Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 680 (GAU)

Mokdam Ali And Anr. v. State of Assam and Ors.

2009-09-17

I.A.ANSARI

body2009
1. By filing this petition under section 482, Cr.PC, read with article 227 of the Constitution of India, the petitioners have put to challenge the registration of Barpeta P.S. Case No.327/09, under sections 417/493/312/420/34 of the IPC, against the petitioners, as accused, the ground of challenge being that the First Information Report ('FIR') does not disclose commission of offences under the penal provisions of section 493 or section 420, IPC and, hence, in such circumstances, the registration of the case aforementioned, under section 493 and section 420, IPC, was illegal and as far as the offences under sections 417 and 312, IPC are concerned, the same, being non-cognizable, cannot be investigated by police in exercise of its powers under section 156(1), Cr.PC. 2. I have heard Mr. B. Ahmed, learned counsel for the accused petitioners, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam, appearing on behalf of the opposite party Nos.1 and 3. I have heard also Mr. R. Ali, learned counsel, appearing on behalf of opposite party No.2, (i.e., the complainant). 3. In the case at hand, opposite party No.2 herein had filed a complaint, on 17.2.2009, in the court of the Chief Judicial Magistrate, Barpeta. This complaint was sent to the police for its registration as First Information Report and also for investigation. Treating the complaint as FIR, Barpeta Police Station Case No.327/09, under sections 417/493/312/420/34 of the IPC, was, as indicated above, registered. It is the registration of the case under the penal provisions of section 493 and section 420, IPC, which stood challenged, in this criminal revision, by the accused petitioners on the ground that the contents of the FIR, even if assumed to be true, do not disclose commission of offences under section 493 and/or section 420, IPC and, consequently, the police cannot investigate the remaining offences, namely, offences allegedly committed under sections 417 and 312 inasmuch as both these penal provisions are non-cognizable and cannot be investigated by police without appropriate authority having been received from the Magistrate concerned. 4. 4. While considering the above aspects of the submissions, made on behalf of the petitioners, it needs to be noted that according to the informant, the accused-petitioner No. 1 had been carrying on love affair with the informant and, by promising to marry her, the accused-petitioner No.1 had induced the informant to let her have sexual intercourse with the accused-petitioner No. 1 and, as a result of such sexual intercourse, she became pregnant, but the accused-petitioner No.1 got her pregnancy terminated by taking her to the residence of an unknown person. It is also alleged, in the complaint, that the accused-petitioner No.1 has, thus, deceived the complainant by subsequently refusing to marry her. 5. There is, admittedly, no allegations, in the FIR, that the informant was under the impression that the petitioner No.1 was her lawfully married husband. In fact, the contents of the FIR show that the informant, despite being fully aware of the fact that she was not the wife of accused-petitioner No. 1, had allowed the accused-petitioner No. 1 to have sexual intercourse with her under the belief that he would marry her. In such circumstances, penal provisions of section 493, IPC were not attracted inasmuch as section 493 is attracted only, when a man, by deceit, causes a woman, who is not lawfully married to him, to believe that she is lawfully married to him and, acting upon such belief, she cohabits or have sexual intercourse with him. Unless, therefore, a woman is deceived by a man to believe that she is lawfully married to him and she, under such belief, cohabits or have sexual intercourse with such a man, no offence, under section 493, IPC, can be said to have been committed. In the case at hand, a bare reading of the contents of the complaint, which has been registered as the FIR, shows that the complainant (informant) had knowledge that she was not yet lawfully married to the accused-petitioner No.1, though she had allowed, according to what she alleges, the accused-petitioner No.1 to have sexual intercourse with her under the belief that he would, as had been promised by him, marry her. In such circumstances, rightly contends Dr. Ahmed, that the FIR does not make out any case attracting the penal provisions of section 493, IPC. 6. In such circumstances, rightly contends Dr. Ahmed, that the FIR does not make out any case attracting the penal provisions of section 493, IPC. 6. Turning to section 417, IPC, it needs to be noted that section 417, IPC makes punishable offence of cheating. Cheating has been defined in section 415, IPC. The ingredients of the offence of cheating require (i) deception of a person, (ii) whereby, fraudulently or dishonestly, inducing the person, so deceived, to deliver any properly to any person or to consent that any person shall retain any property, or (iii) Intentionally inducing that person to do or omit to do anything, which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of a person is common to the second and third requirements of the provisions of section 415. The ingredients, as pointed out under (i) and (ii) hereinbefore, are alternative to each other and this is made significantly clear by use of disjunctive conjunction "or". The definition of the offence of cheating embraces cases in which no transfer of property is occasioned by the deception and also cases in which such a transfer occurs. Deception is the quintessence of the offence [see Devender Kumar Singla v. Baldev Krishan Singla, (2005) 9 SCC 15 .] 7. When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her with the accused causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment under section 417, IPC if the victim's having sexual intercourse, with such a person, causes or is likely to cause harm to her body, mind or reputation, for, in such a case, unless so deceived, the victim would not have permitted sexual act by the accused. To put it differently, had such a victim not been deceived, she would not have permitted sexual act or would have refrained from allowing such sexual act and, clearly in such a case, but for her permitting such sexual act, she would not have suffered harm to her body, mind or reputation. 8. Since the definition of the offence of cheating indicates, as already pointed out above, that even when no parting of property is occasioned by deception, the deception may still amount to cheating, if as a result of the deception, a woman does anything or omits to do anything which she would not have, but for such deception, done or omitted to do, it logically follows that when an accused, not intending to marry a woman, induces the woman, so deceived, to have sexual intercourse with him or induces such a woman to omit from resisting the act of sexual intercourse by him with her, the act of the accused of having sexual intercourse with such a woman would amount to offence of cheating if the act of the woman in letting such a man have sexual intercourse with her or the act of the woman in omitting to resist the act of sexual intercourse by such a man with her causes or is likely to cause damage or harm to the person of such a woman, her mind or reputation [see Bipul Medhi v. State of Assam, 2006 (3) GLT 585.] 9. In the present case, it is the specific accusation of the complainant (informant) that the accused had promised to marry her and induced by such promise, she had allowed the accused to have sexual intercourse with her. The subsequent conduct of the accused, however, shows, if found to be true, that he never intended to marry the complainant (informant) and by making such promise, induced her to have sexual intercourse with him. The subsequent conduct of the accused, however, shows, if found to be true, that he never intended to marry the complainant (informant) and by making such promise, induced her to have sexual intercourse with him. No consent, in law, can, therefore, be said to exist in the present case, when the complainant (informant) had allowed the accused-petitioner to have sexual intercourse with her. Whether as a matter of fact, the accused had made such a promise or whether the complainant (informant) believed such a promise to be true and whether or not the accused-petitioner had, by practicing such deception, obtained the body of the complainant (informant), are all questions of facts, which can be determined only by investigation or trial. At this stage, however, the contents of the FIR are to be assumed to be true. It may also be pointed out that even subsequent conduct can be one of the factors to be taken into account to determine as to what the real intent of a person, such as accused-petitioner No.1, was, when he had allegedly made the promise to marry. It may be noted, in this regard, the Apex Court has pointed out, in Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 , that for the purpose of determining as to whether 'consent' existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. This, in turn, shows that while determining the question whether 'consent' existed or not, the court has to take into account not only the previous or contemporaneous act of the accused, but also his subsequent conduct. To put it a little differently, the previous or the contemporaneous acts of an accused or even his subsequent conduct may help the court determine as to whether the offer of marriage made by the accused was a mere hoax to obtain 'consent' or was it an honestly made promise of marriage. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will not be sufficient proof, in the absence of anything more, that the promise made by the accused was never intended to be acted upon by him. 10. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will not be sufficient proof, in the absence of anything more, that the promise made by the accused was never intended to be acted upon by him. 10. Coming to the offence under section 420, IPC, it needs to be noted that according to section 420, IPC, whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 11. One of the ingredients of the offence of cheating, punishable under section 420, IPC, as correctly submitted by Dr. Ahmed, learned counsel for the accused-petitioners, is that the person deceived must be induced to deliver any property to any person or to make, alter or destroy the whole or any part of a valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security. Unless, therefore, there is delivery of property or alteration or destruction, in whole or in part, of the valuable security, no offence under section 420 can be said to have been made out. There is absolutely nothing, in the FIR, showing that induced by the accused petitioner No.1 to marry her, the complainant (informant) had delivered any property. In such circumstances, the registration of the case, under section 420, IPC, too, was illegal. 12. When a person voluntarily causes a woman with child to miscarry, if such miscarriage be not caused in good faith, for the purpose of saving the life of the woman, he commits an offence, which is punishable by imprisonment of either description for a term, which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term, which may extend to seven years, and shall also be liable to fine. 13. 13. Explanation to section 312, IPC further indicates that even a woman, who causes herself to miscarry, when such miscarriage is not caused in good faith, for the purpose of saving life, she too should be treated to have committed the offence under section 312. When such miscarriage, as mentioned in section 312, is done by a person without the consent of the woman, irrespective of the fact as to whether the woman is quick with the child or not, he commits an offence under section 313, IPC. 14. Coupled with the above, what is extremely important to note is that when termination of pregnancy is done by a person, who is not a registered medical practitioner, he commits an offence under section 5(2) of the Medical Termination of Pregnancy Act, 1971. In fact, section 5(2) of the said Act makes it clear that the penal provisions, made in section 5(2), shall have overriding effect on the penal provisions relating to termination of pregnancy in the Indian Penal Code. 15. Furthermore, section 4 makes it clear that no termination of pregnancy shall be carried out at any place other than a hospital established or maintained by the Government or a place, which may have been, for the time being, approved, for the purpose, by the Government or a District Level Committee, constituted by the Government with the Chief Medical Officer or the District Health Officer, as the Chairperson of the said Committee. Sub-section (4) of section 5 makes it clear that termination of pregnancy at a place, other than a place as described by section 4, shall be an offence and owner of such a place shall be liable to be punished for not less than two years of rigorous imprisonment, which may extend to seven years. 16. Sub-section (4) of section 5 makes it clear that termination of pregnancy at a place, other than a place as described by section 4, shall be an offence and owner of such a place shall be liable to be punished for not less than two years of rigorous imprisonment, which may extend to seven years. 16. Prom the above discussion, what clearly transpires is that when the termination of pregnancy of a woman is at the hands of a person, who is not a registered medical practitioner, irrespective of fact as to whether such termination has been done for the purpose of saving the life of the woman or not and/or with or without the consent of the woman or not, such termination would amount to an offence punishable under section 5(2) and if such termination is carried out at a place, other than a hospital established or maintained by the Government or at a place as may be approved by appropriate authority, in terms of provisions of section 4 of the said Act, such termination of pregnancy shall constitute an offence punishable under section 5(4). Thus, the offences, under section 5(2) as well as section 5(4) of the said Act, can be punished by rigorous imprisonment of seven years. 17. In the present case, the complainant alleges that the accused-petitioner got her pregnancy terminated with the help of a person, who is not shown to be a registered medical practitioner. Similarly, the pregnancy is alleged to have been terminated at the residence of a person. There is nothing to show that the said residence was an approved place within the provisions of section 4 of the said Act. In such circumstances, whether the allegations, so made, are true or false, the acts of termination of pregnancy, if true, would amount to offences punishable under section 5(2) as well as section 5(4) of the said Act. Such an offence is punishable by rigorous imprisonment of not less than two years and such rigorous imprisonment may even extend to seven years. 18. In the light of the Schedule to the Code of Criminal Procedure, an offence, which is punishable by imprisonment for three years and above, shall be cognizable as well as non-bailable. Such an offence is punishable by rigorous imprisonment of not less than two years and such rigorous imprisonment may even extend to seven years. 18. In the light of the Schedule to the Code of Criminal Procedure, an offence, which is punishable by imprisonment for three years and above, shall be cognizable as well as non-bailable. Such an offence, being cognizable, is within the scope of a police officer's jurisdiction under section 156(1), Cr.PC and such an offence can, therefore, be investigated by the police. If oral or written information is received by the Officer in-Charge of a police station of commission of such an offence within the territorial jurisdiction of his police station, he would be duty bound to register such a case under section 5(2) as well as section 5(4) of the said Act. 19. In the circumstances, as indicated above, it becomes clear that though commission of offences under sections 493 and 420, IPC was not made out by the contents of the said FIR, the offences, allegedly committed, were, under sections 417, 312 and 313, IPC read with section 5(2) and section 5(4) of the said Act. 20. Because of what have been discussed above, while this petition partly succeeds and the registration of the case, in question, under sections 493 and section 420, IPC is hereby set aside and quashed, the Officer in-Charge, Barpeta Police Station, is hereby directed to register the case aforementioned under section 5(2) and 5(4) of the Termination of Pregnancy Act, 1971, in addition to sections 417, 312 and section 313 of the IPC, and, upon registration, do the needful, thereafter, in accordance with law. 21. With the above observations and directions, this criminal petition shall stand disposed of.