Priya Gour
Published on :28 July, 2022 at 19:53 IST
The Bombay High Court rejected a writ petition where the Court was hearing petition challenging the Additional Sessions Judge’s order that rejected the petitioner’s discharge application.
The case was heard before the Single Judge NJ Jamadar who ruled that prima facie the Section 375 of the Indian Penal Code which talks about the rape seems to be attracted in the present case.
The case involved allegations made by prosecutrix actress by profession who married the accused in 2010, believing him to be a bachelor. The man did not disclose about his first marriage and later, on being confronted forged divorce documents for the first marriage.
Thereafter, prosecutrix registered the FIR in 2013 under Sections 420, 406, 467, 471, 474, 376, 323, 504, 506(i) and 494 of IPC along with application for annulment of the marriage
This was followed by a discharge application against the chargesheet filed, later rejected by the additional session’s judge citing insufficient ground to proceed against the petitioner, leading to the current plea.
The Court ruled their marriage to be invalid, upholding clause 4 of Section 375 of IPC applicable in the case “Where there is knowledge on the part of the man about he being not the husband of the prosecutrix and the consent is on account of such mistaken belief.”
The court ruled on the application of “fourthly “ clause of Section 376 of IPC – consent given under mistaken belief ,believing that the prosecutrix is married to the man . In the above conditions, the consent given for physical relations here would be considered invalid.
A profitable reference in this context was made to the judgment of the Supreme Court in the case of Union of India vs.Prafulla Kumar Samal and Anr. The Court strongly relied as the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
The court stated that the, “If the twin conditions mentioned under fourth clause of Section 376 of IPC are prima facie made out then the challenge to the prosecution on the ground that the physical relations were with the consent of the prosecutrix does not merit acceptance.”
The court concluded that a prima facie case against the petitioner has been made out and dismissed the petition.
