IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2047 of 2007 MD. FIROZ @ KANKAR Versus STATE OF BIHAR & ANR WITH Cr.Misc. No.42807 of 2007 MD.FIROZ @ KANKAR Versus STATE OF BIHAR & ANR ----------- For the petitioner : Mr.N.K.Agrawal, Sr. Advocate and Mr. Manoj Kumar Jha, Advcoate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For opposite party 2 : Mr. Imteyaz Ahmad, Adv. … 14 28-7-2008 Cr. Misc. No. 2047 of 2007 has been filed for quashing the order, dated 24.6.2006 passed in S.T. No. 1517 of 2006 arising out of Nathnagar PS Case No. 482/2005 by which cognizance has been taken against the petitioner for the offence under section 376 of the Penal Code whereas Cr. Misc. No. 42807 of 2007 which has been filed for quashing the order, dated 7.7.2007 passed in the aforesaid sessions trial whereby and where-under charge against the petitioner has been framed under section 376 of the Penal Code. Both the cases are being heard together. The facts and allegations in the complaint petition are that the petitioner and the complainant are neighbours and are also related to each other. It is alleged that the petitioner persuaded the opposite party no.2 to have sexual relationship with him after assuring her that he was in love with her and also promising that he would eventually marry her. Their relationship and involvement with each other began on 20.10.2004. The opposite party became pregnant and everyone in the village came to know about their - 2 - involvement. It is further alleged that a meeting was organized in which several persons of the locality participated and the petitioner promised to marry her provided he was paid a sum of Rs. 50,000/- as a gift. Accordingly, it has been stated that Rs. 45,000/- was deposited as security. Later, the petitioner refused to marry the opposite party and it is alleged that he refused to acknowledge that the child which was born to the opposite party no. 2 was his child which resulted in filing of Complaint Case No. 2010/2005 which was forwarded by the police and accordingly Nathnagar PS Case No. 482/2005, dated 9.12.2005 was instituted. It may be relevant to bring on record the fact that earlier to the present Complaint Case No. 2010/2005, the opposite party had filed Complaint Petition No. 1728/2005 which was pending in the court below for solemn affirmation and examination of the witnesses. The prosecution story is slightly different in that complaint petition inasmuch it has been stated that the opposite party no.2 was married with one Pappu and after her marriage she returned to her father’s house and then the relationship between the petitioner and opposite party no.2 started on the assurance that the petitioner would marry her if she divorced Pappu. The second complaint Case No. 1728/2005 has been withdrawn by the complainant as per the affidavit filed by opposite party no.2. The order allowing the withdrawal of the complaint case is already on record. The question before this court is whether in the facts - 3 - of this case an offence under section 376 of the Penal Code is made out against the petitioner. In the present case the opposite party no.2 being a major entered into a sexual relationship, without any force and coercion and continued to have sexual intercourse with the petitioner for over a period of one year. The said physical relationship was allegedly established as the petitioner had promised that he would marry the opposite party no.2 which he refused to do. The petitioner in the facts of this case cannot be accused of committing rape. It is not a case where the complainant was not aware of the consequence of entering into a physical relation and as such the ingredient under section 374 of the Penal Code are not made out in this case. Learned counsel for the opposite party, however, submits that the petitioner broke his promise and persuaded the opposite party to have sexual relationship with the petitioner. In the absence of the promise to marry, the lady may not have entered into such a relationship and thus the petitioner is liable for offence under section 415 of the Penal Code. On bare perusal of the pleadings this appears to be prima facie true and as such the Chief Judicial Magistrate may take into consideration the material to show whether the offence under section 415 of the Penal Code is made out or not and pass an appropriate order in the matter. In the result I quash the order, dated 24.6.2006 taking cognizance in Nathnagar PS Case No. 482/2005 and the order, dated 7.7.2007 by which learned 7th Addl. Sessions Judge, - 4 - Bhagalpur has framed charges under section 376 of the Penal Code in S. T. No. 1517/2006. In the result, these two applications are allowed to the extent mentioned above.. haque (Sheema Ali Khan,J)