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2015 DIGILAW 1526 (JHR)

Manoj Kumar Sharma v. State of Jharkhand

2015-12-08

RAVI NATH VERMA

body2015
Order : Invoking the revisional jurisdiction of this Court under Section 397 and 401 of the Code of Criminal Procedure (in short ‘the Code’), the petitioner has questioned the legality of the order impugned dated 24.02.2015 passed by the learned Additional Sessions Judge-I, Jamshedpur in S.T. No.- 370 of 2014 whereby and whereunder the petition filed by the petitioner for his discharge under Section 227 of the Code has been rejected. 2. The factual score as depicted in the F.I.R. lodged at the instance of Rekha Devi- the informant, is that after the death of her husband Mangal Lohar, she became helpless but she came in the contact of one social worker Rajbir Kaur, who narrated her story to the petitioner Manoj Kumar Sharma and the said Manoj Kumar Sharma assured her to maintain the informant and her children and also promised to marry with her on the pretext that since after the death of his wife almost five years ago, he has been living alone. Thereafter, he brought the informant to his house at Ashiyana Muktagiri Flat No. 204 and on false promise of marriage, the petitioner made illegal relationship with her. It is also alleged that she was living with the petitioner as husband and wife but the intention of the petitioner was otherwise and he tried to physically assault her daughter Simran Kaur also. Seeing the bad intention of the petitioner, she shifted her daughter Simran Kaur to her sister’s house in Jugsalai but when came back to her house, she found that petitioner with the help of 4-5 persons had taken away all the house hold articles from the said flat. 3. On the basis of the said information, Dhalbhum (Mango) P.S. Case no. 140 of 2014 was instituted on 09.03.2014 under Sections 376, 354, 379, and 506 of I.P.C. 4. It appears from the record that after completion of the investigation, the police submitted the charge sheet against the petitioner and the case was committed to the court of sessions. At the time of framing of charge, a petition under Section 227 of the Code was filed at the instance of the petitioner for his discharge but the court below vide order dated 24.02.2015 finding sufficiency of materials and evidence against this petitioner dismissed the petition for his discharge. Hence, this revision. 5. At the time of framing of charge, a petition under Section 227 of the Code was filed at the instance of the petitioner for his discharge but the court below vide order dated 24.02.2015 finding sufficiency of materials and evidence against this petitioner dismissed the petition for his discharge. Hence, this revision. 5. Learned counsel for the petitioner while assailing the order impugned as perverse and bad in law seriously contended that the court below while rejecting the petition for discharge has not at all considered the materials available on record in right perspective and in fact no case under Section 376 of I.P.C. is made out against the petitioner as the informant is major. Learned counsel further relying upon a judgment reported in (2013) 7 SCC 675 ; Deepak Gulati Vs. State of Haryana submitted that the informant was capable of understanding the complications and issues surrounding her marriage to this petitioner and she voluntarily became intimate with this petitioner. It was also submitted that the informant was in habit of filing cases against persons under Section 376 I.P.C. with an intention to extort money and in those cases, the police after investigation has submitted final form and two of such final forms submitted by the police are enclosed with this revision application as Annexure-3 at page-49 and Anexxure-5 series. Learned counsel further submitted that even the daughter of the informant has lodged case with almost similar allegation against one Raj Kumar Gupta. Lastly, it was submitted that the court below without appreciating the evidence in right perspective passed the order impugned without applying his judicial mind and there is absolutely no evidence on record to show the complicity of this petitioner in the alleged offence. 6. Contrary to the aforesaid submissions, the learned counsel suo-moto appearing for the informant and also the learned counsel representing the State opposed the prayer and contended that the court below after considering the evidence available on record passed the order impugned and at this initial stage, the truth, veracity and effect of the evidence are not to be meticulously examined and only strong prima facie case is sufficient to frame charge against the petitioner. 7. 7. Being quite conscious of the fact that the trial would be at its very threshold and that in this application, this Court is dealing with the limited aspect of the petitioner being charged or discharged, I would like to examine the scope of Section 227 of the Code. The law at this point is succinctly analyzed by the Hon’ble Supreme Court in Sajjan Kumar Sajjan Kumar Vs. CBI [ (2010) 9 SCC 368 ] wherein the Hon’ble Court has observed in para 19 as under: “19. It is clear that at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” 8. In another case Rajiv Thapar and others Vs. Madan Lal Kapoor; (2013) 3 SCC 330 , the Hon’ble Supreme Court while dealing with the same issue of discharge in a complaint case, lodged at the instance of father of a deceased girl, held in paragraph- 28 as follows:- “28. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations brining out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.“ 9. Rape is the most morally and physical reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim where a victim under a misconception of fact to the extent that the accused is likely to marry her, submitted to the lust of the accused, such a fraudulent act in the settled view cannot be said to be consensual so far as the offence of the accused is concerned. Consent may be expressed or implied coerced or misguided or obtained willfully or through deceit. There is a clear distinction between rape and consensual sex and the court must very carefully examine whether the accused had intention to marry with the victim or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of misrepresentation made to her by the accused. In a case Uday Vs. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of misrepresentation made to her by the accused. In a case Uday Vs. State of Karnataka; (2003) 4 SCC 46 , almost considering the similar situation, the Hon’ble Supreme Court has held 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 straitjacket 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 acts which may have a bearing on the question whether the consent was voluntary or was given, under a misconception of fact. 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.” 10. Thus, from the ratio decided in the above case, it is amply clear that 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. So, at this initial stage, the court is not to examine the evidence meticulously or a roving enquiry is possible and the issue can be decided only after taking proper evidence. I have also gone through the materials available on the record and I find that the petitioner had brought the victim to his house and established physical relationship on a false promise of marriage. I have also gone through the materials available on the record and I find that the petitioner had brought the victim to his house and established physical relationship on a false promise of marriage. The consent which the petitioner had obtained appears to be not a voluntary one rather it was given by her under misconception of fact that the petitioner would marry her but this is not a consent in law. There is strong prima facie case and grave suspicion against this petitioner. This is not a stage to make a roving enquiry into the matter or to see whether the trial will end in conviction or acquittal rather the court has to presume a strong suspicion or a grave prima facie case to proceed with the case. Even if the accused is successful in showing the suspicion or doubt in the allegation levelled by the prosecution, at this stage, it would be impermissible to discharge the accused before trial. 11. For the reasons aforesaid, I do not find any illegality in the order impugned. Accordingly this revision application is, hereby, dismissed.