ABHISHEK KUMAR PAUL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This Criminal Revision is preferred against the order dtd. 5/3/2022 passed by the learned Principal Sessions Judge, Pakur in Miscellaneous Criminal Application No.82 of 2022, whereby the application for discharge of the petitioner had been rejected.

(2.) The learned senior counsel for the petitioner has submitted that the impugned order passed by the learned Court below is illegal as no offence is made out against the petitioner under Sec. 376 of the Indian Penal Code reason being that the victim was major and married lady. Without having taken divorce from her former husband, she had consented for cohabitation with the petitioner, as such, the consent of victim cannot be said to have obtained under misconception as defined under Sec. 90 of the Indian Penal Code. It is further submitted that a Hindu married lady during the lifetime of her husband without obtaining the divorce, cannot marry with another person. The learned Court below while declining in allowing the discharge application of the petitioner has committed illegality. It is also further submitted that though after the rejection of the discharge application, the trial has commenced and some of the witnesses have been examined and on the same ground this Criminal Revision against the impugned order, whereby the discharge application was rejected, does not become infructuous. In support of his contention, learned senior counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Sanjay Kumar Rai Vs. State of Uttar Pradesh and Anr., passed in Criminal Appeal No.472 of 2021 arising out of Special Leave Petition (Crl.) No.10157 of 2019.

(3.) Learned counsel for the State and learned counsel for the opposite party No.2 vehemently opposed the contentions made by the learned senior counsel for the petitioner and contended that while framing the charge, the learned Court below has to look into the allegations made in the FIR and also the evidence collected by the Investigating Officer. If there is sufficient ground to proceed against the accused, the discharge application is to be rejected. The learned Court below has made no illegality in rejecting the discharge application. In support of his contention, the learned counsel for the opposite party No.2 has relied upon the following judgments: