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2009 DIGILAW 570 (CAL)

Sukhamay Manna v. State of West Bengal

2009-07-30

PARTHA SAKHA DATTA

body2009
JUDGMENT Partha Sakha Datta, J.: The O.P.No.2 lodged an FIR with the O.C. Ramnagar P.S. alleging that in course of her study in the college she came to be acquainted with the petitioner. The intimacy developed between the two. The petitioner assured of marriage with her then on such assurance he cohabited with her on 17th July, 2004. She asked her for settlement of marriage. On different pretexts the petitioner did not positively respond and then finally she declined to marry her, thus she has been raped by deception. 2. Investigation was carried out and the police submitted chargesheet against the petitioner under section 376 of the IPC. 3. Mr. Debabrata Roy, learned Advocate for the petitioner referred to the following decisions: 1)Partho Pratim Phukan @ Meja vs. State of West Bengal & Anr., reported in 2008 (1) C Cr LR (Cal) 774, 2) Shyamapada Tewari vs. State of West Bengal, reported in 2009(1) C Cr LR (Cal) 266, 3) Sujit Kumar Pati vs. Atasi Singha Mahapatra, reported in 2008 Cal LT 375(HC), 4) Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar & Anr., reported in 2007(3) SCC (Cri). 4. It is submitted with reference to the decisions as aforesaid that whether the lady, not an ordinary one voluntarily subjected herself to sexual intercourse. He does not come under the concept of 'misconception of fact. It is submitted that charge under section 417 of the IPC might be appropriate in the case and he has no objection in the Trial Court proceeding with the said charge, but no charge under section 376 IPC cannot be sustained. Therefore, the proceeding under section 376 IPC is sought to be quashed. 5. Learned Advocate for the State of West Bengal and the learned Advocate for the O.P.No.2 oppose this submission stating that no doubt FIR was registered under section 376/417 of the IPC but when upon investigation chargesheet has been led under section 376 of the IPC this Court must not quash the charge sheet on the simple ground that it was not a case of misconception of fact. It is submitted that whether it was or was not a misconception of fact can only be appreciated at the Trial, Learned Counsel for the State refers to the some decisions as were cited by the learned Advocate for the petitioner and submits that whether consent was voluntarily or whether it was vitiated so as no legal consent cannot be determined unless the parties go to trial. 6. Mr. Roy referred to Uday vs. State of Karnataka, reported in 2003 SCC (Cri) 775 and banks upon the observation of the Supreme Court that consensus of judicial opinion is in favour of the view that consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise of marriage cannot be said to be given under a misconception of fact but their Lordships also observed that "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. But Their Lordships also observed that, "we must add that there is no strait-jacket formula for determining whether consent even by the prosecutrix to sexual intercourse is voluntary or whether it is even 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." 7. The Hon'ble Supreme Court had occasion to refer to the two Division Bench decisions of this Court i.e. Jayanti Rani Panda (supra) and Hari Majhi (supra) along with the decisions of other High Courts. The Hon'ble Supreme Court had occasion to refer to the two Division Bench decisions of this Court i.e. Jayanti Rani Panda (supra) and Hari Majhi (supra) along with the decisions of other High Courts. The case of Pradeep Kumar (supra) was decided by the Hon'ble Supreme Court with reference to the decisions in Uday vs. State of Karnataka, Deelip Singh @ Deelip Kumar vs. State of Bihar, 2005 SCC (Cri) 253 and Jayanti Rani Panda of this Court and also decisions of other High Courts. In Hari Majhi's 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 Panda's 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) 8. Therefore, the question is whether the consent given by the opposite party for 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 Hon'ble 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 vs. State of Karnataka (supra), Deelip Singh (@), Deelip Kumar (supra), Hari 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 Harnarain Singh vs. 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." 9. If we go through the 164 Cr. PC statement of the victim before the learned Magistrate then it is difficult to hold that the statement would prima facie revealed that the alleged consent is otherwise then normal. Mr. Roy assails this statement of the victim under section 164 Cr. PC to be an afterthought and false. Falsity or otherwise cannot be determined by this Court through this application under section 482 of the Cr. PC. 10. If we rely on Uday vs. State of Karnataka (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 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. 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. 11. Mr. 11. Mr. Roy referred to Pradeep Kumar vs. State of Bihar, reported in 2007(3) SCC (Cri) 407, where it was observed as follows:- "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 Panda's case (supra) which was approvingly referred to in Uday's 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). 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 Jaladu's 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 strait-jacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday's 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 accused's intention to marry cannot be ruled out." 12. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out." 12. The Hon'ble Single Bench decision of this Court in Partho Pratim Phukan vs. State (Supra) and Shyamapada Tewari vs. State (Supra) are facts oriented but they rely on the Uday vs. State of Karnataka and certain other decisions. 13. In such circumstances quashing of the charge sheet is impossible. The defence case can only be appreciated at the trial. 14. Application is dismissed. 15. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible. Appeal dismissed.