Criminal Miscellaneous No.896 of 2010 For quashing of order dated 09.11.2009 passed by learned Chief Judicial Magistrate, Darbhanga arising out of L.N.M.U. Darbhanga P.S. Case No. 82/2008. -------------- 1. Ram Lochan Sah S/O Mishri Lal Sah R/O Moh.- Laheriya Ganj,Ward No.2,P.S.- Madhubani Town,Dist.-Madhubani. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Sheela Devi wife of Vishwa Nath Sah D/O Late Teka Sah R/M Neem Pokhar Kaalisa Bad, P.S. LNMU, Darbhanga, Distt- Darbhanga .... .... Opposite Party/s ----------------------- Appearance For the Petitioner/s : Mr. Gagan Deo Yadav, Adv. Mr. Md.Imteyaz Ahmad Mr. Ravi Ranjan-1 Mr. Amit Kumar For the State : Mr. S.M. Rahman, APP ================================================== P R E S E N T HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI Petitioner has preferred instant petition for quashing of order dated 09.11.2009 passed by learned Chief Judicial Magistrate, Darbhanga arising out of L.N.M.U. Darbhanga P.S. Case No. 82/2008 whereby and whereunder petitioner has been summoned to face trial for an offence punishable under Section 376 of the IPC. 2. Briefly stated the facts of the case as originate on the basis of complaint petition bearing no. 306/2008 filed by one Sheela Devi 2 (O.P. 2nd Party) alleging inter alia that though she was married with Bishwanath Sah in the year 1987 and was residing at her Sasural, in the year 2000, petitioner lured her and on the false pretext of marriage indulged in sexual intercourse. A Panchayat was subsequently convened but the accused persons did not accede to its verdict. On the other hand, mother of petitioner instituted false case. Again petitioner gave an assurance that the case will be compromised and further he will marry with her and will reside at Darbhanga. Subsequently, case was withdrawn and on account thereof, her husband ousted her. Even then petitioner continued with the aforesaid behaviour and always assured her that marriage will be solemnized. All of a sudden, petitioner got himself married with another woman. When the aforesaid event was protested by her, she has been abused and further given a goby. 3. It has been submitted on behalf of the petitioner that O.P. No.2 happens to be a fictitious lady and further carries with bad repute. She happens to be a professional lady and is indulged in filing false cases against persons by changing her address only to squeeze money from them. Because of the fact that petitioner had failed to oblige her, therefore, she has launched the instant case. To support the same, a complaint petition bearing no. 981/2006 has been filed. Then submitted that the motive for false implication is itself evident from the fact that mother of petitioner had already brought complaint case no. 167 of 2000 3 (Annexure-4) before Chief Judicial Magistrate, Madhubani. Also submitted that no offence under Section 376 of the IPC is made out even on cursory perusal of complaint petition because of the fact that complainant who was herself a major one herself developed intimacy with the petitioner which continued for years together without any hitch and hindrance and subsequent putting an allegation on this score is no way acceptable in the background that she had not disclosed in the complaint petition that she had ever resisted or duped. As such, submitted that no ingredient of Section 376 of the IPC is coming out. 4. On the other hand, learned APP opposed and submitted that it is not the stage where the approach of the complainant is to be seen rather the same happens to be the course of trial. For the present, prima facie, there appears to be sufficient material to suggest that in deceptive manner petitioner had succeeded in committing rape. 5. By having Annexure-4 the identity of complainant is already there. Apart from Annexure-4 when the address of O.P. No.2 is taken together with two complaint petitions no. 981/2006 and the present one 306/2008, it is evident that there happens to be no controversy with regard to identity of the victim. 6. With regard to character of the victim girl, even if assuming the contention of the petitioner to be a correct one, same cannot be questioned as is prohibited under law more particularly 4 Section 146 of the Evidence Act. 7. Now coming to the main plank of the argument, there happens to be consistent material on the record to suggest that petitioner had developed sexual relationship on the pretext of getting himself married with complainant. Though it continued for quite long time but that survived till the day petitioner got himself married with another lady and on that day she perceived that she was duped. Whether such action attracts application of 376 IPC. The same had already been answered by the Hon’ble Apex Court in the case reported in AIR 2007 SC 3059 wherein after taking into consideration Section 90 of the IPC along with Section 375 and further taking into account relevant citations, it has been observed in paragraph-20 which is as follows:- “ 20. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of section 375 clause second. ” 8. In the aforesaid facts and circumstances of the case, the point so raised on behalf of the petitioner that no offence under Section 5 376 IPC is made out primarily appears to be misconceived and accordingly, the same is negated at least for present stage when only prima facie material is only required. Consequent thereupon, the instant petition is rejected. Patna High Court The 15th day of December 2011 Md. Perwez Alam/AFR ( Aditya Kumar Trivedi, J.)