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2008 DIGILAW 398 (CAL)

Sujit Kumar Pati v. Atasi Singha Mahapatra

2008-04-11

PARTHA SAKHA DATTA

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JUDGMENT:- PARTHA SAKHA DATTA, J. (1) BY this application dated 15-12-2004 prayer was made for quashing of the complaint case No. 15c of 2004 corresponding to No. 1333t of 2004 under section 420 of the IPC pending before learned Judicial Magistrate, Khatra in the district of Bankura. Also is challenged dated 17-11-2004 passed by the said Judicial magistrate in the case issuing warrant of arrest against the petitioner. (2) THE O. P. No. 1 lodged a complaint with the learned SDJM, Khatra on 15-04-2004 against the present petitioner alleging the following facts:-The parties were distantly related to each other. Sometime in 1992 the opposite party got herself acquainted with the petitioner in the house of the aunt of the petitioner and also in the house of the sister of the opposite party. The petitioner expressed his desire to have intimacy with the complainant-opposite party who was not initially interested but after persistent persuasion she was agreed to the proposal of the petitioner and gradually a relation developed between them. Good number of love letters were exchanged between them. The petitioner got employment in the police department in 1995 and he assured the opposite party that after completion of his training at Barrackpore he would marry the complainant. During the training period he requested the complainant to come to Sibpur in the house of the elder sister of the complainant so that he could meet her regularly. Accordingly, the complainant went to sibpur and used to meet him regularly there. In 1997 the petitioner was posted at Purulia and in 1998 he was transferred to Jhalda P. S. when he used to keep contract with the opposite party regularly over telephone. In 2003 the petitioner invited the opposite party to come to burrabazar when he was posted there and the complainant went there and stayed in the quarter of the petitioner for about three days and then came back. In June, 2003 the petitioner asked the complainant to come to Burrabazar for the purpose of marrying her through registration and on 10-06-2003 the complainant came there but in the night of 10-06-2003 a message was received by the petitioner regarding theft of an ambassador car and on the pretext of that case the petitioner deferred the registration of marriage and assured of registration subsequently. On 11-06-2003 the petitioner sent the complainant to jorsa by a car being No. WB-56a-0834. On 11-06-2003 the petitioner sent the complainant to jorsa by a car being No. WB-56a-0834. On 13-02-2004 when the petitioner was posted at Keshipur P. S. he asked the complainant over telephone to come there for the purpose of registration of marriage. The complainant had been to the place on 14-02-2004. On 16-02-2004 the petitioner called the family members of the complainant and requested them to be present at the time of registration of marriage. The family members and the relations of the complainant accordingly came there. But the petitioner raised another pretext that he was very busy with AT. I Parade of an importance case and he deferred the registration. The complainant always believed that the petitioner would marry her and pursuant to such belief she closely mixed with the petitioner. During the long period the petitioner established sexual relations with the complainant. The complainant was not agreeable to have such physical relation before marriage but the petitioner strongly promised to marry her on all such occasions but now the complainant has realized that the petitioner cheated the complainant cunningly. The complainant would not have touch with the petitioner had she had any idea that the petitioner would cheat her. Now the petitioner is not interested to marry the complainant. The local persons of the community know the relation between the complainant and the accused. The petitioner is alleged to have committed mischief. (3) THE learned Judicial Magistrate, Khatra issued warrant of arrest against the petitioner under section 204 (1) (b) of the Cr. PC upon examination of the complainant and her witnesses. (4) THE revisional application was moved before an Honble Judge of this Court for quashing of the proceeding but the application was dismissed. With regard to the order of the learned Magistrate for issuance of warrant of arrest the Honble Judge by the order dated 28-11-2006 stayed the same for a period of four weeks and directed that if the petitioner appeared before the learned Court below with a prayer for bail the same should be considered in accordance with law. (5) THIS order of the Honble Judge dated 28-11-2006 was challenged in Criminal Appeal No. 1612 of 2007 before the Honble Supreme Court. (5) THIS order of the Honble Judge dated 28-11-2006 was challenged in Criminal Appeal No. 1612 of 2007 before the Honble Supreme Court. The Honble Supreme Court set aside the order of the Honble Judge and remitted the matter back to the High Court for consideration thereof afresh opining that the question as to whether any offence under section 420 of the 1pc has been made out or not the same was required to be gone into by the High Court. (6) IN the context of the order of the Honble Supreme Court dated 29-11-2007 the application has been moved again before this Court and i have heard Mr. Sekhar Kumar Basu, learned senior Advocate for the petitioner and Mr. Siladitya Sanyal, learned Advocate appearing for the opposite party. (7) MR. Sekhar Kumar Basu, learned Advocate for the petitioner submitted that it is not a case where a minor girl was allured by the petitioner to have sexual enjoyment on false assurance of marriage. It is a case where according to Mr. Basu the opposite party and the petitioner allegedly developed intimacy with each other and, as a results, of which the opposite party allowed the petitioner to have sexual intercourse with her and such sexual intercourse definitely with the consent of the opposite party cannot be said to be an offence of rape. It is submitted that the learned Magistrate issued process only under section 420 of the IPC but having regard to the averments in the petition of complaint and the pre-summoning statement of the complainant before the learned Magistrate it could not be said that the opposite party has been cheated by the complainant because when an adult woman allowed herself to be sexually enjoyed on the pretext that she would be married by the petitioner it could not be said that the opposite party had consented to sexual intercourse in consequence of a misconception of fact arising out of the promise. Mr. Basu argued that the petition of complaint does not reveal that the opposite party at any time resisted when the petitioner allegedly approached for sexual intercourse. The opposite party consented to have sexual intercourse following long intimacy between them and out of love affairs the opposite party was allegedly enjoyed by the petitioner sexually. Mr. Mr. Basu argued that the petition of complaint does not reveal that the opposite party at any time resisted when the petitioner allegedly approached for sexual intercourse. The opposite party consented to have sexual intercourse following long intimacy between them and out of love affairs the opposite party was allegedly enjoyed by the petitioner sexually. Mr. Basu referred to certain decisions of the Honble Supreme Court to argue that offence of cheating takes place only when it is prima facie established that the intention to cheat was there at the time of making of the inducement and mere failure to keep up the promise subsequently does not necessarily give rise to an act of cheating. The decision in S.W. Palanitkar and Ors. v. State of Bihar and Anr, 2002 SCC (Cri) 129 has been cited wherein their lordships of the Court observed that every breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of a mental act of fraudulent misappropriation. The decisions in Uday v. State of Karnataka., 2003 SCC (Cri) 775, Pradeep Kumar v. State of bihar and Ann, JT 2007 (10) SC 246, Hari Majhi v. State, 1990 Cri L. J. 650, Jayanti Rani Panda v. State of West Bengal and Anr. , 1984 Cri L. J. 1535, Shyamapada Tiwari v. State of West Bengal and Anr., (2007)2 C. Cr. LR (Cal) 756 and Md. Mohasin Sk. v. Sayeda Khatoon Bibi and Anr. , 2005 Cri l. J. 3162 have also been cited before me. The decisions in Shyamapada tiwari and Md. Mohasin Sk. (supra) do not require any separate consideration because these two single Bench decisions have been rendered following Uday v. State of Karnataka (supra) and the two Division bench decisions of this Court i.e. Hari Majhi v. State and Jayanti Rani panda v. State of West Bengal (supra). The decision in S. W. Palanitkar (supra) is in a different fact situation as it was a case of cheating lodged by one stockist against his principals alleging criminal breach of trust and cheating on account of failure to make payment of money. The other decisions referred to above are helpful for appreciation of the case at hand. The decision in S. W. Palanitkar (supra) is in a different fact situation as it was a case of cheating lodged by one stockist against his principals alleging criminal breach of trust and cheating on account of failure to make payment of money. The other decisions referred to above are helpful for appreciation of the case at hand. In Uday v. State of Karnataka (supra) their Lordships of the Supreme court at para 21 of the Judgment as follows:- "it therefore "appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact, (emphasis mine). It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. " (8) INTERESTINGLY, the Honble Supreme Court had occasion to refer to the two Division Bench decisions of this Court i.e. Jayanti Rant Panda (supra) and Hari Majhi (supra) along with the decisions of other High courts, The case of Pradeep Kumar (supra) was decided by the Honble supreme Court with reference to the decisions in Uday v. State of karnataka, Deelip Singh @ Deelip Kumar v. State of Bihar, 2005 SCC (Cri) 253 and Jayanti Rani Panda of this Court and also decisions of other High courts. In Hari Majhis case, it was held by the Division Bench of this court that where the prosecutrix agreed to have sexual intercourse as accused promised to marry her it cannot be said that the accused could be held guilty of rape. In Jayanti Rani Pandas case it was held that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activities until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 of the IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her (emphasis mine). (9) MR. Siladitya Sanyal also relied on Deelip Singh @ Deelip Kumar (supra) and also the decision in Uday v. Kamataka (supra) to argue that this is not a stage where it can be conclusively held that the opposite partys allowing the petitioner to have sexual enjoyment with her on a promise to marry did not suffer from misconception of fact because according to Mr. Sanyal whether the petitioner never really intended to marry the opposite party or not is basically a question of fact which can only be decided at the trial and this Court cannot prematurely dismiss the petition of complaint under section 482 of the Cr. P. C. merely at the asking of the accused. It is the submission of Mr. Sanyal that each case has to be decided on its own facts and evidence and Uday v. Kamataka (supra) has laid down the law that there cannot be any strait jacket formula for determining whether the consent of the prosecutrix to sexual intercourse is voluntary or whether it is given under a misconception of fact. (10) I have gone through the decisions of the Honble Supreme Court and of this High Court as have been referred to by the learned advocates for the parties. I have gone through minutely the petition of complaint. (10) I have gone through the decisions of the Honble Supreme Court and of this High Court as have been referred to by the learned advocates for the parties. I have gone through minutely the petition of complaint. It is in the petition of complaint that the complainant would not have any touch with the accused had she had any idea that the accused would cheat her, and the complainant always believed that the accused would marry her and on that belief she had mixed with the accused. Again, it has been reiterated in the petition of complaint itself that the complainant was not agreeable to have any physical relation before marriage but the accused strongly promised to marry her on all such occasions. Therefore, the question is whether the consent given by the opposite party to sexual intercourse was voluntary or whether it is given under a misconception of fact. The question would revive in the shape. Whether the representation by the petitioner was false to the knowledge of the petitioner or not at the time when it was made. It has to be noted that all the decisions referred to by the learned advocates for the parties in relation to offences under sections 376/417/420 of the IPC were rendered in appeal where the Honble Supreme Court, or the Division bench of this Court in deciding Hari Majhi and Jayanti Rani Panda had occasion to refer to evidence of the parties and upon consideration of evidence adduced by the parties the decisions came into being. The question therefore is should this Court acting upon the decisions in uday v. State of Kamataka (supra), Deelip Singh @ Deelip Kumar (supra), hart Majhi (supra) and Jayanti Rani Panda (supra) decide the question without asking the parties to go to the trial? Their Lordships of the supreme Court referred to the decision in Rao Hamarain Singh v. State (AIR 1958 Punjab 123) where the word consent was defined as: "consent is an act of reason, accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be consent. " (11) IF we rely on Uday v. State of Kamataka (supra) then also quashing of the proceeding under section 482 of the Cr. " (11) IF we rely on Uday v. State of Kamataka (supra) then also quashing of the proceeding under section 482 of the Cr. PC does not appear to be warranted because their Lordships observed "but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it was given under a misconception of fact. "In the ultimate analysis the Court has to consider the evidence before it and the surrounding circumstances before reaching a conclusion. Again it has been reiterated that the Court must weigh evidence keeping in viexv the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. Whether the Court can be assured that from the very inception the accused never really intended to marry her or not has to be decided only upon trial; or in other words the question whether the promise or representation of the petitioner was or was not false to the knowledge of the petitioner at the time it was made cannot be decided by this Court in the revisional jurisdiction. In Pradeep Kumar (supra) theirs Lordship" held at para 20 of the Judgment that. "if on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of section 375, clause second. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Pandas case (supra) which was approvingly referred to in Udays case (supra). The calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end -"unless the Court can be assured that from the very inception the accused never really intended to marry her" (emphasis supplied). The calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end -"unless the Court can be assured that from the very inception the accused never really intended to marry her" (emphasis supplied). In the next para, the High court referred to the vintage decision of the Chancery Court which laid down that "a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it" (emphasis mine). This is also the view taken by the Division Bench of the Madras High Court in Jaladus case (vide passage quoted supra). By making the solitary observation that "a false promise is not a fact within the meaning of the Code", it can not be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Udays case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accuseds intention to marry cannot be ruled out. " (12) THE case of Deelip Singh @ Dilip Kumar (supra) was referred to in pradip Kumar and their Lordships of the Supreme Court in Deelip Singhs case held that the evidence has to be carefully analyzed as the ultimate conclusion depends on the facts of each case. Their Lordships further observed that a representation deliberately made by the accused with a view to elicit assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If it is established that at the very inception of the making of promise the accused did not really entertain the intention of marrying her and the promise to marry was a hoax the consent would be of no avail. If it is established that at the very inception of the making of promise the accused did not really entertain the intention of marrying her and the promise to marry was a hoax the consent would be of no avail. Therefore, on the authorities referred to above it can be said that to arrive at a decision on the question a trial is necessary where the parties are to adduce evidence and it is not a case where the proceedings should be nipped in the bud on the basis of generalized statement that sexual exercise with consent "of the prosecutrix does not fasten the accused with any criminal liability either of rape or of Cheating". (13) ACCORDINGLY, I do not find any point in quashing the proceeding. (14) AS regards the learned Magistrates issuance of warrant of arrest the petitioner may, if so advised appear before the learned Magistrate within a month from the date of the order, and seek for bail and till then the warrant of arrest may not be executed, in default whereof the magistrate will be at liberty under the law to proceed against the accused. (15) SUBJECT to the above observation the revisional application is dismissed. Revisional application dismissed.