JUDGMENT
Ram Nandan Prasad, J.
1. The prayer in this application is to quash the order dated 25.3.1985, passed by the Judicial Magistrate, Sitamarhi in Nanpur P.S. case No. 60 of 1984, whereby the learned Magistrate has taken cognizance of the offence under Section 376, IPC against the petitioner and directed that the case should be committed to the Court of Session.
2. The submission on behalf of the petitioner is that even on the allegations as contained in the petition of complaint no case under Section 376, I.P.C. is made out. Opposite-party No. 2 Khaitun Nisha filed a petition of complaint in the court of Sub-Divisional Judicial Magistrate, Sitamarhi, which was forwarded by the court to Nanpur Police Station for instituting a case and investigationg the same. On its basis Nanpur P.S. case No. 60 of 1984 was instituted at the P. Section on 27.9.1984. The allegation in the complaint petition is that complainant Kahitoon Nisha was living in village Bokhra in the house adjacent to the house of the petitioner Mir Wali Mohammad alias Kalu and being a neighbour she used to frequently visit his house and he used to treat her as sali by village relationship. It is stated that the petitioner’s wife used to remain ill. It is further alleged in the petition of complaint that about six months back when the complainant was grinding pulses in the house of the petitioner and was alone there the petitioner came and started joking with her and told her that she should live with him because his wife used to remain ill all the time and also used to quarrel with him and that he would ultimately marry her and keep her. It is said that at first the complainant did not succumb to the allurements and demands of the petitioner but when he held out assurance to the effect that he would marry her, she agreed. Under these circumstances the petitioner had sexual intercourse with the complainant several times and every time the petitioner used to hold out assurance that he would marry her. After about three months, the complainant discovered that she had become pregnant and when she disclosed this to the petitioner and again requested him to marry her he merely held out assurance but did not carry out his promise and this ultimately led the complainant to believe that the petitioner had been holding out false promises and had duped her in having sexual intercourse with him. It is stated that the petitioner even had accepted that the complainant had become pregnant through him but still did not act in accordance with the assurance. The complainant then informed her parents who were at Calcutta and they came from there and got Panchyat held on 30.7.1984 and the petitioner in presence of the Panchayat accepted that he had promised to marry the complainant about six months back and he had indulged in seswith her due to which the latter had conceived and even at that time gave false assurance that he would marry the complainant. The petitioner, however, did not keep even the assurance given by him before the Panchayat. When her parents requested him to marry her, the petitioner and the other accused persons abused the complainant and her parents and assaulted them with lists and slaps and chased and drove them inside their own house.
3. The charge-sheet was submitted in the case under Section 376, I.P.C. and by the impugned order the learned Magistrate took cognizance in the case and ordered that steps be taken to commit the accused to the Court of Session for trial for an offence under Section 376, I.P.C.
4. The contention on behalf of the petitioner is that even on the facts alleged in the petition of complaint (later on treated as written report for instituting the police case) no case under Section 376, I.P.C. is made out. In this connection attention has been drawn to the report of the Medical Board which had examined the complainant on 22.1.1985 (Annexure-2). The Board’s report is that the age of the girl on the date of examination i.e. on 22.1.1985 is about 18 years. The complaint is dated 2.8.1984 and according to it petitioner had held out false promise to the complainant about six months back. The date of occurrence mentioned in the petition of complaint is 19.2.1984 to 31.7.1984. So according to the medical report the complainant on the alleged date of occurrence would be about 17 years, and in any view of the matter sufficiently above the age of sixteen years. It is submitted that according to the petition of complaint itself the lady has consented to have sexual intercourse with the petitioner on the basis of the alleged false promise of marriage and thus the alleged conduct of the petitioner does not fall within the definition of rape under Section 375, I.P.C. and that being so the question of commission of offence under Section 376, I.P.C. does not arise. I think there is substance in this contention. The alleged act and conduct of the petitioner do not come within the definition of rape under any of the clauses of Section 375, I.P.C. It was argued by the learned State counsel that the consent given by the complainant was under a misconception of fact and so cannot be regarded as valid consent in view of Section 90, I.P.C. I am unable to accept this argument. Though the lady pave her consent due to the false promise of marriage, she knew what was being asked from her and what she was giving her consent for. Hence, there was no misconception of fact and Section 90, I.P.C. has no application.
5. The case reported in 1984 Cr. LJ page 1535–Jayanti Rani Panda v. The State of West Bengal and Ors. fully supports this view. In that case, it has been held by their Lordships that if a grown up girl has consented to sexual intercourse with a person who held out false promise to marry her it would not amount to consenting under any misconception of fact under Section 90, I.P.C. and sexual intercourse by the man under these circumstance would not be an offence of rape as defined in Section 375, I.P.C.
6. Though on the facts of the case, an offence of rape is not made out, it is obvious that by holding out the false promise of marriage the petitioner fraudulently induced the complainant to have sexual intercourse with him and but for this false promise she would not have consented to have sexual intercourse with him. The act of the petitioner, therefore, amounts to cheating as defined in Section 415, I.P.C. and as such prima facie amounts to an offence under Section 417, I.P.C. Besides this act of cheating, the petitioner and other accused are also alleged to have indulged in assaulting the intimidating the complainant and her parents which prima facie would give rise to an offences under Sections 323, and 506, I.P.C.
7. For the reasons stated above, I find that the impugned order in so far as it relates to committing the petitioner to the Court of Session for trial for an offence under Section 376, I.P.C. is concerned, it is unsustainable and is, therefore, quashed to that extent. I also find that there are prima facie sufficient grounds for cognizance of offences of cheating, intimadation and assault and hence the impugned order of cognizance is valid in this regard; and hence the direction given in the impugned order whereby the accused persons have been ordered to appear before the Magistrate in respect of the case in question is quite valid and legal.
This application is disposed of accordingly.