Debi Prosad Dey, J. - (1.) This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the proceedings of GR case no. 4859 of 2010 pending before the Court of learned Chief Judicial Magistrate, Howrah arising out of Sakraile police station case no. 548 of 2010 dated 08.10.2010 under Sections 376/420/506 of the Indian Penal Code against the petitioner. The aforesaid case was started at the behest of opposite party no.2 and after completion of investigation charge sheet no. 537 of 2012 was filed against the present petitioner. The case of the petitioner in brief is that the opposite party no. 2 being a major lady had physical relation with the petitioner and there was absolutely no scope of using force or having physical relationship with opposite party no.2 without her consent and will. In that view of this case the entire case appears to be abuse of process and accordingly the entire case ought to be quashed. Learned Advocate appearing on behalf of the petitioner contended that the impugned proceeding is an abuse of process of Court and the materials on record do not disclose any offence under Sections 376/420/506 of the Indian Penal Code. In support of his contention learned Advocate for the petitioner has relied on the following decisions: 1. Shyamapada Tewari Vs. The State of West Bengal & Anr., 2007 2 CalCriLR 756 (Cal) 2. Hari Majhi Vs. The State, 1990 CrLJ 650. 3. Uday Vs. State of Karnataka, 2003 CalCriLR 555 (SC).
(2.) The ratio that has been decided in the aforesaid decisions is that when the adult prosecutrix consented to the sexual intercourse on the promise of marriage, such fact does not constitute mis-conception of fact and accordingly, having physical relationship on promise of marriage on consent does not amount to commission of offence under Section 376 of the Indian Penal Code.
(3.) Learned Advocate appearing on behalf of the State has drawn the attention of the Court by producing the case diary to the statement of the victim recorded under Section 164 of the Code of Criminal Procedure during investigation wherein the victim has categorically stated that she was forcibly raped by the petitioner.;