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2015 DIGILAW 879 (CAL)

Ziaur Rahman v. State of West Bengal

2015-10-14

SAHIDULLAH MUNSHI

body2015
JUDGMENT Sahidullah Munshi, J. This revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure arises out of an order dated 26th February, 2014 passed by the learned Additional District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Kolkata, in Sessions Case No.94 of 2013 thereby rejecting the discharge application of the petitioner under Section 227 of the Code of Criminal Procedure. Sessions Case No.94 of 2013 arose out of Bowbazar P.S. Case No.284 of 2012 dated 7th May, 2012 under Sections 417/376 of the Indian Penal Code, pending before the learned Additional District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Kolkata. The instant case was started on the basis of a written complaint lodged by the opposite party No.2 on 2nd May, 2012 in which the opposite party No.2 stated that the petitioner, for the last 16 years, has been indulging in physical relation with her on the pre-text of marrying the opposite party No.2. The opposite party No.2 alleged that in order to avoid pregnancy the petitioner used to administer a contraceptive pill before doing sex. It has been stated in the written complaint that the petitioner used to stay at a rented place with the opposite party No.2 for some time and, thereafter, they used to stay together almost 6-7 days in every month at a place, namely, Ghutiary Shariff as husband and wife in a hotel. The petitioner used to misbehave with the opposite party No.2 when she asked for their marriage. The opposite party No.2 has admitted in the complaint that every month the petitioner used to give her Rs.1000/-(Rupees One Thousand) only but for the last 7-8 months he stopped giving the same to the opposite party No.2. at present the petitioner does not give anything to the opposite party No.2 and as a result, she has made the complaint. From the record it appears that the lady, opposite party No.2, has got her statement recorded under Section 164 of the Code of Criminal Procedure before the learned Magistrate but, before the learned Magistrate she has not alleged anything against the petitioner regarding their live-in relationship nor she has alleged anything against the petitioner regarding his misbehaviour or his failure to promise to marry. In this case, charge-sheet has been submitted on 27th May, 2013. In this case, charge-sheet has been submitted on 27th May, 2013. The petitioner filed an application before the learned Court below under Section 227 of the Code of Criminal Procedure for discharge of the accused petitioner. The present petitioner was released on bail by the City Sessions Court at Calcutta vide Criminal Misc. Case No.23 of 2013 on 18th January, 2013. The petitioner is now on bail. When the revisional application was moved an interim order was passed on 28th April, 2014 directing stay of all further proceedings of G.R. Case No.1850 of 2012 corresponding to Sessions Case No.94 of 2013 pending before the Court of learned Additional Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Kolkata for a period of eight weeks or until further order whichever was earlier. The said interim order had been extended time to time. In the said revisional application the parties have filed a joint petition for compromise being C.R.A.N. 2920 of 2015. With the said joint petition for compromise the parties have relied upon a memorandum of understanding and the same has been annexed to the joint petition for compromise. From the said memorandum of understanding it appears that the second party, namely, the opposite party No.2, has agreed that the written complaint which is filed by her was based on misunderstanding and she has agreed to withdraw the allegations and complaint made against the first party, that is, the petitioner herein. She has also agreed that in the event this Hon’ble Court is pleased to allow the criminal revisional application being C.R.R. No.968 of 2014 thereby discharging the petitioner Ziaur Rahman, the opposite party No.2 has no objection. The parties have further stated at the end of the said memorandum of understanding that both the parties have executed the memorandum in their free will and under no threat, duress, coercion or any undue influence from any quarter whatsoever. Apart from the compromise entered into by and between the parties from materials available in the record, namely, the written complaint and the statement under Section 164 of the Code of Criminal Procedure it appears that the petitioner need not be compelled to face trial. He cannot be denied to be discharged under Section 227 of the Code of Criminal Procedure from the aforesaid case. He cannot be denied to be discharged under Section 227 of the Code of Criminal Procedure from the aforesaid case. It is the admitted case that the petitioner and the opposite party lived together for about 16 years and the petitioner used to pay a sum of Rs.1,000/- (Rupees one Thousand) only per month towards the maintenance of the opposite party No.2 but the allegation is when the petitioner stopped the said amount the opposite party No.2 rushed to the Police Station and filed a written complaint against the petitioner. It is also on record that after the written complaint was filed and when the case proceeded the opposite party No.2 got her statement recorded under Section 164 of the Code of Criminal Procedure but from a perusal of the said statement recorded before the learned Magistrate no allegation appeared to have been recorded against the petitioner which has been alleged in the written complaint. It is not understood as to why in the statement under Section 164 of the Criminal Procedure Code the opposite party No.2 did not make any allegation against the petitioner. This leads to a doubt that the opposite party No.2 although, made a written complaint but she has not made any allegation against the petitioner. It was only, according to the opposite party No.2, when the petitioner stopped paying Rs.1,000/- (Rupees One Thousand) only per month she, out of grudge, filed the written complaint before the Police. On the materials disclosed in the complaint filed by the opposite party No.2 it is difficult to hold that any offence either under Section 417 or under Section 376 of the Indian Penal Code has been disclosed. The fact narrated in the written complaint shows that the lady stayed with the petitioner for about 16 years and she had occasionally undergone sexual intercourse with the petitioner without any protest. This shows that even if there was any intercourse, the same had occasioned with the consent of the opposite party No.2 and in that case it is hardly possible to convict a person under Section 376 when it is a consensual sex or intercourse. This shows that even if there was any intercourse, the same had occasioned with the consent of the opposite party No.2 and in that case it is hardly possible to convict a person under Section 376 when it is a consensual sex or intercourse. The learned Court below on consideration of facts has held that although, the opposite party No.2 is aged 35 years and has got sufficient maturity to give consent for sexual intercourse but the learned Court below has held that the petitioner has to face trial and he should not be discharged from the offences alleged against him which is rather difficult to accept. On the other hand, if the case is allowed to proceed, the same will tantamount to abuse of the process of law and in my view, the learned Court below ought to have allowed the application filed by the petitioner under Section 227 of the Code of Criminal Procedure. This Court has ample power under Section 482 of the Code of Criminal Procedure to make such order as may be necessary to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Code or otherwise to secure the ends of justice. In view of this power I hold that the aforesaid G.R. Case No.1850 of 2012 corresponding to Sessions Case No.94 of 2013 should not be allowed to proceed any further. The order impugned being order No.9 dated 26th February, 2014, passed by the learned Additional District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Kolkata in Sessions Case No.94 of 2013 is quashed and set aside. Consequently, the application filed by the petitioner under Section 227 is allowed and the petitioner is discharged from the offence complained of. Consequently also G.R. Case No.1850 of 2012 arising out of Bowbazar P.S. Case No.284 of 2012 dated 7th May, 2012 under Section 417/376 of the Indian Penal Code is quashed. Revisional application is allowed. There will be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the learned advocates for the parties, upon compliance of all requisite formalities.