SECTION 209 CODE OF CRIMINAL PROCEDURE SCOPE

Saleha Khatoon vs State Of Bihar And Ors. on 28 April, 1988

Equivalent citations: 1988 (36) BLJR 678

Bench: L Shahadeo

Saleha Khatoon vs State Of Bihar And Ors. on 28/4/1988

JUDGMENT

L.P.N. Shahdeo, J.
1. This application under Section 482 of the Code of Criminal Procedure is directed against the order dated
18-12-87 passed by the Sri B. B. Verma, Subdivisional Judicial Magistrate, Sitamarhi (West) in G. K. Case
No. 11/86 (T.R.No. 994/87). It appears that a complaint case was filed before the Sub-divisional Judicial
Magistrate on 5-12-87 stating therein that the complainant was alone in her house. The opposite party No. 2
came to her house and induced her to work as maid servant. The petitioner worked as maid-servant and,
thereafter, on the pretext of marriage, the opposite party No. 2 committed rape on her and, thereafter, he
refused to marry. Ultimately it was detected that the accused opposite party No. 2 was a married person
having children. It was detected that the complainant lady was also married lady. The petition of complaint
was referred to the police for investigation. The police registered a case under Section 376 and 498 of the
Indian Penal Case and ultimately submitted charge sheet against opposite party No. 2 i.e. the accused at the
close of the investigation. ,
2. It appears that the learned Magistrate had taken cognizance of the offence under Section 376 and 498 of the
Indian Penal Code and, thereafter, it appears, the learned Magistrate, by the impugned order, decided to
proceed for trial of the case against the opposite party No. 2 under Section 498 of the Penal Code and declined
to commit him u/s 376 Indian Penal Code to the court of Session under Section 209 of the Cr.P.C. This order
refusing to commit the opposite party No. 2 Jafar Alam, to the Court of Sessions to face charge under Section
376 of the Penal Code is the subject of quashing in this case.
3. It was contended on behalf of the petitioner-lady, Saleha Khatoon that opposite party No. 2, under false
pretext and allurement that he would marry her, committed perpetual rape on her in between 20-4.85 to
28-11-85 though he was a married person having family life and children.
4. Both the parties have argued at length with respect to the scope of Section 209 of the Code of Criminal
Procedure. Learned counsel appearing on behalf of opposite party No. 2 has drawn my attention towards the
necessary ingredients to constitute an offence of rape as enumerated under Section 375 of the Penal Code,
5. It is true that the learned Magistrate is not supposed to act blindly within the scope of Section 209 of the
Cr.P.C. but he is vested with limited discretion to consider limited matters which have been well described in
a judgment of the Supreme Court reported in 1978 Cr.L.J. 642 that the learned Magistrate has scope to creep
through narrow hole to find out whether a prima facie case is made out for commitment or not.
6. In this case during the course of police investigation the police had also that a case under Section 386 of the
Penal Code along with a case under Section 498 of the Penal Code was made out and in consequence of that
chargesheet was submitted at the close of the investigation. The chargesheet which is on the record, shows
that opposite party No. 2 on giving false assurance and allurement that he would marry with the petitioner ,
developed sexual connection with her. The ordersheet of the learned Magistrate, after receipt of the
chargesheet which he passed on 5-7-86, shows that he had perused the chargesheet, the case diary and all the
materials available and, therefore, being satisfied on the materials placed before him and after applying his
judicial mind, took cognizance of the offence under sections 376 and 498 of the Penal Code So, at this stage,
the learned Magistrate, on application of the judicial mind, was satisfied that a case under Section 376 of the
Penal Code was made out which was exclusively triable by the court of Sessions. Therefore, on the facts and
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circumstances stated above, prima facie a case under Section 376 of the Penal Code, according to the own
appraisal of the evidence by the learned Magistrate, was established and it is so, the learned Magistrate was
bound to commit the case to the court of Sessions within the scope of Section 209 of the Cr.P.C.

7. The next important point which requires consideration and determination is with regard to the ingredients
necessary to constitute an offence of rape. The ingredients necessary to constitute an offence of rape. The
illustrated in Section 375 of the Penal Code which indicates that if sexual inter course is done without her
consent and if consent is obtained when the man knows that he is not her husband and that her consent is
given because she believes that he is another man to whom she is or believes herself to be lawfully married is
rape.
8. Much was argued on behalf of opposite party No. 2 that in this case none of the ingredients aforesaid, prima
facie, establish to show that an offence of rape was committed. The first point which attracts my attention is
the second ingredient without her consent'. Consent always means free will or voluntary act. In this case
consent was obtained on the basis of some fraud and allurement or practising deception upon the lady on the
pretext that ultimately she will be married and under that pretext she allowed opposite party No. 2 to have
sexual intercourse with her. Therefore, this tainted consent or a consent of this nature which is based on
deception and fraud, cannot be termed, prima facie, to conclude that it was 'with consent'. Had the lady known
that ultimately she would be deserted, the facts and circumstances stated above and the materials placed
would go to show that she would have refrained giving such consent. Then a question would arise what was
the purpose for which she gave consent. It was a fraud that was practised on her or she was deceived by giving
false assurance. Such type of consent must be termed to be consent obtained without her consent. Consent
obtained by deceitful means is no consent and comes within the ambit of ingredients of the definition of rape.
9. The next ingredients which arises in this case is that the opposite party No. 2 never pretended himself that
he was the husband of the lady or a married man but always pretended to the extent that he would become her
husband and proposed her to marry. This shows that he had given a false impression that if she allows to
cohabit or permits him to have sexual intercourse, she would be married and he would treat her as her married
wife. Without discussing much into the matter and probing further deeply into the case- prima facie, suffice it
to say that this part of ingredient is also attracted to make out a case of rape. The detailed discussion is
required during the course of trial. No body should be allowed to reap the benefits of his fraud in sexual
matter.
10. Whether a case of Section 376 of the Penal Code is made out or not is yet available for determination and
argument on behalf of the opposite party No. 2 at the stage of framing of the charge before the court of
Session under the provisions of Section 227 of the Code of Criminal Procedure. So, the opposite party No. 2
is, in no way, being put to any hardship if he is committed to the court of Sessions to face his trial because at
this stage the matter cannot be investigated and tried and it is yet to be seen at the appropriate stage. In the
circumstance, the refusal by the learned Magistrate to commit him to the court of Sessions has resulted in
miscarriage of justice.
11. The scope of Section 269 Cr.P.C. is narrow and limited one. The Magistrate is not required to balance and
weigh the evidence as the trial court. He is required to apply his judicial mind for consideration as to whether
case for commitment to the court of Sessions for trial is made out or not if materials and facts are available on
record or diary remain unrebutted. If Such a case is made out, he is to commit the case for trial to the out of
Sessions. In the instant case, the Magistrate in 7 pages' order discussed all the materials in detail as if holding
a full dress trial which is beyond the scope of an . enquiry under Section 209 of the Code of Criminal
Procedure. In this view of the matter also, his order cannot sustain.
12. For the reasons aforesaid, this application is allowed and the impugned order passed by the learned
Magistrate is set aside and he is directed to commit opposite party No. 2 to the court of Sessions to face his
trial.