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2007 DIGILAW 555 (ORI)

Managobinda Kishan v. State of Orissa

2007-07-18

M.M.DAS

body2007
ORDER 18.7.2007 — Heard learned counsel for the petitioner and the learned counsel for the State. This is an application under Section 438 Cr.P.C. for grant of anticipatory bail to the petitioner. Considered the materials available on record. An FIR was lodged by one Nirupama Kissan on 9.4.2007, inter alia, alleging that the petitioner on the assurance of marriage, kept physical relationship with her on account of which, she conceived. But subsequently the petitioner went back from his promise. The FIR has been registered for commission of an offence under Sections 493/506 IPC. Mr. R.K.Nayak, learned counsel for the petitioner draws the attention of this Court to the document under Annexure-2 and submits that this dispute was referred to the village Panch and the said village Panch decided that there is absolutely no fault on the part of the petitioner as would be evident from Annexure-2. Thereafter, the petitioner lodged the complaint being ICC No. 11 of 2007 in the Court of the learned SDJM, Deogarh against father of the informant as well as the informant alleging commis¬sion of offence under various sections of the Penal code includ¬ing Section 506 IPC. After the complaint was lodged, the present FIR has been lodged. Mr. Pradhan, learned counsel for the State submits that even though an FIR has been registered for offences under Sections 493/506 IPC, but in the facts and circumstances of the case, applying the law as laid down in the case of Yedla Srinivasa Rao v. State of A.P. (2007) 36 OCR (SC) 37, this would amount to an offence under Section 376 IPC. He further submits that the offence is serious as well as heinous in nature and there being prima facie material against the petitioner, the petitioner is not entitled to any relief whatsoever. In the case of Yedla Srinivasa Rao (supra), the Supreme Court was dealing with two appeals against two orders passed by the High Court of Andhra Pradesh convicting and sentencing the appellant under Section 376 IPC to undergo R.I. for seven years and fine of Rs. 100/-. In the case of Yedla Srinivasa Rao (supra), the Supreme Court was dealing with two appeals against two orders passed by the High Court of Andhra Pradesh convicting and sentencing the appellant under Section 376 IPC to undergo R.I. for seven years and fine of Rs. 100/-. In paragraph-9 of the said judgment, the Supreme Court while examin¬ing as to whether the conduct of the accused therein falls under any of the six descriptions of Section 376 IPC, discussing the facts of the said case, observed that it is clear that the prose¬cutrix had sexual intercourse with the accused on the representa¬tion made by the accused that he would marry her. This was a false promise held out by the accused and had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse. Therefore, for examining as to whether this amounts to consent or the accused obtained consent by play¬ing fraud on her, referred to Section 90 of the IPC, which pro¬vides that a consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury or under a misconception of fact, and if the person doing the act knows or has reason to believe that the consent was given in consequence of such fear or misconception, such consent obtained, cannot be construed to be a valid consent. In the said case, it appears that like the allegation in the present case, the accused promised to marry the victim and under this misconception obtained the consent of the victim to have sexual relationship and this fact was also admitted by the ac¬cused that he had committed sexual intercourse which was apparent from the testimony of some of the prosecution witnesses and before Panchayat of elders of the village. No doubt, there cannot be any dispute with regard to the proposition laid down in the aforesaid decision of the Supreme Court. But such proposition can be made applicable if the fact of the case so demands. In order to find out whether the victim was persuaded by a false promise made by the petitioner depends upon analysis of the facts of the case which is not warranted at this stage while considering a bail application. But such proposition can be made applicable if the fact of the case so demands. In order to find out whether the victim was persuaded by a false promise made by the petitioner depends upon analysis of the facts of the case which is not warranted at this stage while considering a bail application. The facts of this case are clearly distinguishable from the facts of the case which was before the Supreme Court in the case of Yedla Srinivasa Rao (supra) in the sense that in the present case, the FIR itself discloses that the petitioner on stating that he will get married to the informant kept physical relation¬ship with her as a result of which, on the date of lodging of the information, the informant was pregnant. The pregnancy being for about eight months and, thereafter, on asking the petitioner to get married, the petitioner denied to get married to the inform¬ant and threatened the informant not to lodge any report. Howev¬er, strangely, nothing is brought before this Court by the prose¬cution that the informant was medically examined and found to be pregnant. Prima facie, therefore, no case of sexual relationship between the informant and the petitioner appears to have been brought out during investigation. Be that as it may, considering the nature of offence alleged to have been committed and the fact that investigation is in progress, I am not inclined to grant anticipatory bail to the petitioner. However, I direct that on the petitioner surrendering before the learned S.D.J.M., Deogarh in connection with C.T.No. 196 of 2007 arising out of Barkote P.S.Case No. 39 of 2007 on 31st July, 2007 and moving for bail, the case diary shall be made available to the learned SDJM and the learned SDJM shall consider and dispose of the bail application during first hour of the day. In the event of rejection of the bail application, the learned SDJM shall remit the case diary to the learned Addl. Sessions Judge, Deogarh, without waiting for any formal order and if the petitioner moves the learned Addl. Sessions Judge for bail during the second hour, the same shall be considered and disposed of on the same day in accordance with law. The BLAPL is accordingly disposed of. Urgent certified copy of this order be granted on proper application. BLAPL disposed of.