IMPORTANT POINT
Consent given for sexual intercourse based on a promise of marriage may not be considered a consent obtained on a misconception of fact, and the need for voluntary participation and active understanding in establishing consent.

JUDGMENT :

Tirthankar Ghosh, J.

1. The present revisional application has been preferred challenging the continuance of the proceedings arising out of Rabindra Sarobar Police Station Case no. 160/19 dated 29.07.2019 in connection with CG.R. Case no. 2682 of 2019 pending before the learned Additional Sessions Judge, Fast Track Court, no.6, Alipore under Section 376/417/313/506 of the Indian Penal Code wherein charge-sheet has been submitted under Section 376/417/506 of the Indian Penal Code.

2. The case was initiated on the basis of a complaint lodged by Paulami Majumdar (hereinafter referred to as the ‘complainant’) with the Officer-in-charge, Rabindra Sarobar Police Station. The complainant introduced her as a resident of South Breeze Residency, Saraswati Apartment, 2nd Floor, 15/3/16 Jheel Road, Kolkata – 700031. She lodged the complaint against Atanu Kumar Dey, a resident of South End Park, Pailan (Newmans Park, near South End Park Club) Kolkata – 700104. She alleged that she was in a relationship with the accused/petitioner for two years and knew him from his previous office ‘Webskitters Technology Solutions Pvt. Ltd.” from May, 2015. During such period they had physical relationship with each other in several places such as Bakkhali, friend’s home, at her house (several times), at the house of the accused (several times), Guwahati, Darjeeling, Falta and Puri. The complainant alleged that at that time the accused committed to get married and she became pregnant during May, 2018 which she informed him. Initially the accused represented that there should be a pregnancy test report and if it is positive then he would marry her then and there, after that the accused asked her to go for abortion. At the time of abortion the accused committed to get married with her and also mentioned that he would not leave her in any circumstances. They had been to Dr. Sanjib Mukherjee for abortion and aborted the baby. The family members of both of them were aware about the relationship and earlier the family of the accused approached her family for marriage. The complainant alleged that recently (July 2019) they went to Guwahati and had physical relationship and she asked him for her late periods for a pregnancy test kit and he wrote an e-mail that he would meet her on 28.07.2019 at Tollygunge but he did not arrive there on the pretext that his mother will call her family and take her parent’s permission whether he would meet her or not. Till date nobody called on behalf of his family and neither the accused helped her out with the pregnancy kit. The complainant alleges that the accused is having some photographs of private moments with which he has threatened that he would disclose and divulge the same in public forum and also threatened to destroy her. Previously the accused abused her and also used slang languages. When she called his mother for complaining against him she blocked her and did not even bother to reply to her. The accused and his family was completely ignoring her in spite of the fact that the accused committed to get married with her. The complainant sought the help of police authorities and stated that she is interested in marrying the accused and family of the accused cannot deny her after what happened to her. She further complained that the accused and his mother is beyond any contact as they have blocked her over phone, whatsapp and messenger. She complained that she was also assaulted by the accused in the year 2018 and had eye injury. She requested for taking action against the accused.

3. The investigating agency on receipt of such complaint registered the case and proceeded for investigation and on conclusion of investigation submitted charge-sheet under Section 376/417/506 of the Indian Penal Code.

4. Mr. Sourav Chatterjee, learned Advocate appearing for the accused/petitioner submitted that the present case fails to make out any offence under Section 417/376 of the Indian Penal Code. It has been submitted that both t