JUDGMENT : A very peculiar and a distinct situation, which has emerged for consideration is in the light of the arguments which has been extended by the learned counsel for the applicant, that the cognizance, which has been taken by the Court of Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar, for the offences under Section 376A of the IPC as against the present applicant by way of registration of Criminal Case No. 3954 of 2017, State Vs. Subhan Ali, is apparently not made out, and the entire investigation is vitiated from its inception. 2. The argument of the learned counsel for the applicant, is that the provisions contained under Section 376A, was substituted by Section 9 of Act No. 13 of 2013 w.e.f. from 3rd February 2013. As an effect of substitution of Section 376A, would only be attracted in those cases where on account of an act of an offence under Section 376 (2) of the IPC, it results into causing of death of a woman or causes a “woman” to be in persistent vegetative state. The word “woman” used herein under Section 376A would be a general term, the literal meaning of which as per the Oxford English dictionary would mean as under:- Woman. An adult human female a female worker or employee the phrase a little woman condescending by way of reference to one’s wife. It means a female scholar or author woman of the streets, the term woman specified would mean belonging to a group having a specified gender generally recognized by a society. 3. Whereas under literal meaning, would be a spouse, having legally married to man, recognized by the society to be a female who is legally entitled to bear a child, in a biological act of procreation. Thus in the dictionary ‘wife’ has been defined as under:- ‘Wife’ means a married woman considered in relation to her husband. This term would be a specific denomination to a female who is a social bond permanently attached in a relationship to a man. 4. It has been argued by the learned counsel for the applicant, that under either of the circumstances the offences under Section 376A, would not be made out against the applicant as the legislature has used the word ‘woman’, and the woman herein cannot be substituted to be read as ‘wife’. 5. 4. It has been argued by the learned counsel for the applicant, that under either of the circumstances the offences under Section 376A, would not be made out against the applicant as the legislature has used the word ‘woman’, and the woman herein cannot be substituted to be read as ‘wife’. 5. As the factual drop of the present case goes it is that the complainant respondent No. 3, herein admittedly was a married wife of the present applicant, there had been a valid divorce between them and as per the allegations levelled in the FIR, it is contended by the complainant respondent No. 3 herein, that under an assurance to re-marry, the ex-husband i.e. the applicant herein, had committed an offence of sexual intercourse without her consent and in that eventuality, it was alleged that he was liable to be punished for the aforesaid offences as contained under Section 376A for which the FIR was got registered, being FIR No. 294 of 2017 at P.S. Chowki Basfodan, Tehsil, Kashipur, district Udham Singh Nagar. 6. A reference to the contents of the FIR becomes relevant for consideration, because it deciphers the fact of marriage, the fact of commission of offence and the fact of a discontinuance of relationship of husband and wife. 6. 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The investigation was carried by the Investigating Officer in relation to the FIR No. 294 dated 1st June 2017 and a chargesheet being Chargesheet No. 336 of 2017 dated 10th August 2017 has been submitted, in which almost 10 witnesses were examined and ultimately the Investigating Officer has submitted the chargesheet in relation to the offences under Sections 376(A), 376(2)cha, 452, 323 and 506 of the IPC are shown to have been made out against the applicant. 8. After conclusion of the investigation, the Investigating Officer, in its chargesheet of 10th August 2017, had submitted the chargesheet against the present applicant in pursuance to the chargesheet dated 10th August 2017, as far as the other coaccused persons are concerned, they were not shown to be involved in commission of the offences which were complained of. 9. On submission of the chargesheet, the cognizance have been taken by the Court of Additional Chief Judicial Magistrate, for trying the present applicant for the offences contained under Section 376A of the IPC. This Court is of the view, that the provisions of the penal criminal law has to be strictly construed, because each offence, which are contained under the Indian Penal Code, has got a different intention and social purpose to be met with. 10. Under Section 376A of the IPC with it was amendment by substitution, related to a commission of offence under Section 376 (2) of the IPC with a “woman”, this Court is of the view, that when the legislature has specifically used the word ‘woman’, specifically under Section 376A only, and has also added the offence Section 376B by the same Act, which relates to the offence committed against the wife, it automatically leads to a logical inference that Section 376A, would be read in exclusion to an offence which are contained under Section 376B in relation to a wife. Hence the submission of the chargesheet under Section 376A, itself would be bad in the eyes of law, otherwise there was no necessity for the legislature to substitute Section 376B of the IPC, which reads as under:- “376B. Sexual intercourse by husband upon his wife during separation. Hence the submission of the chargesheet under Section 376A, itself would be bad in the eyes of law, otherwise there was no necessity for the legislature to substitute Section 376B of the IPC, which reads as under:- “376B. Sexual intercourse by husband upon his wife during separation. - Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.” 11. The provisions contained under Section 376B specifically observes that whoever has a sexual intercourse with his own wife, the word ‘wife’, is preceded by a punctuation ‘comma’, and if this sentence is read in its totality. The word ‘whosoever’, will definitely relate to denote the husband, because it is being preceded by the word wife and qualified by the use of punctuation. 12. There are other elements, which are required to be satisfied before to bring an offence under Section 376B i.e. the ‘wife is living separately’, whether under a decree of separation or otherwise, the reference to the word ‘otherwise’, herein is wide enough to include either of the circumstances of living separately or living separately under a decree of separation. The ‘otherwise’ herein will include the factual instance of the present case, where as per the FIR there was already a decree of divorce and sexual intercourse by the ex-husband was committed with the complainant admittedly under a false assurance of remarriage. 13. In that eventuality, this Court is of the view, that the Explanation 2, given therein to Section 375 describing sexual intercourse which is extracted hereunder:- “Explanation 2. – Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1. – A medical procedure or intervention shall not constitute rape. Exception 2. – Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 14. Exception 1. – A medical procedure or intervention shall not constitute rape. Exception 2. – Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 14. Though it will fall to be under Section 376B, but herein, the sexual intercourse would be with a wife under the circumstances given therein, and it cannot be read as a substitute provisions to the provisions contained under Section 376A, for which the present applicant i.e. the ex-husband of the complainant has been charged. 15. There is another reason for taking this view, for the reason being that the legislature, in both the provisions as contained under Section 376A and 376B had prescribed for a different quantification of sentence for punishment and rightly so because Section 376A, when it relates to a ‘woman’, where an offence under Section 376 (2) is committed, which results to a death of a woman or places a woman in a persistent vegetative state, the sentence provided therein is not less than 20 years, or which could be even extended for a life imprisonment, whereas on the contrary the sentence of punishment under Section 376B has been kept limited to 7 years along with fine. Due to the distinct social impact of crime contained under Sections 376A and 376B. 16. It is owing to the aforesaid distinction, with this Court has already dealt with above, that the sentence contemplated under Section 376B, particularly when it relates to commission of an act of sexual intercourse with his wife without her consent and even after a separation or otherwise, the sentence which is provided therein is not less than 2 years, which could be extended to maximum seven years and the gravity of the sentence has been rightly so reduced to be imposed upon the accused person, who is found to have been engaged in commission of the offence under Section 376B of the IPC because of its complete different and distinct, individual impact. 17. 17. Owing to the records which has been placed before this Court, including the counter affidavit which has been filed by the learned Government Advocate, as well as the complainant, none of them have answered the pleading of the applicant as to whether at all the offences under Section 376A could be culled out from the facts of the present case, particularly the contents of the FIR, the contents of the complaint under Section 156(3) and that of the chargesheet itself, to which the cognizance have been taken it relates to the offending act against a divorced wife. 18. This Court is of the view, that since this is a case which would be falling to be an offence under Section 376B of the IPC, because of the admitted relationship of being an ex-wife and ex-husband, the chargesheet as submitted under Section 376A, would be in contravention to the basic intention of Section 376A of the IPC, and the facts and circumstances of the present case, since the chargesheet submitted itself is defective, it would obviously lead to a defective cognizance which has been taken by the Court by passing an order dated 14th September 2017 and that too, while taking cognizance, the Court of Additional Chief Judicial Magistrate, has not even applied its mind to the contents of the material, which was placed before it and has passed the cyclostyled order by filling in the blanks in the formatted summoning order, which otherwise is not sustainable in the light of the judgment of the Hon’ble Apex Court, reported in 1998 (5) SCC 749 , Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, which contemplates that a summoning order has had to assign reasons and has to be passed with an application of mind. Para 28 of the said judgment is extracted hereunder:- “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 19. Non-application of mind is explicatedly reflected when the Court has not taken care of even to scrutinize, as to whether at all the offences falls to be under Section 376A or 376B, owing to its corresponding impact to the chargesheet, as well as the contents of the FIR. Hence, C482 Application would stand allowed. Accordingly the chargesheet and the criminal proceedings of Criminal Case No. 3954 of 2017, State Vs. Subhan Ali, where the applicant is being tried for the offences under Section 376A, would hereby stand quashed. The matter is remitted back to the Investigating Officer to re-conduct the investigation and to submit the fresh chargesheet, if at all it is required and the commission of offence is established after the appreciation of evidence which is adduced before him during the course of Investigation. 20. Accordingly, subject to the aforesaid C482 Application would stand allowed.