Sri Sudeb Dafadar vs State of West Bengal and Anr.

Ranjit Kumar Bag, J. - The petitioner has preferred this revision praying for quashing of the criminal proceeding of Sessions Trial no. 54 of 2010 arising out of Sessions Case no.177 of 2009 pending before the court of learned Additional Sessions Judge, Katwa in the district of Burdwan.

It appears from record that the opposite party no. 2 filed a written complaint before the Officer-in-Charge of Ketugram Police Station on the basis of which Ketugram Police Station Case no. 11 of 2007 dated January 15, 2007 came into existence. The police investigated the said criminal case and submitted charge-sheet against the petitioner under Sections 376/420 of the Indian Penal Code. On April 26, 2010, learned Additional Sessions Judge, Katwa framed charge against the petitioner under Section 376 of the Indian Penal Code and proceeded with the hearing of the case. The petitioner, being the accused facing the trial, has prayed for quashing the criminal proceeding.

Mr. Sabir Ahmed, learned counsel appearing on behalf of the petitioner contends that the evidence collected by the Investigating Agency during investigation does not suggest commission of the offence by the petitioner under Sections 376/420 of the Indian Penal Code. The specific submission of Mr. Ahmed is that the prosecutrix was aged about 20 years and thereby she attained majority at the time of commission of the alleged offence. The further submission made by Mr. Ahmed is that the sexual intercourse took place with the consent of the prosecutrix and thereby no offence is made out against the present petitioner. According to Mr. Ahmed, the criminal proceeding is liable to be quashed.

By referring to the contents of the written complaint treated as FIR and the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure Mr. Kollol Basu, learned counsel for the opposite party no. 2 submits that the sexual intercourse took place without the consent of the prosecutrix and subsequent cohabitation of the prosecutrix with the petitioner was on promise of marriage and as such the offence under Sections 376/420 of the Indian Penal Code is made out against the petitioner.

Mr. Imran Ali, learned counsel for the opposite party/State contends that the issue of consent can be decided only after recording of evidence before the trial court and at this stage the offence under Sections 376/420 of the Indian Penal Code is made out from the evidence collected by the Investigating Agency.

Mr. Ahmed has relied on the decision of the Supreme Court in "Uday v. State of Karnataka" reported in 2003 C CR LR (SC) 555 and the decision of Division Bench of our High Court in "Jayanti Rani Panda v. State of West Bengal" reported in 1984 CR.L.J. 1535 in support of his contention that the criminal proceeding is liable to be quashed as the prosecutrix had consented for sexual intercourse and the prosecutrix attained majority on the date of commission of the offence. In "Jayanti Rani Panda v. State of West Bengal" (supra) the Division Bench of our High Court considered the entire evidence adduced before the trial court and came to the conclusion that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Since the entire evidence was considered by the Hon''ble Division Bench of our High Court in coming to the said conclusion and since in the instant case the evidence has not been recorded before the trial court and the petitioner has prayed for quashing the proceeding by invoking Section 482 of the Code of Criminal Procedure, I am of the view that the ratio of the said decision is not applicable in the facts of the present case. Similarly, in "Uday v. State of Karnataka" reported in 2003 C Cr LR (SC) 555 the conviction and sentence imposed on the appellant for the offence under Section 376 of the Indian Penal Code was set aside by the Supreme Court after full appreciation of the evidence on record. In the instant case, no evidence is adduced before the trial court and the petitioner has prayed for quashing the proceeding by invoking Section 482 of the Code of Criminal Procedure and as such I am of the view that the authority of "Uday v. State of Karnataka" (supra) has no relevance in the facts of the present case.

On consideration of the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, I find that the age of the victim girl is recorded as 20 years in the said statement.

The contents of the written complaint treated as FIR disclose that the first incident of sexual intercourse of the petitioner with the prosecutrix was against her consent as stated by the prosecutrix.

On consideration of the written complaint treated as FIR coupled with the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure, I find that the opposite party no. 2 co-habited with the petitioner subsequent to the first occasion on promise of marriage and as such the offence under Sections 376/420 of the Indian Penal Code is made out from the evidence collected by the Investigating Agency. Since the cognisable offence triable by the Court of Sessions is made out against the petitioner from the materials collected by the Investigating Agency, I am of the view that the petitioner is bound to face the trial. In view of the proposition of law laid down by the Supreme Court in "State of Haryana v. Bhajanlal" reported in AIR 1992 SC 604, I cannot persuade myself to quash the instant criminal proceeding by invoking my inherent power under Section 482 of the Code of Criminal Procedure as contended on behalf of the petitioner.

In view of my above findings, I do not find any merit in this revision. However, the petitioner is at liberty to urge all the points before the trial court in the appropriate stage of the proceeding.

With the above observation, criminal revision is disposed of.

Let a copy of this judgment be sent down to the learned court below for favour of information and necessary action.