitioner, at the outset, submitted that the Petitioner is a businessman having his own business establishment at Rajgangpur in Sundargarh District. The Petitioner was doing business with one Abhinandan Roy Choudhary, who got married to Opposite Party No.5-Informant. A few months after such marriage, the above named Abhinandan Roy Choudhary died // 8 // in a suspicious circumstance where after the business interests of Abhinandan Roy Choudhary were being looked after by his widow, the Informant in the present case. Mr. Panda further contended that the Informant is an adult much above the age of discretion. In course of their acquaintance, both of them have developed familiarity with each other leading to the parties maintaining a physical relationship and eventually cohabitation, although the Petitioner is a married man. The marital status of the Petitioner was well within the knowledge of the Opposite Party No.5-Informant. 9. Mr. Panda, learned counsel appearing for the Petitioner further contended that in course of their business activities, a dispute arose between the Petitioner and the Opposite Party No.5 and in order to feed fat to her grudge, she has registered the F.I.R. making allegations against the Petitioner. Referring to the facts of the present case, learned counsel for the Petitioner further argued that on 5th August, 2021, as alleged by the Informant, the Petitioner ravished her at a lonely place // 9 // on the Ranchi Road. However, she has further stated that after such incident the Petitioner was going to her house on several occasions and that they were moving around and she was being introduced to outsiders as the would be wife of the Petitioner. He further contended that the statements recorded under Section 161 Cr.P.C. and 164 of Cr.P.C. reveals that the maid as well as the daughter of the Informant have been examined and in course of such examination, they have stated that the Petitioner was a frequent visitor to the Informant’s house and he used to stay overnight with her in the bedroom. He further contended that the Informant herself admitted that she used to accompany the Petitioner on visits outside the town. Thus, it was contended that the relationship between the two was consensual and that there is nothing on record which would lead to the conclusion that both the Petitioner and the Informant had a non-consensual sexual intercourse. 10. Referring to the medical documents, learned counsel for the Petitioner submitted that such medical documents // 10 // disclosed that in August, 2021 when she was allegedly ravished by the Petitioner, Opposite Party No.5-Informant was pregnant and that the discharge summery was issued by the hospital after she underwent a termination of pregnancy. Such medical documents have been filed by way of an additional affidavit dated 4.4.2022. 11. Learned counsel for the Petitioner also tried to draw attention of this Court to another F.I.R., i.e., F.I.R. No.148 dated 30.05.2020 registered under Sections 376/478/506/34 of the I.P.C. against one Gourav Rekhi and others, now pending in the Court of the learned A.C.J.M., Alipore, Jadavpur, West Bengal. The said F.I.R. was lodged by the Informant herself making allegation against the above named Gourav Rekhi. Referring to the aforesaid F.I.R., it is alleged by Mr. Panda, learned counsel appearing for the Petitioner, that the Informant is in the habit of luring married men to obtain sexual favours from them and to entangle them in false cases. // 11 // 12. In course of his argument, Mr Panda, learned counsel appearing for the Petitioner referring to the F.I.R. under Annexure-1 submitted that the investigation into the allegation made in the F.I.R. is highly illegal, erroneous and unsustainable in law, as no prima facie case is made out on the basis of the allegation made by the Informant under Section 376(2)(n)/294/506 of the I.P.C. He further emphatically argued that even accepting the allegation made in the F.I.R. on its face value, but without conceding no case under Section 376(2)(n) of the I.P.C. is made out against the present Petitioner. It was also contended that the Investigating Officer gets power under the provisions of the Cr.P.C. to investigate into the matter whenever a cognizable offence is made out on the basis of the F.I.R. allegation. Since the F.I.R. under Annexure-1 does not reveal any cognizable offence, subsequent investigation is void ab initio. 13. In course of hearing, learned counsel for the Petitioner
Decision
circumstances, there shall be no order as to costs. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 2nd November, 2023/D. Aech, Secretary. Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 04-Nov-2023 12:47:40