[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CRIMINAL REVISION PETITION NO. 95/2008 PUKHRAJ MEENA Vs. STATE OF RAJASTHAN DATE: 25.04.2008 HON'BLE MR. JUSTICE K.S. RATHORE Mr. Biri Singh for the accused-petitioner. Mr. B.S. Chhaba, Public Prosecutor for the State. Mr. Nawab Ali for the complainant. **** This Court vide order dated 28.02.2008 while admitting the revision petition, given liberty to the petitioner to press his stay application if the hearing of the revision petition does not take place on 07.03.2008. Again the matter was listed on 24.03.2008 and the petitioner requested that though the matter is listed under the heading “hearing”, but hearing could not take place and, therefore, this Court ordered to list the matter on 31.03.2008 for consideration of the stay application. On 31.03.2008, the matter was again adjourned at the request of learned counsel for the petitioner. Today, the matter comes up for consideration of the stay application and at the request of the learned counsel for the respective parties, the matter is heard finally at this stage. The instant criminal revision petition under Section 397/401 Cr.P.C. is directed against [2] the order impugned dated 05.12.2007 passed by the Special Judge (Women Atrocities Dowry Cases) & Additional Sessions Judge, Jaipur City/District in Sessions Case No. 50/2007, whereby charge for the offence under Section 376 IPC has been framed against the accused-petitioner. Brief facts of the case are that one Smt. Mahendra Meena lodged a written report at Police Station Gandhi Nagar, Jaipur City (East) on 06.05.2007 alleging therein that while she was living in Malivya Hostel, University of Rajasthan, she came into the contact of Pukhraj Meena, the petitioner. On assurance given by petitioner Pukhraj Meena that he will marry with the complainant, they had relation of husband and wife and were living together, but on refusal the complainant filed a complaint in the Court of Additional Civil Judge (Jr. Division) & Judicial Magistrate No.15, Jaipur City, Jaipur on 15.06.2007 and the same was forwarded to Police Station Mahila (East), Jaipur, upon which FIR No. 59/2007 came to be registered for the offences under Sections 498-A and 406 IPC and investigation commenced. After investigation, the police submitted final report in the matter. On 18.06.2007, complainant Smt. Mahendra also filed a complaint under Section 12 of the Domestic Violence Act against the petitioner and his family members in the Court of Additional Civil Judge (Jr. Division) [3] & Judicial Magistrate No.2, Jaipur City, Jaipur showing herself to be the wife of the petitioner. On this complaint, FIR No. 228/2007 came to be lodged and the police, after investigation, submitted challan for the offence under Section 376 IPC and vide order impugned dated 05.12.2007, the Special Judge (Women Atrocities Dowry Cases) & Additional Sessions Judge, Jaipur City/District framed charge for the offence under Section 376 IPC against the petitioner. Being aggrieved and dissatisfied with the order impugned dated 05.12.2007 framing charge against the accused-petitioner for the offence under Section 376 IPC, the present criminal revision petition has been preferred by the accused-petitioner. In support of his submissions, learned counsel for the accused-petitioner placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Pradeep Kumar @ Pradeep Kumar Verma Vs. State of Bihar and Anr., reported in JT 2007(10) SC 246, wherein the Hon'ble Supreme Court has held that Woman lodging FIR against the appellant complaining that he had exploited her sexually on the promise of marriage and though he had married her before a deity in a temple subsequently, he was planning to get married to another woman- Magistrate framing charges for the offences under Sections 376 and 406- Appellant [4] filing an application for discharge in terms of Section 227 of the Code denying the charge of sexual exploitation as well as marriage with complainant- Trial Court rejecting the application- High Court also summarily rejecting the application holding that Trial Court's rejection of the discharge application was based on sufficient material showing petitioner's complexity in the crime. Hon'ble Apex Court having observed herein above, without expressing any opinion on the merits of the case held that prima facie Sections 376 and 406 did not appear to have any application to the facts of the case and it would have been appropriate for the High Court to deal with various submissions and consider their acceptability. The court therefore erred in rejecting the application summarily. Matter remitted to High Court for fresh consideration. Placing reliance on the aforesaid judgment, learned counsel for the accused- petitioner submits that the complainant was already married and the question of promise to marry with her does not arise and, therefore, the charge framed against the petitioner for the offence under Section 376 IPC is not made out. Per contra, learned counsel appearing for the complainant submits that this fact has not been concealed that the complainant was married but this [5] was child marriage and she lived with the petitioner only on the promise of marriage. I have heard learned counsel for the accused-petitioner, learned Public Prosecutor for the State as well as learned counsel appearing for the complainant and have also gone through the order impugned dated 05.12.2007 as also the other material produced by the counsel for the petitioner. I have also carefully gone through the judgment rendered by the Hon'ble Apex Court, referred by the learned counsel for the petitioner. It is not disputed that the complainant was married and it is also not disputed that the petitioner and the complainant lived together as husband and wife. In view of the ratio decided by the Hon'ble Supreme Court, the Court while framing charge has to examine each and every aspect and having fully satisfied that offence under Section 376 IPC is made out against the petitioner, then can only frame the charge for the offence under Section 376 IPC. Therefore, without expressing any opinion on the merits of the case, in view of the ratio decided by the Hon'ble Apex Court, I deem it proper to quash and set aside the order impugned dated 05.12.2007 passed by the Special Judge (Women Atrocities Dowry Cases) & Additional Sessions Judge, Jaipur City/District and remit the matter back to the Court below for fresh adjudication [6] after giving opportunity of being heard to the parties and after considering the material available on the record whether the offence under Section 376 IPC is made against the petitioner or not, shall pass fresh order without influencing with the observations made by this Court. With these observations, the criminal revision petition stands disposed of. The stay application also stands disposed of. (K.S. RATHORE),J. /KKC/