BINEET KUMAR PATEL Vs. STATE

JUDGEMENT

(1.) The application by the petitioners U/S. 482 of Cr.P.C. impugns the order passed on 29/1/2010 by the learned J.M.F.C., Loisingha in G.R. Case No. 125 of 2009 taking cognizance of offences U/Ss. 376/417/506/34 of the IPC or alternatively for the offence U/S. 376 of the IPC.

(2.) The short background facts are, on 7/8/2009 at about 11.45 AM, OP No.2 lodged a FIR against the petitioners before the J.M.FC. Loisingha P.S. alleging therein that on the allurement of marriage, petitioner No.1 had been keeping physical relationship with her for since last six months and as a consequence thereof, when she became pregnant of two months, the petitioner No.1 is deceiving her and petitioner No.2 had been threatening to kill her if she disclose the incident.

(3.) In the course of hearing, Mr. H.S. Mishra, learned counsel for the petitioners has submitted that the allegation on record never discloses a case of rape against the petitioner No.1 and by no stretch of imagination, the sexual act as alleged against the petitioner No.1 by the victim would vindicate the commission of offence U/Ss. 376 of IPC, but not withstanding to the submission of charge sheet against the petitioners for offence U/Ss. 417/506/34 of the IPC, the learned J.M.F.C., Loisingha erroneously took cognizance of offence U/S. 376 of IPC in addition to the aforesaid offences which is not at all legally sustainable and, therefore, the proceeding against the petitioner No.1 for offence U/S. 376 of IPC having not made out, the impugned order taking cognizance of offence is liable to be set aside and thereby, the present CR.LM may kindly be allowed by deleting the offence U/S. 376 of IPC. In support of his contention, Mr.H.S.Mishra relied upon the decision in Sambhu Kharwar Vrs. State of Uttar Pradesh and another; Criminal Appeal No. 1231 of 2022 disposed of on 12/8/2022.