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2004 DIGILAW 217 (CAL)

BICHITRA DASGUPTA v. STATE OF WEST BENGAL PARTY

2004-03-24

P.N.SINHA

body2004
P. N. SINHA, J. ( 1 ) THIS revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure (hereinafter called the Code) has been preferred by the petitioners praying for quashing the criminal proceeding being S. C. Case No. 6 (9) 2003 now pending before the Court of learned additional Sessions Judge, Fast Track Court No. 1, Barasat and also for setting aside the order dated 21. 2. 04 passed by the learned Judge rejecting petitioners contention to discharge them from the said case. ( 2 ) PETITIONERS case, in short, is that the O. P. No. 2 Aparna Dasgupta lodged FIR before the Belghoria Police Station alleging that there was marriage between her and petitioner No. 2 on 8th March, 1999. On 11th november, 2001 her husband went to. his father's house at Belakoba assuring her that he will register the marriage on 10th December, 2001, and thereafter, would take away her to Belakoba. But neither her husband nor any member of her in-laws house came to take her and so, she went to Belakoba on 17th December, 2001. Seeing her there, her husband and his family members became furious on her and created pressure on her to bring Rs. 3 lakhs from her father's house. Subsequently her husband denied the relation and refused to take any responsibility and she was not given any shelter in her in-laws house. On 19th August, 2002 her husband married one barnali Dasgupta and the said marriage was registered also. She alleged in the FIR that the petitioner No. 2 ravished her and spoiled her life. On the basis of such FIR Belghoria RS. Case No. 130 dated 14. 11. 02 was started and after completing investigation the police submitted charge-sheet against the petitioners under Sections 376/420/493/120b of the Indian Penal Code (hereinafter called the I. P. C.) before the learned SDJM, Barrackpore. Subsequently the case was committed to the Court of Sessions and it is now pending in the Court of the learned Additional Sessions Judge, Fast Track court No. 1 at Barasat for disposal. ( 3 ) LEARNED Advocate for the petitioner contended that the petitioners submitted a prayer before the learned Judge for discharging them but, the learned Judge by the impugned order dated 21. 2. 04 rejected their prayer. ( 3 ) LEARNED Advocate for the petitioner contended that the petitioners submitted a prayer before the learned Judge for discharging them but, the learned Judge by the impugned order dated 21. 2. 04 rejected their prayer. Learned Judge failed to realise that the FIR, if taken at its face value in entirety does not disclose any element of offence under Sections 376/420/ 493/120b of I. P. C. against the petitioners. There is no material at ail to connect the petitioners with the alleged offence. The O. P. No. 2, the informant is well educated lady of 26 years age and she voluntarily attended the mess of petitioner No. 2 and consented to sexual intercourse with him and from march 1999 enjoyed such alleged marital life for more than three years and eight months. Statement given by her under Section 164 of the Code is a total contradiction from her statement mentioned in FIR. The 164 statement clearly reveals that the O. P. has intentionally fabricated a false story in her Section 164 statement to implicate these petitioners. She cannot blow both hot and cold at same breath and cannot claim at the same breath that she was the wife of petitioner No. 2 and again allege that the petitioner No. 2 raped her. He contended that the O. R No. 2 has intentionally lodged a false FIR to create pressure upon them when petitioner No. 2 validly married according to Hindu rites and customs. He contended that it is a fit case for quashing the impugned criminal proceeding now pending in the Court of the learned additional Sessions Judge, Fast Track Court No. 1, Barasat. ( 4 ) HE referred to the decisions reported in Niranjan Singh Karam singh Punjabi Advocate v. Jitendra Bhimraj Bijjaya and Ors. , (1990)4 SCC 76 and 2003 C Cr LR (SC) 555 and contended that the Supreme Court has made it clear that at the time of framing charge the Court has to sift evidence on record and other documents for limited purpose of ascertaining whether prima facie case is made out against the accused. , (1990)4 SCC 76 and 2003 C Cr LR (SC) 555 and contended that the Supreme Court has made it clear that at the time of framing charge the Court has to sift evidence on record and other documents for limited purpose of ascertaining whether prima facie case is made out against the accused. In Uday v. State of Karnataka reported in 2003 C Cr LR (SC) 555 the Supreme Court held that the prosecutrix, adult girl consented to sexual intercourse on promise of marriage and such fact does not constitute misconception of the fact and a false promise is not such a fact. When knowing everything the adult girl consented to sexual intercourse no offence was committed. He contended that these principles are applicable in the instant case and the criminal proceeding should be quashed and the petitioners should be discharged. ( 5 ) LEARNED Advocate appearing for the State contended that quashing of a criminal proceeding under Section 482 of the Code is completely different from order in ah appeal. The Court while exercising jurisdiction under Section 482 of the Code is required to consider only whether fir prima facie discloses any cognizable offence or not. If there are prima facie materials disclosing congnizable offence and materials collected during investigation establishes prima facie materials to proceed further, no question of quashing arises. The difference between FIR and the statement under section 164 of the Code as alleged is a matter of fact which can be decided in the trial only. At this stage, this Court cannot consider evidence like a Court of trial or appellate Court. Hence, there is no ground for quashing the proceeding. ( 6 ) LEARNED Advocate appearing for O. R No. 2 contended that the petitioner No. 2, on the pretext of promise of marrying the informant committed sexual intercourse with her knowing fully well that it was a false promise. The statement of the victim lady recorded under Section 164 of the code clearly reveals that first the petitioner No. 2 committed the sexual intercourse on her forcibly and it does not amount to giving consent as alleged. It is not a fit case for quashing the criminal proceeding and the order of the learned Judge requires no interference. The statement of the victim lady recorded under Section 164 of the code clearly reveals that first the petitioner No. 2 committed the sexual intercourse on her forcibly and it does not amount to giving consent as alleged. It is not a fit case for quashing the criminal proceeding and the order of the learned Judge requires no interference. ( 7 ) I have duly considered the submissions of the learned Advocates of the parties and perused the revisional application and annexures made thereto. Annexure P-1 is the copy of FIR and copy of Section 164 statement. It is true that there is difference between FIR and Section 164 statement of the victim. In the FIR there was no allegation that petitioner No. 2 committed sexual intercourse with the victim against her will. On the other hand, the section 164 statement of the victim discloses that petitioner No. 2 one day forcibly committed sexual intercourse with her against her will. This Court while exercising powers under Section 482 of the Code cannot assess evidence like a trial Court or appellate Court. Whether there was consent of the victim in the incident of sexual intercourse or, whether the petitioner No. 2 committed sexual intercourse with the victim against her will are matters of fact and it can be decided only by leading evidence at the time of trial. Similarly, what was the promise and whether, it was a false promise or there was no promise at all are also matters of fact which can be decided at the time of trial and not at this stage. The decisions placed by the learned Advocate for petitioner does not help the petitioners at this stage in the instant matter. ( 8 ) IN Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra bhimraj Bijjaya and Ors. , reported in (1990)4 SCC 76 the Supreme Court observed that, "under Section 227 of the Code a duty is cast on the Judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand, if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code. On the other hand, if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code. At the Section 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose existence of all the ingredients constituting the alleged offence. " In the instant case the FIR and the Section 164 statement of the victim prima facie reveals materials against the petitioners. Therefore, it cannot be said that the learned Judge failed to apply his mind and upon consideration of materials and documents arrived at a wrong conclusion. At the stage of framing of charge learned Judge is to consider only whether prima facie materials or prima facie ingredients of alleged offence have been revealed from the materials in C. D. and documents and if he finds that prima facie materials have been revealed he is to frame charge. Framing of charge cannot be equated to finding of guilt and conviction on the accused. ( 9 ) THE other decision namely Uday (supra) is also not applicable at this stage as it was the finding of the Supreme Court against conviction of the appellant on appeal. This Court at this stage cannot consider evidence like a trial Court or appellate Court. Therefore, whether there was consent or not as alleged or whether forcible sexual intercourse as mentioned in Section 164 statement of the victim are matters to be considered by the learned judge on the basis of evidence at the time of trial. Quashing of a criminal proceeding can be applied in rare cases only when there is no material at all against the accused petitioner. In an application inviting this Court to invoke its jurisdiction under Section 482 of the Code, it is not possible for the Court to take the place of trial Court or appellate Court and in such application the court cannot weigh the evidence like a trial Court or appellate Court. When prima facie materials are there it is not a fit case to quash the impugned criminal proceeding. When prima facie materials are there it is not a fit case to quash the impugned criminal proceeding. ( 10 ) THE above diacussion makes it clear that the revisional application is not maintainable and has no merit and it fails and is disposed of accordingly Learned Judge shall proceed with the sessions case in accordance with law. ( 11 ) SEND a copy of the order to the learned Additional Sessions Court, judge, Fast Track Court No. 1, Barasat for information and necessary action.