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2019 DIGILAW 521 (ORI)

Ranjeet Sriram v. State Of Odisha

2019-08-13

S.K.SAHOO

body2019
JUDGMENT : S. K. Sahoo, J. The petitioner Ranjeet Sriram has filed this application under section 482 of the Cr.P.C. with a prayer to quash the impugned order dated 03.07.2012 passed by the learned Adhoc Addl. Sessions Judge (FTC), Gunupur in C.T. No. 34 of 2011 arising out of Gunupur P.S. Case No.15 of 2010 in rejecting his petition under section 227 of Cr.P.C. for discharge. In the said case, the petitioner has been charge sheeted under sections 493/417/312/313/506 of the Indian Penal Code. 2. The victim lodged the first information report before the Inspector-in-charge, Gunupur police station on 12.02.2010, wherein she alleged that the petitioner belonged to her village who was working at Bissamcuttack in the district of Rayagada on deputation as Court Guard. Since last two years, giving false assurance of marriage to the victim, the petitioner was cohabiting with her. In the month of March 2009, the victim came to know that she was pregnant as her monthly menstruation period was stopped. She requested the petitioner for marriage but the petitioner avoided saying that he had no time for marriage. The petitioner brought some medicine and compelled the victim to take it but when the victim refused, the petitioner forcibly administered it to the victim for which the pregnancy was aborted. The victim fell ill on account of such abortion and the petitioner told her not to disclose about the termination of pregnancy to anybody otherwise he would not marry her. It is further alleged in the first information report that on 21.01.2010 the petitioner again cohabitated with the victim during the night on the roof top. Similar thing happened on 24.01.2010 which was noticed by the sister-in-law of the victim. The petitioner requested the sister-in-law not to disclose about his affair with the victim as he would marry her. On 25.01.2010 the petitioner refused to marry the victim on being persuaded by his mother and elder sister and left for Bissamcuttack. The victim communicated the entire thing to her parents and they in turn told it to the village Panch members. When the petitioner was called by the Panch members for a discussion, he did not turn up rather told the victim over phone that he did not know her and that he would finish her and her entire family by throwing bombs. When the petitioner was called by the Panch members for a discussion, he did not turn up rather told the victim over phone that he did not know her and that he would finish her and her entire family by throwing bombs. The matter was discussed in the village Panchayat and thereafter the victim lodged the first information report. On the basis of such F.I.R., Gunupur P.S. Case No.15 of 2010 was registered against the petitioner under sections 493/417/312/313/506 of the Indian Penal Code and during course of investigation, it came to light that the petitioner and the victim were in love and the petitioner who was working as APR Constable in Rayagada district put vermillion on the forehead of the victim in Gramadevi Temple, Gunupur and deceitfully induced her a belief of lawful marriage and thereafter the petitioner regularly cohabited with the victim for which the victim became pregnant. The other allegations which were brought by the victim against the petitioner were found to be correct. Some photographs of the petitioner and the victim were seized and on completion of investigation, as prima facie evidence was found against the petitioner, charge sheet was submitted on 16.07.2010. 3. After the commitment of the case to the Court of Session, the petitioner filed a petition under section 227 of Cr.P.C. to discharge him and it was contended that the ingredients of the offences are not attracted and the medical officer could not give any definite opinion regarding the pregnancy of the victim and its termination. The learned trial Court rejected such contentions raised by the petitioner on the ground that even though the medical report is cryptic but the statements of the witnesses make it clear relating to the pregnancy of the victim as well as termination of such pregnancy. Since the Medical Officer did not negative the fact that the victim was pregnant or that she aborted her pregnancy, the discharge petition filed by the petitioner was dismissed being devoid of merits. 4. Mr. Since the Medical Officer did not negative the fact that the victim was pregnant or that she aborted her pregnancy, the discharge petition filed by the petitioner was dismissed being devoid of merits. 4. Mr. A.K. Nanda, learned counsel appearing for the petitioner contended that the victim has developed her case during investigation and even though she has not stated in the F.I.R. about any marriage with the petitioner in the Gramadevi Temple, Gunupur and thereby the petitioner deceitfully causing her to believe that she was lawfully married to him and to have cohabitation with him in that belief, but in the statement recorded under section 161 of Cr.P.C., the victim has stated about such aspect. It is further contended that mere failure to fulfill the promise by the petitioner to the victim will not constitute the offence of cheating. He argued that nobody has stated to have seen any marriage between the petitioner and the victim in any temple and there is lack of medical evidence relating to termination of pregnancy of the victim and therefore, the learned trial Court was not justified in rejecting the discharge petition. Learned counsel relied upon the decision of the Hon'ble Supreme Court in the cases of Dilawar Babu Kurane Vrs. State of Maharashtra, 2002 AIR(SC) 564, Union of India Vrs. Prafulla Kumar Samal, 1979 AIR(SC) 366. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel on the other hand submitted that the first information report is not the encyclopedia of the entire occurrence and every omission in it cannot be a ground to disbelieve the prosecution case. It is contended that the victim's statement indicate that the petitioner put vermilion over her forehead in the Gramadevi Temple and it appears to have been done in a secret manner but such act of the petitioner caused the victim to believe that she was lawfully married to him. It is further argued that when the victim was sent for medical examination to S.D. Hospital, Gunupur on 26.02.2010, the doctor opined that since the termination of pregnancy stated to have taken place a year back, therefore, it was not possible to give any opinion in that respect. However, the doctor found that the victim was accustomed to sexual intercourse and there was absence of hymen and the vaginal canal admitted two fingers easily. However, the doctor found that the victim was accustomed to sexual intercourse and there was absence of hymen and the vaginal canal admitted two fingers easily. It is further argued that at the stage of consideration of the discharge petition, the trial Court is not supposed to meticulously judge the truth, veracity and effect of the evidence which the prosecutor proposes to adduce and even strong suspicion is sufficient at that stage to proceed against the accused. It is further argued that there is no illegality or impropriety in the impugned order and therefore, this Court should not exercise its inherent power under section 482 of Cr.P.C. to interfere with the same. The learned counsel for the informant supported the impugned order and contended that prima facie case against the petitioner is made out from the statement of the victim which is also corroborated from the other evidence on record and therefore, there is nothing to be interfered with. 5. Adverting to the contentions raised by the learned counsel for the respective parties, let me first discuss about the scope of interference of this Court when the order of rejection of discharge petition under section 227 of Cr.P.C. is challenged either in exercise of its revisional jurisdiction or in its inherent power. In case of Dilawar Babu Kurane (supra), it is held that in exercising powers under section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceed with the trial. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceed with the trial. By and large, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. In case of Prafulla Kumar Samal (supra), it is held that the test to determine a prima facie case at the stage of 227 Cr.P.C. would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. In case of State of M.P. Vrs. Awadh Kishore Gupta, 2004 (1) SCC 691 , it is held that when charge is framed, at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate materials and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In case of State of Delhi Vrs. Gyan Devi, 2000 (8) SCC 239 , it is held as follows:- "7.........The legal position is well settled that at the stage of framing of charge, the Trial Court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge, the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. At the stage of charge, the Court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them, the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court, a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the Trial Court has framed a charge against an accused, the trial must proceed without unnecessary interference by a superior Court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases." In case of Amit Kapoor Vrs. Ramesh Chander, 2012 (9) SCC 460 , it is held as follows:- "19. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: (1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. (2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. (3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. (4) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. (5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. (6) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. (7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. (8) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. Even in such cases, the Court would not embark upon the critical analysis of the evidence. (9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. (10) It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. (11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. (12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. (13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. (14) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. (15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 6. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 6. Section 493 of the Indian Penal Code requires the prosecution to establish that the accused practised deceitful means which led a woman to believe that she is lawfully married to the accused even though she is not lawfully married to him. The prosecution is further required to establish that the victim allowed to cohabit or to have sexual intercourse with the accused in the belief that she is lawfully married to him. The section does not penalise mere cohabitation or sexual intercourse with a woman who is not lawfully married to him. The section is attracted only 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. Thus 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. If the accused simply promised to marry the victim and on account of such promise, the victim allowed the accused to cohabit or to have sexual intercourse with her and she never believed that she is lawfully married to the accused then it would not be proper to frame charge under section 493 of the Indian Penal Code. It is correct as contended by the learned counsel for the petitioner that in the first information report, the victim has not stated that the petitioner practised deceitful means which led her to believe that she was lawfully married to the petitioner but all the necessary ingredients of the offence under section 493 of the Indian Penal Code are there in the statement of the victim recorded under section 161 of Cr.P.C. Law is well settled that the first information report is not the encyclopedia or be all and end all of the prosecution case. It is not a verbatim summary of the prosecution case. It is not a verbatim summary of the prosecution case. The principal object to the first information report is to set the criminal law into motion. Non-mentioning of some facts or details or meticulous particulars is not a ground to reject the prosecution case. When during course of investigation, it is found that the ingredients of the offences under which the charge sheet is likely to be submitted are made out against the accused, the investigating agency would be quite justified in submitting the charge sheet against him. The victim may offer explanation during trial as to why she omitted to mention the facts constituting the ingredients of the offence under section 493 of the Indian Penal Code and it is for the trial Court to accept such explanation or not. Therefore, the contention raised by the learned counsel for the petitioner that for non-mention of the facts constituting the ingredients of the offence under section 493 of the Indian Penal Code, the petitioner should have been discharged from such offence is not acceptable. It is correct as contended by the learned counsel for the petitioner that except the victim, nobody has stated to have seen any marriage between the petitioner and the victim in the Gramadevi Temple but what the victim stated in her statement was that the petitioner put vermilion on her forehead in the temple and it was not a kind of marriage performed by priest in presence of the family members and relatives and therefore, it is obvious that there would be nobody except the victim to state about such secret marriage. Coming to the offence under section 417 of the Indian Penal Code which deals with punishment for cheating as defined under section 415 of the Indian Penal Code, learned counsel for the petitioner is right in his submission that mere failure to fulfill the promise of marriage may not constitute the offence of cheating. However, whether there is dishonest intention from the very inception or not can be inferred under the facts and circumstances of each case. If at the time of making the promise, the accused knew very well that he cannot honour his words and the promise has been made solely for the purpose of enjoying the body of the prosecutrix then it would constitute the offence of cheating. If at the time of making the promise, the accused knew very well that he cannot honour his words and the promise has been made solely for the purpose of enjoying the body of the prosecutrix then it would constitute the offence of cheating. If an accused makes a false promise to marry, which he never intends to carry out and thereby induces the victim so deceived, to have with him sexual act, which the victim would not have indulged in or permitted or would have refrained from allowing such sexual act, had she not been so induced by such deception and the act of such sexual intercourse is likely to cause damage or harm to the body, mind or reputation of the victim then the act of the accused would amount to cheating. Section 90 of the Indian Penal Code explains, inter alia, that consent given under a misconception of fact, is not consent at all. Giving of consent under the misconception of fact is not sufficient to hold that no consent existed, unless it is further established that the wrongdoer knew, or had reason to believe, that the consent given was in consequence of misconception. The consent given by the victim under the misconception of fact is not consent from the point of view of the victim. Whether the person doing the act knew, or had reason to believe, that consent was given in consequence of such misconception of fact, are to be considered from the point of view of the accused. In the F.I.R., the victim has stated as to how the petitioner gave assurance of marriage to her and cohabited with her. Even after her pregnancy was terminated, the petitioner continued to cohabit with her giving assurance of marriage and ultimately he backed out and told the victim that he did not know her and threatened her with dire consequences and he did not turn up to the village Panchayat for discussion on marriage. In the factual scenario, I am satisfied that there are prima facie materials to attract the ingredients of offence of cheating. Section 312 of the Indian Penal Code deals with punishment for an accused for voluntarily causing miscarriage of a woman with child, if such miscarriage was not caused in good faith for the purpose of saving the life of the woman. Section 312 of the Indian Penal Code deals with punishment for an accused for voluntarily causing miscarriage of a woman with child, if such miscarriage was not caused in good faith for the purpose of saving the life of the woman. Section 313 of the Indian Penal Code gets attracted, if the pregnancy is terminated without the consent of the prosecutrix. The victim has stated in the F.I.R. and in her statement that in the month of March 2009, she came to know that she was pregnant as her monthly menstruation period was stopped and when she told the petitioner in that respect, the petitioner brought some medicine and compelled her to take it but when she refused, the petitioner forcibly administered it to her for which her pregnancy was aborted and she fell ill on account of such abortion. The medical evidence is lacking relating to termination of pregnancy of the victim, but as rightly contended by the learned counsel for the State that when the victim was medically examined at S.D. Hospital, Gunupur on 26.02.2010, the doctor opined that since the termination of pregnancy stated to have taken place a year back, it was not possible to give any opinion in that respect. Therefore, the statement of the victim relating to termination of her pregnancy cannot be discarded at this stage merely because of absence of any corroboration from the medical evidence. In view of the available materials on record, I am satisfied that there are prima facie materials to attract the ingredients of both the offences. Section 506 of the Indian Penal Code gets attracted, if a person commits criminal intimidation as defined under section 503 of the Indian Penal Code. Threatening a person with any injury to cause alarm to that person would attract the ingredients of the offence. The victim has stated in the first information report that the petitioner did not come to village Panchayat and told her over phone that he would finish her and her entire family by throwing bombs. The victim has repeated the same thing in her statement recorded under section 161 Cr.P.C. and therefore, I am satisfied that there are prima facie materials to attract the ingredients of the offence of criminal intimidation. 7. The victim has repeated the same thing in her statement recorded under section 161 Cr.P.C. and therefore, I am satisfied that there are prima facie materials to attract the ingredients of the offence of criminal intimidation. 7. Since the power under section 482 of Cr.P.C. to interfere with the rejection order of the discharge petition is to be exercised very sparingly and when the basic ingredients of the offences under which charge sheet has been submitted are prima facie made out against the petitioner and meticulous examination of the evidence is not permissible at this stage and there is no illegality or infirmity in the impugned order, I am not inclined to interfere with the same. Accordingly, the CRLMC application being devoid of merits, stands dismissed. Before parting, I would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this judgment has been so said only for the purpose of disposing of this CRLMC application. Nothing contained in this judgment shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the trial Court at the appropriate stage of the trial. The stay order passed on 30.07.2011 in Misc. Case No. 1522 of 2012 stands vacated. The registry shall send a copy of the judgment forthwith to the learned trial Court, who on receipt of the same shall proceed with the case and try to conclude the trial as expeditiously as possible preferably within a period of six months from the date of framing of charge.