PARIMAL GORAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Section 482 of the CODE OF CRIMINAL PROCEDURE, 1973 has been filed by the sole petitioner for quashing the order dated 16.11.1998 passed by the learned Sessions Judge, Dhanbad in Nirsa PS Case No. 0090/1996 corresponding to G.R. No. 1896 of 1996, under which the learned Sessions Judge held that the accused/petitioner was prima facie liable under Sections 323, 417, 452, I.P.C. and as such charge therein were required to be framed against him. The petitioner had also moved earlier before this Court vide Criminal Revision No. 83/98 (R) challenging the order dated 27.3.1998 passed by Sessions Judge, Dhanbad and this Court remitted the matter to the learned Sessions Judge, Dhanbad for fresh consideration on the discharge petition. Thereafter, the petitioner again moved before the Sessions Judge, who passed the impugned order.

(2.) The short facts giving rise to this application that one Manju Kumari lodged First Information Report on 5.7.1996 alleging therein that she was living with the petitioner as husband and wife for the last one year and the petitioner used to have sexual intercourse with her on an assurance that he would marry her. This relation continued for quite some time and whenever Manju Kumari asked the petitioner to marry her in future. It is further alleged that on 21.2.1996 at about 6 p.m., the family members including the petitioner entered into her house and assaulted the relatives of he informant. The mother of the Opposite party No. 2 took the matter to the Mukhiya and Sarpanch and asked the petitioner to marry but when the Panchayati failed, the matter was reported in the police, who took up the investigation in the case and submitted charge-sheet against the petitioner.

(3.) The earned Counsel appearing on behalf of the petitioner vehemently argued that the offence under Section 376, I.P.C. is not made out as the hymen of the victim girl was found to be intact and as such the allegation for committing rape is false and fabricated. It is further submitted that there was a specific direction of this Court in Revision No. 83 of 1998(R) while remitting the case to the Sessions Judge that the Sessions Judge shall consider the medical report and if the girl was examined by a doctor and medical report is found to be genuine indicating that hymen was intact and so the learned Magistrate should have passed the impugned order only on the pointing to whether the offence under Section 376, I.P.C. is made out or not. But, the learned Magistrate exceeded his jurisdiction by holding that the offence is made out under Sections 417, 323, 452, I.P.C. which is beyond the observation as made out by this Court. It is further argued that the offence under Section 417, I.P.C. is not applicable in the instant case as nothing has been delivered dishonestly in the instant case. He also relied upon a case reported in 1990 Cr. L.J. 650 (Calcutta)(Hari Majhi v. The State) It is further argued that there was no material on the case diary or in the medical report which will go to establish that a prima facie case under Sections 323, 417, 452 I.P.C. is made out against the petitioner and as such the impugned order is fit to be quashed.