Jharkhand High Court
Vijay Kumar vs State Of Jharkhand on 12 September, 2011
Author: H. C. Mishra
Bench: H. C. Mishra
WRIT PETITION (Cr.) NO. 56 OF 2002
An application under Article 227 of the Constitution of India.
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Vijay Kumar ..... ... Petitioner
Versus
The State of Jharkhand ..... ... Respondent
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For the Petitioner : Mr. Navin Kumar, Advocate
For the State : Mr. Md. Hatim, A.P.P.
For the Complainant : Mr. S.S.Choudhary, Advocate
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PRESENT : HON'BLE MR. JUSTICE H. C. MISHRA
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By Court: Heard learned counsel for the petitioner and learned counsel for
the State as also learned counsel appearing on behalf of complainant.
2. This writ petition has been preferred by the petitioner for quashing the entire criminal proceeding in Sessions Trial No. 116 of 2001 pending before the Sessions Judge, Hazaribagh against the petitioner.
3. The facts giving rise to this writ petition are that a complaint petition was filed by complainant alleging that the petitioner was in visiting terms in the house of neighbour of the complainant. In July 1992, when the complainant had gone to the house of her neighbour, the petitioner had committed rape upon her in absence of anybody, in the lonely house. Thereafter, the petitioner promised the complainant to marry her and asked her not to disclose this fact to any one and thereafter, it is alleged that they were living as husband and wife for a pretty long time of about 8 years and ultimately, the petitioner refused to marry the complainant. Thereafter, the complainant has filed the complaint.
4. The said complaint petition was sent for institution of the police case, on the basis of which Hazaribagh Sadar P.S. Case No.276 of 2000 was instituted for the offence under Sections 376 and 420 of the Indian Penal Code, but after investigation, the police had submitted charge sheet for the offence under Sections 376 and 497 of the Indian Penal Code.
5. The case was committed to the Court of Session, wherein an application was filed for discharge by the petitioner stating that in the facts of this case, no case was made out under Section 376 or Section 497 I.P.C. The learned Sessions Judge dismissed the application for discharge by order dated 21.12.2001 directing the petitioner to be physically present in the court for framing of the charge.
6. The said order was assailed by the petitioner in this Court in Criminal Revision No. 36 of 2002, which was finally heard by Hon'ble Single Judge of this Court and by order dated 15.2.2002 the said revision was dismissed. Subsequently, the present writ petition has been filed by the petitioner praying for the same relief, but in a different form stating that the entire criminal proceeding should be quashed against the petitioner as no case is made out either under Section 376 or 497 I.P.C. in the facts of this case.
7. Learned counsel for the petitioner has submitted that according to the prosecution case, it is an admitted fact that the petitioner and the victim lived as husband and wife for a pretty long time of about 8 years and as such, Section 376 I.P.C. is not at all attracted in this case. So far as charge under Section 497 I.P.C. is concerned, he has submitted that during investigation, the police was informed that after the occurrence, the victim was married somewhere, but still the said live-in-relationship continued between the parties. As no complaint was made by the alleged husband of the victim, cognizance cannot be taken for the offence under Section 497 I.P.C., in view of Section 198 Cr.P.C. Learned counsel has also drawn the attention of this Court towards, Annexure-3, to the writ petition, which is a marriage invitation showing the marriage between the victim lady with another person in the year 1991 itself i.e. prior to the occurrence. It may be stated that this Annexure-3 is a disputed document and as such, the writ court cannot take the same into consideration.
8. Learned counsel has placed reliance upon a decision of the Hon'ble Supreme Court of India in the case of Deelip Singh @ Dilip Kumar Vrs. State of Bihar, as reported in {2005 (2) East Cr C 183 (SC)} and submitted that in the similar case, the Hon'ble Supreme Court has held that no case can be said to be made out under Section 376 I.P.C. I have perused the said decision, which clearly shows that the Hon'ble Court has taken into consideration the evidence of the victim brought on record after full fledged trial and upon consideration of the evidence on record, the Hon'ble Court has come to the conclusion that the findings of the trial court that girl was raped forcibly on first occasion and that the talk of marriage emerged only later, cannot be upheld. Needless to say that in the present case, even the charge has not been framed as yet, what to talk of any evidence at this stage. As such this decision is of no help to the petitioner.
9. Learned counsel has further placed reliance upon the decisions of this Court in the case of Arjun Toppo Vrs. State of Jharkhand, as reported in {2010 (1) East Cr C 476 (Jhr)}, and of Hon'ble Patna High Court in the case of Baldhari Ohdar Vrs. State of Bihar, as reported in {2000 East Cr C 713 (Pat)} wherein also in the similar circumstances, only after scrutiny of evidence brought on record, the Court had come to the conclusion that Section 376 I.P.C. was not made out. These decisions are also of no help to the petitioner for the same reason as stated herein above.
10. Learned counsel has finally placed reliance upon Annexure-4, which is a decision of this Court in the case of Sahdeo Pandit and ors. Vrs. The State of Jharkhand and another in Criminal Revision No. 407 of 2001, disposed of on 17.1.2002, wherein, according to the prosecutrix, who was a widow, the accused was in regular visiting terms in her house and she succumbed to the overtures made by the accused feeling lonely and without any shelter in life, she consented to and accepted the offer of the accused and they started living as husband and wife. This Court has held that no offence was made out under Section 376 I.P.C. Learned counsel has accordingly, submitted that no offence was made out against the petitioner and the continuance of the criminal proceeding against him shall be an abuse of the process of the Court and has prayed that the same may be quashed.
11. Learned counsel appearing on behalf of the complainant as also learned A.P.P. for the State submitted that this writ petition is not at all maintainable in view of the fact that the petitioner has an alternative remedy in the Code of Criminal Procedure which he has already availed and it is a well settled law that if there is an alternative remedy available to the petitioner, the writ petition is not maintainable. It is further submitted that all these points were fully considered by a Co-ordinate Bench of this Court in Criminal Revision No. 36 of 2002 and by a detailed speaking order, the revision application was dismissed. Learned counsel has further submitted that Annexure-3, which is the alleged invitation card of 1991, is highly disputed document and the same cannot be looked into by the writ Court. Learned counsels have, accordingly submitted that this writ petition is fit to be dismissed.
12. Having heard learned counsels for both sides and upon consideration of the record, I find that there is a direct allegation against the petitioner to have committed rape upon the victim on the first occasion. Subsequently, on the assurance and promise to marry the complainant, they lived as husband and wife together for several years, but so far as the first occurrence is concerned, the case is clearly made out of the offence under Section 376 I.P.C. and this Court has already held so in Criminal Revision No. 36 of 2002. In my considered view, the decision of this Court in Sahdeo Pandit (supra) is also of no help to the petitioner, as there is no consideration of any allegation that prior to living together the prosecutrix was subjected to rape by the accused.
13. So far as the contention of the learned counsel that Section 497 I.P.C. is not at all attracted in this case, I find that since charge itself has not been framed, the same question can be raised by the petitioner at the time of framing of charge. From the order dated 21.12.2001 passed in S.T. No. 116 of 2001 rejecting the prayer for discharge of this petitioner, I find that the Court below had not considered the question for from the angle of offence under Section 497 I.P.C. and this question is still open to be considered by the trail Court.
14. In view of the aforementioned discussions, I do not find any merit in this writ petition, which is, accordingly, dismissed. Let the Lower Court Records be sent back forthwith.
( H. C. Mishra, J.) Jharkhand High Court, Ranchi Dated the 12th September, 2011 N.A.F.R./ R.Kr.