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Jharkhand High Court
Dr. Ashish Kumar @ Dr. Aashish Kumar vs The State Of Jharkhand on 15 April, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
(2025:JHHC:11310)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.4121 of 2018
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Dr. Ashish Kumar @ Dr. Aashish Kumar, aged about 39 years, son of
Dr. Surendra Prasad, resident of Koderma Bazar, P.O. & P.S.-
Koderma, District- Koderma ... Petitioner
Versus
1. The State of Jharkhand
2. Victim ... Opposite Parties
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For the Petitioner : Mr. Jitendra Shankar Singh, Advocate
Mr. Randhir Kumar, Advocate
For the State : Ms. Lily Sahay, Addl.P.P.
For the Victim/O.P. No.2 : Mr. Vijay Kr. Roy, Advocate
——
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash and set aside the entire criminal proceedings in
connection with Dhanwar P.S. Case No.345 of 2013 corresponding to G.R.
No.3005 of 2013 and the order dated 16.06.2015 passed in that case whereby
and where under the learned Judicial Magistrate-1st Class, Giridih has taken
cognizance of the offences punishable under Sections 376/417 of the Indian
Penal Code.
3. The allegation against the petitioner is that the petitioner committed rape
upon the victim; who was employed by him in his nursing home and thereafter
promised to marry her and allured her not to disclose the occurrence of rape
admitted by him upon the victim, to anyone. On the basis of the written
1 Cr. M.P. No.4121 of 2018
(2025:JHHC:11310)
application of the informant, police registered Dhanwar P.S. Case No.345 of
2013 for the offence punishable under Section 376 of the Indian Penal Code and
after completion of the investigation, submitted charge-sheet against the
petitioner. The learned Magistrate, considering the materials available in the
record, found prima facie case for the offences punishable under Sections
376/417 of the Indian Penal Code and took cognizance for the said offences.
4. Learned counsel for the petitioner submits that there is a delay of more
than three years after the first occurrence and after the first occurrence also, the
physical relationship allegedly continued between the petitioner and the
victim. It is next submitted that in her statement under Section 164 of the
Cr.P.C., the victim claims to be the wife of the petitioner. It is further submitted
that the petitioner also lodged an F.I.R. vide Dhanwar P.S. Case No.344 of 2013
as against the informant. It is next submitted that the petitioner is a reputed
doctor and is already married and the informant has also married someone
else. It is further submitted that the learned Judicial Magistrate has taken
cognizance of the offences without application of mind by a cryptic order.
Hence, it is submitted that the entire criminal proceedings of Dhanwar P.S.
Case No.345 of 2013 corresponding to G.R. No.3005 of 2013 as well as the order
dated 16.06.2015 passed by the learned Judicial Magistrate-1st Class, Giridih be
quashed and set aside.
5. Learned Addl.P.P. appearing for the State and the learned counsel for the
victim on the other hand vehemently oppose the prayer of the petitioner made
in this Cr.M.P. and submit that there is direct and specific allegation against the
petitioner of having committed rape upon the victim and subsequently
promising to marry her and on subsequent occasion upon the promise of
2 Cr. M.P. No.4121 of 2018
(2025:JHHC:11310)
marriage, having physical relationship with her cannot obliterate the offence of
rape, which took place, prior to the promise of marriage. It is next submitted
that the subsequent conduct of the petitioner in alluring the victim to enter into
matrimony with her and subsequent physical relationship on the false pretext
of marriage cannot obliterate or condone, the initial occurrence of rape upon
the victim. It is then submitted that, the learned Magistrate has not committed
any illegality in taking cognizance for the offence punishable Sections 376/417
of the Indian Penal Code. It is next submitted that prior institution of a case
being Dhanwar P.S. Case No.344 of 2013 cannot be a ground for quashing the
entire criminal proceedings of Dhanwar P.S. Case No.345 of 2013. Hence, it is
submitted that this Cr.M.P., being without any merit, be dismissed.
6. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, it is pertinent to mention
here that there is direct and specific allegation against the petitioner of
committing rape upon the victim and subsequently by promising to marry her
and by giving other allurements made her not to lodge the F.I.R. immediately
after the occurrence and subsequently also committed rape upon her against
her wish; so even assuming for the sake of arguments that subsequently there
were consensual physical relationship between the petitioner and the victim on
the petitioner promising to marry her, the initial occurrence of rape committed
by the petitioner on the victim cannot be condoned.
7. So far as the delay in lodging the F.I.R. is concerned, the same is
explained in the F.I.R. itself; as the petitioner by promising to marry the victim
and with other allurements, restrained the victim to immediately approach the
police and lodge and F.I.R.
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(2025:JHHC:11310)
8. So far as the institution of Dhanwar P.S. Case No.344 of 2013 by the
petitioner against the informant is concerned, it can at the most be termed as a
counter case of malicious prosecution. It is a settled principle of law that
existence of only a counter-case cannot be a ground for quashing the other case
which was filed first.
9. It is a settled principle of law that whether a criminal proceeding was
malicious or not, is not required to be evaluated at the stage of issuing
summons and the same is required to be considered at the conclusion of the
trial, as has been observed by the Hon’ble Supreme Court of India in the case of
the Central Bureau of Investigation Versus Aryan Singh & Others reported in
2023 SCC OnLine SC 379 paragraph- 08 of which reads as under :-
08. One another reason pointed by the High Court is that the
initiation of the criminal proceedings/proceedings is malicious. At
this stage, it is required to be noted that the investigation was
handed over to the CBI pursuant to the directions issued by the
High Court. That thereafter, on conclusion of the investigation, the
accused persons have been chargesheeted. Therefore, the High Court
has erred in observing at this stage that the initiation of the criminal
proceedings/proceedings is malicious. Whether the criminal
proceedings was/were malicious or not, is not required to be
considered at this stage. The same is required to be considered at the
conclusion of the trial. In any case, at this stage, what is required to
be considered is a prima facie case and the material collected during
the course of the investigation, which warranted the accused to be
tried.” (Emphasis supplied)
10. So far as the contention of the learned counsel for the petitioner that the
learned Magistrate has not applied his judicial mind and has not assigned any
reason in taking cognizance of the offence is concerned, the learned Magistrate,
in the order dated 16.06.2015, has briefly mentioned the reason for taking
cognizance of the offences punishable under Sections 376/417 of the Indian
Penal Code, by which he has taken the cognizance of the said offences.
4 Cr. M.P. No.4121 of 2018
(2025:JHHC:11310)
11. As already discussed above, the allegations made in the F.I.R. and the
statement under Section 164 of the Cr.P.C. of the victim, are sufficient to
constitute the offences punishable under Sections 376 as well as 417 of the
Indian Penal Code against the petitioner.
12. Under such circumstances, this Court is of the considered view that there
is no justifiable reason to interfere with the entire criminal proceedings of
Dhanwar P.S. Case No.345 of 2013 corresponding to G.R. No.3005 of 2013 as
well as the order dated 16.06.2015 passed by the learned Judicial Magistrate-1st
Class, Giridih.
13. Accordingly, this Cr.M.P., being without any merit, is dismissed.
14. In view of disposal of the instant Cr.M.P., the interim order granted vide
order dated 06.01.2020, is vacated.
15. Registry is directed to intimate the court concerned forthwith.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 15th of April, 2025
AFR/ Animesh
5 Cr. M.P. No.4121 of 2018
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