Naheed Ara Moonis, J. - (1.) SUPPLEMENTARY -affidavit filed on behalf of the revisionist is taken on record. Heard learned counsel for the revisionist and the learned A.G.A. and have been taken through the record. The instant revision has been filed on behalf of the revisionist challenging the judgment and order dated 10.4.2015 passed by Additional Sessions Judge Fast Track Court Chandauli in Sessions Trial No. 181 of 2014, State v. Salman Kuraishi, under Section 376/420/506, I.P.C., Police Station Mughal Sarai District Chandauli whereby the discharge application of the applicant was rejected and the court below has proceeded to frame charge under Sections 376/420/506, I.P.C.
(2.) THE emanation of the facts emerging from prosecution in a short conspectus is that a first information report was lodged by the opposite party No. 2 (victim) against the revisionist on 1.7.2014 under Sections 376/420/506, I.P.C. stating therein that she was enmeshed in love with the revisionist for the last four years on the assurance that he would join nuptial tie with her. The revisionist has been exploiting physical relation and out of his union, she conceived and was carrying the foetus of four months. The complainant stressed to perform the marriage, the revisionist showed his unwillingness to woo the nuptial tie and depicted resoluteness and obduracy for termination of foetus. When the complainant did not concur with the proposal of the revisionist, the revisionist extended threats of causing immense loss culminating into dire consequences of her life and liberty as well as family members. The revisionist has been making physical relation and was sexually exploiting her on the false pretext of wooing marital tie. This incident was informed to the Mahila Thana Alinagar on 23.6.2014. The first information report was lodged on 1.7.2014 against the revisionist vide Case Crime No. 263 of 2014 under Section 376/420/506, I.P.C. Police Station Mughal Sarai, District Chandauli. After registration of the first information report, the investigating officer swung into action and collected clinching and convincing materials on the basis of the statement of the complainant, witnesses as well as medical report which showed the complicity of the revisionist with the commission of the said offence thus the revisionist was charge -sheeted on 14.7.2014. The revisionist surrendered before the court below and applied for bail. The bail application of the revisionist was considered and he was released on bail vide order dated 31.7.2014. Subsequent thereto, the revisionist filed an application for discharge before the Additional Sessions Judge (Special) Chandauli wherein several grounds were put forth and it was stressed that the victim was major and was making physical relation out of her own free volition. The victim had never raised any resentment and was in physical relation with the revisionist for the last four years hence Section 375. I.P.C. would not be attracted which is punishable under Section 376, I.P.C. it is only an oral contract between the revisionist and the victim which cannot be materialized without corroborative evidence. In addition to this, the first Information report was lodged at Mughal Sarai District Chandauli whereas the incident is alleged to have taken place at Police Station Alinagar, District Chandauli thus the charge -sheet itself is incompetent as the Investigating Officer of Police Station Mughal Sarai did not have any locus to investigate the occurrence. It is however, stressed by the learned counsel for the revisionist that the breach committed by the revisionist according to the prosecution version itself is a case of moral default as the victim herself actively allured the revisionist to woo the sexual relation ship as such no offence under Section 375, I.P.C. is made out against him. In support of his contention, learned counsel for the revisionist has placed reliance in re Uday v. State of Karnataka, : 2003 (46) ACC 742 : 2003 (2) ACR 1049 (SC), stating that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activities unless she conceives it is an act of promiscuity on her part and not an act induced by misconception of fact, the courts below have failed to appreciate the nature of the allegations in right perspective and have come to erroneous conclusions which have culminated into grave injustice with the revisionist, hence the impugned order may be rendered nugatory and be vitiated.
(3.) PER contra learned A.G.A. that the victim had suffered from a bona fide belief that the revisionist had promised to marry with her and under the pretence of performing marriage he had carnal intercourse with her. The consent of the victim is either clouded with fear or under misconception. There is difference between consent and submission. Mere act of submission does not involve consent. If the consent has been obtained by intimidation, circumvention or bona fide belief, it is an act of delusion and not a free act of mind. A promise on the part of the revisionist amounts to misconception at the very inception as he has obtained the consent by creating a belief that he will woo his marital knot with the victim. If the victim consents to have carnal intercourse on a promise of marriage and she becomes pregnant, it fastens criminal liability upon the malefactor. The revisionist has played fraud on her whereby she was deceived by giving her consent for carnal intercourse. The offence comes within the ambit of ingredients of rape. The evidence of the victim was truthful and was corroborated by medical evidence. The revisionist gained intimacy with the victim at her home incessantly with the false promise to marry and committed rape on her by misconception of fact which was not consent under law. The victim who is resident of Police Station, Ali Nagar had reported the incident at Mahila Thana, Ali Nagar on 23.6.2014 but under the order of the Chief Judicial Magistrate concerned dated 3.7.2014, the first information report was lodged at Police Station, Mughal Sarai which is not the fault of the complainant (prosecutrix). The police officer is legally bound to lodge the first information report and the same cannot be challenged on the ground that the Investigating Officer has no jurisdiction to investigate the case. The evidence of the victim was reliable which inspired the confidence of resiling from the assurance of marriage was a deceitful act. Since the revisionist has been charged to have carnal intercourse on the false pretext of marrying hence the prosecution of the revisionist on the sole testimony of the victim is just and proper thus the order passed by the courts below do not suffer from any legal or factual infirmity or perversity and deserve to be maintained. From the rival submission of the learned counsel for the parties, it emerges out that the revisionist developed carnal intercourse with the victim on the false promise of joining his marital knot. The purpose for which the victim was subjected to carnal intercourse stood frustrated when she became pregnant and the pregnancy was terminated putting her under threat and fear. The revisionist also resiled from his promise playing fraud on the victim which would amount to follow forcible intercourse. In case the victim does not resist carnal intercourse in consequence of misconception that marriage will be followed is a purely deceitful act on the part of the revisionist for which he deserves to be awarded exemplary punishment as he has no right to enjoy her person without regard to the question of her dignity, safety, security, liberty and livelihood. The court below has passed the order impugned having regard to the totality of facts and circumstances of the case and in view of Section 462, Cr.P.C. no order of any criminal court shall be set aside on the ground that the inquiry, trial or other proceeding took place in wrong session division, district, sub -division or other local area unless it appears that such error has in fact occasioned failure of justice. The revisionist cannot escape on the loophole of the consent where there is sufficient material to cast strong suspicion against him or on the ground of want of jurisdiction. This Court does not see any justifiable ground to interfere with the order impugned. The authority of the Apex Court in re Uday (supra) is based on different issue which will not help the revisionist in any manner as the factual situation is quite otherwise. The revision is bereft of merits and is accordingly rejected.;