important point
A promise of marriage deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.Challenge in this appeal is to the order passed by a learned Single Judge of the Patna High Court calling in question correctness of the judgment of the Additional Sessions Judge, Fast Track Court No.III, Buxar, in Sessions Trial No.280 of 2004, whereby the application filed by the appellant for discharge was rejected.

3.A brief reference to the factual aspects would suffice.

“Respondent No.2 lodged the First Information Report (in short the FIR) alleging that with an assurance that the accused-appellant would marry her, he had sexual relationship with her. When this went on for some time, the informant had been taken to a temple where in the presence of deity he accepted her to be his wife and there was an agreement of marriage entered into. Alleging that the accused was likely to get married with some other lady, an FIR was lodged. Investigation was undertaken and statement of the informant was recorded under Section 164 of the Code of Criminal Procedure, 1973 (in short the Code) wherein it was accepted that first with a promise of marriage, the accused had physical relationship with the informant and then, had married her. Since the accused disowned having ever married the informant and much less having ever had any physical relationship with her, she was forced to file the FIR. After investigation, charge sheet was filed wherein it was indicated an offence punishable under Sections 376 and 406 of IPC was made out. An application was filed by the present appellant before the trial Court for discharge in terms of Section 227 of the Code. By order dated 21.7.2005 the same was rejected. It was inter alia noted as follows:

“–.As a matter of fact the poor victim Binita Kumari was put under misconception of fact as promise to marry her by the accused and in this light the accused has done sexual intercourse with her. The accused had done such act with other girls also and further the accused has made a Akrarnama for marriage with the victim. The love letters and Akrarnama photocopy are also with the case diary and the same are on the record. From the case diary it is also clear that the accused has taken consent of the victim girl on a false promise of marriage and further a Akrarnama is also made here. Hence the consent is not with free will or voluntary act. Hence there are sufficient grounds for framing charge against the accused person.”

4.Charges were framed for offences punishable under Sections 376 and 406 of IPC. As noted above, the order was challenged before the High Court which rejected the application in summary manner holding as follows :

“The learned Judge finding sufficient material showing petitioners complicity in the crime rejected his prayer for discharge. I do not find any error in the same. Application stands dismissed.”

5.Learned counsel for the appellant submitted that the trial Court failed to notice that the lady accepted that whatever physical relationships were there were with her consent. According to her, she was married to the accused. That being so, the question of any offence punishable under Section 376 IPC does not arise.

6.Further, the ingredients of Section 406 IPC have absolutely no application. Even a bare reading of the statement recorded under Section 164 of the Code shows that Section 406 has no application. Section 406 IPC relates to punishment for criminal breach of trust. The expression criminal breach of trust is defined in Section 405. The same relates to only entrustment of property or dominion over the property. There is no allegation of any entrustment of any property in this case and therefore Section 406 does not apply to this case. The High Court should not have rejected the application summarily without even dealing with the submissions made by the appellant.

7.Learned counsel for the State submitted that though prima facie Sections 376 and 406 do not appear to have any application, yet the case is one which is covered by other Section