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2026 DAILYLAW 21149 (JHR)

Mahfuj Alam v. State Of Jharkhand

2026-02-12

Anil Kumar Choudhary

body2026
JUDGMENT : ANIL KUMAR CHOUDHARY, J. Heard the parties. 2. Though, notice has validly been served upon the opposite party no.2 yet no one turns up on behalf of the opposite party no.2 in spite of repeated calls. 3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash and set aside the entire criminal proceeding in connection with Gomia P.S. Case No.98 of 2023 corresponding to G.R. Case No.1315 of 2023 including the order dated 02.12.2024 passed by learned Judicial Magistrate, Bermo at Tenughat whereby and where under the learned Judicial Magistrate, Bermo at Tenughat has taken cognizance of the offences punishable under Sections 498A, 376(2)(n), 506, 34 of the Indian Penal Code and Section 4 of the Muslim Women (Protection of Rights of Marriage) Act, 2019 against the petitioner. 4. The allegation against the petitioner is that the petitioner outraged the modesty of the victim, taking advantage of the informant/victim alone in her matrimonial house, trying to forcibly establish physical relationship with her in which he could not succeed because of the uproar raised by the informant/victim. There is further allegation that on 24.08.2023 at about 11AM, the petitioner came to the paternal house of the informant and finding her alone forcibly raped her despite the protest of the informant/victim by deceiving the informant to marry and thereafter by alluring the informant/victim on several occasions established physical relationship. 5. The informant lodged the written report against her husband and the petitioner who is the cousin brother of her husband and on the basis of the same, police registered Gomia P.S. Case No.98 of 2023 and took up investigation of the case. After completion of investigation, police found the allegations against the petitioner so far as the offence punishable under Section 376(2)(n) of the Indian Penal Code to be true and submitted charge sheet against him. After submission of charge sheet, the learned Judicial Magistrate, Bermo at Tenughat took cognizance of the offence inter alia punishable under Section 376(2)(n) of the Indian Penal Code and passed the summoning order. 6. Learned counsel for the petitioner submits that, in this case, the next dated fixed is 25.02.2026 for appearance of the petitioner as the co-accused has not appearing before the trial Court. 7. 6. Learned counsel for the petitioner submits that, in this case, the next dated fixed is 25.02.2026 for appearance of the petitioner as the co-accused has not appearing before the trial Court. 7. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Pramod Kumar Navratna vs. State of Chattisgarh & Others reported in 2026 INSC 124 and submits that in para-22 thereof, the Hon’ble Supreme Court of India has observed that the Courts have to be extremely careful and cautious in identifying the genuine cases filed under Section 376(2)(n) of the Indian Penal Code by identifying the essential ingredients to constitute the said offence i.e. there should be a promise of marriage made by the accused solely with a view to obtain consent for sexual relations and without having any intent of fulfilling said promise from the very beginning, and that such false promise of marriage had a direct bearing on the prosecutrix giving her consent for sexual relations. Such genuine cases, that deserve prosecution of the accused must be clearly demarcated from the litigation that arises from the cases of consensual relationships between consenting adults going acrimonious on account of dispute and disagreement or a future change of mind and submits that this is a false case foisted by the victim/informant to harass the petitioner. 8. Learned counsel for the petitioner further submits that the allegation against the petitioner is false and this is a clear case of malicious prosecution and the allegations are absurd, hence, it is lastly submitted that the prayer as prayed for in this Cr.M.P., be allowed. 9. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in the instant Cr.M.P and submits that this is a case where in no uncertain manner, the victim has stated that since the inception, the petitioner had no intention to marry and deception was made by the petitioner just to minimize the resistance of the prosecutrix, but the fact remains the despite the protest by the informant/victim, he committed rape upon her, not once, but on several occasions taking advantage of the prosecutrix being illegally been pronounced ‘triple taalaq’ by her husband; who is the cousin brother of the petitioner; taking advantage of the consequential suffering the prosecutrix was undergoing at the relevant time. 10. 10. Learned Addl.P.P. appearing for the State relies upon the judgment of the Hon’ble Supreme Court of India in the case of Pradeep Kumar Kesarwani vs. State of Uttar Pradesh & Another reported in 2025 SCC OnLine SC 1947 and submits that therein the Hon’ble Supreme Court of India has observed that there being clear distinction between rape and consensual sex and in a case where there is a promise of marriage, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls in the ambit of cheating or deception hence, it is submitted that since police after investigation of the case found the allegations against the petitioner to be true and there is ample material in the case diary submitted by the police in this case in support of the contention of the informant/victim that the petitioner has committed the offence punishable under Section 376(2)(n) of the Indian Penal Code, hence, at this nascent stage, on the ground that the prosecution is malicious, which can only be determined at the time of the trial of the case, the prayer as prayed for by the petitioner ought not be allowed. It is lastly submitted that this Cr.M.P., being without any merit, be dismissed. 11. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Central Bureau of Investigation Versus Aryan Singh etc. reported in 2023 SCC OnLine SC 379 , para 11 of which reads as under :- “ 11. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.” (Emphasis supplied) that whether a criminal proceeding was malicious or not, is not required to be evaluated at the stage of issuing summons and the same is required to be considered at the conclusion of the trial. 12. Now coming to the facts of the case, the allegation is that on 24.08.2023 despite the protest made by the informant/victim/prosecutrix, the petitioner forcibly established physical relationship with her and at the time of doing so deceitfully, he said that he will marry the prosecutrix, but since this is an out and out case of rape, a deceitful promise of marriage while committing a rape forcibly will not bring the offence out of the ambit of rape is defined under Section 375 of the Indian Penal Code. The observations made by the Hon’ble Supreme Court of India in the case of Pramod Kumar Navratna vs. State of Chattisgarh & Others and Pradeep Kumar Kesarwani vs. State of Uttar Pradesh & Another (supra) are regarding the cases, where after promise and without any protest, the sexual relationship took place, but in this case since the petitioner committed rape upon the informant/victim and while committing rape, the petitioner deceitfully said that he will marry her and this allegation against the petitioner was found to be true during the investigation of the case by the police and on the basis of the same, the learned Judicial Magistrate, Bermo at Tenughat has taken cognizance of the offences. Hence, this Court keeping in view the serious nature of allegations against the petitioner and the materials collected during the investigation of the case is of the considered view, that this is not a fit case where the entire criminal proceeding be quashed and set aside at this nascent stage in exercise of the power under Section 482 of the Code of Criminal Procedure. 13. Accordingly, this Cr.M.P., being without any merit, is dismissed.