Pradip Singh @ Munna Singh vs The State of West Bengal & Anr.

This application under Section 482 of the Code of Criminal Procedure has

been filed for quashing the proceedings of GR case no. 4859 of 2010 pending

before the Court of learned Chief Judicial Magistrate, Howrah arising out of

Sakraile police station case no. 548 of 2010 dated 08.10.2010 under Sections

376 / 420 / 506 of the Indian Penal Code against the petitioner. The aforesaid case

was started at the behest of opposite party no.2 and after completion of

investigation charge sheet no. 537 of 2012 was filed against the present petitioner. The case of the petitioner in brief is that the opposite party no. 2

being a major lady had physical relation with the petitioner and there was

absolutely no scope of using force or having physical relationship with opposite

party no.2 without her consent and will. In that view of this case the entire case

appears to be abuse of process and accordingly the entire case ought to be

quashed. Learned Advocate appearing on behalf of the petitioner contended that

the impugned proceeding is an abuse of process of Court and the materials on

record do not disclose any offence under Sections 376 / 420 / 506 of the Indian

Penal Code. In support of his contention learned Advocate for the petitioner has

relied on the following decisions:

(2007) 2 C Cr LR(Cal) 756 ( Shyamapada Tewari Vs. The State of West

Bengal & Anr.)

1990 Cri L. J. 650 ( Hari Majhi Vs. The State).

2003 (1) C Cr LR (SC) 555 ( Uday Vs. State of Karnataka).

The ratio that has been decided in the aforesaid decisions is that when the

adult prosecutrix consented to the sexual intercourse on the promise of

marriage, such fact does not constitute mis-conception of fact and

accordingly, having physical relationship on promise of marriage on consent

does not amount to commission of offence under Section 376 of the Indian

Penal Code.

Learned Advocate appearing on behalf of the State has drawn the attention

of the Court by producing the case diary to the statement of the victim

recorded under Section 164 of the Code of Criminal Procedure during

investigation wherein the victim has categorically stated that she was forcibly

raped by the petitioner.

Learned Counsel appearing on behalf of the defacto complainant contended

that investigation has been duly culminated in filing of charge sheet and

therefore, there is absolutely no scope for embarking upon the factual aspect

while deciding an application under Section 482 of the Code of Criminal

Procedure. In support of his contention learned Advocate for defacto

complainant has relied on a decision reported in 2008(4) SCC 471 (Central

Bureau of Invistigation Vs. K. M. Sharan). The ratio that has been decided in

the aforesaid decision is that while deciding the merit of an application under

Section 482 of the Code of Criminal Procedure, the Court should not embark

upon enquiry to find reliability of allegations in the first information report

and charge sheet.

The defacto complainant has specifically stated in her statement under

Section 164 of the Code of Criminal Procedure that she was raped. There is

absolutely no scope to decide the reliability of such statement of the defacto

complainant in a proceeding under Section 482 of the Code of Criminal

Procedure. Only after completion of trial, the reliability of such statement of the defacto complaint can be analysed, scrutinized and decided by a

competent Court of Law. At this stage, I do not find sufficient material to hold

that the entire proceeding ought to be quashed only on the basis of such claim

of the petitioner, which has been vehemently controverted by the state as well

as by defacto-complainant. In the premises set forth above, it may safely be

stated that this is not a fit case to exercise the jurisdiction under Section 482

of the Code of Criminal Procedure and accordingly the application under

Section 482 of the Code of Criminal Procedure stands rejected.

The criminal revisional application is thus disposed of in terms of the

aforesaid order.

No order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the

parties as expeditiously as possible.