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2026 DAILYLAW 27243 (ORI)

Pabitra Kumar Pradhan v. State of Odisha

2026-01-28

R K Pattanaik

body2026
JUDGMENT : R.K. PATTANAIK, J. 1 . Instant revision under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’) and Section 438 BNSS is at the behest of the petitioner assailing the impugned order dated 18 th November, 2024 passed in connection with C.T. Case No. 23 of 2019 by the learned Special Court under S.C. & S.T. (PoA) Act, Cuttack, whereby, an application under Section 227 Cr.P.C. demanding discharge from the alleged offences moved by him was declined on the grounds inter alia that such decision cannot be sustained in law and hence, the same is liable to be interfered with and set aside followed by consequential directions issued in that regard. 2 . The informant, who is the father of the victim, lodged the report at the local PS in the year 2018 alleging therein that his daughter was made to maintain a physical relationship with the petitioner for about two years on the assurance of marriage and as a result, she gave birth to a girl child but thereafter, for the events narrated therein, such relationship stood deteriorated and as a result, Jagatpur P.S. Case No. 347 of 2018 was registered for commission of offences punishable under Sections 493, 417, 294 & 506 IPC and ultimately, the chargesheet for the offences under Sections 376(2)(n) IPC, 417, 294 & 506 IPC read with Section 3(1)(r)(s)(w)&(i) read with Section 3(2)(v)(va) of the SC & ST (PoA) Act was filed against the petitioner. The said chargesheet was filed in the year 2021, whereafter, in course of enquiry, the petitioner moved the application under Section 227 Cr.P.C. seeking discharge from the particular offences levelled against him. However, the learned court below declined such discharge of the petitioner and rejected the application by the impugned order dated 18 th November, 2024 as at Annexure-4. Aggrieved thereby, the petitioner has approached this Court and filed the present revision. 3 . Heard Mr. Katikia, learned counsel for the petitioner and Mr. Swain, learned AGA for the State. 4. However, the learned court below declined such discharge of the petitioner and rejected the application by the impugned order dated 18 th November, 2024 as at Annexure-4. Aggrieved thereby, the petitioner has approached this Court and filed the present revision. 3 . Heard Mr. Katikia, learned counsel for the petitioner and Mr. Swain, learned AGA for the State. 4. Perused the report i.e. Annexure-1 and copies of the chargesheet and all other relevant documents including the statements of witnesses besides the informant recorded under Section 161 Cr.P.C. Initially, no case under Section 376(2)(n) IPC was registered, however, at the end of the investigation, it was included in the chargesheet besides other offences under the IPC and SC & ST(PoA) Act. 5. Mr. Katikia, learned counsel for the petitioner would submit that no any case is made out against the petitioner for the alleged offences punishable under Section 376(2)(n) IPC and SC & ST(PoA) Act. The contention is that the petitioner should have been discharged from the said offences considering the materials on record, however, the learned court below denied the same vide Annexure-4. It is contended that DNA profiling of the female child born to the victim was conducted during investigation and a negative report was received and in view of such a report at Annexure-2, the learned court below ought to have discharged the petitioner from the alleged offence under Section 376(2)(n) IPC more so when the parties had been in a consensual relationship for two years and the F.I.R. was lodged when their marriage did not materialize and for having denied the parenthood of the child. The further contention is that considering the nature of evidence received during investigation, there is a bleak chance of conviction of the petitioner, the fact which was lost sight of by the learned court below, which mechanically rejected the application filed under Section 227 Cr.P.C. on the premise that consent or no consent of the victim is a matter to be gone into during trial and that there is sufficient material available to proceed against the petitioner. Such a conclusion of the learned court below is against the weight of evidence, as further submitted by Mr. Katikia, learned counsel for the petitioner. Such a conclusion of the learned court below is against the weight of evidence, as further submitted by Mr. Katikia, learned counsel for the petitioner. In support of such contention, the following decisions, such as, K. Dinesh Kumar vs. State of Odisha and another , 2025 (1) ILR-CUT 137 ; Uday vs. State of Karnataka , (2003) 4 SCC 46 ; Amol Bhagwan Nehul vs. State of Karnataka and another , 2025 SCC OnLine SC 230; Pramod Suryabhan Pawar vs. State of Maharashtra & another, (2019) 9 SCC 608 ; Prithivirajan vs. State Represented by the Inspector of Police and another , 2025 SCC OnLine SC 696 ; Karuppudayar vs. State Represented by the Superintendent of Police and others , 2025 SCC Online SC 215 ; Kunal Chatterjee vs. State of West Bengal and others , 2025 SCC OnLine SC 3057, Hitesh Verma vs. State of Uttarakhand and another , (2020) 10 SCC 710 and Surendra Kumar Mishra vs. State of Orissa & another 2023 (I) OLR 403 are referred to with an argument that no offences under Section 376(2)(n) IPC and the SC & ST (PoA) Act are prima facie established even by considering the materials on record, hence, the learned court below was not right and justified to reject the application filed under Section 227 Cr.P.C. and therefore, the decision vide Annexure-4 deserves to be interfered with and set aside. 6. Mr. Swain, learned AGA for the State, on the other hand, submits that the learned court below did not err or commit any wrong or illegality in declining discharge of the petitioner, who under a false promise of marriage, managed the consent of the victim and thereafter, deserted her. The further submission is that whether, it is a case of consent on misrepresentation of fact or fraud is to be ascertained during trial and therefore, the learned court below rightly refused discharge of the petitioner. The contention is that whether an offence of rape punishable under Section 376(2)(n) IPC is made out or not does not depend on the DNA report when parenthood is not in question. In other words, according to Mr. The contention is that whether an offence of rape punishable under Section 376(2)(n) IPC is made out or not does not depend on the DNA report when parenthood is not in question. In other words, according to Mr. Swain, learned AGA, an offence of rape entirely depends on the consent of the victim and whether, it was given under fear or misconception of fact, the same is to be examined during trial irrespective of any such report received after DNA profiling of the child born to her and therefore, it cannot be said that the learned court below, in any way, was at error in rejecting the application moved under Section 227 Cr.P.C. declining discharge of the petitioner from the alleged offence prima facie made out from the materials on record. 7. As earlier discussed, the F.I.R. was lodged in the year 2018. Admittedly, the chargesheet has been filed after two years from the time, the report was lodged. Initially, a case was registered by not having an offence under Section 376(2)(n) IPC, which was added in the chargesheet. The informant is the father of the victim and in the F.I.R. at Annexure-1, he has alleged that the latter was subjected to sexual exploitation by the petitioner on a promise of marriage and ultimately, it resulted in her pregnancy and giving birth to a girl child on 22 nd October, 2008. The statement of the victim recorded under Section 161 Cr.P.C. dated 13 th December, 2018 details the circumstances leading to the lodging of the F.I.R. In fact, the victim was examined on 24 th November, 2018 and for the second time later. From the materials on record, it is made to suggest that the victim, while working in a shop by the name of Sai Communication developed relationship with the petitioner. It is further revealed that after such a relationship, the victim became pregnant and it was learned by her family at last and also the reason behind the pregnancy. The petitioner, who had been in a relationship with the victim for about two years, declined to go for their marriage. It has been alleged by the informant that the petitioner instead abused and insulted him and his daughter, making aspersions to their caste and even threatened them with dire consequences. Consequent upon the above events unfolding, the F.I.R. was finally lodged. 8 . It has been alleged by the informant that the petitioner instead abused and insulted him and his daughter, making aspersions to their caste and even threatened them with dire consequences. Consequent upon the above events unfolding, the F.I.R. was finally lodged. 8 . The question is, whether, the alleged offences under Sections 376(2)(n) IPC and Section 3(1) read with Section 3(2) of the SC & ST(PoA) Act are made out against the petitioner for him to face the trial? Whether, it was justified on the part of the learned court below to decline discharge of the petitioner in juxtaposition to the materials on record? In K. Dinesh Kumar (supra), this Court while dealing with a case of present nature concluded that when physical relationship followed by a promise of marriage, which failed to materialize and thereafter, the accused avoided the victim and even declined to marry her and such being the reason behind lodging of the F.I.R. with an allegation of rape, it would not be proper to conclude that any such consent to be no consent in the eye of law for having been vitiated by misconception of fact or fraud arising out of promise to marry and therefore, for the sexual relationship between the parties with the promise of marriage, an offence of rape under Section 376(2)(n) IPC cannot be said to have been made out. 9. In Udaya (supra), the Apex Court lucidly described as to what would be the consent of a woman, whether, voluntary or under misconception of fact and held and observed that consent given by a prosecutrix to sexual intercourse with the accused, with whom she was in love and on a promise of marriage and to continue to have such relationship and finally became pregnant, resulting in lodging of the complaint when their marriage was not materialized, the consent under such circumstances cannot be said to be given under a misconception of fact. It is further held therein that a false promise is not a fact within the meaning of the IPC for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, but there is no strait jacket formula and each case has to be examined with reference to the surrounding circumstances of the case taking judicial notice of the fact that the prosecutrix aged about 19 years had sufficient intelligence to understand the significance and moral quality of the act, when she was consenting to; the victim conscious of the fact that her marriage with the accused was difficult on account of caste considerations; it was difficult to impute to the accused having knowledge that the victim had consented in consequence of a misconception of fact arising from his promise; and that, there was no evidence to prove conclusively that the accused never intended to marry the victim, hence, concluded that the conviction of the accused for an offence under Section 376 IPC is liable to be set aside. 10. The Apex Court in Amol Bhagwan Nehul (supra), while dealing with a similar case, wherein, the Bombay High Court declined to exercise inherent jurisdiction under Section 482 Cr.P.C. to quash a proceeding for offences under Section 376(2)(n) IPC and such other offences referring to its earlier decision in State of Haryana and others vs. Bhajan Lal and others , 1992 Supp (1) SCC 335 concluded that it would not be in the interest of justice that the accused should suffer an impending trial for the alleged offences taking cognizance of the fact that it was not even a case where there was a false promise to marry to begin with and that consensual relationship turned sour and when even accepting the allegations in the F.I.R. as true and correct depiction of the circumstances; consent of the victim not to have been obtained against her will and that, it was merely a relationship based on assurance of marriage between the parties. 11. In Pramod Suryabhan Pawar (supra), the Apex Court concluded that consent with respect to Section 375 IPC involves active understanding of the circumstances, actions and consequences of proposed act and an individual, who makes a reasoned choice to act after evaluating various alternative actions or inaction and possible consequences to emerge and consents to the relationship cannot be said to have no consent. It has also been held therein that where promise to marry is false and intention of the maker at the time of such promise was not to abide by it but to deceive the woman and to convince her to engage in sexual relation, there is a misconception of the fact that vitiates woman’s consent, whereas, on the other hand, a breach of promise cannot be said to be a false promise. In the above case, the allegations in the F.I.R. did not on its face indicated that the promise by the accused was false or that the victim was engaged in sexual relation with him on the basis of such promise of marriage and it was also found therein that there was no allegation in the F.I.R. that when the accused promised to marry, it was done in bad faith or with intention to deceive her and hence, concluded that the allegation does not establish commission of an offence of rape and at last, held that the criminal prosecution against the accused should have been quashed. 12 . In Prithiv Ranjan (supra), the Apex Court had the occasion to consider a similar charge levelled against the accused for an offence under Section 376 IPC for the reason that he had given false promise of marriage to the victim and thus obtained her consent for the sexual relationship but later backed out of his promise and referring to Section 90 IPC and what consent means and defined under law held and concluded that it was a relationship with consent of the parties in absence of anything on record to show that initial promise by the accused was false, rather, it was suggested that the alleged promise to marry could not be fulfilled due to some intervening circumstances. 13. Regarding the offences under the SC & ST (PoA) Act, the Apex Court’s decision in Karuppudayar (supra) is placed reliance on by Mr. Katikia, learned counsel for the petitioner, wherein, it has been held and concluded that taking the allegations in the F.I.R. at their face value, the alleged incident of abuse having taken place within the four corners of the wall, no such offence under Section 3(1)(r) or Section 3(1)(s) of the SC & ST (PoA) Act is made out since it had not taken place within the public view. In Hitesh Verma (supra), the Apex Court, while dealing with an appeal, wherein, one of the offences under Section 3(1)(r) of the SC & ST(PoA) Act about intentional insult or intimidation to humiliate a member of SC & ST was alleged, reiterated the law that it has to be within the public view distinguished from public place. A decision of this Court in Surendra Kumar (supra) is also referred to, wherein, it has been held that a sudden outburst and on the spur of moment without having the requisite intention to humiliate someone for being an SC or ST is not to attract an offence punishable under Section 3(1)(x) read with Section 3(1)(r) of SC & ST(PoA) Act. 14. In the case at hand, the Court is to consider whether there is any material to subject the petitioner to face the trial for the offences under Section 376(2)(n) IPC and SC & ST (PoA) Act. The offence of rape is punishable provided that there is no consent or consent of the victim was obtained by deceitful means or with a false promise of marriage without any intention to fulfil the same from the very beginning. 15. The offence of rape is punishable provided that there is no consent or consent of the victim was obtained by deceitful means or with a false promise of marriage without any intention to fulfil the same from the very beginning. 15. Apart from the decision in Pramod Suryabhan Pawar (supra), the Apex Court in Deepak Gulati vs. State of Haryana , (2013) 7 SCC 675 explained the distinction between a mere breach of promise and a false promise made with malafide intent from the inception and concluded that consent may be express or implied, coerced or misguided, obtained willingly or through deceit; consent is an act of reason accompanied by deliberation, the mind weighing as in a balance, the good and bad on each side; there is a clear distinction between rape and consensual sex and a Court must very carefully examine whether the accused had actually wanted to marry the victim or had malafide motive and made a false promise to that end only to satisfy his lust as the later falls within the ambit of cheating or deception; and there is a distinction between breach of promise and not fulfilling a false promise; the Court must examine whether from an early stage, a false promise of marriage was given by the accused and whether the consent involved was given after fully understanding the nature and consequences of sexual indulgence; there may be a case, where the victim agrees to have physical relationship on account of her love for the accused and not solely on the basis of a misrepresentation to her or where an accused, under the circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having the intention to do so and such cases must be treated differently and an accused can be convicted for rape only if the Court considers his intention to be malafide and that he had clandestine motives. 16. In Mahesh Damu Khare vs. State of Maharashtra and another , 2024 INSC 897 , it has been held by the Apex Court that a prolonged continuation of a physical relationship dilutes the element of deceit and the plea that the consent was obtained under a misconception of fact becomes implausible when the relationship continued for several years without protest. In Mahesh Damu Khare vs. State of Maharashtra and another , 2024 INSC 897 , it has been held by the Apex Court that a prolonged continuation of a physical relationship dilutes the element of deceit and the plea that the consent was obtained under a misconception of fact becomes implausible when the relationship continued for several years without protest. In Amol Bhagwan Nehul vs. State of Karnataka , 2025 INSC 782 , it has been cautioned by the Apex Court that every consensual relationship which later turns sour cannot be given a criminal colour as such invocation of criminal process amounts to an abuse of law. In Biswajyoti Chatterjee vs. State of West Bengal and another , 2025 INSC 458 , the Apex Court reiterated that a consensual relationship cannot be retrospectively branded as deceitful merely because of subsequent differences and that, the continuation of prosecution would constitute misuse of criminal process and it has been further held therein that there is a growing tendency of resorting to initiation of criminal proceedings after relationships turn bitter; every consensual relationship where a possibility of marriage may exist cannot be given a colour of a false pretext to marry in the event of a fall out; and it is such kind of a lis that amounts to abuse of process of law and under such circumstances, it would be proper to terminate the proceedings at the stage of charge itself. 17. In Ghulam Hassan Beigh vs. Mohammad Maqbool Magrey and others , (2022) 12 SCC 657 , it has been held and observed by the Apex Court that a Trial Court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere Post Office; the endorsement on the chargesheet by the police without applying its mind and recording brief reasons in support of the opinion by a Court is not countenanced under law, inasmuch as, the materials are to be evaluated only for the limited purpose of framing of charge and not to examine it meticulously as it would render the exercise, a mini-trial and all that is required at that stage would be for a subjective satisfaction that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence and for that, even a strong suspicion would suffice. In view of the above position of law, the Court is to consider, whether, it was for the learned court below to rightly decline discharge of the petitioner for the alleged offences, while dealing with an application under Section 227 Cr.P.C. 18. In the case of the petitioner, it has been alleged in the F.I.R. i.e. Annexure-1 that he sexually exploited the victim for about two years and at last, made her pregnant giving birth to a girl child in the year 2008. It has been alleged therein that the petitioner and the victim were in a relationship for two years out of a love affair and with a promise of marriage, such relationship continued despite the fact that the victim had no consent, which was managed with a false promise to marry her in future. According to the victim, who is admittedly a major, after she met the petitioner, their love relationship started and continued for two years back, while working together in a shop at Jagatpur. It is revealed from the record that out of love and affection, both developed physical relationship and it was claimed to be based on a promise of marriage. In fact, it is borne out of record that such relationship was continued and they stayed together in a rented house and furthermore, the petitioner was initially not inclined to abort their child. It has been alleged that during the period of entire stay, the petitioner with a false promise of marriage kept sexual relationship with her and as a result, she became pregnant and thereafter, the child was born in a hospital. The materials on record are to be examined for a limited purpose to reach at a conclusion as to whether there was any consent for the relationship between the victim and the petitioner. 19. Admittedly, the relationship between the parties was about two years old. It is alleged that the victim had consented to the sexual relationship only on a promise of marriage. To level a charge of rape, it has to be prima facie established that there was no consent of the victim or such consent was obtained by fraud or under misconception of fact. It is alleged to be a case of misconception of fact that the consent was given by the victim on a false promise of marriage. To level a charge of rape, it has to be prima facie established that there was no consent of the victim or such consent was obtained by fraud or under misconception of fact. It is alleged to be a case of misconception of fact that the consent was given by the victim on a false promise of marriage. Before that, it has to be concluded that the DNA report is not relevant while considering the charge of rape for having obtained the consent of the victim vitiated by fraud. The Court is not persuaded to consider the legality of the decision on charge levelled against the petitioner on the anvil of the DNA report and regardless of its result. Turning to the issue under consideration, the question is, whether, it was a false promise on the part of the petitioner to marry the victim from the beginning thereby managing the latter’s consent for a sexual relationship. It is really difficult to sustain such a claim advanced, when the relation between both continued for two long years. How to know that the consent has been vitiated on account of the fraud committed by the petitioner. It is obviously from one’s conduct from the beginning, not towards the end for having refused marriage. The reason behind any such refusal is not easy to fathom. In a relation of this kind, it is too difficult to ascertain the real intention of the person accused of rape. It is not revealed from the record that the petitioner managed to obtain the consent of the victim by fraud. Both the parties are grown up and adults and were fully conscious of the consequences of such a relationship even when it is built on a belief or promise of marriage. To brand the intention of the petitioner from day one as fraudulent with the sexual relationship developing and continued for a period of two years is a conclusion not readily coming forth from the materials on record. For the marriage avoided by the petitioner by itself would not be a ground to believe that he had no intention to keep up the promise given to the victim. It might be on an understanding that their marriage to happen in future or that, there was even a genuine promise to marry the victim that the relationship between them had blossomed. It might be on an understanding that their marriage to happen in future or that, there was even a genuine promise to marry the victim that the relationship between them had blossomed. To jump to a conclusion that the petitioner for having denied to marry the victim to make one believe his intention to defraud in obtaining the victim’s consent for the sexual relationship would be a proposition fraught with great amount of risk. It should be glaringly visible from one’s conduct from the beginning that there was lack of genuine intention to cement the relationship with a marriage. Nothing is discernable from the record to show and satisfy that the petitioner did a mischief in managing the consent of the victim only for the physical relationship without any real intention to fulfill the promise of marriage. At times, for certain reasons, which are normally not foreseen, cracks develop in relationships even when it stands on the pedestal of a belief or promise of marriage in future and the same is failed to materialize. In a relationship that lasted for two years between the parties, in absence of any such conspicuous instances in the conduct of the petitioner during the sustenance of relationship suspecting his conduct, it would be extremely difficult to accept that the victim’s consent was vitiated by fraud or misconception of fact. Had it been a case of managing the consent only to satisfy the lust and immediately abandoning the victim, it would have justified to allege fraud or a false promise of marriage. It is a case, where the marriage failed at the end of a relationship of two years for the reasons best known to the parties only. To allege that the consent was obtained under a misconception of fact or fraud, under the above circumstances, in the humble view of the Court, would be a misplaced conclusion to reach at even at the stage of framing of charge. Such is the view of the Court for the reason that one should not be allowed to suffer and face the ignominy with a trial for an offence, which he has not committed, prima facie proved from the materials on record. Such is the view of the Court for the reason that one should not be allowed to suffer and face the ignominy with a trial for an offence, which he has not committed, prima facie proved from the materials on record. The Court is alive to the legal position and the limitations to remain within the bounds of law, while considering a plea of discharge but cannot shut its eyes where no case is made out for trial. The distinction between breach of promise and a false promise from the inception is what a Court is to keep in mind while dealing with any such plea demanding discharge for an offence of rape. In the case of the petitioner, it would not be proper to make him face the trial for such an offence considering the entirety of the materials on record. The parties were well aware of the outcome of such a relationship while maintaining it for two long years and staying together under one roof and any such conduct of the petitioner towards the end even unusual in denying marriage would be grossly insufficient to lead to a conclusion that he managed the consent of the victim by fraud or it was given by her under a misconception of fact. It would at best be a case of breach of promise and not a false promise from day one and therefore, having regard to the case laws cited and settled position of law enunciated therein by the Apex Court, in the ultimate view of the Court, no case for an offence punishable under Section 376(2)(n) IPC is prima facie made out for the petitioner to face a trial. 20. With respect to the offences alleged under the SC & ST (PoA) Act, the same is required to be revisited by the learned court below in view of the plea advanced referring to the Apex Court’s decision in Karuppudayar (supra) and other case laws discussed herein before. It is also to be considered in view of the position of law that just by being an SC or ST, any excess committed does not lead to commission of the offences under the SC & ST (PoA) Act unless its essential ingredients are satisfied. 21. A ccordingly, it is ordered. 22. In the result, the revision petition stands allowed. It is also to be considered in view of the position of law that just by being an SC or ST, any excess committed does not lead to commission of the offences under the SC & ST (PoA) Act unless its essential ingredients are satisfied. 21. A ccordingly, it is ordered. 22. In the result, the revision petition stands allowed. As a necessary corollary, the impugned order dated 18 th November, 2024 as at Annexure-4 passed in connection with C.T. Case No. 23 of 2019 is hereby set aside to the extent as aforesaid thereby discharging the petitioner in respect of the offence under Section 376(2)(n) IPC only with a direction to the learned Special Court under S.C. & S.T. (PoA) Act, Cuttack to frame the charges accordingly with reference to the materials on record.