Kajol Das vs State Of West Bengal

Madhumati Mitra, J

This is an application under Section 482 read with Section 401 of the Code of Criminal Procedure filed by the petitioner praying for quashing of the proceedings in Secessions Case No. 14(07) of 2014 arising out of Kalyani Police Station Case No. 338 of 2013 dated 9th July, 2013 under Sections 417/376/323/506/34 of the Indian Penal Code correspending to G.R. Case No. 999 of 2013.

Learned counsel appearing for the State has produced case diary as per the direction issued by this Court.

Learned counsel appearing for the petitioner while making his submission in favour of quashing of the criminal proceedings pending against the present petitioner submits before the Court that the allegations contained in the FIR lodged by the victim lady with the Police Station did not disclose the commission of the offences alleged. According to his contention, the ingredients of the offences punishable under Sections 417/376 of the Indian Penal Code are totally absent in the First Information Report lodged by the de facto-complainant.

Learned counsel further contends that continuance of the criminal proceedings against the petitioner would be an abuse of the process of Court. In support of his contention, he draws the attention of the court to the averments of the First Information Report lodged by the opposite party no. 2/the victim lady before the Police Station and contends that there was love affairs between the petitioner and the victim lady. It is his specific contention that their marriage was settled by their parents. Learned counsel invites the attention of court to the FIR and submits that the petitioner had served notice for his marriage with the victim lady on June 25, 2013 by registration and before expiry of the period of notice of 30 (thirty) days, the victim lady initiated criminal proceedings against the petitioner. Learned counsel forcibly submits that from the contents of the FIR, it appears that from the very beginning the petitioner was willing to marry the victim lady and the alleged sexual cohabitation was the result of consent of the victim lady. According to his contention the petitioner cannot be prosecuted for commission of alleged offences.

In support of his contention, the learned counsel appearing for the petitioner cites the following decisions:-

1) Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr. reported in Criminal Appeal No. 1165 of 2019 (@ SLP (Crl) no 2712 of 2019;

2) Jayanta Biswas Vs. State of West Bengal (Calcutta) reported in 2012 (1) AICLR 493;

3) Deepak Gulati Vs. State of Haryana reported in (2013)7 Supreme Court Cases 675;

4) Jayanti Rani Panda Vs. State of West Bengal (Calcutta) & Anr.( Division Bench) reported in 1984 CriLJ 1535;

5) Puran Giri Vs. State of West Bengal & Anr. reported in 2016 CriLJ 2475;

6) Uday Vs. State of Karnataka reported in 2003(2) RCR (Criminal) 99 and

7) Shyamapada Tewari Vs. The State of West Bengal & Anr. reported in 2008(1) FJCC 169.

On the other hand, learned counsel appearing for the State opposes the prayer of the petitioner for quashing of the criminal proceedings pending against him before the learned Court below. During the course of hearing, the learned counsel for the State draws the attention of the Court to the relevant portions of the case diary particularly the statement of the victim girl recorded under Section 164 of the Cr.PC and the statement of the witnesses recorded under Section 161 of the Cr.PC. It is his specific contention that the materials collected by the Investigating Officer during investigation prima facie indicate the commission of the alleged offence against the petitioner. From the submission made by learned counsel appearing for the State, it appears that the charge was framed against the petitioner in the year 2014 and due to the pendency of this revisional application, the trial could not be proceeded.

I have perused the FIR as well as the case diary. I have also considered the submission and rival submission made by the learned counsel appearing for the parties and the decision so cited at Bar.

In the celebrated decision of State of Haryana Vs. Bhajanlal reported in 1992 Supp (1) Supreme Court Cases page 222 our Apex Court laid down the parameters and mentioned the categories of cases where the High Court can exercise its extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure and to quash the proceedings pending against the accused. In the said judgment, our Apex Court laid down that the power of the High Court under section can be exercised where the allegations made in the First Information Report or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Before proceedings further, I may look into the averments of the complaint lodged by the victim lady before the Police Station. From the allegations contained in the said First Information Report, it appears that two years prior to the lodging of the FIR, the petitioner gave proposal of making love with the opposite party and the proposal was turned down by the opposite party. Then the petitioner started to harass the victim lady in various ways. Then the victim lady disclosed the entire incident of her harassment by the petitioner to the parents of the petitioner. Then the parents of the petitioner gave proposal of marriage of the petitioner with the victim lady. The parents of the petitioner told the parents of the victim lady that the marriage would be solemnized after the petitioner getting any job as at the relevant point of time he was unemployed. Thereafter, both the petitioner and the victim lady started to mix with each other and used to visit different places. One day taking the advantage of the absence of the parents of the victim lady in her residence, the petitioner forcibly committed rape on her against her consent. When the victim lady started crying, the petitioner assured her that he would marry her and requested her not to disclose the incident to any person. Thereafter, the petitioner started to cohabit with the victim lady against her will. Thereafter, the petitioner got employment in a jewellery shop but did not show any interest to marry the victim lady. Thereafter, on June 25, 2013 the petitioner visited the residence of the victim lady and obtained her signature on some papers stating that registry marriage was solemnized. After going through the said documents, the victim lady found that those were the notices for registration of marriage. Thereafter, the petitioner gave an undertaking that he would take the responsibility of maintenance of the victim lady. When the parents of the petitioner came to know about the incident, then they started to abuse the victim lady and demanded Rs. 3,00000/- (Rupees Three Lakhs only) from the victim lady for giving her marriage with the petitioner.

The alleged incident as narrated by the victim lady in her FIR is quite different from the facts of the cases of the decisions as cited by the learned counsel appearing for the petitioner. At the time of making his submission in favour of quashing of the proceedings pending against the petitioner, the learned counsel appearing for the petitioner draws the attention of the Court to certain portion of the FIR lodged by the victim lady. If one goes through the entire FIR as a whole, then it would prima facie appear that the incident of alleged rape took place against the will of the victim girl. Thereafter, on several occasions, the petitioner cohabited with the victim girl after giving assurance of marriage and finally on 25th June, 2013 he obtained signatures of the petitioner on the papers or notice of marriage making false statement to the victim girl that their marriage was solemnized. The allegations contained in the FIR prima facie made out the commission of the alleged offences. The materials collected during investigation also prima facie indicate the ground for proceedings against the present petitioner for commission of the alleged offences. Moreover, in the instant case, the learned Trial Judge already framed charges against the petitioner.

Having regard to the facts and circumstances of the case and considering the materials placed in the case diary, it cannot be said that the continuance of the criminal proceedings pending against the petitioner would be an abuse of the process of Court.

Accordingly, the revisional application being CRR No. 992 of 2015 stands dismissed. However, the petitioner is given liberty to agitate all the points as raised during the course of hearing as grounds of defence at appropriate stage.

The case diary be handed over to the learned counsel for the State immediately.

The interim order, if any, stands vacated.

Before parting with the case, I would like to clarify that the observations as made in this judgment should not be taken as an expression of any opinion regarding the merit of the criminal proceedings before the Learned Court below. The Learned Court below shall proceed with the case and dispose of the same in accordance with law.

Criminal Section is directed to communicate the copy of the order to the Learned Court below for information immediately.

Urgent photostat certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.