- (1.) THIS application is for quashing the order dated 25.10.2006 passed by learned C.J.M., Koderma in Koderma P.S. Case No. 381 of 2006 corresponding to G.R. Case No. 565 of 2006 whereby and whereunder he took cognizance of the offence under section 366A/376/420/406 of the Indian Penal Code and U/s 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act. Whereas the aforesaid Cr. Revision has been directed against the order dated 24.7.2008 passed by 1st Additional Sessions Judge -cum -Special Judge, Koderma in S.T. No. 16 of 2007 whereby and whereunder he rejected the application of petitioner for discharge.
(2.) IT is relevant to mention that S.T. No. 16 of 2007 arose from Koderma P.S. Case No. 381 of 2006 corresponding to G.R. No. 565 of 2006. Since both the cases arose from same P.S. Case and similar point arose for determination, therefore, they were heard together and are being disposed of by this common order. It is submitted by Sri. Anil Kumar learned counsel for the petitioner that from perusal of FIR, no case under section 376, 420 and 406 of the IPC and also under section 3(xii) of the Schedules Casts and Schedules Tribes (Prevention of Attrocities) Act is made out, hence both the orders are not sustainable in the eye of law. It is submitted that FIR shows that the prosecutrix is an employee of Civil Court, Koderma, thus, she is major. It is further clear from the FIR that the prosecutrix had submitted herself to the petitioner for sexual intercourse out of her own free will, thus no offence of rape is made out against the petitioner. It is further submitted that no property entrusted to the petitioner, thus the question of committing the offences of criminal breach of trust and/or mischief does not arise. It is also submitted that no offence under section 3(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities) Act is made out.
(3.) ON the other hand, learned counsel for the O.P. No. 2 Sri Saurabh Arun, submits that the intention of petitioner is not honest and he kept on promising that he will marry the prosecutrix, but later on he refused to marry her. It is submitted that the petitioner is married from before, but concealing the same he made a false promise to marry the prosecutrix and obtained her consent for sexual intercourse. Therefore the consent given by the prosecutrix is under a misconception and wrong belief that petitioner will marry her. The said consent is no consent as per section 90 of the IPC. It is further submitted that the intention of petitioner from the beginning itself is dishonest knowing full well that he will not fulfill his promise because he was married from before. It is further submitted that on the basis of false promise, petitioner induced the prosecutrix to deliver a portion of her salary to him and the said money never returned to her. Under the said circumstances, the offence under section 406 and 420 of the IPC is made out. It is further submitted that the prosecutrix belongs to scheduled tribes community and by making a false promise of marriage the petitioner exploited her sexually. Under the said circumstance, offence under section 3(xii) of S.C./S. T.(Prevention of Attrocities) Act is made out.;