Chhattisgarh HC Refuses To Quash Rape And Atrocities Charges | Consent Under Promise Of Marriage Is Misconceived And Directs Framing Of POCSO Charges Based On Continued Exploitation
Sanchayita Lahkar
The High Court of Chhattisgarh Single Bench of Justice Narendra Kumar Vyas dismissed a criminal appeal challenging the framing of rape and atrocity charges while allowing a revision petition filed by the victim seeking inclusion of charges under the Protection of Children from Sexual Offences Act, 2012. The Court directed the trial court to frame charges under the POCSO Act and clarified that the applicability of such charges must be determined during the course of trial based on the evidence presented. The bench declined to interfere with the trial court's existing framing of charges under the Indian Penal Code and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
The matter arose from a complaint dated 01.11.2022 lodged at Police Station Pusour, District Raigarh, alleging that the appellant had engaged in sexual acts with the victim over several years, starting in January 2012. According to the complaint, the appellant initially met the victim in January 2009 during a badminton competition in Raigarh. They subsequently established contact and in January 2012, the appellant allegedly took the victim to his house and forcibly established physical relations, promising to marry her.
It was further alleged that despite the victim's resistance, the appellant continued to maintain sexual relations with her at different locations including Jaipur, Pahadganj Delhi, and Puri. In November 2018, the victim became pregnant and the appellant allegedly facilitated an abortion through administration of medication. Subsequently, on 09.02.2019, the appellant married another woman but continued his relationship with the victim, resulting in another pregnancy, which was also terminated under similar circumstances.
On 01.03.2022, during the occasion of Mahashivratri, the appellant allegedly took the victim to a Shiv Mandir, applied vermilion to her forehead in a ceremonial gesture of marriage, and resumed cohabitation. However, he later refused to marry her, subjected her to abuse referencing her caste, and physically assaulted her. It was also alleged that the appellant confined her in a rented house for 11 months, failed to pay rent, and subsequently assaulted her when she informed her sister of the events.
Based on this complaint, offences were initially registered under Sections 376 and 506 IPC. During the investigation, further provisions were invoked including Sections 3(1)(b), 3(2)(v) of the SC/ST Act and Sections 4 and 6 of the POCSO Act. The appellant filed an application under Section 227 CrPC seeking discharge from charges under the POCSO Act, citing that the act was not applicable retrospectively, given that it came into force only on 14.11.2012. The trial court rejected the application on 05.07.2023. A subsequent criminal revision (CRR No. 914 of 2023) resulted in an order dated 10.05.2024 from the High Court setting aside the earlier charge framing and directing the trial court to reframe charges based on the charge sheet.
Following the direction, the trial court framed charges under Sections 376(2)(n), 506 IPC and Sections 3(2)(v), 3(1)(r) of the SC/ST Act but did not include charges under the POCSO Act. Consequently, the appellant filed CRA No. 1589 of 2024 against the framing of rape and atrocity charges, and the victim filed CRR No. 706 of 2024 against non-framing of charges under the POCSO Act.
The appellant contended that the initial incident of rape occurred in January 2012, prior to the enforcement of the POCSO Act, which received Presidential assent on 19.06.2012 and came into effect on 14.11.2012. It was argued that retrospective application of criminal law is impermissible, and thus framing of charges under POCSO was unwarranted. It was further submitted that the victim was a consenting adult aware of the nature of the relationship, and no evidence substantiated claims of forced abortion or false promise of marriage.
Additionally, the appellant argued that the statement of the victim did not reflect a consent based on misconception of fact, and therefore Section 375 IPC was not attracted. The appellant also relied on his date of birth (02.07.1995), suggesting he was a minor at the time of the alleged incident in January 2012, and sought to be tried under the Juvenile Justice Act.
In contrast, the victim and State Counsel submitted that the sexual relationship continued till October 2022, making it a continuing offence. They argued that as the POCSO Act was in force during part of the alleged continuing offence period, and the victim was below 18 years of age until 30.11.2012, framing of charges under the POCSO Act was justified. It was further asserted that the appellant was above 18 years of age at the time of later offences, disqualifying him from juvenile status.
The High Court noted that the trial court had been specifically directed in CRR No. 914 of 2023 to reframe charges based on the charge sheet without deleting any charge. By not including POCSO charges, the trial court failed to comply with the directive.
The Court recorded in "From the charge sheet and the case diary, it is quite vivid that the complainant has lodged a written complaint on 01.11.2022 alleging that she came in contact with the appellant in the year 2009... wherein he made forceful physical relationship with her and when she became pregnant, the appellant aborted the pregnancy of victim by providing medicine."
In discussing the nature of continuing offences, the Court stated "In continuing offence the last date of commission of offence has to be taken into consideration and on the date if the accused had attained the age of 18 years by then he would not claim the benefit of juvenility."
Addressing the question of whether POCSO charges should be framed, the Court recorded "...this Court while allowing CRR No. 914 of 2023... directed to re-frame the charge... The trial Court without considering the order of this Court has committed illegality in not framing the charges under POCSO Act."
On framing of charges, the Court reiterated the principle that "...the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible... At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence."
The Court rejected the appellant's argument regarding consent, observing "Submission made by learned Sr. counsel that the victim is consented party and the act done by them falls within the ambit of consensual act and appellant is entitled to get protection in view of Section 375 IPC, is misconceived and deserves to be rejected."
On juvenility, the Court stated "This plea has not been taken by the appellant before the trial Court and even this plea requires enquiry as contemplated under the Act, therefore, the appellant is at liberty to take such plea before the trial Court which shall be considered and decided by the trial Court, in accordance with the law."
The Court concluded its observations by stating "Prima-facie case of framing of charge is made out against the appellant and there is strong suspicion against the appellant. Whether the allegations are true or untrue, shall have to be decided during the trial."
The Court directed that the revision petition CRR No. 706 of 2024 be allowed and the trial court be instructed to frame charges under the POCSO Act against the appellant. It stated: "The prosecution and the accused are at liberty to lead evidence to ascertain whether the offence under the POCSO Act is attracted or not which cannot be ascertained without appreciation of evidence in this regard in view of circumstances prevailing in the facts of the case."
Regarding CRA No. 1589 of 2024, the Court held: "I do not find any illegality or infirmity in the order impugned passed by learned Special Judge (Atrocities), Raigarh framing charges against the appellant for commission of offence under Section 376(2)(n), 506 Part II of the IPC and Sections 3(2)(v), 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is dismissed."
The Court clarified: "It is made clear that the trial Court will decide the trial without being influenced from any observation made by this Court on merit and evidence recorded before it."
Advocates Representing the Parties:
For the Petitioners: Mrs. Fouzia Mirza, Senior Advocate with Mr. Sooraj Jaiswal, Advocate; Mr. T.K. Jha, Advocate for the Applicant in CRR No. 706 of 2024
For the Respondents: Mr. T.K. Jha, Advocate with Mr. Tapan Kumar Chandra, Advocate for Respondent No. 2 in CRA No. 1589 of 2024; Mrs. Fouzia Mirza, Senior Advocate with Mr. Sooraj Jaiswal, Advocate for the Applicant in CRR No. 706 of 2024; Mr. Kishan Lal Sahu, Deputy Government Advocate for the State
Case Title: XXX v. State of Chhattisgarh & Ors.
Neutral Citation: 2025: CGHC:22670
Case Numbers: CRA No. 1589 of 2024; CRR No. 706 of 2024
Bench: Justice Narendra Kumar Vyas
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