Pinki Kumari Vs. State of Jharkhand and anr. - Court Judgment

Excerpt:
- constitution of india article 215: [m. karpaga vinayagam, cjm, .y.eqbal & amareshwar sahay, r.k. merathia, narendra nath tiwari, jj] contempt proceedings review powers of high court held, article 215 of the constitution vests the high court with all the powers of court of record including the power to punish for its contempt. this special jurisdiction is inherent in a court of record from the very nature of the court itself. the said special power is not subject to the procedural law either of the criminal procedure code or the contempt of courts act. the high court can deal with the matter summarily and can adopt its own procedure. however, if the high court initiates the proceeding as a court of record, principle of natural justice must be applied and the contemner should be given sufficient opportunity to know the accusation and to defend himself. in the instant case, the contemner was served with the notice to show cause. he was well aware of the accusation. he also admitted his guilt. in view thereof, contention of the contemner lawyer that he was not heard on merit of the contempt application and the impugned judgment of punishing petitioner in contempt of court is violative of principles of natural justice, is not tenable. article 215: contempt proceedings review of conviction held, it is the solemn duty of the bench and bar to maintain and uphold the majesty, authority and dignity of the courts for the sustenance and progress of democracy in our country particularly at the juncture when there are number of instances of outside attempt to disintegrate and destroy the democratic set up of our country. such conduct of a member of the bar brings the authority of the court and the administration of justice into disrespect, erodes and undermine the foundation of the judiciary by shaking faith and confidence of the people in the ability of the courts to deliver free and fair justice, it is a deliberate attempt to insult the high court and denigrate the authority and solemnity and court strongly deprecate such attempt made with biased attitude. such indiscriminate allegations against judges, who are the members of the bench, cannot be a ground for review of the impugned judgment. punishment of prohibiting appearance of contemner/lawyer before high court as well as courts under its jurisdiction is based on his repeated convictions for contempt in the past is not violative of article 19(g) of the constitution. no interference in exercise of review jurisdiction is warranted. - 2 always kept bad eye upon her.orderhari shankar prasad, j.1. this revision application under sections 397 and 401 of the code of criminal procedure, 1973 is directed against the order dated 29.8.2002 passed in sessions trial no. 111 of 2002.2. facts giving rise to filing of this application are that pinki kumari who is informant in this case lodged an fir with the ichak police station, hazaribagh stating inter alia that one amit kumar o.p. no. 2 always kept bad eye upon her. on 5.2.2001 there was a marriage ceremony in her village in the house of ishwari sao and she had gone there to wash utensils; in the midnight when she was sleeping in the house somewhere, o.p. no. 2 taking advantage of complete silence came near her and started playing with her body whereupon she woke up and she raised hulla but in the meantime, amit pressed her mouth and warned that if she raised hulla, then he would kill her along with her family members. she prayed not to do anything but he did ,not listen and committed rape upon her for the whole night, as a result of which she became pregnant. o.p. no. 2 amit kumar always assured her that he would marry her. ultimately he refused to marry her, then she was filed this case. on the basis of this written report, a case under section 376, ipc, was registered and i.o. after investigation submitted charge sheet against the o.p. no. 2 under section 376, ipc, and cognizance in the case was taken and the case was committed to the court of sessions. in the court of sessions charge under section 376, ipc, was framed against him but when trial was continuing, in the midst a petition was filed that no case under section 376, ipc is made out. in support of the contention, some rulings were also cited and on the basis of perusal of those case laws, learned court below came to conclusion that no case under section 376, ipc is made out because sexual intercourse continued for a long time with the consent of the petitioner and therefore, no case under section 376, ipc is made out in the facts and circumstances of the case, but came to a finding that case is made out under sections 493/417, ipc. learned court below considered in sahdeo pandit and ors. v. state of jharkhand and anr., 2002 (1) jcr 259 : 2002 (1) jljr 431 and sri kanta das v. state of jharkhand and anr., 2002 (2) jljr 152 which were cited on behalf of the accused. learned court below further considered vijay kumar v. state of jharkhand and anr., 2002 (2): femi-juris c.c. 129 and further anwar mian v. state of bihar, 1996 (2) east cr c 737 and accordingly passed the order that case is made out under sections 493/417, ipc. but cases which were cited on behalf of the accused, are related to such matters where prosecutrix had given consent from the very beginning and with her consent and on false pretext of marriage, sex relationship was established. the very fir discloses that consent was not given during the first time when the sex relationship was established with the petitioner by o.p. no. 2, at that time sex relationship was established against her will and without her consent on the threat of committing her murder and consent of the women should have been obtained prior to the act. it is no defence that woman consented after the act and consent of woman to sexual intercourse obtained by putting her in fear of death is no defence to an accused person for an offence under this section. in the instant case, for the first time, when the sex relationship was established, there was no consent but subsequently on the false pretext of marriage that consent was given and, therefore, this cannot be treated to be a consent from the very beginning and that the sex relationship established on the very first day, the case under section 376, ipc will definitely be made out.3. in that view of the matter, since consent has been there only after occurrence and not prior to that at the time of establishing sex relationship, the case is made out under section 376, ipc, and in that view of the matter, the order dated 29.8.2002 is set aside and learned court below is directed to proceed in the matter in accordance with law.

Judgment:
ORDER

Hari Shankar Prasad, J.

1. This revision application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 is directed against the order dated 29.8.2002 passed in Sessions Trial No. 111 of 2002.

2. Facts giving rise to filing of this application are that Pinki Kumari who is informant in this case lodged an FIR with the Ichak Police Station, Hazaribagh stating inter alia that one Amit Kumar O.P. No. 2 always kept bad eye upon her. On 5.2.2001 there was a marriage ceremony in her village in the house of Ishwari Sao and she had gone there to wash utensils; in the midnight when she was sleeping In the house somewhere, O.P. No. 2 taking advantage of complete silence came near her and started playing with her body whereupon she woke up and she raised hulla but in the meantime, Amit pressed her mouth and warned that if she raised hulla, then he would kill her along with her family members. She prayed not to do anything but he did ,not listen and committed rape upon her for the whole night, as a result of which she became pregnant. O.P. No. 2 Amit Kumar always assured her that he would marry her. Ultimately he refused to marry her, then she was filed this case. On the basis of this written report, a case under Section 376, IPC, was registered and I.O. after investigation submitted charge sheet against the O.P. No. 2 under Section 376, IPC, and cognizance in the case was taken and the case was committed to the Court of sessions. In the Court of sessions charge under Section 376, IPC, was framed against him but when trial was continuing, in the midst a petition was filed that no case under Section 376, IPC is made out. In support of the contention, some rulings were also cited and on the basis of perusal of those case laws, learned Court below came to conclusion that no case under Section 376, IPC is made out because sexual intercourse continued for a long time with the consent of the petitioner and therefore, no case under Section 376, IPC is made out in the facts and circumstances of the case, but came to a finding that case is made out under Sections 493/417, IPC. Learned Court below considered in Sahdeo Pandit and Ors. v. State of Jharkhand and Anr., 2002 (1) JCR 259 : 2002 (1) JLJR 431 and Sri Kanta Das v. State of Jharkhand and Anr., 2002 (2) JLJR 152 which were cited on behalf of the accused. Learned Court below further considered Vijay Kumar v. State of Jharkhand and Anr., 2002 (2): Femi-Juris C.C. 129 and further Anwar Mian v. State of Bihar, 1996 (2) East Cr C 737 and accordingly passed the order that case is made out under Sections 493/417, IPC. But cases which were cited on behalf of the accused, are related to such matters where prosecutrix had given consent from the very beginning and with her consent and on false pretext of marriage, sex relationship was established. The very FIR discloses that consent was not given during the first time when the sex relationship was established with the petitioner by O.P. No. 2, at that time sex relationship was established against her will and without her consent on the threat of committing her murder and consent of the women should have been obtained prior to the act. It is no defence that woman consented after the act and consent of woman to sexual intercourse obtained by putting her in fear of death is no defence to an accused person for an offence under this section. In the instant case, for the first time, when the sex relationship was established, there was no consent but subsequently on the false pretext of marriage that consent was given and, therefore, this cannot be treated to be a consent from the very beginning and that the sex relationship established on the very first day, the case under Section 376, IPC will definitely be made out.

3. In that view of the matter, since consent has been there only after occurrence and not prior to that at the time of establishing sex relationship, the case is made out under Section 376, IPC, and in that view of the matter, the order dated 29.8.2002 is set aside and learned Court below is directed to proceed in the matter in accordance with law.