Orissa High Court
K. Dinesh Kumar vs State Of Odisha And Another …. … on 24 December, 2024
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No.168 of 2024
K. Dinesh Kumar .... Petitioner
Mr. Tanmay Mishra, Advocate
-Versus-
State of Odisha and another .... Opposite Parties
Mr. N.K. Praharaj, AGA
Mr. Jugal Kishore Panda, Advocate for O.P. No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:24.12.2024
1. Instant revision under Section 401 read with Section 397 of
the Code of Criminal Procedure, 1978 (hereinafter referred to as
'the Cr.P.C') is filed by the petitioner challenging the legality and
judicial propriety of the impugned order dated 14th March, 2024
as at Annexure-4 passed in connection with S.T. No.123 of 2022
by learned 1st Additional Sessions Judge, Berhampur, whereby, an
application under Section 227 Cr.P.C. seeking discharge from the
alleged offences under Sections 493, 294, 427 and 376(2)(n) read
with 34 IPC was declined followed by the order framing the
charge against him on the grounds inter alia that no case much
less for an offence under Section 376(2)(n) IPC is made out.
2. As per the prosecution case, the informant lodged the FIR
dated 20th May, 2020 mentioning therein that the petitioner
denied marrying her after having a relationship and forced sexual
intimacy, as a result of which, Berhampur Town P.S. Case No.97
was registered for the offences alleged, later to which, the
CRLREV No.168 of 2024 Page 1 of 14
chargesheet was filed, whereafter, the petitioner moved the
learned court below seeking discharge with an application under
Section 227 Cr.P.C., which, as earlier stated, was rejected
followed by the order of framing of charge under Annexure-4.
3. The contention of the petitioner is that learned 1st Additional
Sessions Judge, Berhampur, without proper application of judicial
mind, framed the charge against him vide Annexure-4, which is
not sustainable and liable to be quashed. It is claimed that the
informant was in a consensual relationship with the petitioner,
hence, no offence under Section 376(2)(n) IPC is established. It is
further claimed that the victim has filed an application under
Section 9 read with Section 5(13) of the Hindu Marriage Act, 1955
before the court of learned Family Judge, Berhampur in Civil
Proceeding No.241 of 2021 with a pleading that she and the
petitioner were leading a life as spouses and in that view of
matter, the relationship cannot be said to be forceful, however,
with such an allegation of rape, the report was lodged, which has
ultimately led to the framing of charge on 14th March, 2024. It is
also stated that no offence under Section 493 IPC is prima facie
proved but the learned court below miserably failed to consider
the same and framed the charge for the said offence as well. It is,
hence, pleaded that the impugned order under Annexure-4 is
deserves be set aside followed by discharge of the petitioner fully.
4. Heard Mr. Mishra, learned counsel for the petitioner, Mr.
Praharaj, learned AGA for the State and Mr. Panda, learned
counsel for opposite party No.2.
5. Mr. Mishra, learned counsel for the petitioner would submit
that the relationship between the petitioner and informant was
with consent and it was for a period of one year and thereafter,
when the marriage between them did not materialize and the
CRLREV No.168 of 2024 Page 2 of 14
former declined to marry the latter, the report was lodged and in
absence of any material to show that there was no intention to
go for a marriage from the very inception and when a breach of
promise to marry is made out rather, learned court below could
not have framed a charge for an offence under Section 376(2)(n)
IPC. It is contended that the other offence under Section 493 IPC
is also not established, since the petitioner is not alleged of having
deceived the informant and with any such intention ever, induced
to make her believe that she was lawfully married to him and as a
result, co-habitation to have taken place but unfortunately, the
learned court below committed serious illegality in framing the
charge for the said offence. It is contended that learned 1st
Additional Sessions Judge, Berhampur lost sight of the settled
principles of law, while dealing with the application under Section
227 Cr.P.C. and stating so, Mr. Mishra, learned counsel for the
petitioner relies on a decision of the Apex Court in Ghulam
Hassan Beigh Vrs. Mohammad Maqbool Magrey and others
(2022) 12 SCC 657. In support of the contention that a case for
an offence under Section 376(2)(n) IPC is not established, Mr.
Mishra, learned counsel cited the decision of the Supreme Court
in Sonu alias Subhash Kumar Vrs. State of Uttar Pradesh and
another (2021) 18 SCC 517. A decision of this Court in Dayanidhi
Nayak Vrs. State of Orissa and others 92 (2021), CLT 673 is relied
on further to claim that the necessary ingredients of the offence
under Section 493 IPC to be conspicuously absent. An order of
the Kerala High Court in CRL. REV. PET. No.931 of 2023 dated
9th October, 2023 in the case of Nimmy Mathew Vrs. State of
Kerala and others is placed reliance on, which is based on the
decision in Ghulam Hassan Beigh (supra) on the point of
discharge. One more case law in M/s Karnataka EMTA Coal
Mines Limited and Another Vrs. CBI 2024 SCC Online SC 2250 is
CRLREV No.168 of 2024 Page 3 of 14
referred to by Mr. Mishra, learned counsel to contend that no
justifiable ground exists for proceeding against the petitioner.
6. On the other hand, Mr. Praharaj, learned AGA for the State
submits that a prima facie case is clearly made out against the
petitioner and therefore, the learned court below did not
consider it proper to discharge him and rightly, rejected the
application filed under Section 227 Cr.P.C. It is further submitted
that the material evidence is subject to scrutiny of learned court
below and in so far as the defence of the petitioner is concerned,
it shall have to be tested during the trial and hence, therefore, he
cannot demand discharge and correctly, the same stood rejected
vide Annexure-4.
7. Mr. Panda, learned counsel for the informant, namely,
opposite party No.2 submits that the petitioner forced a
relationship on the victim and on the pretext of marriage in
future, developed the sexual relationship, as a consequence, she
became pregnant and in the meantime, she has given birth to a
male child. It is further submitted that the petitioner is found to
have fathered the child born to the victim with the DNA report
received and in any view of the matter, considering the nature of
allegations made and substantiated with the filling of chargesheet,
upon a satisfaction reached at regarding an offence under Section
376(2)(n) IPC and other offences being committed, the impugned
order under Annexure-4 is fully justified and while advancing such
an argument, he relies on a decision of a Co-ordinate Bench of
this Court in Ghanashyama Mandothia Vrs. State of Odisha and
Another (2023) 90 OCR 42.
8. Whether, the impugned order under Annexure-4 with the
framing of charge vis-a-vis the petitioner for the alleged offences
rejecting the application under Section 227 Cr.P.C. filed by him is
CRLREV No.168 of 2024 Page 4 of 14
justified? In fact, the parents of the petitioner have been
discharged for an offence under Section 294 IPC. On perusal of
the chargesheet, the Court finds that the parents of the petitioner
were booked only for an offence under Section 294 read with 34
IPC, however, they have been discharged by the learned court
below but, a similar relief to the petitioner was declined vide
Annexure-4. Considering the materials received along with the
chargesheet, learned 1st Additional Sessions Judge, Berhampur held
that a prima facie case is made out against the petitioner for the
alleged offences, hence, refused to discharge him and thereafter,
framed the charge and proceeded to summon the witnesses to be
examined by the prosecution.
9. The role of a court while entertaining an application under
Section 227 Cr.P.C. has been the subject of discussion and debate
and in catena of decisions, the Apex Court held and observed that
such an exercise is not a mere formality. The decision in Ghulam
Hassan Beigh referred to by Mr. Mishra, learned counsel for the
petitioner is on the point of framing of charge and the duty of the
court enjoined, when discharge is claimed. Referring to the
decision in Sajjan Kumar Vrs. CBI 2010 (9) SCC 368, the Apex
Court in the aforesaid decision held and concluded in the
following words:
"27. Thus, from the aforesaid, it is evident that
the trial court is enjoined with the duty to
apply its mind at the time of framing of charge
and should not act as a mere post office. The
endorsement on the charge-sheet presented by
the police as it is without applying its mind and
without recording brief reasons in support of
its opinion is not countenanced by law.
However, the material which is required to be
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evaluated by the court at the time of framing
charge should be the material which is
produced and relied upon by the prosecution.
The sifting of such material is not to be so
meticulous as would render the exercise a mini
trial to find out the guilt or otherwise of the
accused. All that is required at this stage is that
the court must be satisfied that the evidence
collected by the prosecution is sufficient to
presume that the accused has committed an
offence. Even a strong suspicion would suffice.
Undoubtedly, apart from the material that is
placed before the court by the prosecution in
the shape of final report in terms of Section
173 of CrPC, the court may also rely upon any
other evidence or material which is of sterling
quality and has direct bearing on the charge
laid before it by the prosecution."
10. It has been held therein that the trial court at the time of
framing of charge shall have to consider the materials on record
and to briefly state the reasons in support of its opinion though
examination of the same with meticulous scrutiny is prohibited. It
has been held that the evidence collected is sufficient to presume
that the accused has committed an offence, a strong suspicion
would be enough to frame charge and even observed to the
extent that apart from the material, which is placed in the shape
of a final report in terms of Section 173 Cr.P.C. the Court may
also rely upon such other evidence of sterling quality having a
direct bearing on the charge led before it by the prosecution.
11. As per the submission of Mr. Mishra, learned counsel for the
petitioner, learned court below grossly erred to hold that a case
CRLREV No.168 of 2024 Page 6 of 14
under Sections 493 and 376(2)(n) IPC to have been made out
against the accused, when the materials produced along with the
chargesheet proved it otherwise, since the relationship between
the parties has been admittedly consensual. The fact that, a case
under Section 493 IPC is not prima facie established, has also been
entirely lost sight of, while framing of charge vide Annexure-4.
12. In support of the contention that a case under Section 493 IPC
is not proved, Mr. Mishra, learned counsel cited one more
decision in Brij Mohan Kushwaha Vrs. State of UP decided in
Misc. Bench No.13935 of 2021 and disposed of on 7th July, 2021
by a Bench of Allahabad High Court, wherein, it is held that in
case of a promise to marry having relationship with the victim is
not to attract an offence under Section 493 IPC. Against the
framing of charge for an offence under Section 294 IPC, a
decision of the Apex Court in N.S. Madhanagopal and another
Vrs. K. Lalitha, (2022) 17 SCC 818 is cited at the Bar.
13. Being alive to the settled law decided and reiterated in
Ghulam Hassan Beigh case with regard to the role of a court
dealing with a request for discharge, the Court is to consider,
whether, any such exercise has been duly undertaken by the
learned court below in the case at hand. As per the FIR, the
informant has alleged that she was in a relationship and could not
avoid sexual intimacy with the petitioner as it was forced on her
and, in the meanwhile, she became pregnant, in response to
which, the petitioner promised their marriage but later on,
avoided and ultimately, declined followed by the events
described in the FIR. It is borne out of record that the informant
gave birth to a male child and the DNA report proved his
parentage vis-a-vis the petitioner. When the petitioner backed out
and declined to marry the informant, under the circumstances
described in the FIR, whether, a case under Section 376(2)(n) IPC
CRLREV No.168 of 2024 Page 7 of 14
is made out for trial? The Court is also to find out and ascertain, if
an offence under Section 493 IPC is also proved against the
accused. The details of the facts leading to the relationship have
been narrated by the informant in her statement under Section
164 Cr.P.C. As per the FIR and the above statement of the victim,
the Court finds that initially the friendship was developed at a
showroom, where both of them were engaged and thereafter,
they fell for each other and also maintained sexual relationship.
Of course, according to the informant, such physical relationship
was forced on her by the petitioner. The fact is that, even with
any such reluctance, the relationship between the parties thrived
and not only that, during the relevant period, both had been to
Bhubaneswar and Calcutta. Ultimately, when the informant
demanded marriage, the petitioner alleged to have avoided her
and in one of such incidents, abused the latter and committed
certain overt acts and it was followed by misbehavior by the
former's parents, the report was lodged. With the nature of
evidence on record, the Court is to examine, if the alleged
offences under Sections 376(2)(n) and 493 IPC, in particular, are
prima facie made out against the petitioner.
14. In Sonu alias Subhash Kumar (supra), the Apex Court, in case
where the parties had a friendship initially and thereafter, the
accused assured to marry the victim and both having had a
relationship for one and half years, considering an allegation of
sexual exploitation, concluded as hereunder:
"10. Bearing in mind the tests which have been
enunciated in the above decision, we are of
the view that even assuming that all the
allegations in the FIR are correct for the
purposes of considering the application for
quashing under Section 482 of CrPC, no
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offence has been established. There is no
allegation to the effect that the promise to
marry given to the second respondent was
false at the inception. On the contrary, it
would appear from the contents of the FIR
that there was a subsequent refusal on the part
of the appellant to marry the second
respondent which gave rise to the registration
of the FIR. On these facts, we are of the view
that the High Court was in error in declining to
entertain the petition under Section 482 of
CrPC on the basis that it was only the evidence
at trial which would lead to a determination as
to whether an offence was established.”
15. The sum and substance of the above decision is that if there is
merely a breach of promise to marry the victim, no case of rape is
made out, but where, under a misconception of fact, the consent
is obtained and it was on account of a false promise having a
direct nexus with the victim’s decision to engage in sexual act, it
would be an offence under Section 376(2)(n) IPC.
16. In the instant case, the informant is a young woman aged
about 28 years, whereas, the petitioner is younger to her by four
years but after the acquaintance, friendship was developed
between them. On the proposal of the petitioner, as claimed, the
relationship started with the acceptance of such proposal and it
slowly turned towards sexual intimacy. Of course, the allegation
of the informant is that the petitioner forced on her and as a
result, physical relationship ensued. However, on a reading of the
material evidence on record, it is made to reveal that the
petitioner and informant had taken a decision to marry. The
family of the informant was aware of the relationship between
CRLREV No.168 of 2024 Page 9 of 14
her and the petitioner as further made to understand. It is
suggested from the record that the petitioner was in visiting terms
with the family of the informant. If there is no fraud played upon
the victim or consent was not obtained under a misconception of
fact, on account of a false promise of marriage, as earlier discussed
with reference to case law (supra), the petitioner cannot be
alleged of having committed an offence under Section 376(2)(n)
IPC. Furthermore, the informant happens to be mature and
intelligent enough to understand the consequences of the
relationship, to which, she apparently consented to. From the FIR
and other materials, the Court finds that it is difficult to reach at a
conclusion regarding absence of any such intention on the part of
the petitioner from the very beginning to marry the informant. As
it appears, everything happened in natural course of events with
the friendship and physical relationship being developed, though,
such intimacy was with a little bit of hesitation on the part of the
victim but by no stretch of imagination, it can be held that the
intention of the petitioner was otherwise from day one. In view
of the decision in Pramod Suryabhan Pawar Vrs. State of
Maharashtra and Another (2019) 9 SCC 608, a false promise must
be of immediate relevance or having a direct nexus with the
decision of the victim vis-à-vis the sexual act. The said decision has
been referred to in the case of Sonu alias Subhash Kumar. In other
words, to establish, whether, the consent was vitiated by any
mischief arising out of promise to marry, it must be held that such
promise was given in bad faith without any intention to uphold
the same in future and it was only to obtain such consent.
17. In the present case, the Court finds that the informant though
claims to be slightly hesitant initially but accepted the proposal of
the petitioner and even developed physical relationship with him
and continued to remain so, till the time, it ended with the
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untoward events, which took place shortly before the report was
lodged. Merely, denying to keep up the promise is not sufficient
and the same would result in breach of such promise, which is not
a criminal act but to presume that an offence under Section
376(2)(n) IPC is committed, the promise has to be held as false
and given in bad faith having no intention at all to adhere to the
same. Such conduct of the accused is to be examined considering
the material evidence with a prima facie view that the intention
was otherwise and not in good faith at the time when the
promise was offered. As far as the petitioner is concerned and also
the victim, the Court finds that everything started inoffensively
including the physical relationship followed by a promise of
marriage, which failed to be materialized at last. Since, the
promise failed and the petitioner avoided the informant and
subsequently, declined to marry her, is the reason behind lodging
of the FIR with an allegation of rape, which in the considered
view of the Court, may not be sufficient to hold that such consent
was no consent in the eye of law having been vitiated by
misconception of fact or fraud arising out of promise to marry.
Such sexual relationship between the parties, consequent upon, a
promise of marriage during the continuance of the same by itself
not to be sufficient to hold that the promise was given in bad
faith. It is again not found to be a case where a false promise of
the petitioner and subsequent consent of the victim was obtained
with such promise. It is further not revealed that the informant
consented to the sexual act only upon the promise of the
petitioner to marry her. If such was the intention and false
promise shown to be having a direct nexus with the consent
obtained for the sexual act and then, it is broken, an offence of
rape could be made out, since, it may be said to have been
vitiated by fraud. However, having regard to the nature of
allegations made in the FIR and materials collected and produced
CRLREV No.168 of 2024 Page 11 of 14
along with the chargesheet, the informant, after having a
relationship with the petitioner and the marriage between them
having not taken place, alleged sexual exploitation and rape,
which, in view of the discussion as aforesaid and keeping in view
the ratio laid down by the Apex Court in Sonu alias Subhash
Kumar, cannot be the basis to hold that an offence under Section
376(2)(n) IPC is made out.
18. As far as the offence under Section 493 IPC is concerned, it is
not a case that cohabitation between the informant and petitioner
did take place by any deceitful means inducing a belief of
existence of a lawful marriage. On a reading of the ingredients of
the offence under Section 493 IPC, it would mean that in order to
establish a person to have committed such an offence, it must be
shown that he deceitfully induced and made the woman to
believe that she is lawfully married to him and thereupon
cohabits. In other words, inducement of a woman resulting her to
carry such a belief is sine qua non. A Full Bench decision of the
Kerala High Court in Moideenkutty Haji and others Vrs.
Kunhihoya and others AIR 1987 Kerala 184 is referred to in the
decision of Allahabad High Court in Brij Mohan Kushwaha
(supra), which may be profitable to quote and hence, reproduced
herein below:
“XXX 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. In the complaint in this case there is no
CRLREV No.168 of 2024 Page 12 of 14
allegation of any such deception or
inducement. In a case where both the man
and woman fully knew that they are not
husband and wife and no ceremony of
marriage look place between them, there is
no question of one of them believing
otherwise. Even if the entire allegations in the
complaint are taken as true the section is not
being attracted. The allegation is that though
they are not husband and wife they had
sexual union during late hours in the night for
a pretty long time. What is alleged in the
complaint, in only a promise to marry in
future. The strange part of it is, there is the
further allegation that one day they went for
registering the marriage, but the petitioner ran
away from there and even thereafter she was
submitting herself to him regularly for liaison.
The facts cannot at any rate attract Section
493, I.P.C.”
19. If the decision (supra) is read and understood, existence of a
sexual relationship by itself not to be sufficient enough. To hold
that an offence under Section 493 IPC is made out, what is to be
shown is that a deceitful cohabitation under a false belief of
existence of a lawful marriage, The victim, if managed in a way,
to make her believe that the accused to be her lawfully wedded
husband and upon such belief, the latter cohabits, in such a
situation, the said offence is said to be committed. In the instant
case, the allegation is based on the premise that the petitioner had
promised to marry, either before or after, he had sexual
relationship with the informant, who, hence, had never been
CRLREV No.168 of 2024 Page 13 of 14
under delusion that she was lawfully married. It is not that some
kind ceremony was performed involving the parties so as to make
the victim to believe so. As both of them were well aware of the
fact that they are not yet married and still had been in physical
relationship, there is no rational ground for one to believe to the
contrary. As a consequence, the irresistible conclusion of the
Court is that an offence under Section 493 IPC is not established
even remotely. Such a conclusion is arrived at considering the
materials on record and regard being had to the settled principles
of law discussed with reference to the citations relied on by both
the sides. As regards, other offences, the Court is of the
considered view that a prima facie case is made out for trial.
20. Hence, it is ordered.
21. In the result, the revision stands partly allowed. As a necessary
corollary, the impugned order dated 14th March, 2024 under
Annexure-4 passed in connection with S.T. No.123 of 2022 by
learned 1st Additional Sessions Judge, Berhampur is hereby set
aside to extent indicated herein above.
(R.K. Pattanaik)
Judge
TUDU
Signature Not Verified
Digitally Signed
Signed by: THAKURDAS TUDU
Designation: Sr. Stenographer
Reason: Authentication
Location: OHC,CTC
Date: 24-Dec-2024 19:03:04
CRLREV No.168 of 2024 Page 14 of 14