Khaderbasaha vs The State of Karnataka

G. Patri Basavana Goud, J.—Heard on merits by consent.

Fatima lodged a complaint with the Manvi police in Raichur District, the gist of which is this: About a year prior to the date of the complaint, she was living with her grand parents in Athnoor village in Manvi Taluk. Her neighbour, the Petitioner-accused Khaderbasha, aged 22 years, had come to her house along with one Hussainsab to see the television programme at about 9.30 p.m. At about 11 p.m. she woke up and found that the Petitioner-accused and the said another were still in the process of seeing the television programme, whereas her grand parents had already gone to bed in the adjacent room, she herself in the meantime having already gone to bed earlier. Thus on seeing them still viewing the television, she sent them out and closed the door and slept inside the house. At about 1.30 a.m. that night, Petitioner-accused silently gained entry into the house, woke up the said Fatima, assured her, promising in the name of God, that he would marry her, and then had sexual intercourse with her. Even while going out from the house, he reassured her that he would marry her. Five days after the said incident, when her aunt Riyana came to the house, Fatima told her about the incident. Riyana advised not to reveal it to any one in order to maintain the family prestige. It was after one year i.e. around the time of lodging the complaint that the Petitioner-accused was found making arrangement to get married to another lady. It is therefore that the complaint came to be filed.

Manvi police registered a case, investigated into the same and filed charge sheet for offences punishable under Sections 451 and 376 Indian Penal Code. On behalf of the Petitioner-accused, an application u/s 227 Code of Criminal Procedure was filed seeking discharge. By the order impugned in this revision petition, learned Sessions Judge, Raichur, has found that prima facie the case is made out for framing charge for the offences punishable under Sections 451 and 376 Indian Penal Code. Aggrieved by the same, Petitioner has approached this Court u/s 397 Code of Criminal Procedure.

From the medical evidence, Fatima is found to be aged between 16 and 18 years. Prima facie thus she is not under 16 years of age within the description of ''sixthly'' to Section 375 Indian Penal Code.

On medical examination, rupture of hymn being found, prima facie, Fatima having had sexual intercourse is made out.

From the manner in which the Petitioner-accused had gained entry into the house of Fatima, and having regard to the fact, as would be presently seen, that the Petitioner-accused did commit an offence, though not an offence of rape, there is material enough to frame charge for the offence u/s 451 Indian Penal Code.

It is in respect of the offence u/s 376 Indian Penal Code that the learned Counsel for the Petitioner-accused Sri C.H. Jadhav, and learned High Court Government Pleader Sri Bhavani Singh have strenuously urged, one taking a position contrary to the other. According to Sri Bhavani Singh, learned High Court Government Pleader, the manner in which the Petitioner gained entry into the house and had sexual intercourse with Fatima would prima facie lead to the conclusion that it was an act of rape. But, from the very description of the incident as made out by none else than Fatima, I would agree with the learned Counsel for the Petitioner-accused Sri C.H. Jadhav that that was an act of sexual intercourse indulged in by the Petitioner-accused, aged 22 years and Fatima aged above 16 years, Fatima having fully consented to the same, though in the circumstances to be presently referred to. The incident therefore cannot even prima facie be called rape within the meaning of Section 375 Indian Penal Code.

Even though Sri C.H. Jadhav, learned Counsel for the Petitioner-accused, very strongly urged to the contrary, I am of the opinion that what the Petitioner-accused did amounts to cheating within the meaning of Section 415, punishable u/s 417 Indian Penal Code. To the extent Section 415 Indian Penal Code is relevant for the present purpose, it provides that whoever, by deceiving any person, dishonestly induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to ''cheat''. In the present case, what is prima facie made out is that the Petitioner has deceived Fatima that he would marry her even though he never had that intention right from the beginning. By so deceiving Fatima, he dishonestly induced her to do a certain thing which she would not have done if she were not so deceived, namely to consent for the said sexual intercourse. Such giving of consent caused damage or harm to Fatima in body mind and reputation. Prima facie, therefore, the Petitioner-accused committed cheating within the meaning of Section 415 punishable u/s 417 Indian Penal Code.

Sri C.H. Jadhav, learned Counsel for the Petitioner refers to a decision of a Division Bench of this Court in State of Karnataka v. Anthonidas ILR 2000 Kar 266 to urge that what the Petitioner-accused did, even if prima facie made out, would not fall under the offence of cheating within the meaning of Section 415 Indian Penal Code. In my opinion, the said decision should be taken as having rested on the evidence available in that particular case, because the Division Bench has made this clear observation at the end of paragraph-2 of the judgment:

The ingredients of Section 415 Indian Penal Code are very clear and in our considered view, the framing of a charge itself u/s 417 Indian Penal Code was misconceived. The evidence does not make out any case under this charge and therefore, the order of acquittal even under this head will have to be upheld.

Sri C.H. Jadhav, learned Counsel for the Petitioner-accused refers to a decision of the Division Bench of the Calcutta High Court in Hari Majhi Vs. The State, . This is what the Division Bench said in similar case wherein the accused had sexual intercourse with a girl aged above 16 years with the consent of the said girl, the girl having consented to the same on the accused promising to marry her. The only different between the two is the false representation from the beginning, the same having been made in order to deceive the girl concerned. On facts, the Calcutta High Court held that there is no evidence to show that the accused representing that he would marry the girl concerned, was false to the knowledge of the accused at the time it was made. In that factual back ground, the Calcutta High Court observed after initially holding that no offence of rape had been committed on account of the acts concerned, thus:

We have now to consider the charge u/s 417 of the Penal Code. This charge also could not be brought home. Where the charge of cheating, as in this case, rests upon a representation, which is false and which relates not to an existing fact but to a certain future event, it must be shown by the prosecution that the representation is false to the knowledge of the accused when it was made. It will be of no consequence to show that in fact the representation has ultimately turned out to be untrue.

It is well settled in order to bring home the charge of cheating, it is not sufficient to prove that a false representation had been made, but it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.

From the narration of Fatima, it is prima facie made out that right from the beginning the Petitioner-accused had no intention of marrying Fatima at all, and that therefore, when he told her that he would marry her and thus induce her to give her consent about sexual intercourse, he knew fully well that the representation that he was making in respect of marriage with her was a false representation. He thus deceived her and then induced her to give consent for the sexual intercourse.

Sri C.H. Jadhav next argued that there is no damage to the property. In my opinion, learned Counsel is harping on only one of the factors concerned, namely the property, conveniently forgetting that Section 415 Indian Penal Code speaks of damage or harm to the concerned person''s body, mind or reputation also. To her, not only that the damage is caused to her body but great harm is caused to her mind and reputation. Prima facie, therefore, in the facts and circumstances of this particular case, the offence of cheating has been made out.

In view of the above, the impugned order is set aside in so far as the conclusion relating to the offence punishable u/s 376 Indian Penal Code.

Under Section 228(1)(a) Code of Criminal Procedure, learned Sessions Judge is directed to frame charge against the Petitioner-accused in respect of the offences under Sections 451 and 417 Indian Penal Code and then to order transferring of the case for trial to the Chief Judicial Magistrate concerned.

Petition disposed of accordingly.

Time and again, we come across instances wherein the accused in sessions case files an application u/s 227 Code of Criminal Procedure seeking discharge, and the accused in a warrant case instituted on a police report files an application u/s 239 Code of Criminal Procedure seeking discharge. We also find that such applications are filed by only one or two among several accused. We further find that such an application is heard and disposed of by a very lengthy order, all by itself, and not as a part of the learned Judge deciding in respect of all the accused as to whether or not charge should be framed or the accused should be discharged. We further find that where there are more than one accused, even before the presence of all the accused is secured, the one who has already put in appearance, comes up with such an application and the judge hears and disposes it off in the manner stated above, at times making observations therein in relation to an accused who has not even put in appearance by then, much less heard.

The scheme underlying Sections 227/228 Code of Criminal Procedure so far as the sessions case is concerned, and Sections 239/240 Code of Criminal Procedure so far as warrant case instituted on a police report is concerned, is an integral one. Except that in a warrant case instituted on a police report, Section 239 provides for making such examination, if any, of the accused as the Magistrate thinks necessary, in other respects, the procedure underlying that scheme in sessions case and in a warrant case instituted on a police report is identical. In course of that scheme, the judge would consider the record/report and the documents concerned, will hear the prosecution and the accused or provide an opportunity of being heard to both sides and will then proceed to come to a conclusion in the matter of framing charge or discharging the accused. In sessions case, if he finds that there is no sufficient ground for proceeding against the accused, he would discharge the accused in which event he would record reasons for so doing. On the other hand, if he is of the opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of session, he may frame charge and proceed u/s 228(1)(a), or if it is an offence exclusively triable by the sessions Court, then he would frame charge in writing against the accused, in which event he would read and explain it to the accused, and record plea of the accused. In a warrant case instituted on a police report, if he considers the charge against the accused to be groundless, he would discharge the accused and record his reasons for so doing. On the other hand, if he forms an opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX Code of Criminal Procedure which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he would frame charge against the accused, read it over and would explain it to the accused and would record his plea.

It could thus be seen that considering the material, hearing the prosecution and the accused, coming to the conclusion whether or not charge should be framed, to frame charge if such conclusion is reached, and to record the plea of the accused, or to discharge the accused if such conclusion is reached, in which event reasons would need to be recorded, are all steps in course of implementing one integral scheme underlying Sections 227/228 Code of Criminal Procedure or Sections 239/240 Code of Criminal Procedure, as the case may be. In the said scheme, neither the prosecution would be required to file any application u/s 228 or u/s 240 Code of Criminal Procedure requesting the Court to frame charge, nor would accused be required to file an application u/s 227 or Section 239 Code of Criminal Procedure seeking discharge. Both sides are entitled to be heard, and, in the process of such hearing, may put forth their respective contentions. Any application filed either by the prosecution seeking framing of charge, or by the accused seeking discharge would be superfluous. Even if any such application is filed, either by the prosecution or by the accused, and more often it is the accused who files such an application, same should be considered as just a request for an opportunity of being heard at the stage of Sections 227/228 Criminal Procedure or Sections 239/240 Code of Criminal Procedure, as the case may be, and nothing more. It is therefore directed that learned Sessions Judges/Magistrates shall not independently consider such applications but shall take them as part of the hearing regarding charge underlying Sections 227/228 Code of Criminal Procedure and Sections 239/240 Code of Criminal Procedure, as the case may be.

It is further directed that this process of Sections 227/228 Code of Criminal Procedure or Sections 239/240 Code of Criminal Procedure as the case may be, shall be gone into in respect of a particular case only once, common to all the accused, and not piece meal i.e. in respect of one accused today because he files an application for discharge and another accused tomorrow because he files another such application tomorrow. The entire process has to be gone into, common to all the accused in the case, in one go. It is only where there are no prospects of securing the presence of an absconding accused and therefore the case against him needs to be split up, that it can be done so, and the process regarding charge may then be gone into as a single process in respect of all those accused whose presence has been secured.