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Judgment
Anil Kumar Choudhary, J
Heard the parties.
This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash and set aside the entire criminal proceedings in connection with Dhanwar P.S. Case No.345 of 2013 corresponding to G.R. No.3005 of 2013 and the order dated 16.06.2015 passed in that case whereby and where under the learned Judicial Magistrate-1st Class, Giridih has taken cognizance of the offences punishable under Sections 376/417 of the Indian Penal Code.
The allegation against the petitioner is that the petitioner committed rape upon the victim; who was employed by him in his nursing home and thereafter promised to marry her and allured her not to disclose the occurrence of rape admitted by him upon the victim, to anyone. On the basis of the written application of the informant, police registered Dhanwar P.S. Case No.345 of 2013 for the offence punishable under Section 376 of the Indian Penal Code and after completion of the investigation, submitted charge-sheet against the petitioner. The learned Magistrate, considering the materials available in the record, found prima facie case for the offences punishable under Sections 376/417 of the Indian Penal Code and took cognizance for the said offences.
Learned counsel for the petitioner submits that there is a delay of more than three years after the first occurrence and after the first occurrence also, the physical relationship allegedly continued between the petitioner and the victim. It is next submitted that in her statement under Section 164 of the Cr.P.C., the victim claims to be the wife of the petitioner. It is further submitted that the petitioner also lodged an F.I.R. vide Dhanwar P.S. Case No.344 of 2013 as against the informant. It is next submitted that the petitioner is a reputed doctor and is already married and the informant has also married someone else. It is further submitted that the learned Judicial Magistrate has taken cognizance of the offences without application of mind by a cryptic order. Hence, it is submitted that the entire criminal proceedings of Dhanwar P.S. Case No.345 of 2013 corresponding to G.R. No.3005 of 2013 as well as the order dated 16.06.2015 passed by the learned Judicial Magistrate-1st Class, Giridih be quashed and set aside.
Learned Addl.P.P. appearing for the State and the learned counsel for the victim on the other hand vehemently oppose the prayer of the petitioner made in this Cr.M.P. and submit that there is direct and specific allegation against the petitioner of having committed rape upon the victim and subsequently promising to marry her and on subsequent occasion upon the promise of marriage, having physical relationship with her cannot obliterate the offence of rape, which took place, prior to the promise of marriage. It is next submitted that the subsequent conduct of the petitioner in alluring the victim to enter into matrimony with her and subsequent physical relationship on the false pretext of marriage cannot obliterate or condone, the initial occurrence of rape upon the victim. It is then submitted that, the learned Magistrate has not committed any illegality in taking cognizance for the offence punishable Sections 376/417 of the Indian Penal Code. It is next submitted that prior institution of a case being Dhanwar P.S. Case No.344 of 2013 cannot be a ground for quashing the entire criminal proceedings of Dhanwar P.S. Case No.345 of 2013. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed.
Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that there is direct and specific allegation against the petitioner of committing rape upon the victim and subsequently by promising to marry her and by giving other allurements made her not to lodge the F.I.R. immediately after the occurrence and subsequently also committed rape upon her against her wish; so even assuming for the sake of arguments that subsequently there were consensual physical relationship between the petitioner and the victim on the petitioner promising to marry her, the initial occurrence of rape committed by the petitioner on the victim cannot be condoned.
So far as the delay in lodging the F.I.R. is concerned, the same is explained in the F.I.R. itself; as the petitioner by promising to marry the victim and with other allurements, restrained the victim to immediately approach the police and lodge and F.I.R.
So far as the institution of Dhanwar P.S. Case No.344 of 2013 by the petitioner against the informant is concerned, it can at the most be termed as a counter case of malicious prosecution. It is a settled principle of law that existence of only a counter-case cannot be a ground for quashing the other case which was filed first.
It is a settled principle of law that whether a criminal proceeding was malicious or not, is not required to be evaluated at the stage of issuing summons and the same is required to be considered at the conclusion of the trial, as has been observed by the Hon’ble Supreme Court of India in the case of the Central Bureau of Investigation Versus Aryan Singh & Others reported in 2023 SCC OnLine SC 379 paragraph- 08 of which reads as under :-
One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.” (Emphasis supplied)
So far as the contention of the learned counsel for the petitioner that the learned Magistrate has not applied his judicial mind and has not assigned any reason in taking cognizance of the offence is concerned, the learned Magistrate, in the order dated 16.06.2015, has briefly mentioned the reason for taking cognizance of the offences punishable under Sections 376/417 of the Indian Penal Code, by which he has taken the cognizance of the said offences.
As already discussed above, the allegations made in the F.I.R. and the statement under Section 164 of the Cr.P.C. of the victim, are sufficient to constitute the offences punishable under Sections 376 as well as 417 of the Indian Penal Code against the petitioner.
Under such circumstances, this Court is of the considered view that there is no justifiable reason to interfere with the entire criminal proceedings of Dhanwar P.S. Case No.345 of 2013 corresponding to G.R. No.3005 of 2013 as well as the order dated 16.06.2015 passed by the learned Judicial Magistrate-1st
Accordingly, this Cr.M.P., being without any merit, is dismissed.
In view of disposal of the instant Cr.M.P., the interim order granted vide order dated 06.01.2020, is vacated.
Registry is directed to intimate the court concerned forthwith.