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2004 DIGILAW 335 (GAU)

Khitish Ch. Barman v. Gauranga Barman

2004-05-13

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. This revision is directed against the order, dated 12.06.1997, passed by the learned Sessions Judge, Kokrajhar, in Criminal Motion No. 14(4) of 1996, whereby the order, dated 18.09.1996, passed by the learned Sub-Divisional Judicial Magistrate (S), Kokrajhar, in C.R. Case No. 108c of 1996, framing charge against the accused-opposite party under Section 493 IPC was set aside and the accused was accordingly discharged. 2. In a nutshell, the material facts and various stages, which have led to the present revision, maybe set out as follows: (i) A complaint, in writing, was lodged by the present Petitioner, as complainant, his case being briefly, stated, thus: The complainant and the accused persons are the residents of the same village. The victim, namely, Smti Swapna Barman, a student of Class-VIII, is daughter of the complainant. Taking advantage of the absence of the complainant from his house on the day of the occurrence, the accused-opposite party, by exchanging garlands and putting vermilion on the forehead of the said victim, projected as if a marriage had taken place between the two and, thus, enticing the said victim with such a show of marriage, the accused-opposite party had sexual intercourse with her. The accused-opposite party used to come to the house of the complainant off and on, he used to take meals there and, often, had sexual intercourse with the said victim, who, on becoming pregnant, asked the accused-opposite party to marry her formally, the accused-opposite party tried to avoid and when it was told to him that the matter would be reported, the accused-opposite party became furious. When the matter was reported to the complainant, the complainant alongwith the witnesses went to the house of the accused on 14.04.1996, but the accused-opposite party and his father threatened to assault them and used filthy language. (ii) In course of time, the complainant examined as many as 5 witnesses including his victim daughter, namely, Smti Swapna Barman (P.W. 2). On considering the evidence on record, learned trial Court framed charge against the accused-opposite party under Section 493 IPC. The order, so framing charge, was impugned in Criminal Motion No. 14(4) of 1996 aforementioned. By the order, dated 12.06.97, which, now, stands impugned in the present revision, the order, dated 18.09.1996, framing the charge was, as already indicated hereinabove, set aside. The order, so framing charge, was impugned in Criminal Motion No. 14(4) of 1996 aforementioned. By the order, dated 12.06.97, which, now, stands impugned in the present revision, the order, dated 18.09.1996, framing the charge was, as already indicated hereinabove, set aside. The complainant has, now, approached this Court with the present application under Section 401 read with Section 482of the Code of Criminal Procedure. 3. I have perused the materials on record. 1 have heard Mr. B.R. Dey, learned Counsel for the complainant-Petitioner, and Mr. G.M. Paul, learned Counsel for the accused-opposite party. 4. Before entering into the merit of this revision, it is important to bear in mind that Section 198Code of Criminal Procedure circumscribes the prosecution of persons for offences against marriage, which are covered by Chapter XX of the Indian Penal Code. Section 493 of the IPC falls under chapter XXII and it is also one of the penal offences, which is covered by Section 198 Code of Criminal Procedure Section 198 Code of Criminal Procedure debars Courts from taking cognizance of offences punishable under Chapter XXII of the Indian Penal Code, which include offence punishable under Section 493, except upon a complaint made by some person aggrieved by the offence. In a case of present nature, the person aggrieved is not really the complainant, but his daughter, Swapna. 5. The preliminary question, which has been raised in this revision, is as to whether the complaint lodged by a father alleging commission of offence under Section 493 IPC is maintainable at all if the Court takes cognizance of such an offence without granting any leave as envisaged under Section198(1)(a) read with Section 198(1)(c) of Code of Criminal Procedure For the sake of brevity, relevant portion of Section 198 Code of Criminal Procedure is quoted hereinbelow: 198. Prosecution for offences against marriage: (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon complaint made by some person aggrieved by the offence. Prosecution for offences against marriage: (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon complaint made by some person aggrieved by the offence. Provided that (a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; (b).... (c) Where the person aggrieved by an offence punishable under 1 (Section494 or Section 495) of the Indian Penal Code (45 of 1860), is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption) 6. From a careful reading of Clause (a) of Sub-section (1) of Section 198 Code of Criminal Procedure, it clearly transpires that when a person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman, who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the court, make a complaint on his or her behalf for prosecution of an accused under Section 493 IPC. 7. In the case at hand, neither the complaint nor the evidence on record discloses the aggrieved person, i.e., Smti Swapna, is a minor nor is it claimed that she is an idiot, lunatic or pardanashin. Hence, the complaint ought to have been lodged by the alleged victim woman herself. 8. Since the present complaint has been lodged by the father of the alleged victim woman, who is not claimed, in the complaint, to be a minor, or asserted, in the evidence on record, as a minor, such a complaint is not maintainable. 9. To support his contention that the complaint was maintainable, Mr. 8. Since the present complaint has been lodged by the father of the alleged victim woman, who is not claimed, in the complaint, to be a minor, or asserted, in the evidence on record, as a minor, such a complaint is not maintainable. 9. To support his contention that the complaint was maintainable, Mr. B.R. Dey, learned Counsel for the complainant-Petitioner, has relied upon the decision in Sankar Sahu v. State of U.P. reported in 2000 Cri. L.J. 861. This decision cannot be of any help in the matter inasmuch as this is a decision, which has been rendered on the maintainability of the complaint made for prosecution under Section 495 IPC. As to when a complaint can be made, with the leave of the Court, by a person, other than the victim aggrieved, for prosecution under Section 494 and/or 495of the Indian Penal Code, has been dealt with in Section 198(1)(c). In the present case, the complaint has been instituted for the offence allegedly committed under Section 493 IPC and, hence, the provisions of Clause (c) of Sub-section (1) of Section 198 do not apply to the case at hand. 10. Having settled that the complaint itself was not validly instituted and was not maintainable, I, now, turn to, and deal with, Section 245 Code of Criminal Procedure which relates to discharge of accused in a case instituted otherwise than on a complaint. For the nature of controversy, which has arisen in the present revision, Section 245 Code of Criminal Procedure is quoted hereinbelow, which reads as follows: 245. When accused shall be discharged.- (1) If, upon taking all the evidence referred to in Section 245, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. 11. As correctly submitted by Mr. G.M. Paul, learned Counsel for the accused-opposite party, a Magistrate is under obligation to discharge an accused if he finds, for reasons to be recorded, that the evidence on record, even if remains un-rebutted, would not warrant conviction of the accused. 12. 11. As correctly submitted by Mr. G.M. Paul, learned Counsel for the accused-opposite party, a Magistrate is under obligation to discharge an accused if he finds, for reasons to be recorded, that the evidence on record, even if remains un-rebutted, would not warrant conviction of the accused. 12. In the light of the law as indicated hereinabove, we are, now, required to determine if the evidence on record adduced by the complainant and his witnesses were allowed to remain un-rebutted, the same would have' warranted conviction of the accused-opposite party under Section493 IPC. 13. Bearing in mind the scope of Section 245(1) Code of Criminal Procedure, let me, now, advert to Section 493 IPC and determine the ingredients of the offence envisaged by Section 493 IPC. Section493 IPC reads as follows: 493. cohabitation caused by a man deceitfully inducing a belief of lawful marriage.-Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 14. From a close scrutiny of Section 493 IPC, the following transpire to be the ingredients of the offence under Section 493 IPC: - (i) The accused must have practised deception on the woman, (ii) The woman, who is not lawfully married, must believe, on account of the deception so practised on her, that she is lawfully married to the accused and (iii) It shall be under such belief of being the lawfully manned wife of the accused that she cohabits or has sexual intercourse with the accused. 15. What logically follows from the above discussion is that if a woman does not believe that she is lawfully married to the man concerned and yet cohabits or has sexual intercourse with him, no offence under Section 493 IPC will be made out. 16. Keeping in view the ingredients of Section 493 IPC, let me, now, come to the evidence of the victim girl, namely, Smti Swapna Barman (P.W. 2). 16. Keeping in view the ingredients of Section 493 IPC, let me, now, come to the evidence of the victim girl, namely, Smti Swapna Barman (P.W. 2). From a careful reading of her evidence, it clearly transpires that though the accused-opposite party as well as P.W. 2 exchanged garlands, the accused opposite party had put vermilion on her forehead and had told her that she had become his wife, P.W. 2 knew that she was not formally married to him, she knew that the registration of marriage was essential for her to become his legally wedded wife and it was for his reason that she had asked the accused to take her to his house by registering their marriage. This, in turn, clearly indicates that P.W. 2 knew that she was not legally wedded wife of the accused-opposite party. Without having such belief, when P.W. 2 underwent sexual intercourse with the accused-opposite party, the accused-opposite party cannot be said to have committed an offence punishable under Section 493 IPC. No wonder, therefore, that the complaint mentions that the accused-opposite party refused to marry, when Swapna asked "the accused to formally" marry her. 17. Confronted with the situation as indicated hereinabove, Mr. B.R. Dey, learned Counsel for the complainant-Petitioner, has submitted that the accused-opposite party could have been presumed to have committed an offence punishable under Section 376 IPC and the learned trial Court could have committed the case to the Sessions Court for trial. While considering the submission so made on behalf of the complainant-Petitioner, it is imperative to note that Section 375 IPC, which defines rape, declares that the intercourse with a girl below the age of 16 years will constitute the offence of rape irrespective of the fact as to whether the intercourse was with or without her consent. In the case at hand, there is, admittedly, no evidence adduced by the complainant that P.W. 2 (Swapna Barman) was below the age of 16 years. Hence, when the sexual intercourse that P.W. 2 underwent with the accused was, admittedly, with her consent, no prima facie case of commission of offence punishable under Section 376 IPC can be said to have made out against the accused opposite party. 18. Hence, when the sexual intercourse that P.W. 2 underwent with the accused was, admittedly, with her consent, no prima facie case of commission of offence punishable under Section 376 IPC can be said to have made out against the accused opposite party. 18. Considering, therefore, the matter in its entirety, I find that the impugned order, dated 12.06.1997, passed by the learned Sessions Judge, Kokrajhar, discharging the accused-opposite party does not suffer from any legal infirmity. 19. In the result and for the reasons discussed above, I see no merit in this revision. The revision shall accordingly stand dismissed 20. Send back the LCRs with a copy of this judgment and order. Petition dismissed.