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2018 DIGILAW 125 (ORI)

Pradeep Kumar Mahananda v. State of Orissa

2018-01-29

D.P.CHOUDHURY

body2018
JUDGMENT Dr. D.P. CHOUDHURY, J. - This is an application under Section 482, Cr.P.C. to quash the proceeding initiated against the petitioner in G.R. Case No.343 of 2004 arising out of Boudh P.S. Case No.146 of 2004 pending in the Court of learned SDJM, Boudh. FACTS. 2. Sworn of unnecessary details, the prosecution case is that the victim woman, aged about 21 years, was working as maid-servant in the house of Sambhu Mahananda. During the course of her stay there, the petitioner being the son of Sambhu Mahananda was in love with the victim woman. With the promise to marry, the petitioner kept illicit relationship with the victim woman. During the course of sexual intercourse, the victim woman became pregnant and gave birth to a male child. Later on, the petitioner did not marry her. As such, she was cheated by the petitioner. When she asked the petitioner to marry, the petitioner threatened her to kill. Finding no other way, she lodged the F.I.R. The case was registered under Section 506, 493, 417 of the Indian Penal Code. After completion of investigation, the Investigating Officer submitted charge-sheet against the petitioner under Sections 493, 417/506, IPC and cognizance of the said offences was taken by the learned Magistrate. Since the petitioner did not appear, the learned Magistrate issued non-bailable warrant of arrest against the petitioner. Challenging the said order, the petitioner moved this Court to set aside the criminal proceeding initiated against the petitioner. SUBMISSIONS. 3. Mr.D.P.Dhal, learned Counsel for the petitioner submitted that the offence under Section 493, IPC is not made out even if the FIR. Is gone through because there is nothing available from the F.I.R that the petitioner deceitfully made her to believe that she has lawfully married to the petitioner for which one of the ingredients of the offence under Section 493, IPC is not made out. Similarly, the ingredients of the offence under Section 417 and 506, IPC are not made out for which the registration of the F.I.R. for the commission of such offences should be quashed. In support of his submission, he has cited the decision in Moideenkutty Haji and others v. Kunhihoya and others, AIR 1987 Kerala 189, Amruta Goddia v.Trilochan Pradhan, 1993 Cri.L.J. 1022 and Sauraua Barik v. Smt. Gouri Kaudi @ Gouri, 76 (1993) CLT 428. 4. Learned Addl. In support of his submission, he has cited the decision in Moideenkutty Haji and others v. Kunhihoya and others, AIR 1987 Kerala 189, Amruta Goddia v.Trilochan Pradhan, 1993 Cri.L.J. 1022 and Sauraua Barik v. Smt. Gouri Kaudi @ Gouri, 76 (1993) CLT 428. 4. Learned Addl. Standing Counsel submitted that the F.I.R. makes out a cognizable offence and no affidavit has been filed by the victim woman in this Court. Even also, the informant has not been arrayed as a party in this case. In such situation, the proceeding should not be quashed. 5. The main point for consideration. Whether the order of taking cognizance is liable to be quashed and consequently the entire criminal proceeding is also liable to be quashed DISCUSSIONS 6. Section 493, IPC has the following ingredients : (i) The deceit that causes a false belief in the existence of lawful marriage. (ii) Cohabitation or sexual intercourse with the person causing such belief. 7. The Full Bench of Kerala High Court in Moideenkutty Haji (supra) have observed as follows : “ xxxx The essence of the section is therefore the deception caused by a man on a woman in consequence of which she is led to believe that she is lawfully married to him while in fact they are not lawfully married. In order to establish deception there must first be allegations that the accused falsely induced her to believe that she is legally wedded to him. In the complaint in this case there is no allegation of any such deception of inducement. In a case where both the man and woman fully knew that they are not husband and wife and no ceremony of marriage took place between them, there is no question of one of them believing otherwise. Even if the entire allegations in the complaint are taken as true, the section is not being attracted. The allegation is that though they are not husband and wife, they had sexual union during late hours in the night for a pretty long time. What is alleged in the complaint is only a promise to marry in future. The strange part of it is, there is the further allegation that one day they went for registering the marriage, but the petitioner ran away from there and even thereafter she was submitting herself to him regularly for liaison. What is alleged in the complaint is only a promise to marry in future. The strange part of it is, there is the further allegation that one day they went for registering the marriage, but the petitioner ran away from there and even thereafter she was submitting herself to him regularly for liaison. The facts cannot at any rate attract Section 493, IPC.” 8. With due regard to the aforesaid decision, it is found that the ingredients must be proved and one of the main ingredients is to prove when the man deceitfully induces a woman to believe that she is lawfully married to him. In fact, they are not lawfully married. Moreover, the meaning of deception caused by the man or woman should be proved. Not only this, but also the Single Bench of this Court in Janaki Kumar Das v. Gajendra Das, (1990) 3 OCR 367 has observed as follows : “Sec. 493, IPC does not penalize mere cohabitation or sexual intercourse when a woman, who is not lawfully married to the accused. This section is attracted when certain other ingredients are also associated therewith. The section envisages the case when a man deceitfully induces a woman to have sexual intercourse with him causing her to believe that she is lawfully married to him.” 9. With due regard to the aforesaid decision, it appears that in order to prove the offence under Section 493, IPC, there must be averment ent that the petitioner deceitfully made to believe the opposite party that they have been lawfully married although the petitioner has not married to the opposite party. If such ingredient is not proved, mere sexual relationship with the petitioner does not prove any offence under Section 493, IPC. By going through the F.I.R. nothing is revealed except the petitioner promising to marry the informant and this is not sufficient to prove the ingredients of the offence under Section 493, IPC. Hence, the ingredients of the offence under Section 493, IPC is not made out in the F.I.R. itself. 10. By going through the F.I.R. nothing is revealed except the petitioner promising to marry the informant and this is not sufficient to prove the ingredients of the offence under Section 493, IPC. Hence, the ingredients of the offence under Section 493, IPC is not made out in the F.I.R. itself. 10. Section 417 IPC has got the following ingredients : (i) that the person ‘deceived delivered to someone, or consented that some person shall retain certain property; (ii) that the person deceived was induced by the accused to do as above; (iii) that such person acted upon such inducement in consequence of his having been deceived by the accused; (iv) that the accused acted fraudulently or dishonestly when so inducing that person. Or prove (i) that the person deceived did, or omitted to do something which he was not bound to do or omit to do. (ii) and (iii) as above. (v) That the accused so induced that person intentionally; (vi) That such act or omission caused, or was likely to cause, damage or harm to that person in body, mind, reputation or property.” 11. In order to find out the above ingredients in the F.I.R. and other materials, the F.I.R. story clearly reveals that the petitioner having induced with deceitful means to marry the informant and later on, he cohabited with the victim lady and made her pregnant. In the F.I.R. it is clearly mentioned by the informant that she was cheated by the petitioner because after promise to marry, he cohabited with her and later he left her without marrying. The body, mind and reputation of the victim have been really damaged by such deceitful way of promising to marry the victim. Since prima facie materials are available from the F.I.R. to make out the offence under Section 417, IPC, registration of the F.I.R. is not to be quashed. 12. So far as Section 506, IPC is concerned, there is allegation of intimidation in the FIR, for which the offence under Section 506, IPC at this stage, cannot be said to have not been made out. The claim of the petitioner that the matter has been compromised between the parties, cannot be acceptable at present because the petitioner did not make her a party in this proceeding and thus, the compromise is yet to be placed in proper place under proper affidavit. The claim of the petitioner that the matter has been compromised between the parties, cannot be acceptable at present because the petitioner did not make her a party in this proceeding and thus, the compromise is yet to be placed in proper place under proper affidavit. So, the fact of compromise between the petitioner and the victim woman is yet to be proved. 13. The latest position of the G.R. case was called for from the concerned Court and from the report it appears that cognizance of the offence under Section 493, 417, 506, IPC has already been taken and process has been issued on 26.3.2008.Since then the non-bailable warrant of arrest has been stayed by this Court. Now it is not only the F.I.R. has been registered but also charge-sheet has been submitted and cognizance of the offence has already been taken. Since Section 493, IPC is prima facie not made out, the order of taking cognizance under Section 493, IPC is quashed. So far as the offences under Sections 417 and 506, IPC is concerned, the same would continue against the petitioner. CONCLUSIONS 14. In view of the aforesaid analysis, the criminal prosecution and the order of taking cognizance is modified to the extent as aforesaid and the petitioner is directed to face trial for the offence under Sections 417 and 506, IPC. 15. Learned Counsel for the petitioner submitted that the non-bailable warrant has been issued, but the same has been stayed by this Court. According to him, the petitioner should be allowed to surrender and go on bail. Considering such submission, in the event the petitioner surrenders before the Court below within a period of three weeks from today and on such surrender, he shall be released on bail on such terms and conditions as the learned Magistrate may deem just and proper..Since the G.R. case is of the year 2004, the learned Magistrate shall do well to conclude the trial within a period of four months. The petitioner is at liberty to raise the contention as raised before this Court in the Trial Court at the time of framing of charge. It is made clear that this Court has not expressed any opinion on the merits of the case and the case would be disposed of on the basis of the materials available before the concerned Court. 16. It is made clear that this Court has not expressed any opinion on the merits of the case and the case would be disposed of on the basis of the materials available before the concerned Court. 16. With the aforesaid observation and direction, the CRLMC stands disposed of. CRLMC disposed of.