Dayanidhi Nayak vs State of Orissa and Others

A.S. Naidu, J.—This application has been filed invoking jurisdiction u/s 482, Cr. P. C., inter alia, praying to quash further proceeding in G.R, Case No. 117 of 1998 corregpond-ing to Jharpokharia P. S. Case No. 11 of 1998, pending before the learned S. D, J. M., Baripada. It appears that on the basis of an F. I. R. lodged by one Subasini Nayak - opp. party No. 2, Jharpokharia P. S. case No. 11 of 1998 was initiated u/s 493, I. F. C. against the petitioner.

The moot point which needs determination in the present case is whether accepting the allegations levelled in the F. I. R. and other materials on record, prima facie case u/s 493. I. P. C. is made out against the petitioner. For better appreciation of the correct facts, narrations made in the F. I. R. are stated herein below,

It is alleged by Subasini Nayak, the informant, that she along with her father and mother were working in the house of Dayanidhi Nayak as domestic help. Dayanidhi promised to marry her and carried on intercourse with her for about one year. He came to the house of the informant in the year 1996 for the first time in the month of ''Margasira'' on a Wednesday during the absence of her mother and father and had sexual intercourse. Thereafter, as and when opportunity was available, he had inter-coure with her on number of occasions. It is further alleged that the said Dayanidhi Nayak had cautioned her not to disclose this fact Co any person. In the meanwhile the informant became pregnant for the last 8 months. Thereafter, as and when the informant requested Dayanidhi to marry her, he stalled over the matter on some pretext or other and also threatened her. It is further alleged that about 19 to 20 days before lodging the F.I.R., said Dayanidhi took her to his house at night and kept her there, but on the next day morning, drove her out from the house. He also denied to be the father of the child conceived by her. These facts were told by the informant before her father and mother and a village meeting was convened, but Dayanidhi did not admit any of the facts in the meeting and the informant was constrained to file the F. I. R. on 6-2-1998.

The learned S. D. J. M., on the basis of the charge sheet submitted by the police, took cognizance u/s 493 read with 506, I. P. C. The petitioner surrendered before the S. D J. M. and his bail application being rejected, moved the learned Sessions Judge and thereafter this Court and by the order dated 16-4 98, he was released on bail.

The learned counsel for the petitioner vehemently submitted that the allegations made in the F.I.R.. if accepted in toto also do riot make out prima facie case u/s 493, I. P. C. , It is submitted that the accused practised deception to induce the informant to believe that he was lawfully married to her, is neither alleged nor established. For correct appreciation Section 493, I. P. C. is quoted herein below :

"493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage-Every man who by deceit causes any woman who is not lawfully married to him believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that behalf, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Reading of che provisions of Section 493, I. P. C. leads to an irresistible conclusion that only if cohabitation or sexual intercourse is carried by deceitfully making the woman to believe that the accused was lawfully married to her, the basic ingredients of the section would be fulfilled. Thus, the essence of offence under the section is practising deception by a man on a woman in consequence of which the woman is made to believe that she is lawfully married to him, even though, they are not married.

In the case of Saurava Barik Vs. Smt. Gouri Kandi alias Gouri, the basic ingredients necessary to be established for bringing home the offence u/s 493, I. P. C. are catalogued as follows :--

(i) The accused practised deception ;

(ii) such deceit was to induce the woman to believe that sbe was lawfully married to him.

(iii) there was cohabitation or sexual intercourse as a result of the deception.

The same is the view in the case of Raghunath Padhy Vs. The State, Janaki Kumar Das v. Gajendra Das (1990) 3 O. C. R. 367 , and Amruta Gadtia v. Trilochan Pradhan and Anr. (1993) 6 O.C.R 14. The above view also finds support from a Full Bench decision of Kerala High Court in the case of Moideenkutty Haji and Others Vs. Kunhikoya and Others, well as in the case.

Scrutinising the present case under the wide spectrum of the ratio laid down by the decisions quoted supra, I am convinced that none of the ingredients mandatorily required to bring home the offence u/s 493, I. P. C. is made out. The informant, neither in the F. I. R. nor in her statement, given u/s 161, Cr. P. C. has a alleged that she was induced by the petitioner and was made to believe that she was married at any time to the petitioner-accused, nor it is the case of the informant that she ever believed that ceremony of marriage was performed between the informant and the accused. Thus, the basic requirement of deception caused by a man on a woman in consequence of which she consented for sexual intercourse, has not been made out. Further, it appears from the reading of the F.I.R. that the sexual relationship between the informant and the accused was continuing right from 1996 whereas the F. I. R. was lodged two years after i. e. in February, 1998. As alleged by the informant, the petitioner refused to marry her and denied to be the father of the child conceived by her.

Taking into account the legal position and the facts and circumstances of the case discussed in the preceedihg paragraphs, I have no hesitation but to hold that the order of cognizance u/s 493, I.P.C. is not sustainable in the eye of law and permitting the G. R. case to proceed against the petitioner under the said charge will be abuse of the process of law. I, therefore, quash the charge u/s 493, I.P.C. However, the case will proceed u/s 506, I.P.C. . I also give liberty to the learned S.D.J.M. to frame such other charges, as would deem just and proper on the basis of the materials available on record.

The criminal misc. case is disposed of accordingly.

Crl. misc. case disposed of.