Jharkhand High Court
Rohan Kumar Tiwari @ Rohan Tiwari vs The State Of Jharkhand on 3 May, 2023
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.2018 of 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2018 of 2022
Rohan Kumar Tiwari @ Rohan Tiwari, aged about 25 years, son of Shri
Prakash Chandra Tiwari, resident of Gul Bazaar, Village -Murlidih, P.O.
& P.S. -Mahuda, District -Dhanbad -828305
.... Petitioners
Versus
1. The State of Jharkhand
2. Ranjana Kumari, daughter of Shri Premchand Harijan, resident of
20/21 Pits, Village -Murlidih, P.O. -Bhuli Quarter, P.S. -Mahuda,
District -Dhanbad -828305
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Pradeep Kumar Deomani, Advocate For the State : Mr. Abhay Kr. Tiwari, Addl. P.P. For the Opp. Party No.2 : Mr. Birendra Kumar, Advocate : Mr. Raj Kishore Sahu, Advocate .....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 16.11.2021 passed by the learned Special Judge, SC/ST Act Cases, Dhanbad in SC/ST Case No. 79 of 2020 arising out of Mahuda (Bhatdih O.P.) P.S. Case No. 63 of 2020 registered for the offences punishable under Section 376/406/420 of the Indian Penal Code and under Section 3(1)(r), 3(1)(s) & 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 now pending in the court of Special Judge, SC/ST Act Cases, Dhanbad, whereby and where under cognizance for the offences punishable under Section 376/420/417 of the Indian Penal Code and Section 3(1)(r), 3(1)(s) & 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes 2 Cr.M.P. No.2018 of 2022 (Prevention of Atrocities) Act, 1989 has been taken by the learned Special Judge, SC/ST Act Cases, Dhanbad.
3. The brief facts of the case is that the petitioner who is of Brahmin Caste has sexually exploited the opposite party no.2, who is a member of Schedule Caste, for three years by promising that he will marry the informant-opposite party no.2 and ultimately on 08.09.2020 when the victim asked the petitioner, as to why, the petitioner is not marrying her, the petitioner refused to marry her and intentionally insulted and intimidated the informant-opposite party no.2 with intent to humiliate her for being a member of the Schedule Caste by taking her caste name. There is further allegation that the petitioner intentionally touched the informant who is a woman belonging to Schedule Caste knowing that she belongs to Schedule Caste and such act of touching is of sexual nature and without the recipient's consent. On the basis of the written report submitted by the informant, police registered Mahuda (Bhatdih O.P.) P.S. Case No. 63 of 2020 for the offences punishable under Section 376/406/420 of the Indian Penal Code and under Section 3(1)(r), 3(1)(s) & 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and after completion of investigation police submitted charge sheet but the petitioner has withheld the charge sheet form this Court and has not filed the copy of the same nor the statement of the witnesses recorded by the police during the investigation of the case has been brought on record. The learned Special Judge, SC/ST Act Cases, Dhanbad after considering the materials in the 3 Cr.M.P. No.2018 of 2022 record found prima-facie case for the offences punishable under Section 376/420/417 of the Indian Penal Code and Section 3(1)(r), 3(1)(s) & 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. It is submitted by the learned counsel for the petitioner that no offence punishable under the provisions of the Indian Penal Code or Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out against the petitioner. It is next submitted that there is no allegation in the First Information Report that the petitioner had intention of deceiving the opposite party no.2 since the inception.
5. Relying upon the Judgment of Hon'ble Supreme Court of India in the case of Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr., reported in (2019) 9 SCC 608, para -21 to 22 of which reads as under:-
"21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 IPC has occurred.
22. With respect to the offences under the SC/ST Act, the WhatsApp messages were alleged to have been sent by the appellant to the complainant on 27-8-2015 and 28-8-2015 and 22- 10-2015. At this time, Sections 3(1)(u), (w) and 3(2)(vii) of the SC/ST Act as it stands today had not been enacted into the statute. These provisions were inserted by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 4 Cr.M.P. No.2018 of 2022 (the amending Act) which came into force on 26-1-2016. Prior to the amending Act, the relevant provisions of the statute (as it stood then) were as follows:
"3. Punishments for offences of atrocities.--(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe--
***
(x) intentionally insults or intimidates with intent to humiliate a member of a Schedule Caste or a Scheduled Tribe in any place within public view;
(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;
(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;"
It is submitted by the learned counsel for the petitioner that the allegation in the F.I.R. do not on their face value indicate that the promise by the appellant was false, or that the complainant engaged in sexual relation on the basis of this promise. It is next submitted that there is no allegation that the abuse by caste name took place in public view. It is next submitted by the learned counsel for the petitioner that the opposite party no.2-informant submitted an application earlier to the Officer-In-charge of Mahila Police Station, Dhanbad, a copy of which has been obtained by the petitioner under the Right to Information Act, 2005 but the receiving authority has committed a mistake of putting a date of 10.09.2020 instead of 11.09.2020. Hence, it is submitted that the order dated 16.11.2021 passed by the learned Special Judge, SC/ST Act Cases, Dhanbad in SC/ST Case No. 79 of 2020 arising out of Mahuda (Bhatdih O.P.) P.S. Case No. 63 of 2020 whereby and where under cognizance for the offences punishable under Section 376/420/417 of the Indian Penal Code and Section 3(1)(r), 5 Cr.M.P. No.2018 of 2022 3(1)(s) & 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been taken by the learned Special Judge, SC/ST Act Cases, Dhanbad be quashed.
6. Learned Addl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer for quashing the order dated 16.11.2021 passed by the learned Special Judge, SC/ST Act Cases, Dhanbad in SC/ST Case No. 79 of 2020 arising out of Mahuda (Bhatdih O.P.) P.S. Case No. 63 of 2020 whereby and where under cognizance for the offences punishable under Section 376/420/417 of the Indian Penal Code and Section 3(1)(r), 3(1)(s) & 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been taken by the learned Special Judge, SC/ST Act Cases, Dhanbad. It is next submitted by the learned counsel for the opposite party no.2 and the learned Addl. P.P. that the facts of Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr. (supra) is entirely different from the facts of this case. It is next submitted that there is specific allegation against the petitioner of making the complainant engaged in sexual relation on basis of the promise of marriage and unlike the case of Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr. (supra), in this case, the abuse was not through WhatsApp message rather it was done in public view. Further in this case unlike the case of Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr. (supra) there is no allegation of any sexual relationship between the petitioner and the informant after denial of marriage by the petitioner to the 6 Cr.M.P. No.2018 of 2022 informant, hence the ratio of Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr. (supra) is not applicable to the facts of this case. It is next submitted by the learned counsel for the opposite party no.2 that as per the amended law, if a sexual relationship is established with a female knowing that she is a member of scheduled caste or scheduled tribe community and she denies the consent, the offence is made out and in this respect, the learned counsel for the opposite party no.2 relies upon the order of a coordinate Bench of this Court in the case of Rohan Kumar Tiwari Vs. The State of Jharkhand & Anr., passed in Criminal Appeal (SJ) No. 274 of 2021 dated 23.08.2021. It is next submitted by the learned counsel for the opposite party no.2 that the petitioner has deliberately withheld the copy of the charge sheet and the statement of the witnesses to get an order of quashing by hook or crook and there is ample material in the record to constitute each of the offences for which cognizance has been taken. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.
7. Having heard the submissions made at the bar and after going through the materials in the record, it is pertinent to mention here that there is direct allegation against the petitioner of engaging the complainant in sexual relation on the promise of marriage and she was abused by her caste name by the petitioner in public view. Further the facts of this case is different from the facts of Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr. (supra) as already indicated in the submission made by the learned 7 Cr.M.P. No.2018 of 2022 Additional Public Prosecutor on the learned counsel for the opposite party no. 2 in this judgment itself, hence the ratio of Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr. (supra) , in the considered opinion of this Court is not applicable in the facts of the case.
8. It is a settled principle of law that the Court could not embark upon the inquiry in exercise of its power under Section 482 Cr.P.C. as to whether the evidence is reliable or not as that would be the function of the trial court, as has been held by the Hon'ble Supreme Court of India in the case of State of M.P. vs. Awadh Kishore Gupta & Ors. reported in (2004) 1 SCC 691. So, the earlier filing of the report by the informant with the police, in respect of which notice has been registered can at best be a difference for the petitioner, but certainly the same cannot be a ground for quashing the order of cognizance.
It is also a settled principle of law that the inherent power under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution as has been held by the Hon'ble Supreme Court of India in the case of Monica Kumar (Dr.) and another v. State of U.P. and others, reported in (2008) 8 SCC 781.
9. Now coming to the facts of the case, since there is specific allegation against the petitioner of serious nature, in the considered opinion of this Court, the continuation of the criminal proceeding will neither amount to abuse of process of the court nor the interest of justice requires quashing of the order dated 16.11.2021 passed by the learned Special Judge, SC/ST Act Cases, 8 Cr.M.P. No.2018 of 2022 Dhanbad in SC/ST Case No. 79 of 2020 arising out of Mahuda (Bhatdih O.P.) P.S. Case No. 63 of 2020, which is the twin conditions for which the cognizance order, can be quashed.
10. Accordingly, this criminal miscellaneous petition being without any merit is dismissed.
11. In view of dismissal of this criminal miscellaneous petition, the interlocutory application, if any, stands disposed of being infructuous.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 3rd May, 2023 AFR/Sonu-Gunjan/-