1 2025:CGHC:54824 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRR No. 559 of 2018 Suresh Sahu S/o Late Kulomani Sahu Aged About 33 Years R/o Koyla, Factory Street, Pathalgaon, P. S. Pathalgaon, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh ... Applicant versus State Of Chhattisgarh Through P. S. Pathalgaon, District Jashpur Chhattisgarh, District : Jashpur, Chhattisgarh ---- Respondent ___________________________________________________________ For Applicant : Mr. Arpan Verma, Advocate For State/Respondent : Ms. Binu Sharma, Panel Lawyer For Complainant : Mr. Prabhat Kumar Saxena, Advocate ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Order On Board 11/11/2025 1. This revision has been preferred by the applicant under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, being aggrieved with the order dated 26.02.2018, passed by 2 the Additional Sessions Judge, Kunkuri to the Court of Additional Sessions Judge, Jashpur, District Jashpur (C.G.) in Sessions Trial No.54/2017. 2. The applicant moved an application before Additional Session Judge, Kunkuri to the Court of Additional Session Judge, Jashpur, District Jashpur (C.G.), under Section 228 of Code of Criminal Procedure for discharge. The said application was filed inter alia on the grounds that the learned trial court ought to have considered the fact that whether there are sufficient materials on record to prosecute the applicant under Section 376 and 493 of Indian Penal Code, 1860. The complainant is of age about 29 years and while lodging the F.I.R. on 25.08.2017 the date of the incident mentioned by the complainant is of 9 years before i.e. 25.06.2008 and the complainant has her consent along with the applicant, as she was about 20 years of age and a major lady. It was further averred that as per Section 375 of Indian Penal Code, 1860 it has been clearly stated that the sexual intercourse must be performed forcefully or without the consent of the lady. Even further looking to the contents of the report submitted by the police after the investigation it has been mentioned that the incident took place firstly on 25.03.2008 in a silent place in Raigarh Road Near Patthalgaon thereafter secondly on 14.04.2015 3 (near about after 7 years) at Shri G Lodge Hotel, Kharsia, Raigarh and thereafter the intercourse has been committed continuously in the government house of the prosecutrix situated at Palidih. Also there is a copy of the marriage registration certificate between the applicant and the complainant which occurred on 15.04.2015 at Arya Samaj, Raipur. 3. The prosecutrix has lodged the F.I.R. on 25.08.2017 at about 13:30 hrs at P.S. Patthalgaon in respect of the incident occurred to have happened between 25.06.2008 to 26.06.2017. That, the allegations leveled in the F.I.R. are that the applicant on the basis of false pretext of marriage has performed sexual intercourse with the prosecutrix for several times since 2008 and thereafter getting married with another lady and refused to keep the prosecutrix with himself even though the prosecutrix and the applicant had married before the Arya Samaj, Raipur. It has been also averred that on 02.07.2017 the applicant without giving any information to the prosecutrix had married with another lady. ANNEXURE A/1 is the certified copy of the challan filed in Crime No. 160/2016. 4. It is the admitted fact that the marriage between the parties took place on 15.04.2015. Thereafter on 07.11.2016 the parties got separated mutually at Patthalgaon, District Jashpur before a notarized officer. As a result of which F.I.R. has been lodged by 4 the prosecutrix herein regarding that incident on 11.08.2017 which is prior to the lodging of the F.I.R. in the instant matter i.e. on 25.08.2017. The Roz Namcha Sanha of P.S. Patthalgaon has the entry of the F.I.R. dated 11.08.2017. As a result of this fact the applicant has also filed an application under Section 91 of Code of Criminal Procedure, 1973 for calling of the records from the P.S. Pattalgaon before framing of the charges but the said application has been rejected by the learned court below. 5. The F.I.R. dated 11.08.2017 which was lodged by the complainant immediately when the prosecutrix came to the knowledge about the second marriage of the applicant does not contain even a whisper about the allegations attributed on the 'applicant in the present case. It is a settled position of law that things cannot be done directly under the law also cannot be done indirectly. The said F.I.R. does not have a single averment about the forcible sexual intercourse with the prosecutrix. 6. The learned Judge has rejected the application without application of mind and without considering the grounds raised in the application for discharge, the order passed by the learned Judge is illegal, arbitrary and it is therefore liable to be set-aside. 7. Learned counsel for the applicant contended that the impugned 5 order is illegal, erroneous and contrary to law. The learned Judge has failed to appreciate that the essential ingredients of the Section 376 and 493 are prima facie missing in the instant matter. The learned Judge has failed to appreciate the Section 375 in its true spirit. In the instant it can be clearly inferred by looking to the material on record that there is consent from the prosecutrix. He further contended that the learned judge has failed to appreciate that the said report has been lodged after a delay of 9 years. The date of the incident 25.06.2008 and the F.I.R. has been lodged on 25.08.2017. He further contended that the learned judge below ought to have appreciated the fact the medical report where it has been opined by the medical officer that no such incident has taken place with the of the prosecutrix. The learned Judge has failed to acknowledge the fact that the F.I.R. has been lodged with a delay of 2 months and after the lodging of the earlier F.I.R. dated 11.08.2017. It is pertinent to note that in the F.I.R. dated 11.08.2017 there is no averment or even whisper about the act of the applicant with that of the prosecutrix. The allegation leveled by the prosecutrix is that the applicant has also married another woman even though she was still the first wife. Looking to the said allegation the offence under Section 493 is not being made as it does not fulfill the essential ingredients of the same. 6 8. Reliance has been placed in the matter of Amol Bhagwan Nehul Vs. State of Maharashtra & Anr., reportd in 2025 SCC Online SC 1230, Jothiragawan Vs. State Rep. by the Inspector of Police & Anr., reported in 2025 SCC Online SC 628, Sonu Vs. State of UP, reported in (2021) 18 SCC 517, Shivshankar alias Shiva-v-State of Karnataka & Anr., reported in (2019) 18 SCC 204, Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra & Ors, reported in (2019) 18 SCC 191 & Deepak Gulati Vs. State of Haryana, reported in (2013) 7 SCC 675. 9. Further reliance has been placed in the matter of Shiv Pratap Singh Rana Vs. State of Madhya Pradesh & Anr., reported in (2024) 8 SCC 313. Relevant paragraphs of the said order are reproduced as under : “26. We have carefully gone through the definition of "rape" provided under Section 375 IPC. We have also gone through the provisions of Section 376(2)(n) IPC, which deals with the offence of rape committed repeatedly on the same woman. Section 375 IPC defines "rape" by a man if he does any of the acts in terms of clauses (a) to (d) under the seven descriptions mentioned therein. As per the second description, a man commits rape if he does any of the acts as mentioned in clauses (a) to (d) without the consent of the woman. Consent has been defined in Explanation 2 to mean an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. However, the proviso thereto clarifies that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. 27. Having regard to the above and in the overall conspectus of the case, we are of the view that the physical relationship between the prosecutrix and the appellant cannot be said to be against her will 7 and without her consent. On b the basis of the available materials, no case of rape or of criminal intimidation is made out. 28. The learned counsel for the respondents had placed considerable reliance on the provisions of Section 90 IPC, particularly on the expression "under a misconception of fact". Section 90 IPC reads thus: "90. Consent known to be given under fear or misconception.A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person. if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child. unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age." 29. Section 90 IPC says that a consent is not such a consent as it is intended by any section of IPC, if the consent is given by a person under the fear of injury or under a misconception of fact. 30. In Dhruvaram Murlidhar Sonar v. State of Maharashtra, this Court after examining Section 90 IPC held as follows: (SCC p. 198. para 17) "17. Thus, Section 90 though does not define "consent", but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances." 31. This Court also examined the interplay between Section 375 IPC and Section 90 IPC in the context of consent in Pramod Suryabhan Pawar v. State of Maharashtra, and held that consent with respect to Section 375 IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various 8 possible consequences flowing from such action (or inaction), consents to such action. After deliberating upon the various case laws, this Court summed up the legal position as under: (SCC p. 620, para 18) "18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act." 34. From the factual matrix of the case, the following relevant features can be culled out: (i) the relationship between the appellant and the prosecutrix was of a consensual nature (ii) the parties were in a relationship for a period of almost two years; and (iii) though there were talks between the parties and their family members regarding marriage, the same did not fructify leading to lodging of FIR. 10. On the other hand, learned State Counsel as well as learned counsel for the complainant oppose the submission made by learned counsel for applicant and submit that after hearing the parties and appreciating material documents and records, the learned trial Judge found that there is sufficient ground to prosecute the applicant, therefore, the impugned order does not call for any interference. 11. I have heard learned counsel for the parties and perused the record of the trial Court including the impugned order with utmost 9 circumspection. 12. Considering the facts and circumstances of the case and on perusal of the record, prima facie it reveals that the marriage between the applicant and the complainant took place on 15.04.2015 at Arya Samaj Mandir, Raipur. Thereafter, on 07.11.2016, the applicant and the complainant/proseuctrix got separated mutually at Patthalgaon, District Jashpur before a Notarized Officer and prepared a notarized Talaknama and the applicant solemnized the second marriage with another girl on 02.07.2017 as a result of which F.I.R. has been lodged by the prosecutrix on 11.08.2017 when the prosecutrix came to the knowledge about second marriage of the applicant. On the basis of complaint made by the complainant, non cognizable offence was registered against the applicant and advised her to file complaint case before the concerned Court. So it is crystal clear that as per the allegation, application has solemnized second marriage with another girl in the year 2017, therefore, the aforesaid act committed by the applicant would fall under Section 494 of IPC. The charge against the applicant for the offnce under Section 376 of IPC is hereby set aside and the applicant is discharged from the offence under Section 376 of IPC. 13. Section 494 of IPC held as under : 10 “494. Marrying again during lifetime of husband or wife.— Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (Exception)—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction,nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.” 14. Accordingly, the instant revision is allowed in part and the matter is remitted back to the concerned trial Court to decide afresh and pass the appropriate order in accordance with law. 15. With the aforesaid observation and direction, the instant revision stands disposed of. Sd/- (Arvind Kumar Verma) Judge Vasant