Rajdeep Pathak @ Rajdeep Kumar vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding arising out of Giridih (Mahila) P.S. Case No. 24 of 2021 registered for the offence punishable under Sections 376 and 417 of Indian Penal Code and the order taking cognizance dated 25.11.2022 passed by the learned Chief Judicial Magistrate, Giridih whereby and where under, the learned Chief Judicial Magistrate, Giridih has taken cognizance of the offences punishable under Sections 376 (2) (n) and 417 of Indian Penal Code.

The allegation against the petitioner is that the petitioner forcible committed rape upon the informant-victim in December, 2014 and after that on the promise of marriage, the petitioner established physical relationship with the victim on several occasions and lastly on 19.08.2021 when the petitioner intended to have physical relationship with the informant-victim but though the same was resisted by the informant-victim, as the petitioner was not marrying her, yet even after refusal of the informant-victim to have physical relationship with the petitioner, the petitioner slammed the victim to the ground and forcibly committed rape upon her and refused to marry her.

On the basis of the written report of the informant, police registered Giridih (Mahila) P.S. Case No. 24 of 2021 and took up investigation of the case. After completion of investigation police submitted charge sheet against the petitioner for having committed the offences punishable under Section 376 (2) (n) and 417 of Indian Penal Code and basing upon the same, the learned Chief Judicial Magistrate, Giridih has taken cognizance of the offences; as already indicated above.

Learned counsel for the petitioner relied upon the judgment of Hon’ble Supreme Court of India in the case of Maheshwar Tigga vs. The State of Jharkhand passed in Criminal Appeal No. 635 of 2020 dated 28.09.2020, wherein the Hon’ble Supreme Court of India has observed that though the consent given under misconception of fact has no consent in the eyes of law in view of Section 90 of Indian Penal Code but the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years and submits that in this case as the petitioner was having physical relationship with the victim for over a period of eight years so the natural corollary is that the physical relationship between the informant, who is admittedly a major lady, with the petitioner was a consensual one and the same is insufficient to constitute the offence punishable under Section 376 (2) (n) of Indian Penal Code or under Section 417 of Indian Penal Code.

Learned counsel for the petitioner next relied upon the judgment of Hon’ble Supreme Court of India in the case of Pramod Suryabhan Pawar vs. The State of Maharashtra & Anr. reported in (2019) 9 SCC 608, and submits that in the facts of the said case, the Hon’ble Supreme Court of India keeping in view the facts of that case, where there was no allegation in the FIR of that case that when the appellant before the Hon’ble Supreme Court of India promised to marry the complainant, it was done in bad faith or with the intention to deceive her, the Hon’ble Supreme Court of India held that no offence punishable under Section 376 of Indian Penal Code has occurred.

Learned counsel for the petitioner next relied upon the judgment of Hon’ble Supreme Court of India in the case of Dr. Dhruvaram Murlidhar Sonar vs. The State of Maharashtra & Ors. in Criminal Appeal No. 1443 of 2018 dated 22.11.2018 wherein, the Hon’ble Supreme Court of India has observed as under in paragraph no. 20:-

“20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.”

and submits that in consensual sex cases the court has to examine carefully whether the complainant had actually wanted to marry the victim or had mala fide motive and had made a false promise to this effect, only to satisfy his lust and in case, the answer is yes, the same fall within the ambit of cheating or deception.

Learned counsel for the petitioner next relied upon the judgment of this Court in the case of Kush Kumar vs. The State of Jharkhand in Cr.M.P. No. 594 of 2022 dated 23.11.2023 wherein, in the facts of that case when there was absolutely no allegation against the petitioner of that case that he promised to the prosecutrix to marry her even though he did not have any intention to marry, this Court held that the offence punishable under Section 376 or under Section 420 of Indian Penal Code is not made out.

Learned counsel for the petitioner further relied upon the judgment of this Court in the case of Kush Kumar vs. The State of Jharkhand in Cr.M.P. No. 568 of 2022 dated 23.11.2023 wherein, in the facts of that case when there was absolutely no allegation against the petitioner of that case that he promised to the prosecutrix to marry her even though he did not have any intention to marry her at any point of time, this Court held that the offence punishable under Section 376 or under Section 420 of Indian Penal Code is not made out.

Learned counsel for the petitioner next relied upon the judgment of this Court in the case of Deepak Kumar Yadav @ Deepak Kr. Yadav vs. The State of Jharkhand & Anr. in W.P. (Cr.) No. 688 of 2023 dated 28.11.2023 wherein in the facts of that case when there was no allegation against the petitioner before this Court that the petitioner made any false promise of marriage or he had no intention to marry the victim at any point of time; rather it was admitted case of the informant-opposite party no.2 that the petitioner has even married her and in the absence of any allegation against the petitioner before this Court in that case, that he had at no point of time not having the intention to marry the informant but still entered into any physical relationship with her and in that case the victim, even knowing everything about the petitioner, spent a night with the petitioner with her consent in a hotel, as categorically stated by her, this Court held that the offence punishable under Section 376 of Indian Penal Code is not made out.

It is then submitted by the learned counsel for the petitioner that as in this case there is no allegation against the petitioner that the petitioner had no intention at any point of time to marry the victim, therefore, even if the entire allegation made against the petitioner are considered to be true in its entirety still neither the offence punishable under Section 376 (2) (n) nor the offence punishable under Section 417 of Indian Penal Code is made out. Hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

Learned Special Public Prosecutor on the other hand vehemently opposes the prayer made by the petitioner in this criminal miscellaneous petition and submits that the facts of this case are entirely different from the facts of the cases, the judgment of which has been relied upon by the learned counsel for the petitioner. It is next submitted by learned Special Public Prosecutor that there is categorical allegation against the petitioner that for the first time in December, 2014 he committed rape upon the victim forcibly but later on he promised to marry the victim and on the promise of marriage he continued the physical relationship with the victim several times. It is further submitted by learned Special Public Prosecutor that similarly on the last occasion on 19.08.2021 there is direct and specific allegation against the petitioner that even though the victim refused to have physical relationship with the petitioner, the petitioner forcibly committed rape upon the victim; so these two occasions are cases of out and out rape hence, as there is direct and specific allegation that such rapes were committed by the petitioner, without the consent of the victim and as during the investigation of the case police has found the allegation to be true and the learned Magistrate on the basis of the report submitted by police has taken cognizance of the said offences, therefore the learned Magistrate has not committed any illegality. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds force in the submission of the learned Special Public Prosecutor that unlike the cases, the judgments of which was relied upon by the learned counsel for the petitioner, where the cases of physical relationship between the parties was on the promise of marriage; this is not a case where the physical relationship between the parties took place on the promise of marriage. As has rightly been submitted by the learned Special Public Prosecutor, the first occasion when the physical relationship was established by the petitioner with the victim was out and out rape because there is direct and specific allegation that without the consent of the victim the petitioner committed rape upon her but the explanation for not immediately reporting the matter to police was, the subsequent conduct of the petitioner in promising to marry the victim but subsequent assurance of the petitioner to marry the victim will not condone the offence the rape, which was committed by the petitioner, in December, 2014. Similarly, the offence alleged on 19.08.2021 is also a case of out and out rape, because though the victim has categorically stated that though she refused to have physical relationship with the petitioner but the petitioner by use of force slammed the victim to the ground and forcibly committed rape. So in the considered opinion of this Court the facts of this case are entirely different from the facts of the cases; the judgments of which were relied upon by the learned counsel for the petitioner, as already referred to above in the foregoing paragraphs of this judgement, the ratio of those cases are not attracted to the facts of this case and as there is direct and specific allegation against the petitioner of having committed rape forcibly without the consent of the victim and those allegation are found true by the police during the investigation of the case and police has submitted charge sheet, this Court is of the considered view that there is no justifiable reason to quash either the entire criminal proceeding arising out of Giridih (Mahila) P.S. Case No. 24 of 2021 or the order taking cognizance dated 25.11.2022 passed by the learned Chief Judicial Magistrate, Giridih in the said case; in exercise of the power under section 482 of the Code of Criminal Procedure, by this Court.

Accordingly, this criminal miscellaneous petition being without any merit is dismissed.