2015 ALL MR (Cri) 4318
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

M. T. JOSHI, J.

Soudagar Jyotiram Patil & Ors. Vs. The State of Maharashtra & Anr.

Criminal Application No.4429 of 2014

4th September, 2014.

Petitioner Counsel: Shri DHANANJAY MANE, Adv. h/f Shri MILIND PATIL
Respondent Counsel: Smt. P.J. BHARAD

Penal Code (1860), Ss.376, 498, 506 - Criminal P.C. (1973), Ss.198, 228 - Rape and criminal intimidation - Application for discharge of accused - Accused allegedly enticed prosecutrix away from her husband and committed sexual relations under promise to marry with her - Prosecutrix with her free will, developed illicit relations with accused resulting into birth of child - Complaint filed by prosecutrix when she pestered accused for marriage and in response accused threatened to kill her and the child - There being willful illicit relation, offence u/S.376 not made out - Further, complaint for offence u/S.498 IPC by prosecutrix is also barred as it could only be filed by husband of prosecutrix - However, complaint u/S.506 survived - Accused discharged from offences u/Ss.376 and 498 but not from offence u/S.506 of IPC. (Paras 4, 6, 7, 8)

JUDGMENT

JUDGMENT :- Rule. Rule is made returnable forthwith. With the consent of the learned counsel for the parties, this Criminal Application is taken up for final hearing.

2. Aggrieved by the rejection of the application for discharge in Sessions Case No. 21 of 2012 filed against the present applicants/accused for the offences punishable under Sections 376, 498 and 506 r/w 34 of the Indian Penal Code, the present Criminal Application is filed.

3. The copy of the complaint filed by the prosecutrix would show that she was already married and during the subsistence of said marriage, she developed illicit relations with present applicant no.1-Soudagar for a period of four weeks. Thereafter, he managed to entice her away from her husband and the prosecutrix went to her parents house. Thereat she became pregnant. Therefore, her parents asked her to go anywhere along with present applicant no.1-Soudagar.

4. In the circumstances, the prosecutrix was pestering applicant no.1 for marrying with her. He, however, ultimately kept her in one room of some other person. At the time of delivery, she was admitted by applicant no.1 in the Government hospital at Omerga. A male child was born. Applicant no.1, however, avoided to meet her and when the complainant made phone call to him, he avoided to talk and told her that he is not aware as to who is the father of the child and threatened her that, if in future the prosecutrix would pester him, he would kill herself as well as the child. On the basis of this complaint, a crime came to be registered for the offences as detailed above.

5. The learned Sessions Judge came to the conclusion that, at this stage, prima facie, sexual relations are seen to be maintained by applicant no.1 with the prosecutrix under the promise to marry with her. This consent cannot be a free consent, and therefore, the ingredients for the offence punishable under Section 376 of the Indian Penal Code would attract against applicant no.1. Further, since the allegations of enticement are there, the ingredients for the offence punishable under Section 498 of the Indian Penal Code are applicable, as there are allegations in the complaint. Since the parents of present applicant no.1 directed the prosecutrix to go away, the ingredients of instigation are made out.

6. Upon hearing both the sides and on perusal of the contents of the first information report as well as case papers, it appears that the prosecutrix has alleged that, she, with her free will, developed illicit relations with applicant no.1. The result of the same is the birth of the child. In the circumstances, on the basis of the complaint itself, no offence punishable under Section 376 of the Indian Penal Code is made out. As regards, offence punishable under Section 498 of the Indian Penal Code is concerned, the learned counsel has rightly pointed out the bar created under the provisions of Section 198 of the Code of Criminal Procedure, relevant provisions of which run as under :-

"198. Prosecution for offences against marriage. -

(1) No court shall take cognizance of all offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence :

................ ....................... ............

(2) For the purpose of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf."

In the circumstances, he submits that a complaint for the offence punishable under Section 498 of the Indian Penal Code can only be filed by the husband and the prosecutrix cannot file the complaint.

7. In view of the above facts, the complaint for the offence punishable under Section 498 of the Indian Penal Code by the present complainant is barred. In that view of the matter, the complaint would survive as regards applicant no.1-Soudagar only to the extent of prosecution for the offence punishable under Section 506 of the Indian Penal Code.

8. In the circumstances, following order is passed :-

(i) Criminal Application is partly allowed.

(ii) All the applicants are discharged for the offences punishable under Sections 376 and 498 of the Indian Penal Code.

(iii) Applicant nos. 2 and 3 are discharged for the offence punishable under Section 506 of the Indian Penal Code.

(iv) Learned Sessions Judge, Udgir to take steps for transfer of the case to the court of Judicial Magistrate, First Class for trial of present applicant no.1-Soudagar for the offence punishable under Section 506 of the Indian penal Code.

Application partly allowed.