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2017 DIGILAW 616 (ORI)

Prasanta Kumar Patra v. State of Orissa

2017-06-19

S.PUJAHARI

body2017
ORDER 19.6.2017. Heard learned Counsel for the petitioner and learned Counsel for the State, so also learned Counsel for the opposite party No.2-Victim. The petitioner has filed this CRLMC under Section 482 of the Cr.P.C. to quash the order dated 16.11.2009 passed by the learned J.M.F.C., Pattamundai in G.R. No.513 of 2009 taking cognizance against him under Sections 448/493 of the I.P.C. It appears that the F.I.R. was lodged by the father-in-law of the opposite party No.2-victim that he was his daughter-in-law in a compromising position with one unknown person, who was later identified to be the present petitioner. Police investigated the same and filed charge-sheet against the petitioner under Sections 448/493 of the I.P.C. The victim in her statement recorded by the Police during the investigation stated that the aforesaid allegation has been made being actuated with malafide and in order to defame her by her father-in-law in the absence of her husband who lives in abroad. Drawing notice of this Court to the aforesaid statement of the victim as well as the ingredients of Section 448/493 of the I.P.C., it is submitted by the learned Counsel for the petitioner that there being no prima facie material attracting the ingredients of the offence under Section 493 of the I.P.C., cognizance taken on the same was bad in the eye of law and in the absence of any offence committed, cognizance taken of the offence under Section 448 is also unsustainable. Learned Counsel for the State, however, fairly submits that no such offence is emerged from the record. Needless to say that when a man by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and cohabit or have sexual intercourse with him in that behalf, he is liable to be punished for the offence under Section 493 of IPC. To constitute the offence under Section 493 of IPC, a man must have deceived a woman into a belief that certain ceremony which is caused to be performed with her constitute a valid marriage between them and had co-habited or had sexual intercourse with her on the belief that he was her lawful husband. To constitute the offence under Section 493 of IPC, a man must have deceived a woman into a belief that certain ceremony which is caused to be performed with her constitute a valid marriage between them and had co-habited or had sexual intercourse with her on the belief that he was her lawful husband. But, where a man, without giving any impression of a marriage between each other, had sexual intercourse with a woman when she is married to another, the same does not come within the purview of Section 493 of IPC. This Court in the case of Sarjan Kheti vrs. State of Orissa, reported in 2014 (II) OLR 199 have held as follows : “So far as the conviction under Section 493 of IPC is concerned, prosecution is required to establish the following ingredients by legally acceptable evidence, those are, (i) the accused practised deception, (ii) such deceit was to induce a woman to believe that she was lawfully married to him; and (ii) there was cohabitation or sexual intercourse as a result of the deception. Section 493 of IPC, therefore, presupposes a marriage between the accused and the victim which may not be necessarily by following a ritual or by customary ceremony, but there must be an inducement to the woman that such marriage between him and the woman was lawful and giving that impression if an accused cohabits or had sexual intercourse in pursuance of such deception, then the accused can be guilty of a charge under Section 493 of IPC.” Keeping in view the aforesaid when the material on record is addressed, it appears that in this case the victim, a married lady, categorically denied any such occurrence of sexual intercourse with her by any person on the date of occurrence must less giving her impression that she was lawfully married to the person committing sexual intercourse with her. Hence, there was no prima facie material touching the ingredients of the charge under Section 493 of the I.P.C. in this case. Hence, there was no prima facie material touching the ingredients of the charge under Section 493 of the I.P.C. in this case. The allegation of her father-in-law that there was sexual intercourse between the victim and the petitioner even if accepted prima facie, there being no deceit practice on the victim that she being deceived by the petitioner of a lawful marriage between them, had sex with the petitioner, as the victim had knowledge that her husband was residing in Dubai and the petitioner was not her husband, it does not attract the ingredients of charge under Section 493 of IPC. When the ingredient of the charge under Section 493 of IPC is squarely lacking in this case, no offence under Section 448 of IPC is also made out inasmuch as nothing is there indicating the fact that the petitioner had entered into the house for commission of any offence. I would, therefore, allow this CRLMC and quash the order of cognizance and the prosecution against the petitioner for the said offences. Interim order passed earlier stands vacated. With the aforesaid order, this CRLMC stands disposed of. Urgent certified copy of this order be granted on proper application. CRLMC disposed of.