{"id":112614,"date":"2010-03-22T00:00:00","date_gmt":"2010-03-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/girish-kumar-sharan-vs-state-of-of-jharkhand-on-22-march-2010"},"modified":"2015-12-11T16:26:59","modified_gmt":"2015-12-11T10:56:59","slug":"girish-kumar-sharan-vs-state-of-of-jharkhand-on-22-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/girish-kumar-sharan-vs-state-of-of-jharkhand-on-22-march-2010","title":{"rendered":"Girish Kumar Sharan vs State Of Of Jharkhand on 22 March, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Jharkhand High Court<\/div>\n<div class=\"doc_title\">Girish Kumar Sharan vs State Of Of Jharkhand on 22 March, 2010<\/div>\n<pre>                                                                                    1\n\n\n                 IN THE HIGH COURT OF JHARKHAND, RANCHI\n                              Cr.M.P. No. 1517 of 2008\n Girish Kumar Sharan--        --    --     --    --    --        --     Petitioner(s)\n                                         Versus\n 1. The State of Jharkhand\n 2. Prem Lata Hembrom-- --           --     --      --   --      --     Opposite Parties\n                                               With\n                                 Cr. Rev. No.565 of 2009\n Girish Kumar Sharan--        --      --    --     --    --      --     Petitioner(s)\n                                               Versus\n 1. The State of Jharkhand\n 2. Prem Lata Hembrom-- --           --     --     --     --     --     Opposite Parties\n\n        CORAM          :      THE HON'BLE MR.JUSTICE D.K. SINHA\n\n For the Petitioner           : Mr. P.P.N. Roy, Sr. Advocate\n                                Mr. P.A.N. Roy, Advocate (in both the cases)\n For the State                : Mr. Mukesh Kumar, A.P.P. (in Cr.M.P. No. 1517 of 2008)\n                                Mr. P.K. Deomani, A.P.P. (in Cr. Rev. No.565 of 2009)\n For the Opp. Party No.2       : Mr. S.P. Roy, Advocate\n                                      -----\n\n Reserved on: 13-01-2010                              Pronounced on: 22-03-2010\n\nD.K. Sinha, J.         Both the petitions are taken together almost for the common cause.\n                 Petitioner Girish Kumar Sharan has preferred the Cr.M.P. No. 1517 of\n                 2008 by invoking the inherent power of this Court under Section 482 of\n                 the Code of Criminal Procedure for quashment of the order impugned\n                 dated 15.7.2008     passed in G.R. No.1276 of 2006, arising out of\n                 Gopikandar P.S. Case No.18 of 2006 by which the Chief Judicial\n                 Magistrate, Dumka took the cognizance of the offence under Sections\n                 417\/376\/315<\/pre>\n<p> of the Indian Penal Code against the petitioner and for<br \/>\n                 quashment of his entire criminal prosecution whereas,         the Cr. Rev.<br \/>\n                 No.565 of 2009 is directed against the order impugned dated 7.7.2009<br \/>\n                 passed in S.C. Case No.159 of 2009, arising out of above case, by which<br \/>\n                 the 5th Additional Sessions Judge, F.T.C., Dumka, after hearing the<br \/>\n                 parties, found prima facie material to proceed against the petitioner Girish<br \/>\n                 Kumar Sharan for the alleged offences and proposed charges under<br \/>\n                 Sections 376\/417\/313 of the Indian Penal Code and accordingly, charges<br \/>\n                 were framed for the said offences.\n<\/p>\n<p>                 2.    Prosecution story in short was that the prosecutrix Prem Lata<br \/>\n                 Hembrom had been visiting the Gopikandar Branch of the State Bank of<br \/>\n                 India with her mother for drawing the family pension of her mother and at<br \/>\n                 that time, the petitioner was the Branch Manager of the said Branch. It<br \/>\n                 was stated that the petitioner had offered the prosecutrix that he would<br \/>\n                 provide job of peon to her in the Bank which would be regularized after<br \/>\n                 completion of one year of her temporary job. Pursuant to such assurance,<br \/>\n                 she started working as a peon in the said Bank on temporary basis and<br \/>\n                 the Manager-petitioner used to give Rs.800\/- per month to her. She<br \/>\n<span class=\"hidden_text\">                                                                     2<\/span><\/p>\n<p>alleged that petitioner used to tease her during banking hours, but she<br \/>\ntolerated his conduct and after completion of one year of her temporary<br \/>\njob, when she requested to regularize her job, the petitioner asked her to<br \/>\ncome to his residence on Sunday at about 2:00 p.m. situated at Dumka for<br \/>\nputting her signatures on some forms. Pursuant to such direction, she<br \/>\nvisited the house of the petitioner. She found him alone in the house,<br \/>\nhowever, he went out by saying that he was going for consultation and<br \/>\nreturned quite late in the evening and as there was no bus in the evening<br \/>\nfor the prosecutrix to return back to her home the petitioner persuaded her<br \/>\nto stay there in the night and she stayed. It was alleged that in the night<br \/>\nwhen the petitioner attempted to outrage her modesty, she protested, to<br \/>\nwhich petitioner threatened to satisfy his need otherwise job would not be<br \/>\nregularized, finding no way out she succumbed to the demand of physical<br \/>\nrelationship under pressure and she could not oppose. In the morning, she<br \/>\nreturned back and the petitioner continued making physical relationship<br \/>\nwith her at several occasions however, she was threatened to be removed<br \/>\nfrom the job in case of communicating such matter to else. She further<br \/>\nalleged that the petitioner even used to visit her house in absence of her<br \/>\nparents and there also he used to establish physical relationship with her<br \/>\nand once upon a time, when she became pregnant, her pregnancy was<br \/>\nterminated at the instance of the petitioner at Siuri (West Bengal). When<br \/>\nthe petitioner was transferred to Maslia, she was removed from the job by<br \/>\nthe new incumbent of the Bank, who took charge and even then, the<br \/>\npetitioner continued having sex with her on the assurance that he would<br \/>\nget her job regularized. The prosecutrix after sometimes realized that she<br \/>\nwas being physically exploited by the petitioner, then she threatened him<br \/>\nthat a case would be instituted against him, to which she was asked to do<br \/>\nwhatever she liked. Then she went to a telephone booth where she came<br \/>\nacross one Manoj Kumar who introduced her to one Manoj Pandey to<br \/>\nwhom she narrated the entire occurrence. Finally, she alleged that she<br \/>\nwas a tribal girl and that the petitioner had established sexual relationship<br \/>\nwith her for years on the pretext that he would provide job to her and for<br \/>\nthe    act    of     the    petitioner    her     life   was     ruined.\n<\/p>\n<p>A case was instituted on the written report of the prosecutrix for the<br \/>\nalleged offence under Section 376 of the Indian Penal Code as also under<br \/>\nSections 3\/4 of the Scheduled Castes and Scheduled Tribes (Prevention<br \/>\nof Atrocities) Act and the Deputy Superintendent of Police was assigned to<br \/>\ninvestigate the allegation. Investigating Officer after investigation of the<br \/>\ncase submitted charge sheet for the alleged offence under Sections<br \/>\n417\/376\/315 of the Indian Penal Code and accordingly, cognizance of the<br \/>\noffence was taken in those Sections by the learned Chief Judicial<br \/>\nMagistrate, Dumka.\n<\/p>\n<p><span class=\"hidden_text\">                                                                           3<\/span><\/p>\n<p>3.     The learned Sr. Counsel Mr. P.P.N. Roy at the outset submitted<br \/>\nthat no offence under Sections 417\/376\/315 of the Indian Penal Code was<br \/>\nmade out against the petitioner, even on the face value of the allegation<br \/>\nas made in the written report by the prosecutrix opposite party No.2. As a<br \/>\nmatter of fact, prosecutrix had applied for loan under the Prime Minister<br \/>\nRojgar Yojna Scheme for Rs.1,00,000\/- from the Gopikandar Branch of<br \/>\nthe State Bank of India where the petitioner was posted as Branch<br \/>\nManager, against which a sum of Rs.76,000\/- was sanctioned to the<br \/>\nprosecutrix under the Prime Minister Rojgar Yojna Scheme. Since the<br \/>\ninformant-prosecutrix defaulted in repayment of the instalments, the<br \/>\npetitioner requested her by various letters for repayment of loan, to which<br \/>\nshe contacted the petitioner for the waiver, to which the petitioner declined<br \/>\nto do so as against the public policy she was asked to pay back the loan<br \/>\namount plus interest thereon to the Bank. The prosecutrix in league with<br \/>\none Manoj Rai threatened the petitioner either to deposit the entire<br \/>\namount due to her from his own pocket, otherwise rape case would be<br \/>\ninstituted against him. They started making threatening calls, to which the<br \/>\npetitioner   had     given    written    information     on   3.10.2006    to   the<br \/>\nSuperintendent of Police, Dumka.\n<\/p>\n<p>4.     The learned Sr. Counsel further submitted that petitioner then<br \/>\ncommunicated the matter to the Secretary, Divisional Human Rights<br \/>\nAssociation, Jharkhand at Dumka being fed up with the blackmailing of the<br \/>\nprosecutrix and her aid, to which an inquiry was made by the said<br \/>\nassociation which found the allegation of the petitioner against the<br \/>\nprosecutrix and Manoj Rai true and then a report was submitted to the<br \/>\nPresident of All India Human Rights Association with the copy to the<br \/>\npetitioner   after   giving    him      clean   chit.   Petitioner   informed   the<br \/>\nSuperintendent of Police, Dumka as well as the Human Rights<br \/>\nCommission, much prior to lodging of the instant case by the prosecutrix.<br \/>\nShe was aged about twenty-two years, a woman of easy virtue, who<br \/>\nimplicated the petitioner with the ulterior motive to extort money by<br \/>\nshowing disinclination to pay back the dues to the Bank. However, in the<br \/>\ngiven facts and circumstances of the case, no offence under Section 376<br \/>\nof the Indian Penal Code could be made out against the petitioner as she<br \/>\nadmitted to be a consenting party of the sex, above eighteen years of age<br \/>\nand the fact could not be disclosed at the earlier occasion before the<br \/>\npolice. The cognizance of the offence therefore, under Section 376 of the<br \/>\nIndian Penal Code and the proposed charge under the said offence would<br \/>\namount to misuse of the process of the Court and injustice caused to the<br \/>\npetitioner. No charge sheet was filed under Section 3(X) of the Scheduled<br \/>\nCastes and Scheduled Tribes (Prevention of Atrocities) Act. Petitioner,<br \/>\nwho was a responsible Officer of the State Bank of India, was<br \/>\n<span class=\"hidden_text\">                                                                      4<\/span><\/p>\n<p>unnecessarily allowed to face the prosecution and persecution of the<br \/>\nrigours of trial for the alleged offence and therefore, he may be discharged<br \/>\nand his criminal prosecution be quashed.\n<\/p>\n<p>5.     I find from the perusal of the entire materials on the record including<br \/>\nthe case diary which was called for, that the allegation as levelled by the<br \/>\nprosecutrix in the written report presented before the police, does not<br \/>\nmake out prima facie a case of rape according to its definition as<br \/>\ncontained in Section 375 of the Indian Penal Code which speaks,<br \/>\n             &#8220;A man is said to commit &#8216;rape&#8217; who, except in the case<br \/>\n        hereinafter excepted, has sexual intercourse with a woman under<br \/>\n        circumstances falling under any of the six following descriptions:-\n<\/p>\n<blockquote><p>             First- Against her will.<br \/>\n             Secondly- Without her consent.<br \/>\n             x x x&#8221;\n<\/p><\/blockquote>\n<p>6.     Prosecutrix has never stated that force was applied upon her. Yet,<br \/>\nshe admitted that she conceded to the demand of the petitioner to have<br \/>\nphysical relationship however, on the assurance and promise that her<br \/>\ntemporary job would be regularized and that after she was removed from<br \/>\nher temporary job by another Branch Manager, she again indulged in sex<br \/>\nwith the petitioner, as per her case, may be, against the assurance that a<br \/>\nnew job would be provided to her. She categorically admitted in the written<br \/>\nreport that she had visited the house where the petitioner used to reside<br \/>\ntemporarily and that the petitioner also visited her house in absence of her<br \/>\nparents and at both the places, sexual relationship was established<br \/>\nbetween the two at several occasions without there being protest raised<br \/>\nby the prosecutrix which indicates that she was a consenting and willing<br \/>\nparty to the sex, and such physical relationship with the consent of the<br \/>\npetitioner and the prosecutrix cannot be held to be &#8216;rape&#8217;.\n<\/p>\n<p>7.     I therefore, find and observe that the cognizance taken of the<br \/>\noffence under Section 376 of the Indian Penal Code and charge framed<br \/>\nagainst the petitioner for the said offence are not maintainable,<br \/>\naccordingly, both are set aside. Similarly, cognizance taken of the offence<br \/>\nunder Section 315 of the Indian Penal Code and the charge framed<br \/>\ntherein against the petitioner are also not maintainable in view of the fact<br \/>\nthat no documentary evidence could be collected in course of investigation<br \/>\nin support of the allegation that the pregnancy of the prosecutrix was<br \/>\nterminated at the instance of the petitioner. She was even not medically<br \/>\nexamined by the Doctor or the Board of Doctors and there is no medical<br \/>\nreport in support of the allegation that her pregnancy was ever terminated<br \/>\nat any earlier point of time. As the alleged offence under Section 315 of<br \/>\nthe Indian Penal Code relates to termination of pregnancy, such offence<br \/>\nmay be supported through the medical opinion of the registered<br \/>\npractitioner and for want of such prima facie material charge cannot be<br \/>\n<span class=\"hidden_text\">                                                                                    5<\/span><\/p>\n<p>              framed in such Section, accordingly the cognizance cannot be taken for<br \/>\n              the offence under Section 315 of the Indian Penal Code. For the reasons<br \/>\n              stated hereinbefore the cognizance taken and accordingly charge framed<br \/>\n              against the petitioner for the offence under Section 315 of the Indian Penal<br \/>\n              Code are set aside.\n<\/p>\n<p>              8.     However, on the face value of the allegation as contained in written<br \/>\n              report , I find prima facie allegation of cheating against the petitioner that<br \/>\n              he cheated the prosecutrix. Cheating is defined under Section 415 of the<br \/>\n              Indian Penal Code which is punishable under Section 417 of the Indian<br \/>\n              Penal Code. The prosecutrix in her written report had alleged that the<br \/>\n              petitioner deceived her on the promise to provide her job or that her<br \/>\n              temporary job of peon would be regularized in due course and established<br \/>\n              sexual relationship but never either regularized her job nor provided her a<br \/>\n              fresh job after termination of job by the new incumbent.\n<\/p>\n<p>              9.     In the facts and circumstances, I find a prima facie case for the<br \/>\n              alleged offence under Section 417 of the Indian Penal Code against the<br \/>\n              petitioner. Section 417 of the Indian Penal Code is exclusively triable by a<br \/>\n              Court of Judicial Magistrate of the 1st Class under Chapter-XX of the<br \/>\n              Code of Criminal Procedure and therefore, the case record of the<br \/>\n              petitioner arising out of Gopikandar P.S. Case No.18 of 2006 is directed to<br \/>\n              be transferred and accordingly, it is transferred to the Court of Chief<br \/>\n              Judicial Magistrate, Dumka to proceed against the petitioner after framing<br \/>\n              of charge under Section 417 of the Indian Penal Code in accordance with<br \/>\n              law.\n<\/p>\n<p>              10.    With such modification in the impugned orders, both the Cr.M.P.<br \/>\n              No. 1517 of 2008 and Cr. Rev. No.565 of 2009 are allowed in part and<br \/>\n              disposed of in the manner indicated above.\n<\/p>\n<p>                                                        (D.K. Sinha, J.)<br \/>\nS.B.\/A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jharkhand High Court Girish Kumar Sharan vs State Of Of Jharkhand on 22 March, 2010 1 IN THE HIGH COURT OF JHARKHAND, RANCHI Cr.M.P. No. 1517 of 2008 Girish Kumar Sharan&#8211; &#8212; &#8212; &#8212; &#8212; &#8212; &#8212; Petitioner(s) Versus 1. The State of Jharkhand 2. Prem Lata Hembrom&#8211; &#8212; &#8212; &#8212; &#8212; &#8212; &#8212; Opposite [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-112614","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Girish Kumar Sharan vs State Of Of Jharkhand on 22 March, 2010 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/girish-kumar-sharan-vs-state-of-of-jharkhand-on-22-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Girish Kumar Sharan vs State Of Of Jharkhand on 22 March, 2010 - Free Judgements of Supreme Court &amp; 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