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2011 DIGILAW 368 (JHR)

Subrato Ghosh v. State of Jharkhand

2011-04-26

DILIP KUMAR SINHA

body2011
JUDGMENT D.K. Sinha, J. 1. This Criminal Revision is directed against the order impugned dated 31.03.2010 passed by the Additional Sessions Judge-I, Jamshedpur in Sessions Trial No. 09 of 2010 by which the petition filed on behalf of the Petitioner under Section 227 Code of Criminal Procedure for his discharge in Parsudih P.S. Case No. 188 of 2009, corresponding to G.R. No. 2609 of 2009 was rejected and a prima facie case was found against the Petitioner under Sections 376/417 of the Indian Penal Code as also under Section 3(I)(XII) of the S.C. and S.T. (Prevention of Atrocities) Act. The Petitioner was called upon to stand charged by the said order. 2. The prosecution story in short was that the informant-O.P. No. 2 Monika Bishwas by presenting a written report before Parsudih Police Station (East Singhbhum) stated that she was posted as Head Ticket Collector at Jharsuguda Railway Station and she was residing there in Qaurter No. A22/3 Railway Colony, Jharsuguda within the district of Jharsuguda (Orissa). In the year 2005 he came in contact with Subrato Ghosh, who was Operating Railway Employee at Tatanagar Railway Station having his Flat No. B/3, Amba Apartment, Prathamnagar, Parsudih, Jamshedpur and after some time he proposed before her for marriage and pursuant to that by giving alurement of marriage, he established bodily relation with her at several occasions. He called her at several occasions at his residence situated at Parsudih and there also he established sexual relation. She alleged that whenever she had been putting pressure for marriage after establishing sex, the Petitioner flately refused to marry her and started extending threat that he would do away her life. Finally, she stated that on 03.10.2009 she was asked by him to come to his residence to have talk with regard to their marriage but when she visited his house, he again established physical relationship and again refused to marry her. On the basis of the written report, Parsudih P.S. Case No. 188 of 2009 was lodged against the Petitioner under Section 376 of the Indian Penal Code on 10.10.2009. 3. Learned Counsel Mr. Nilesh Kumar submitted that there was no material whatsoever and there was no specific allegation but even then charge- sheet was submitted under Section 376 I.P.C. against the Petitioner as also under Section 3(I)(XII) of the S.C. and S.T. (Prevention of Atrocities) Act. 4. Mr. 3. Learned Counsel Mr. Nilesh Kumar submitted that there was no material whatsoever and there was no specific allegation but even then charge- sheet was submitted under Section 376 I.P.C. against the Petitioner as also under Section 3(I)(XII) of the S.C. and S.T. (Prevention of Atrocities) Act. 4. Mr. Kumar further submitted that in the given facts and circumstances, no offence of rape defined under Section 375 of the Indian Penal Code is made out against the Petitioner. It was nowhere alleged that bodily relationship was established against her will and without consent of the informant, or her consent was obtained in fear of death, or of hurt. It was not the case that she succumbed to the demand of sex believing herself to be lawfully married to the Petitioner or that the consent was given by reason of unsoundness of mind or under influence of intoxication. 5. The learned Counsel further submitted that, as a matter of fact, the informant was superior officer in cadre in respect of the cadre of the Petitioner and he had in no manner control over the informant so as to alure her or to pursue her for bodily relationship. If the prosecution case is admitted to be true for the arugment sake, though denied, the offence alleged could be only under Section 417 Code of Criminal Procedure for causing cheating as defined under Section 415 of the Indian Penal Code and not the offence of either rape or under Section 3(I)(XII) of the Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act. 6. The informant-O.P. No. 2 appeared in this Criminal Revision and filed her counter affidavit stating therein that the Petitioner in paragraph No. 8 of his petition stated that she was posted as Deputy Station Superintendent at Jharsuguda Railway Station and was junior in post to that of the informant. The informant explained in the counter affidavit that she was holding the post of Head T.T.E. which was much junior to the post of Deputy Station Superintendent and the Petitioner was in a position to dominate her will and exploit her sexually. Mr. V. Shivnath, the learned Sr. The informant explained in the counter affidavit that she was holding the post of Head T.T.E. which was much junior to the post of Deputy Station Superintendent and the Petitioner was in a position to dominate her will and exploit her sexually. Mr. V. Shivnath, the learned Sr. Counsel submitted that even if consent given by a lady of Scheduled Castes and Scheduled Tribes to one, who was in a position to dominate cannot claim defence of consent sex and therefore charge was rightly proposed under Section 3(i)(XII) of the S.C. and S.T. (Prevention of Atrocities) Act against the Petitioner besides other offence under Sections 376/417 of the Indian Penal Code. The informant was completely misled by the Petitioner who on the promise of marriage exploited her sexually and thereafter declined to marry her. 7. By filing supplementary petition, the Petitioner stated that the date of birth of informant Monika Bishwas recorded in her service book was 15.01.1966 whereas the date of birth of the Petitioner was 15.07.1973 and in that manner the Petitioner was about 7 years younger to the O.P. No. 2-informant. The Petitioner had never opportunity work with the informant Monika Bishwas at a common Railway Station and therefore, the control or supervision of the Petitioner over the informant in any manner did not arise. Admittedly, she was posted at Jharsuguda Railway Station as Head Ticket Examiner in the State of Orissa and she was under control of the local railway authority of Jharsuguda and therefore, the Petitioner was never in a position to dominate the will of the informant as she never worked under the dominance or control of the Petitioner so as to get opportunity to exploit her sexually. 8. Finally, it has been stated that the informant herself was quite major and much older to the Petitioner. She was admittedly a working woman working at different places and even after denial of the marriage she continued her physical relationship with the Petitioner as such it could not be possible that he exploited or dominated the will of the informant in any manner. 9. Learned Counsel relied upon a decision reported in (2003) 4 S.C.C.46. She was admittedly a working woman working at different places and even after denial of the marriage she continued her physical relationship with the Petitioner as such it could not be possible that he exploited or dominated the will of the informant in any manner. 9. Learned Counsel relied upon a decision reported in (2003) 4 S.C.C.46. The Supreme Court in Uday v. State of Karnataka held, The consensus of judicial opinon 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 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. 10. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the prosecutrix informant, who was head T.T.E. in the Indian Railway had sufficient intelligence to understand the significance and moral quality of the act she was consenting to the Petitioner, who was much younger to her, to establish bodily relationship on the inducement and promise of marriage and therefore, consent sex cannot come within the purview of Section 375 of the Indian Penal Code. I further find prima facie that the Petitioner was not in a position in the facts and circumstances to dominate the will of the prosecutrix O.P. No. 2 so as to command her to establish bodily relationship in spite of refusal by the Petitioner to marry with her, as she has admitted. However, there appears prima facie elements for constituting an offence of cheating under Section 415 of the Indian Penal Code against the Petitioner, which is punishable under Section 417 of the Indian Penal Code which is exclusively triable by the Judicial Magistrate of 1st Class. 11. In the given facts and circumstances, I do not find it to be a fit case for discharge of the Petitioner under Section 227 Code of Criminal Procedure hence the case record is directed to be remitted back to the Court of the C.J.M., Jamshedpur under Section 228(1)(a) of the Code of Criminal Procedure against the Petitioner to proceed in accordance with law. As the charge proposed against the Petitioner under Section 376 I.P.C. could not be established for the reasons discussed, Consequently the proposed charge under Section 3(I)(XII) of the S.C. and S.T. (Prevention of Atrocities) Act is also not made out, accordingly both are set aside. 12. With this observation, this Criminal Revision is allowed. Appeal by Revenue allowed.