- (1.) BY the Court. -Heard learned counsel for the petitioner and learned A.P.P. for the State.
(2.) THE petitioner is aggrieved by the order dated 1.2.2012 (Sic. Should be 2013) passed by the learned Addl. Sessions Judge -II, Bermo at Tenughat, in S.T. No. 293 of 2012 arising out of Gomia P.S. Case No. 93 of 2012, whereby, the application filed by the petitioner for discharge under Sections 227 and 228 of the Cr PC, has been rejected by the Court below. The petitioner has been made accused in Gornia P.S. Case No. 93 of 2012 corresponding to G.R. No. 517 of 2012 for the offence under Section 376 of the Indian Penal Code. The case was instituted on the basis of written information given by the informant, who is a married lady, stating that the petitioner, who was in friendly to her husband, used to visit her house and there is allegation that he committed rape upon the informant after intoxicating the husband of the informant. There is also allegation that thereafter on the pretext of threats and inducements, the informant was kept by the petitioner for about six months, during which also she was sexually exploited by the petitioner and subsequently, she was left. On the basis of the written information, the offence was instituted under Section 376, IPC and after investigation, the police has submitted charge -sheet. There also appears to be statement of the victim recorded under Section 164 of the Cr PC, wherein also, she has supported the prosecution case, as given in the FIR.
(3.) IT appears that after taking cognizance, the case was committed to the Court of Session, where the petitioner filed the application under Sections 227 and 228 of the Cr PC, for discharge submitting that in the facts of the case, no offence is made out against the petitioner under Section 376 of the IPC, as the relationship was there with the consent of the informant, as it is apparent from the allegations made in the FIR itself. In the Court below, the petitioner had filed several decisions, including the one of the Supreme Court in the case of Deelip Singh @ Dilip Kumar v. State of Bihar, reported in 2005 (2) East Cr C 183 (SC), in support of his contention that in the facts of the case, no offence was made out against the petitioner. The trial Court upon considering the decisions relied upon the petitioner found that those decisions were rendered after full -fledged trial finding that offence was not made against the accused persons. The trial Court also held that the facts of the present case are different and there is direct allegation against the petitioner to have committed rape upon the informant initially. The trial Court also held that the question raised by the petitioner cannot be decided until the trial is held in the case. Accordingly, the application filed by the petitioner for discharge has been rejected by the Court below.;