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IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr.M.P. No. 1517 of 2008
Girish Kumar Sharan-- -- -- -- -- -- -- Petitioner(s)
Versus
1. The State of Jharkhand
2. Prem Lata Hembrom-- -- -- -- -- -- -- Opposite Parties
With
Cr. Rev. No.565 of 2009
Girish Kumar Sharan-- -- -- -- -- -- -- Petitioner(s)
Versus
1. The State of Jharkhand
2. Prem Lata Hembrom-- -- -- -- -- -- -- Opposite Parties
CORAM : THE HON'BLE MR.JUSTICE D.K. SINHA
For the Petitioner : Mr. P.P.N. Roy, Sr. Advocate
Mr. P.A.N. Roy, Advocate (in both the cases)
For the State : Mr. Mukesh Kumar, A.P.P. (in Cr.M.P. No. 1517 of 2008)
Mr. P.K. Deomani, A.P.P. (in Cr. Rev. No.565 of 2009)
For the Opp. Party No.2 : Mr. S.P. Roy, Advocate
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Reserved on: 13-01-2010 Pronounced on: 22-03-2010
D.K. Sinha, J. Both the petitions are taken together almost for the common cause.
Petitioner Girish Kumar Sharan has preferred the Cr.M.P. No. 1517 of
2008 by invoking the inherent power of this Court under Section 482 of
the Code of Criminal Procedure for quashment of the order impugned
dated 15.7.2008 passed in G.R. No.1276 of 2006, arising out of
Gopikandar P.S. Case No.18 of 2006 by which the Chief Judicial
Magistrate, Dumka took the cognizance of the offence under Sections
417/376/315
of the Indian Penal Code against the petitioner and for
quashment of his entire criminal prosecution whereas, the Cr. Rev.
No.565 of 2009 is directed against the order impugned dated 7.7.2009
passed in S.C. Case No.159 of 2009, arising out of above case, by which
the 5th Additional Sessions Judge, F.T.C., Dumka, after hearing the
parties, found prima facie material to proceed against the petitioner Girish
Kumar Sharan for the alleged offences and proposed charges under
Sections 376/417/313 of the Indian Penal Code and accordingly, charges
were framed for the said offences.
2. Prosecution story in short was that the prosecutrix Prem Lata
Hembrom had been visiting the Gopikandar Branch of the State Bank of
India with her mother for drawing the family pension of her mother and at
that time, the petitioner was the Branch Manager of the said Branch. It
was stated that the petitioner had offered the prosecutrix that he would
provide job of peon to her in the Bank which would be regularized after
completion of one year of her temporary job. Pursuant to such assurance,
she started working as a peon in the said Bank on temporary basis and
the Manager-petitioner used to give Rs.800/- per month to her. She
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alleged that petitioner used to tease her during banking hours, but she
tolerated his conduct and after completion of one year of her temporary
job, when she requested to regularize her job, the petitioner asked her to
come to his residence on Sunday at about 2:00 p.m. situated at Dumka for
putting her signatures on some forms. Pursuant to such direction, she
visited the house of the petitioner. She found him alone in the house,
however, he went out by saying that he was going for consultation and
returned quite late in the evening and as there was no bus in the evening
for the prosecutrix to return back to her home the petitioner persuaded her
to stay there in the night and she stayed. It was alleged that in the night
when the petitioner attempted to outrage her modesty, she protested, to
which petitioner threatened to satisfy his need otherwise job would not be
regularized, finding no way out she succumbed to the demand of physical
relationship under pressure and she could not oppose. In the morning, she
returned back and the petitioner continued making physical relationship
with her at several occasions however, she was threatened to be removed
from the job in case of communicating such matter to else. She further
alleged that the petitioner even used to visit her house in absence of her
parents and there also he used to establish physical relationship with her
and once upon a time, when she became pregnant, her pregnancy was
terminated at the instance of the petitioner at Siuri (West Bengal). When
the petitioner was transferred to Maslia, she was removed from the job by
the new incumbent of the Bank, who took charge and even then, the
petitioner continued having sex with her on the assurance that he would
get her job regularized. The prosecutrix after sometimes realized that she
was being physically exploited by the petitioner, then she threatened him
that a case would be instituted against him, to which she was asked to do
whatever she liked. Then she went to a telephone booth where she came
across one Manoj Kumar who introduced her to one Manoj Pandey to
whom she narrated the entire occurrence. Finally, she alleged that she
was a tribal girl and that the petitioner had established sexual relationship
with her for years on the pretext that he would provide job to her and for
the act of the petitioner her life was ruined.
A case was instituted on the written report of the prosecutrix for the
alleged offence under Section 376 of the Indian Penal Code as also under
Sections 3/4 of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act and the Deputy Superintendent of Police was assigned to
investigate the allegation. Investigating Officer after investigation of the
case submitted charge sheet for the alleged offence under Sections
417/376/315 of the Indian Penal Code and accordingly, cognizance of the
offence was taken in those Sections by the learned Chief Judicial
Magistrate, Dumka.
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3. The learned Sr. Counsel Mr. P.P.N. Roy at the outset submitted
that no offence under Sections 417/376/315 of the Indian Penal Code was
made out against the petitioner, even on the face value of the allegation
as made in the written report by the prosecutrix opposite party No.2. As a
matter of fact, prosecutrix had applied for loan under the Prime Minister
Rojgar Yojna Scheme for Rs.1,00,000/- from the Gopikandar Branch of
the State Bank of India where the petitioner was posted as Branch
Manager, against which a sum of Rs.76,000/- was sanctioned to the
prosecutrix under the Prime Minister Rojgar Yojna Scheme. Since the
informant-prosecutrix defaulted in repayment of the instalments, the
petitioner requested her by various letters for repayment of loan, to which
she contacted the petitioner for the waiver, to which the petitioner declined
to do so as against the public policy she was asked to pay back the loan
amount plus interest thereon to the Bank. The prosecutrix in league with
one Manoj Rai threatened the petitioner either to deposit the entire
amount due to her from his own pocket, otherwise rape case would be
instituted against him. They started making threatening calls, to which the
petitioner had given written information on 3.10.2006 to the
Superintendent of Police, Dumka.
4. The learned Sr. Counsel further submitted that petitioner then
communicated the matter to the Secretary, Divisional Human Rights
Association, Jharkhand at Dumka being fed up with the blackmailing of the
prosecutrix and her aid, to which an inquiry was made by the said
association which found the allegation of the petitioner against the
prosecutrix and Manoj Rai true and then a report was submitted to the
President of All India Human Rights Association with the copy to the
petitioner after giving him clean chit. Petitioner informed the
Superintendent of Police, Dumka as well as the Human Rights
Commission, much prior to lodging of the instant case by the prosecutrix.
She was aged about twenty-two years, a woman of easy virtue, who
implicated the petitioner with the ulterior motive to extort money by
showing disinclination to pay back the dues to the Bank. However, in the
given facts and circumstances of the case, no offence under Section 376
of the Indian Penal Code could be made out against the petitioner as she
admitted to be a consenting party of the sex, above eighteen years of age
and the fact could not be disclosed at the earlier occasion before the
police. The cognizance of the offence therefore, under Section 376 of the
Indian Penal Code and the proposed charge under the said offence would
amount to misuse of the process of the Court and injustice caused to the
petitioner. No charge sheet was filed under Section 3(X) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act. Petitioner,
who was a responsible Officer of the State Bank of India, was
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unnecessarily allowed to face the prosecution and persecution of the
rigours of trial for the alleged offence and therefore, he may be discharged
and his criminal prosecution be quashed.
5. I find from the perusal of the entire materials on the record including
the case diary which was called for, that the allegation as levelled by the
prosecutrix in the written report presented before the police, does not
make out prima facie a case of rape according to its definition as
contained in Section 375 of the Indian Penal Code which speaks,
“A man is said to commit ‘rape’ who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:-
First- Against her will.
Secondly- Without her consent.
x x x”
6. Prosecutrix has never stated that force was applied upon her. Yet,
she admitted that she conceded to the demand of the petitioner to have
physical relationship however, on the assurance and promise that her
temporary job would be regularized and that after she was removed from
her temporary job by another Branch Manager, she again indulged in sex
with the petitioner, as per her case, may be, against the assurance that a
new job would be provided to her. She categorically admitted in the written
report that she had visited the house where the petitioner used to reside
temporarily and that the petitioner also visited her house in absence of her
parents and at both the places, sexual relationship was established
between the two at several occasions without there being protest raised
by the prosecutrix which indicates that she was a consenting and willing
party to the sex, and such physical relationship with the consent of the
petitioner and the prosecutrix cannot be held to be ‘rape’.
7. I therefore, find and observe that the cognizance taken of the
offence under Section 376 of the Indian Penal Code and charge framed
against the petitioner for the said offence are not maintainable,
accordingly, both are set aside. Similarly, cognizance taken of the offence
under Section 315 of the Indian Penal Code and the charge framed
therein against the petitioner are also not maintainable in view of the fact
that no documentary evidence could be collected in course of investigation
in support of the allegation that the pregnancy of the prosecutrix was
terminated at the instance of the petitioner. She was even not medically
examined by the Doctor or the Board of Doctors and there is no medical
report in support of the allegation that her pregnancy was ever terminated
at any earlier point of time. As the alleged offence under Section 315 of
the Indian Penal Code relates to termination of pregnancy, such offence
may be supported through the medical opinion of the registered
practitioner and for want of such prima facie material charge cannot be
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framed in such Section, accordingly the cognizance cannot be taken for
the offence under Section 315 of the Indian Penal Code. For the reasons
stated hereinbefore the cognizance taken and accordingly charge framed
against the petitioner for the offence under Section 315 of the Indian Penal
Code are set aside.
8. However, on the face value of the allegation as contained in written
report , I find prima facie allegation of cheating against the petitioner that
he cheated the prosecutrix. Cheating is defined under Section 415 of the
Indian Penal Code which is punishable under Section 417 of the Indian
Penal Code. The prosecutrix in her written report had alleged that the
petitioner deceived her on the promise to provide her job or that her
temporary job of peon would be regularized in due course and established
sexual relationship but never either regularized her job nor provided her a
fresh job after termination of job by the new incumbent.
9. In the facts and circumstances, I find a prima facie case for the
alleged offence under Section 417 of the Indian Penal Code against the
petitioner. Section 417 of the Indian Penal Code is exclusively triable by a
Court of Judicial Magistrate of the 1st Class under Chapter-XX of the
Code of Criminal Procedure and therefore, the case record of the
petitioner arising out of Gopikandar P.S. Case No.18 of 2006 is directed to
be transferred and accordingly, it is transferred to the Court of Chief
Judicial Magistrate, Dumka to proceed against the petitioner after framing
of charge under Section 417 of the Indian Penal Code in accordance with
law.
10. With such modification in the impugned orders, both the Cr.M.P.
No. 1517 of 2008 and Cr. Rev. No.565 of 2009 are allowed in part and
disposed of in the manner indicated above.
(D.K. Sinha, J.)
S.B./A.F.R.