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Hon’ble Justice Dinesh Kumar Singh of Allahabad High Court on 25/09/2019 (Wednesday) passed an Order in the matter of Kamal Pal v. State of Uttar Pradesh & Another that the court does not have the jurisdiction to go into issues relating to appreciation of evidence under an application filed under section 482 of CrPC and that whether the accused had the intention to marry the victim based on which the victim gave the consent for the sexual intercourse is a subject matter of evidence.
The Appellant (Accused) approached the High Court, seeking direction to quash the charge sheet filed against him under various section of IPC (Rape, Kidnapping, Causing Hurt, Criminal Intimidation) and the consequent cognizance order passed by the CJM along with entire proceeding of the case. He claimed that he had been falsely implicated in the case because the victim wanted to marry him. He denied the allegation of Kidnapping, rape as well as assault and pointed out that no injury was found on the person of the victim. The Appellant had been alleged to have enticed the victim away and to have administered intoxication substance to her and commit rape of her and assured to marry her. Subsequently, when the victim asked to marry her, he refused to do so and instead commit assault to her.
The Counsel for the State opposed the application stating that “the court did not have the power to appreciate evidence which has been collected by the investigating officer under an application under section 482 of CrPC, as the same would require a trial.” They make reliance on the Apex Court judgement of Md Allaudin Khan v. State of Bihar & Ors[1] in which court stated that “High Court had no jurisdiction to appreciate the evidence of the proceeding under section 482 of CrPC, because whether there is contradiction in the statement of the witness is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during the trial when the entire evidence is adduced by the parties.”
Court make reliance on the judgement of Supreme Court in Anurag Sing v. State of Chhattisgarh[2] which held that, “if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offence can be said to have committed the rape as defined under section 375 of the IPC and can be convicted for the offence under section 376 of the IPC.”
Based on this, the court said that this question of consent and free consent is only possible to be decided after the trial. The court refused to quash the proceeding against the accused and disposed of the application.
[1] CA No. 675 of 2019
[2] 2019 SCC Online SC 509
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